Last-Minute ACLU Appeal Allows Cuban Activist To Take his Message to the Skies

Affiliate: ACLU of Florida
February 24, 2001 12:00 am

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MIAMI, FL–Responding to a last-minute appeal by the American Civil Liberties Union of Florida, a federal appeals court today lifted a gag order preventing an exiled Cuban activist from making a memorial flight to commemorate the fifth anniversary of the Cuban military shoot-down of two civilian planes flying over the Florida straits.

The ruling by the 11th Circuit Court of Appeals ruling permits Cuban exile leader Jose Basultó and other members of his exile group Brothers To The Rescue to fly over “Martyrs’ Point” – the area in international waters where four civilians were killed five years ago when Cuban MiGs attacked their Cessnas. Basultó has made the memorial flight every year since 1997.

“Mr. Basultó is a public figure who has continuously used speech and activities to get his message out to the Cuban people,” said ACLU of Florida Legal Director Randall C. Marshall, who drafted the emergency motion. “But because of such vague and overbroad gag orders he was basically at the court’s mercy, left to determine – on his own – whether anything he said or did would cause him to be in contempt of court.”

In orders issued by U.S. District Court Judge Joan A. Lenard less than four hours after the ACLU of Florida filed an 18-page motion defending, a three-judge panel ruled that it was inappropriate to apply the broadly-worded and unclear restriction to Basultó’s “proposed activities.”

The Eleventh Circuit order also allows Basultó to continue coordinating a petition drive calling for the indictment of Cuban President Fidel Castro and others for the murder of the pilots and passengers.

Judge Lenard is presiding over the ongoing trial of alleged Cuban spies, and Basultó is one of the primary witnesses in the widely publicized case. He could have faced jail time for violating the Feb. 16 and Feb. 22 court orders, which prohibited him from making “extrajudicial statements” or taking “actions intended to influence the public opinion or the jury regarding the merits of the case.”

In the emergency motion, the ACLU argued that Judge Lenard’s orders had a “severe chilling effect on Basultó’s protected speech.” The order could have been applied “to prevent Mr. Basultó from talking on a street corner … and to silence the message of his organization. Ultimately, it appears that the court seeks to prevent Mr.Basultó from taking his message to the Cuban people.”

The ACLU of Florida will continue to represent Basultó while the criminal spy trial is in progress to ensure that his future actions are fully protected under the First Amendment.

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