Dramatic events surrounding fight for Elián highlight the First Amendment in action

Monday, April 24, 2000

Maybe the government used too much force. Maybe the relatives in Miami left
Janet Reno no choice. Maybe everyone cared too much about this little boy. Maybe
no one cared enough.

Overnight polling results aside, these questions aren’t easily answered.
Legitimate arguments can be made from a variety of perspectives, and the law,
unfortunately, seems to raise more issues than it resolves. In a weekend
saturated with live Elián González coverage, in fact, only one position seemed
utterly preposterous.

That position, not surprisingly, was the one uttered most often by
opportunistic politicians. We should be ashamed, they said. Look what we’ve
become. This is how Fidel Castro would have resolved the situation.

Nothing could be further from the truth. While the Cuban government might use
force in a similar situation, the similarities end there. And the differences
that remain remind us why the First Amendment is so important.

Under no circumstances, for example, would the oppressive Castro regime have
allowed scores of media outlets to stake out the Miami home of Elián’s
relatives. Before the raid, Cubans would not have seen the live reports, the
interviews with psychologists or the footage of a little boy playing happily
while his relatives openly defied the government.

Nor would Castro have allowed the dramatic coverage of the raid. Cubans
wouldn’t have seen the breaking down of the door, the masked government agents
or the crying Elián. And had a journalist attempted to photograph the taking of
Elián, the agent almost certainly would have turned the gun on him, confiscated
the camera and destroyed the film.

Post-raid Cuba also would have been much different than post-raid Miami.
Police in riot gear would have stopped the demonstrations, not controlled them.
Every reporter and every camera operator would have been removed from the
streets, by force if necessary. News of the raid and the reaction to it would
have been doled out by the state, not served in heaping portions by hundreds of
newspapers, broadcast stations and Web sites.

Because of the First Amendment, the U.S. government’s handling of the
situation was — for better or worse — played out almost entirely in public view.
Agency determinations, court rulings and legislative actions were open to public
scrutiny and debate. Participants in the negotiations, though perhaps without
the purest of motives, spoke with the media often and freely. Then came the raid
itself, conducted under the glare of spotlights from rolling cameras.

The coverage of these events, of course, was not without incident. An NBC
cameraman and a soundman were struck by agents during the raid. Five journalists
were arrested while covering post-raid demonstrations. Until more facts are
known, it is difficult to assess whether these incidents resulted from
aggressive law enforcement or overzealous newsgathering. Overall, though, the
coverage of this story was amazingly free.

While the members of the media exercised their First Amendment rights to
gather and disseminate the news, thousands of citizens exercised their First
Amendment rights to assemble, protest and speak. Staged and unstaged, protests
and press conferences dominated the weekend, from Little Havana to Andrews Air
Force Base to Capitol Hill. From people on the street to university professors,
talking heads filled the airwaves. And when the government responded, it did so
with its own speech and its own press conferences, not with censorship and mass

The comparisons with Castro’s Cuba, while misplaced, valuably remind us of
the First Amendment freedoms we so often take for granted. Whatever conclusions
one reaches about the events of this weekend, no excuse exists for being
uninformed. As it so often does, the First Amendment has produced the
marketplace of ideas it was designed to foster.

Douglas Lee is a partner in the Dixon, Ill., law firm of Ehrmann Gehlbach
Badger & Lee and a legal correspondent for the First Amendment