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4 The Role of the Courts in Shaping U.S. Policy toward Cuba Stanley J. Murphy Although legislative and executive actions provide the first definition of U.S. national policy toward Cuba, the courts are often where the ultimate contours of that policy are drawn. Virtually every statute, regulation, or executive action related to Cuba leads to the filing of a lawsuit or lawsuits, and the decisions in those cases have a substantial impact on the nature of the relationship between the two countries. In their decisions on cases related to Cuba, U.S. courts often appear to be more deferential to political judgments than they are in other litigation. When relations with Cuba are at issue, routine legal actions become complicated. Established legal principles are no longer quite so settled, controlling case precedent becomes less important, and previously firm legal standards show a newfound flexibility. The effect of Cuba on the U.S. courts became apparent after 1959, survived the end of the Cold War, and continues today. In the new era of the Cuban revolution a succession of U.S. presidents and congresses, along with a variety of state and local agencies in Florida, propounded a volatile, evolving, and sometimes self-contradictory series of statutes, regulations, and executive actions regarding Cuba. Starting with legal challenges to restrictions on travel to Cuba, the influence has evolved to the point of having a bearing even on cases dealing with matters of purely U.S. domestic law. From the selection of elementary school library books to child custody decisions, from criminal trials to intellectual property protection—if Cuba becomes part of the issue, U.S. courts are apt to behave strangely. Although not always determining the outcome of a case, the Cuba factor can influence both the arguments of the parties involved and the court’s analysis. In the process this factor may have an unintentional, lasting impact on broader areas of U.S. law in which the island neighbor is not an issue. The impact has been particularly unsettling in cases affecting the well-established constitutional rights of U.S. citizens to travel, to academic freedom, and to censorship-free access to information. Stanley J. Murphy 76 The Right to International Travel In 1958 the U.S. Supreme Court decided that the right to travel internationally was a constitutionally protected freedom akin to the enumerated guarantees of the First Amendment.1 In Kent v. Dulles the Court ruled that the U.S. State Department violated the constitutional rights of two U.S. citizens who were denied passports because they were suspected of being sympathetic to, or members of, the Communist Party. They proposed to travel not to Cuba, but to Europe and Turkey. The question raised in Kent v. Dulles was the extent to which the Secretary of State could restrict the ability of U.S. citizens to travel internationally. The Court held that the right to travel in and out of the country was protected by the Constitution. Although that right could be limited on occasions such as war or epidemic disease, simple disapproval of a traveler’s politics or ideology was not a legal basis to restrict his or her right to travel. The Court held that the right to travel abroad was essential to the ability of journalists, educators, and ordinary citizens to educate their readers, their students, and themselves on the issues of the day and to make “sounder decisions at home.” Justice William O. Douglas, writing for the majority, explained: “Freedom of movement across frontiers in either direction, and inside frontiers as well, was a part of our heritage. Travel abroad, like travel within the country, may be necessary for a livelihood. It may be as close to the heart of the individual as the choice of what he eats, or wears, or reads. Freedom of movement is basic in our scheme of values.”2 The distinct role of Cuba in U.S. courts began to emerge after the termination of diplomatic relations between the United States and Cuba in 1961. Shortly afterwards the State Department prohibited the use of U.S. passports for travel to Cuba. When U.S. citizen Louis Zemel applied to Secretary of State Dean Rusk for permission to use his passport to travel to Cuba, his application was rejected. Zemel filed suit, and when his case went before the Supreme Court, he lost.3 Zemel “wished to make the trip to satisfy [his] curiosity about the state of affairs in...

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