Verdict favoring exile group is reversed

The Miami Herald February 4, 1999 Verdict favoring exile group is reversed

By DAVID LYONS
Herald Staff Writer

             In a ruling hailed by the defense as a boost for free political debate in South
             Florida, a state appeals court Wednesday reversed a libel verdict won by the
             Cuban American National Foundation against Wayne Smith, a frequent critic of
             the organization and former head of the U.S. Interests Section in Havana.

             But the Miami-based exile foundation, which maintains a longstanding policy of
             going to court over statements it believes to be untruthful and hurtful to its
             members, vowed to seek the verdict's reinstatement in the Florida Supreme Court.

             The appellate court said Smith did not defame the foundation, and that the trial
             judge made a mistake when he failed to explain to the jury that a statement is not
             libelous if it is ``substantially true,'' even though it contains technical falsehoods.

             Smith, now a professor at Johns Hopkins University in Baltimore, was sued by the
             foundation in 1993 over remarks he made about the group in a PBS documentary
             entitled Campaign for Cuba, which had aired the year before.

             After a trial in 1996, a jury found that Smith libeled the foundation when he said
             that it funneled public money earmarked for democratic movements through its
             political action committee and into the campaign coffers of politicians. The panel
             agreed with the foundation's underlying assertion that Smith had implied the group
             was involved in criminality or corruption.
             The jurors -- two Cuban Americans, two white non-Hispanics, one Nicaraguan
             American and one African American -- awarded $10,000 in compensatory
             damages and $30,000 in punitive damages after concluding that Smith intentionally
             tried to harm the foundation.
             cxoff

             But in their 13-page ruling, the three-judge appeals panel of Joseph Nesbitt, David
             Levy and Rodolfo Sorondo declared that W. Thomas Spencer, the Miami-Dade
             circuit judge who presided over the trial, committed two critical errors.

             They said he improperly excluded from evidence the entire documentary, admitting
             only clips of the broadcast that showed portions of an interview with Smith. That
             failure, they said, provided the jury with ``no context for the substance of Smith's
             statement.'' Although the jury did not view the entire broadcast, the appellate panel
             did.

The second error arose, the appellate judges said, when Spencer refused to
instruct the jury on the defense of ``substantial truth.''

             Under that concept, even if a statement is technically false, it is ``substantially true
             because there would not be a different effect in the mind of the average viewer
             who watched the documentary without the allegedly false statement, as opposed
             to with the statement,'' the appeals court said.

The panel not only overturned the jury verdict, but entered a judgment in Smith's
favor.

Smith and his attorneys called the ruling a victory for the First Amendment.

             ``The opinion is a ringing defense of First Amendment rights with respect to
             political speech,'' said Miami lawyer Rick Ovelmen, who argued the appeal. ``The
             appellate court of South Florida has jealously guarded the right of the public to
             speak on political controversies. Hopefully, powerful organizations will learn that
             libel suits are not the way to resolve political debates.''

From his office in Baltimore, Smith said he felt vindicated and relieved, but ``not
surprised by the outcome.''

             ``Once we were stuck with a jury trial in Miami, I really had doubts we would win
             on that first round,'' he said, ``but eventually, the law would prevail and we would
             win.''

             Smith was referring to the passions evoked in Miami by heated political debates
             over U.S. policies toward Cuba. A frequent critic of the foundation -- which has
             helped shape American policy toward the communist island for nearly two
             decades -- Smith defended what he said in the broadcast, much of which came
             from material written by others.

             ``What I said was essentially true,'' Smith declared. ``Had the judge permitted the
             entire documentary to be shown so my statements would be seen in context, I
             don't think there was any doubt about it. I was not suggesting the foundation was
             guilty of any criminal activity.''

Miami lawyer Alfredo Duran, who represented Smith at trial, agreed.

``Wayne Smith was vindicated in this case,'' Duran said. `The Third DCA basically
said he was telling the truth and there's no defamation in the case.''

             But New Orleans attorney George Fowler III, who represents the foundation, said
             the appellate court missed the point. He said he spoke Wednesday to the
             foundation leadership, which wants to appeal the DCA opinion.

He said the decision ``overlooks'' Smith's account of the origins of foundation
money that went to politicians.

             ``It was a unanimous jury that found Wayne Smith had lied,'' Fowler said. ``The
             documentary they mentioned simply has nothing to do with his statement, in our
             view, and adds or detracts nothing to it.''

             ``We will take this case to the Florida Supreme Court and to the United States
             Supreme Court until we get justice,'' he said. ``We've been fighting against all odds
             for so many years. It's very important to the foundation that what is said about
             them is accurate.''