“TV and the End Of Reflection”
– Brent Staples
A panel of judges in Florida’s Third District Court of Appeals is now considering the case of an outspoken retired diplomat who is seeking not only personal justice but also is fighting for a fundamental principle of democracy against an organization that seems bent on destroying free speech in the United States under the guise of establishing it in Cuba. While Smith vs. Cuban American National Foundation appears to be a routine defamation case in which Wayne S. Smith, former head of the U.S. diplomatic mission in Havana, is appealing a Miami jury’s verdict against him, it actually is a complex web involving bare-knuckle Washington politics, an article in a national opinion magazine, and ultimately the First Amendment.

The combatants in the case are long-standing political adversaries in the contentious debate over U.S. foreign policy toward Cuba. In one corner is the Cuban American National Foundation, a tax-exempt foundation that represents the interests of the right wing of the Cuban exile community and is a strident opponent of the government of Fidel Castro. The late Jorge Mas Canosa, CANF’s founder and chairman until his death from cancer earlier this year, was a veteran Castro hater who aspired to be the next president of Cuba. With the substantial financial backing from other wealthy exiled businessmen and a willingness to brand opponents as Communist sympathizers, Mas Canosa and his organization became feared and effective players in the corridors of power in Washington. The controversial Mas Canosa and other foundation leaders frequently appeared in the media or testified before congressional committees advocating tough measures against the Castro regime and have been extraordinarily successful in pushing both Republican and Democratic administrations to strengthen the U.S economic embargo on Cuba. Their goal, they contend, is to bring freedom and democracy to their homeland.

Equally vocal is Wayne Smith, formerly head of the Cuban desk at the State Department and of the U.S. Interests Section in Cuba until he retired from the foreign service in 1982, disgruntled with the Reagan Administration’s confrontational approach to dealing with the Castro government. Smith, who now teaches at The Johns Hopkins University and is a fellow in a Washington think tank, the Center for International Policy, has since become a leading critic of U.S. policy toward Cuba and especially CANF’s influence on that policy. He often writes for major newspapers and appears on television skewering Washington policymakers, Mas Canosa and others who he believes are blocking a rational dialogue over the Cuban problem.

That outspokenness is what got him in trouble, at least with Mas Canosa. In 1992 Smith was interviewed by filmmakers from the University of West Florida for a documentary titled “Campaign for Cuba,” which aired on PBS that year. Smith’s statements on that program formed the basis of CANF’s lawsuit against him. In a 20-second soundbite, he summarized an article by John Spicer Nichols that appeared in The Nation in 1988. The article, titled “Cuba: The Congress; The Power of the Anti-Fidel Lobby,” reported that the National Endowment for Democracy, a quasi-governmental institute that funnels U.S. tax dollars to projects intended to support democracy abroad, signed contracts with CANF from 1983-1988 awarding the foundation grants totaling $390,000 for the purpose of supporting a European organization also seeking to marshal opposition to the Castro government.

During that same period, the political action committee associated through interlocking directorships with CANF gave a nearly identical sum of contributions to political candidates. Among the candidates to receive a portion of this PAC money was then Congressman Dante Fascell, who introduced the legislation creating NED and later became a member of the NED board. As a board member, Fascell, whose congressional district in South Florida encompassed the headquarters for CANF and the homes of many of its leaders, voted for grants to CANF on at least three occasions.

Nichols, a Penn State communications professor and a long-time professional colleague of Smith, argued in the article that when CANF received a windfall of NED grants to carry out activities it would have otherwise supported with internal funds, its associated PAC (which is funded by essentially the same pool of donors) has a greater percentage of existing funds to contribute to political campaigns. However, as long as CANF and its PAC were separate legal entities and none of the actual NED money went directly to the PAC, federal law was technically not broken, but the spirit of the law was nonetheless compromised.

Nichols, Penn State, The Nation and PBS were not sued. CANF targeted only its perennial critic Wayne Smith. CANF asserted during the 1996 trial that Smith had falsely alleged in his broadcast remark that the foundation transferred the same money received from NED to its PAC, which would be a violation of law and therefore defamatory. Here’s exactly what Smith said: “It is interesting that the National Endowment for Democracy has contributed to the Cuban American National Foundation and it, in turn, through its own organization, through its PAC, has contributed to the campaign funds of many congressmen, including some who were involved with the National Endowment for Democracy—from whence they got the money in the first place—such as Dante Fascell.”

Smith testified that his statement was an essentially accurate summary of the article and did not allege criminal activity by the foundation. But the Miami jury sided with CANF and awarded it $40,000 in damages.

Notwithstanding the jury’s interpretation of the accuracy of Smith’s words, the trial court verdict against him was totally at odds with established constitutional law and is likely to be reversed on appeal. The U.S. Supreme Court ruled in its 1964 landmark decision New York Times Co. vs. Sullivan that to ensure a vigorous and open debate about public issues that is essential to the proper functioning of a democracy, the press and individual citizens must be able to scrutinize and criticize public officials without fear of having to later justify the accuracy of their statements in court. That standard was extended a few years later to cases involving other public persons. Otherwise, the press and other participants in the public debate would tend to censor themselves to avoid subsequent retaliation, and a free flow of information necessary to democratic self-governance would be undermined.

To this end, the Supreme Court established a tough standard for proving defamation against a public figure. The plaintiff must not only prove that the statement is false and damaging to one’s reputation but also must demonstrate “actual malice”—that the defendant made the statement with knowledge of its falsity or with reckless disregard for the truth. CANF failed by far to meet this standard. At the trial, Nichols testified that his article was accurate, and the PBS documentary maker, Churchill Roberts, testified that he was satisfied as to the accuracy of his program, including Smith’s statement. CANF’s lawyers offered no evidence to contradict their conclusions. Nichols further testified that he told Smith before the documentary aired that CANF’s objections to the soundbite were themselves inaccurate and that Smith had expressed confidence that he had spoken the truth. In short, actual malice was not proved with clear and convincing evidence, as required.

Although the appellate court will likely overturn the judgment on these grounds, prevailing in court probably was not CANF’s primary goal. Its lawsuit against Smith is an example of a burgeoning category of litigation in which citizens exercising their First Amendment rights are intimidated or retaliated against. The Political Litigation Project at the University of Denver has coined the term SLAPP—Strategic Lawsuit Against Public Participation—to describe this legal phenomenon. The Project defined the term as follows: “A civil suit filed against nongovernmental individuals or organizations because of their communications to government bodies, government officials or the electorate on a substantive issue of some public interest or concern.”

This case fits the typical SLAPP scenario. Smith was certainly within his rights to communicate this information to the PBS audience (the electorate), yet he was sued for speaking out. The most common ground for a SLAPP is defamation, followed by a range of business torts, including interference with a business relationship. The basis for the lawsuit is less important than the motivation. SLAPP filers have a two-fold mission of punishing opponents who have spoken out and warning others that they will suffer similar consequences should they dare to participate in public discussions.

Speaking immediately after the trial, CANF chairman Mas Canosa described the verdict as “a defeat for [the liberal press], which over many years has given legitimacy to the regime of Fidel Castro.” Mas Canosa added his hope that the jury’s decision would result in a change in coverage of Cuban exiles and threatened further lawsuits against media and others friendly with the Castro government who are a part of a “conspiracy” to defame his organization. In an effort to stifle the opposition, CANF removed the debate over U.S. policy toward Cuba from the political stage to the courtroom, thereby gaining a competitive advantage given the financial and emotional costs associated with defending a lawsuit.

CANF targeted the one individual it wanted to punish when other parties could have been included in the lawsuit. Even without winning the lawsuit, CANF will accomplish its goal if Smith is dragged through the litigation process long enough to deter him from publicly opposing the organization in the future or discouraging others from doing the same.

The chilling effect of SLAPPs on future speech has been documented. Researchers at the University of Denver found some damaging consequences for democratic self-governance. Sociologist Penelope Canan found that people targeted by such actions are less likely to participate in future public issues or discussions. Further, she learned that even the threat of SLAPP keeps citizens from participating. Even people who merely know about SLAPP are less likely to participate than those who are not aware of this phenomenon.

On balance, the constitutional rights of citizens to participate actively in public discourse, as guaranteed by the First Amendment’s speech, press, and petition clauses, far outweigh the SLAPP filer’s retaliatory motivation. Indeed, SLAPPs are ultimately about First Amendment rights. Essentially, targets are being punished through burdensome litigation for exercising a guaranteed right. Nothing could be more antithetical to a democratic form of government.

Recognizing the policy implications of such a misuse of litigation, 12 states have passed anti-SLAPP laws to ensure that the citizens’ right to participate in the political process is not subverted through protracted litigation. In those laws, three points are critical. First, the SLAPP filer must be stopped early before mounting legal costs crush the target into quiet submission. Accordingly, a procedural device designed to strike the lawsuit within a decidedly short period of time is essential. Second, these states recognize that protecting a person’s right to speak out on issues of public concern is a pivotal part of a functioning democracy, and thus a qualified immunity for comments made in furtherance of this right is also needed. Third, acknowledging the enormous financial burden associated with defending a SLAPP, most states have included a provision for recovery of attorneys fees and costs.

Anti-SLAPP statutes now exist in California, Delaware, Georgia, Massachusetts, Minnesota, Nebraska, Nevada, New York, Oklahoma, Rhode Island, Tennessee, and Washington. Unfortunately for Wayne Smith, Florida has yet to pass an anti-SLAPP law. Florida’s Attorney General, Robert A. Butterworth, has generally supported the need for anti-SLAPP legislation. Yet, passage of these laws has been slow in every state considering them. Entrenched interests that find SLAPPs to be a useful tactic come out in force against these measures and are typically successful in blocking such bills the first time around.

Without the benefit of an anti-SLAPP statute in Florida, Smith and his pro bono attorneys, Richard Ovelmen and Alfredo Duran, are continuing to fight the arduous battle for the right to criticize public figures and policies, a right that ironically is supposed to distinguish U.S. democracy from the Cuban system.

John S. Nichols is an Associate Professor of Communications at Penn State University where he teaches international communications. A specialist in Cuban media issues, Nichols has traveled frequently to the island for over two decades, and his research on the subject has appeared in dozens of academic and popular publications. He is currently writing a constitutional history on the right to international travel, especially for journalists and other information gatherers seeking to cover enemy countries, such as Cuba.

Robert D. Richards is an Associate Professor of Journalism and Law and founding director of the Pennsylvania Center for the First Amendment at Penn State University. He is a nationally known expert on First Amendment issues. His writings include “Uninhibited, Robust, and Wide-Open: Mr. Justice Brennan’s Legacy to the First Amendment” (Parkway Publishers, 1994) and his latest book, “Freedom’s Voice: The Perilous Present and Uncertain Future of the First Amendment” (Brassey’s, Inc., 1998).

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