ESPERANZA PEACE AND JUST. CTR v. SAN ANTONIO, (W.D.Tex. 2001)
ESPERANZA PEACE AND JUSTICE CENTER, a Non-Profit Corporation,
THE SAN ANTONIO LESBIAN & GAY MEDIA PROJECT, an Unincorporated
Association, and VAN, an Unincorporated Association, Plaintiffs,
v. CITY OF SAN ANTONIO, and HOWARD PEAK, in his official capacity
as Mayor of the City of San Antonio, Defendants.
CAUSE NO. SA-98-CA-0696-OG.
United States District Court, W.D. Texas, San Antonio Division
May 15, 2001
FINDINGS OF FACT AND CONCLUSIONS OF LAW
Orlando L. Garcia, United States District Judge.
This case was tried to the Court on August 21 and 22, 2000. After
considering the pleadings, the evidence presented, the arguments of
counsel, the post-trial briefs (docket nos. 163, 167, and 171), and the
controlling legal authority, the Court enters its findings of fact and
conclusions of law in accordance with FED. R. Civ. P. 52.
The Court has federal question jurisdiction. 28 U.S.C. § §
1331, 1367, 2201 and 2202.

Plaintiffs are organizations engaged in the arts, and in cultural and educational activities in San Antonio and Bexar County. They brought this suit when the San Antonio City Council voted to discontinue their funding in its fiscal year 1997-98 budget at its meeting on September 11, 1997. The City subsequently voted not to fund plaintiffs in its fiscal year 1998-99 budget as well. Plaintiffs bring three causes of action under 42 U.S.C. § 1983, alleging that: (1) the City committed viewpoint discrimination in violation of their free speech rights under the First Amendment; (2) the City committed animus-based discrimination in violation of their equal protection rights under the Fourteenth Amendment; and (3) the City retaliated against plaintiffs after they filed the present suit by denying their funding in the 1998-99 budget in violation of their First Amendment rights to petition the government and to free expression. Plaintiffs bring a fourth cause of action under the Texas Open Meetings Act alleging that the City violated the Act when council members informally deliberated regarding the budget and plaintiffs' funding in a closed meeting or series of meetings the evening prior to the September 11, 1997 public meeting. Plaintiffs are "persons" entitled to sue under 42 U.S.C. § 1983.

As will be explained below, defendants' decision to eliminate plaintiffs' funding constituted viewpoint discrimination in violation of the First Amendment, and a violation of plaintiffs' Fourteenth Amendment equal protection rights. Defendants did not retaliate against plaintiffs based on their filing of this lawsuit. Defendants violated the Texas Open Meetings Act, and their attempted ratification at the September 11, 1997 meeting was ineffective.

I. Factual background.

Plaintiff Esperanza Peace and Justice Center ("Esperanza") is a non-profit cultural arts and education center located in San Antonio, and incorporated as a non-profit organization under the law of Texas. Esperanza, founded in 1987, offers programming in visual arts, music, film, video, and cultural studies, as well as space and assistance to many local organizations and artists.[fn1] Esperanza's mission statement says:

The people of Esperanza dream of a world where everyone has civil rights and economic justice, where the environment is cared for, where cultures are honored and communities are safe. The Esperanza Center advocates for those wounded by domination and inequality — women, people of color, lesbians and gay men, the working class and poor. We believe in creating bridges between people by exchanging ideas and educating and empowering each other. We believe it is vital to share our visions of hope . . . we are esperanza.[fn2]

Esperanza's Strategic Plan includes the following goals:

(1) To provide programming which generates multi-issue/multicultural community organizing while providing resources and space where the creation and presentation of the arts reflect the culture of people in struggle;

(2) To construct, develop, and operate a permanent, safe, central, multi-purpose facility for artists, activists and other community members to do their work with a sense of community, history, quality, and hope;

(3) To generate a consistent source of diversified income to support the goals and objectives of the organization.[fn3]

Esperanza's arts programming includes both seasonal programming and on-going skills-development projects.[fn4] Its seasonal programming, called "PazARTE," includes the "Other America Film Festival," presenting films about communities and issues throughout the Americas, literary events and musical performances.[fn5] The intent is to give voice to those who usually do not have access to art, including women, poor people, and people of color.[fn6] The ongoing, skills-development projects of Esperanza include "MujerArtes," a Westside community-arts economic-empowerment project in which low-income women develop their artistic skills and produce pottery for sale,[fn7] and "Puentes de Poder," a program bringing together different communities to tell their stories and break down stereotypes.[fn8]

Plaintiff San Antonio Lesbian & Gay Media Project ("Media Project") is an unincorporated association formed for the purpose of promoting fair, accurate, and inclusive media images and portrayals of lesbians, gay men, bisexuals and transgendered persons.[fn9] Since 1992, the Media Project has presented "Out at the Movies," a lesbian and gay film festival, the aim of which is to exhibit contemporary lesbian and gay film and video, to demonstrate the diversity of national and international lesbian and gay cultures (including films and videos from a variety of age, nationality, language, gender, religious, and historical perspectives), to increase discussion of current social issues within lesbian and gay communities, and to promote understanding within public media organizations.[fn10] Plaintiff VAN is an unincorporated association formed for the purpose of bringing national and international artists who are visiting or working in other parts of Texas to San Antonio for programs and networking.[fn11]

Defendants are the City of San Antonio and its mayor, Howard Peak. They will sometimes be referred to collectively as "the City."

A. 1997 funding decision.

Since 1990, arts funding for the City of San Antonio has been vetted through the Department of Arts and Cultural Affairs (DACA),[fn12] for which the city council appoints an eleven-member Cultural Advisory Board (CAB). DACA was created in the City's 1988-89 budget to provide a full-service arts department for the City.[fn13] The DACA Strategic Plan, which was adopted by the city council in 1993 (and amended by the city council periodically thereafter), provides the goals and general guidelines for allocating competitive arts grants to outside agencies.[fn14]

The DACA Strategic Plan establishes three criteria for evaluating arts funding applications: artistic excellence, audience development, and administrative capacity.[fn15] These criteria are consistent with most government arts funding programs.[fn16] The DACA Strategic Plan emphasizes the goals of funding agencies that provide diverse programming and reach traditionally underserved groups, and support programs that address social issues such as "AIDS, youth issues such as gangs and drugs, education, and the homeless population."[fn17]

In 1996, 1997, and 1998, the City distributed Guidelines and Application Forms to be used by outside agencies in their applications for City arts funding. These Guidelines and Application Forms were approved by the city council each year.[fn18] The Guidelines and Application Forms distributed in these years informed prospective applicants of the goals behind the City's arts funding program and the process and criteria that would be used in evaluating the applications, as defined in the Strategic Plan.[fn19]

The Strategic Plan provides that applications for arts grants should be submitted to DACA and evaluated by the staff and by peer panels representing various artistic disciplines. The peer panels, selected by CAB, include arts professionals, experts experienced with arts organizations, and arts patrons.[fn20] The peer panels discuss the applications in open meetings and, using the Strategic Plan guidelines, rank the applications and make recommendations to CAB for awarding grants to applicants. Peer-panel chairpersons, DACA staff members, and the applicants then present the applications to CAB in an open meeting for discussion and final recommendations.[fn21] Upon receiving DACA's recommendations, CAB holds public meetings, makes preliminary funding recommendations, and issues final funding recommendations to DACA's director.[fn22] The final recommendations are then presented to the City Manager by DACA's Director as part of DACA's budget.[fn23] In order to obtain grant monies, the City represented to state and federal authorities that the City's arts funding decisions would be made based on the process set out in the Strategic Plan.[fn24]

The City has neither created nor operated the arts funding program to convey a specific message of its own; rather, the City created an arts funding program because it recognized that art was important for matters of quality of life and economic development.[fn25] There is no City requirement that an applicant be exclusively involved in arts activities in order to qualify for City arts grants: the City can award grants to agencies that do not focus exclusively on arts as long as the activity that they were seeking support for had an arts or cultural purpose.[fn26]

The City encouraged outside agencies to connect art and social issues: arts programming funded through the DACA granting program may include work addressing or involving social and political concerns.[fn27] The City, through the DACA granting program, has funded both organizations that do not have art as their sole focus and organizations that present arts and cultural programs that address social issues.[fn28]

Esperanza applied for and received funding in the form of both operational-support and project-support arts grants from the City beginning in fiscal year 1990-91 and continuing through fiscal year 1996-97.[fn29] Beginning in fiscal year 1994-95, Esperanza acted as sponsor and fiscal agent for the Media Project.[fn30]Esperanza also served as sponsor and fiscal agent for VAN in its applications for grants from the City.[fn31] The City Council and the Texas Commission on the Arts have approved grants of arts funding to unincorporated organizations using the sponsor/fiscal agent process.[fn32] From fiscal year 1994-95 through fiscal year 1996-97 the Media Project received project-support arts grants from the City.[fn33]

In 1996, Esperanza applied for a two-year operational-support grant for its PazARTE programming.[fn34] The PazARTE programming is Esperanza's primary seasonal arts programming and includes such annual events as MujerCanto, featuring women's performance, music, song, and thought; Platicas, a community forum for artists and other speakers; the "Other America Film Festival," presenting films about communities and issues throughout the Americas; and Exhibiciones Activas, a series of art exhibits featuring art by women, people of color, youth, lesbians and gays, and other disenfranchised voices.[fn35]

Esperanza's 1996 operational-support grant was ranked number one in its category by the peer-review panel, received a numerical score that placed it high among all applicants for arts funding, and was recommended for funding by CAB and DACA staff.[fn36] This grant was included in the City's fiscal year 1996-97 annual budget, as an award of $44,100 for the first year of the operational grant, fiscal year 1996-97.[fn37]

The second year was to have been fiscal year 1997-98.[fn38] Although Esperanza was a co-sponsor of the "Out at the Movies" film festival, this film festival was not a part of Esperanza's operational-support or project-support grant applications to the City. None of the money received from the City was used by Esperanza for "Out at the Movies"; only the Media Project applied for and received a grant to support the "Out at the Movies" film festival.[fn39] For fiscal year 1997-98, each plaintiff applied for and DACA recommended City arts-funding grants to the plaintiffs totaling $62,531 (the "1997 proposed grants"), which appeared in the proposed city budget as an allocation to Esperanza.[fn40]

The 1997 proposed grants included a $44,100 operational grant to Esperanza, as funding for the second year of Esperanza's two-year operational grant; a $11,746 project grant to Esperanza for its Visiones de Esperanza Project; a $5,326 project grant for the Media Project for its "Out at the Movies" film festival; and a $1,359 project grant for VAN.[fn41] All plaintiffs satisfied the eligibility requirements for City arts-funding grantees for fiscal year 1997-98.[fn42] Plaintiffs were among numerous outside agencies recommended for arts-funding grants in the proposed fiscal year 1997-98 budget.[fn43]

In 1997, seven new members were elected to the San Antonio City Council.[fn44] The majority of the council came with a mandate from voters for a "back to the basics" budget.[fn45] The arts were not a priority; many council members sought to allocate as much money as possible to basic services such as police, fire, EMS, streets, and so on, and one or two council members were in favor of cutting arts programs entirely.[fn46]

The arts in general were subject to a considerable amount of controversy during the City's 1997 budget process. Esperanza, along with other arts groups including the Alamo City Men's Chorale, Jump Start Performance Co., and the Guadalupe Cultural Arts Center ("the Guadalupe" or "the Guadalupe Center"), were targeted by certain conservative groups who opposed their perceived advocacy of the "gay and lesbian lifestyle," but none were the target of a lobbying effort as extensive or as vicious as that leveled against Esperanza.[fn47] During August and early September 1997, Christian talk-radio host Adam McManus undertook radio and lobbying efforts to oppose City funding for Esperanza.[fn48] City council members Robert Marbut, Jose Menendez, Rick Vasquez, and Ed Garza were interviewed on McManus's radio program during August and September of 1997.[fn49] During McManus's radio broadcasts, McManus, his guests, and his listeners expressed their negative attitudes toward Esperanza and their strong opposition to arts funding for Esperanza, based primarily on its co-sponsorship of the "Out at the Movies" film festival.[fn50]

Criticism of Esperanza expressed during the McManus shows in 1997 was similar to that expressed during McManus's 1998 programs opposing funding for the Esperanza.[fn51] During August 1997, Martha Breeden, Executive Director of the Christian Pro-Life Foundation, sent a flyer to approximately 1,200 people on the Christian Pro-Life Foundation mailing list urging opposition to City funding for Esperanza because she opposed the City funding a gay and lesbian program.[fn52] Only Esperanza was named in the flier. Council members received the flier that Ms. Breeden distributed.[fn53]The calls, letters, e-mail and other communications opposing funding that council members received in 1997 typically focused on a "homosexual agenda," "deviant lifestyle," and similar references.[fn54]Other than knowing of the existence of the "Out at the Movies" film festival, opponents had limited knowledge of plaintiffs' arts programming and activities.[fn55]Most council members received letters and phone calls regarding funding for the plaintiffs and were aware of the opposition to it voiced by some members of the public.[fn56]

During a conversation with representatives of Esperanza on September 9, 1997, Council Member Tim Bannwolf said that the phone calls he had been receiving opposing funding for the plaintiffs had been mean and vicious in nature, and that callers had threatened to vote against him and have their families, neighbors, and churches vote against him if he voted to fund plaintiffs.[fn57]

The majority of the eleven council members had no personal knowledge regarding Esperanza or its programming beyond what they were told by constituents or gathered from news reports; only two had limited personal knowledge of Esperanza's programming.[fn58] No city council members reviewed the plaintiffs' funding applications.[fn59] No council member had personal knowledge of the Media Project, or VAN, or that they were separate from Esperanza, and no council member understood that the proposed budget allocation for Esperanza included project grants for the Media Project or VAN.[fn60] On the night of September 10, 1997, the eve of the budget vote, the Mayor met in the City Manager's office with several council members and spoke with others on the telephone to discuss the budget.[fn61] The Mayor's purpose was to achieve a consensus on changes to the budget, and he believed he had succeeded when he left City Hall that night.[fn62] This consensus was reflected in a memorandum ("consensus memorandum") dated September 11, 1997, which was signed by the mayor and all council members prior to the formal vote on the budget.[fn63]

On September 11, 1997, the city council approved the budget reflected in the consensus memorandum in an open meeting that contained no funding for Esperanza, the Media Project, or VAN.[fn64] Council members did not discuss the elimination of funding for Esperanza during the September 11 meeting or at any prior public meeting.[fn65] of the organizations recommended for arts funding in the proposed annual budget for fiscal year 1997-98, plaintiffs were the only organizations whose funding was completely eliminated in the adopted budget.[fn66] All other arts grantees received a 15 percent across-the-board cut, except for organizations geared toward providing services to youth and children, which were not cut for the most part.[fn67] Prior to the fiscal year 1997-98 budget decision, the city council had never before eliminated all funding for a particular agency that had been recommended by DACA; rather, DACA funding recommendations were altered solely by across-the-board changes.[fn68] Neither DACA nor the council has ever denied funding for a properly and timely submitted second-year application for a two-year operational grant, other than the 1997 defunding of Esperanza.[fn69]

In the same budget that provided no funding for plaintiffs, the council approved arts funding for a number of organizations that were not primarily arts organizations, including Bexar County Detention Ministries, Jewish Community Center, Witte Museum, Social Health and Research Center, and Trinity Episcopal Church.[fn70] As with plaintiffs, the programs approved for funding were arts programs.[fn71] The council approved funding for the Witte Museum, "primarily a natural history and science museum," for just under $300,000 — a substantial portion of the entire funds available for all arts funding.[fn72] The same budgets that defunded plaintiffs also funded organizations that included the following social and political goals in their mission statements: Musicians Society of San Antonio ("to secure improved wages, hours, working conditions and other economic advantages for the professional musicians in membership through collective bargaining"); the Inner City Cultural Arts Program ("to allow residents of the target area to document and preserve the history, culture and social issues of the westside of San Antonio"); the Witte Museum ("the Witte Museum's core ideology is to improve people's lives"); Say Si ("Say Si is an arts program that trains inner-city high school students in the visual arts with a focus towards the development of business and entrepreneurial skills"); the Social and Health Research Center ("The purpose of the research center is to reduce the high rates of diabetes among Mexican Americans"); Southtown/Spart$ ("bringing to our one square mile community, the necessary businesses, jobs and services to sustain a vibrant neighborhood"); Jewish Community Center ("established for the social, educational and recreational needs of the greater community").[fn73] After September 11, 1997, DACA determined that the plaintiffs would not receive the Texas Commission on the Arts funds previously allocated to plaintiffs by DACA for fiscal year 1997-98 because of the city council's vote eliminating plaintiffs' funding.[fn74]

Plaintiffs filed this lawsuit on August 4, 1998 based on the decision to defund.

B. 1998 funding decision.

In 1998, Esperanza applied for a three-year operational grant for its PazARTE programming in the amount of $100,000, and a project grant for Visiones de Esperanza in the amount of $40,000 for fiscal year 1998-99. Each application was favorably evaluated by DACA peer panels.[fn75] Also for the 1998-99 fiscal year, the Media Project applied for and received a favorable peer panel recommendation for a project grant for "Out at the Movies 1998."[fn76] After discussion, CAB recommended a three-year operational grant of $20,000 per year and a project grant of $2,000 for the Esperanza Center, but nothing for the Media Project.[fn77] Both Esperanza and the Media Project satisfied the eligibility requirements for arts funding grantees in fiscal year 1998-99.[fn78]

As in 1997, community opposition to funding for Esperanza was strong. McManus mounted another campaign, and council members received numerous calls, e-mails, and other communications regarding arts funding for Esperanza.[fn79] The calls, letters, e-mail, and other communications opposing funding for Esperanza that council members received in 1998 typically focused on a "homosexual agenda," "deviant lifestyle," and other references to lesbians and gay men.[fn80] Other than the "Out at the Movies" film festival, opponents had limited knowledge of Esperanza's arts programming and activities.[fn81] While other arts organizations had experienced nominal opposition to their funding, none were the target of a lobbying campaign as extensive as that leveled against Esperanza in 1998.[fn82] CAB voted to withdraw its funding recommendation for Esperanza because of the City's policy not to fund organizations litigating against it.[fn83] On September 17, 1998, the city council met to consider the proposed budget, and unanimously approved a budget that did not include funding for Esperanza or the Media Project.[fn84]

All of the programming for which plaintiffs sought City arts funding in 1997 and 1998 is arts programming.[fn85] Much of Esperanza's programming, including its arts programming, focuses on social justice issues, including immigration, human rights, racism, AIDS, women's rights, homophobia, bilingual education, cultural diversity, child abuse, homelessness, and many other issues.[fn86] Additional findings of fact pertaining specifically to a particular cause of action will be set forth in the discussion of that cause of action.

II. Viewpoint discrimination.

A. "[G]overnment may not regulate speech based on . . . the message it conveys."[fn87]

"If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein." West Virginia State Bd. of Educ. v. Barnette, 319 U.S. 624, 642 (1943). Thus, Justice Jackson, writing for the Supreme Court at a time when our country and free institutions around the world faced perhaps their gravest crisis, eloquently and succinctly articulated a fundamental First Amendment principle — that government may not proscribe speech or expressive conduct because it disapproves of the ideas expressed. This constitutional prohibition against "viewpoint discrimination" was recognized at least as early as Hague v. CIO, 307 U.S. 496 (1939), where the Supreme Court struck down an ordinance governing the issuance of permits to speak on public streets. The Court noted that the broad discretion granted city officials under the law could, "as the record discloses, be made the instrument of arbitrary suppression of free expression of views on national affairs." Id. at 516. Four years later, in Barnette, the Court reaffirmed this principle. In that case, the Court invalidated West Virginia's compulsory flag-salute requirement as unconstitutional viewpoint discrimination, overruling its previous decision upholding public school regulations requiring children to salute the flag and recite the pledge of allegiance. 319 U.S. at 642.

The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts. One's right to life, liberty, and property, to free speech, a free press, freedom of worship and assembly, and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections. Id. at 638.

The prohibition against viewpoint discrimination, and the requirement of its converse, viewpoint neutrality, arise from fundamental First Amendment values. Government action that prohibits speech based on its viewpoint threatens core First Amendment values such as freedom of thought, freedom of speech, fostering intellectual and spiritual growth, a robust exchange of ideas necessary to a properly functioning democracy, and the ability to self-govern. See Pacific Gas and Elec. Co. v. Public Utilities Comm'n of Calif., 475 U.S. 1, 8 (1986) (constitutional guarantee of free speech protects the public's interest in receiving information by protecting from government attack those who wish to enter the marketplace of ideas); Police Dep't of Chicago v. Mosley, 408 U.S. 92, 95-96 (1972) ("[t]o permit the continued building of our politics and culture, and to assure self-fulfillment for each individual, our people are guaranteed the right to express any thought, free from government censorship"); Cohen v. California, 403 U.S. 15, 24 (1971) ("[the First Amendment] put[s] the decision as to what views shall be voiced largely into the hands of each of us . . . in the belief that no other approach would comport with the premise of individual dignity and choice upon which our political system rests"); Cox v. Louisiana, 379 U.S. 536, 581 (1965) (Black, J., concurring) ("[Viewpoint-based regulation is] censorship in a most odious form. . . ."); Kingsley Int'l Pictures Corp. v. Regents of the Univ. of N.Y., 360 U.S. 684, 688 (1954) (banning film because it advocates unconventional idea "str[ikes] at the very heart of constitutionally protected liberty"). See also Laura V. Farthing, Note, Arkansas Writers' Project v. Ragland: The Limits of Content Discrimination Analysis, 78 GEO. L.J. 1949, 1953 (1990) (asserting that content-based discrimination threatens three First Amendment interests: "the preservation of free debate in order to promote self-government; the safeguarding of the individual and the communal search for truth; and the guarantee of the individual's right to free expression").

All these treasured values are imperiled when government manipulates or "skews" the public debate by subsidizing favored viewpoints. See Texas v. Johnson, 491 U.S. 397, 414 (1989) ("[i]f there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable"); Boos v. Barry, 485 U.S. 312, 318 (1988) ("[T]he First Amendment reflects a `profound national commitment' to the principle that `debate on public issues should be uninhibited, robust and wide-open'") (quoting New York Times v. Sullivan, 376 U.S. 254, 270 (1964)).

At the heart of the First Amendment lies the principle that each person should decide for himself or herself the ideas and beliefs deserving of expression, consideration, and adherence. Our political system and cultural life rest upon this ideal. Government action that stifles speech on account of its message, or that requires the utterance of a particular message favored by the Government, contravenes this essential right. Laws of this sort pose the inherent risk that the Government seeks not to advance a legitimate regulatory goal, but to suppress unpopular ideas or information or manipulate the public debate through coercion rather than persuasion.

Turner Broadcasting Sys. Inc. v. FCC, 512 U.S. 622, 641 (1994) (citations omitted). Thus, as the Supreme Court recently reaffirmed, "[i]t is axiomatic that the government may not regulate speech based on its substantive content or the message it conveys." Rosenberger v. Rector and Visitors of Univ. of Va., 515 U.S. 819, 828 (1995). The specter of government as "Big Brother" doling out subsidies based on the viewpoints of the recipients should be odious to all Americans, for the point of view officially favored today may be the one censured tomorrow. When dissenting voices are silenced, the public is deprived of their distinctive viewpoint, and thereby inhibited from arriving at its own conclusions uninfluenced by the government's selection of acceptable points of view. As Justice Souter reasoned, "the prohibition on viewpoint discrimination serves that important purpose of the Free Speech Clause, which is to bar the government from skewing public debate" by "allow[ing] one message while prohibiting the messages of those who can be reasonably expected to respond." Id. at 894 (Souter, J., dissenting).

Discrimination against speech because of its message is presumed to be unconstitutional. Rosenberger, 515 U.S. at 828; Turner Broadcasting System, 512 U.S. at 641-43. "[A]bove all else, the First Amendment means that government has no power to restrict expression because of its message, its ideas, its subject matter, or its content." Mosley, 408 U.S. at 95. "Viewpoint discrimination is censorship in its purest form," Perry Educ. Ass'n v. Perry Local Educators' Ass'n, 460 U.S. 37, 62 (1983) (Brennan, J., dissenting), and requires particular scrutiny, in part because such regulation often indicates a legislative effort to skew public debate on an issue. See, e.g., Schacht v. United States, 398 U.S. 58, 63 (1970) (federal statute permitting actor portraying an Armed Forces member to wear uniform if the portrayal did not tend to discredit that armed force invalidated because it left Americans free to praise the war in Vietnam but punished persons opposing it); First Nat'l Bank of Boston v. Bellotti, 435 U.S. 765, 785-786 (1978) (striking down state statute forbidding corporations from spending money to influence public referenda on taxation noting that "[e]specially where . . . the legislature's suppression of speech suggests an attempt to give one side of a debatable public question an advantage in exposing its views to the people, the First Amendment is plainly offended"). See also, Rosenberger, 515 U.S. at 837 (public university's student activities funds may not be disbursed on viewpoint-based terms); Lamb's Chapel v. Center Moriches Union Free Sch. Dist., 508 U.S. 384, 393-94 (1993) (after-hours access to public school property may not be withheld on the basis of viewpoint); Pacific Gas & Elec. Co., 475 U.S. at 12-13 (government-mandated access to public utility's billing envelopes must not be viewpoint based); Members of City Council of Los Angeles v. Taxpayers for Vincent, 466 U.S. 789, 804 (1984) ("[T]he First Amendment forbids the government to regulate speech in ways that favor some viewpoints or ideas at the expense of others"). In National Endowment for the Arts v. Finley, 524 U.S. 569 (1998), the Supreme Court made clear that the First Amendment forbids "invidious viewpoint discrimination" in the arts subsidy context. "Even in the provision of subsidies, the government may not `[a]im at the suppression of dangerous ideas.'" Id. at 586 (citations omitted). See also Speiser v. Randall, 357 U.S. 513, 519 (1958) (striking down California law requiring loyalty oath as condition for veterans' tax exemption because it would "necessarily . . . force individuals into political silence," and "is `frankly aimed at the suppression of dangerous ideas.'"(quoting American Communications Ass'n v. Douds, 339 U.S. 382, 402 (1950)).

The clearest example of viewpoint discrimination is that alleged here: the denial of government funding because the applicant espouses an unpopular, controversial, or uncommon viewpoint. See. e.g. Rosenberger, 515 U.S. at 829 (defining "viewpoint" as "the specific motivating ideology or the opinion or perspective of the speaker"); see also Lamb's Chapel, 508 U.S. at 393 (finding viewpoint discrimination where school "permit[ted] school property to be used for the presentation of all views about family issues and child rearing except those dealing with the subject matter from a religious standpoint"); R.A.V. v. St. Paul, 505 U.S. 377, 384 (1992) (government may not "proscrib[e] only libel critical of the government"). A decision to refuse all funding to an applicant because of disapproval of one program or presentation is a form of viewpoint discrimination. See Brooklyn Institute of Arts and Sciences v. City of New York, 64 F. Supp.2d 184, 200 (E.D. N.Y. 1999) (city committed viewpoint discrimination when it withheld already appropriated arts funding because museum refused to discontinue plans for art exhibit that mayor thought was "sick," "disgusting," and "offensive"); Cuban Museum of Arts and Culture, Inc. v. City of Miami, 766 F. Supp. 1121, 1129 (S.D. Fla. 1991) (city's decision to withhold support for Cuban Museum because of exhibition and auction that included works by artists who were either living in Cuba or who had not denounced the Castro regime was viewpoint discrimination).

Of course, the government is not required to fund arts programs. But if it chooses to do so, it must award the grants in a scrupulously viewpoint-neutral manner.

It is well established that "even though a person has no `right' to a valuable government benefit and even though the government may deny him the benefit for any number of reasons, there are some reasons upon which the government may not rely. It may not deny a benefit to a person on a basis that infringes his constitutionally protected interests — especially, his interest in freedom of speech."

Blackburn v. City of Marshall, 42 F.3d 925, 931 (5th Cir. 1995) (quoting Perry v. Sindermann, 408 U.S. 593, 597 (1972)). In Perry, the Supreme Court held that a professor employed in a state college system could not be denied renewal of his contract because he had exercised his free speech rights in criticizing the college administration. 408 U.S. at 597. See also Thomas v. Review Board, 450 U.S. 707, 717-18 (1981) (state's denial of unemployment benefits to plaintiff because he left his job for religious reasons is an unconstitutional burden on the free exercise of religion); Elrod v. Burns, 427 U.S. 347, 360-61 (1976) (plurality) (dismissal from non-policymaking government job solely on basis of political affiliation is unconstitutional, although there is no right to public employment); Shapiro v. Thompson, 394 U.S. 618, 627-29 (1969) (denial of welfare benefits unconstitutionally infringes right to travel although state need not provide benefits); Hannegan v. Esquire, 327 U.S. 146, 151, 157 (1946) (Postmaster General's denial of second-class postal privileges, "a form of subsidy," to a magazine based on its alleged immorality amounted to illegal censorship); Gay & Lesbian Students Ass'n v. Gohn, 850 F.2d 361, 362, 366 (8th Cir. 1988) (while student organizations have no right to require a university to provide a funding mechanism for their activities, when the university chooses to fund student activities, it must do so "even-handedly, without discriminating among recipients on the basis of their ideology" and "in a viewpoint-neutral manner, absent other considerations"). "[T]axpayers will occasionally be obligated to support not only the thought of which they approve, but also the thought they hate. That is one of the fundamental premises of American law" Id., at 362 (attributing the former statement to Justice Holmes).

Additionally, no one disputes that the government may establish criteria of artistic merit to allocate funding. The City cites Advocates for the Arts v. Thomson, 532 F.2d 792 (1st Cir. 1976). Thomson involved an action that sought to enjoin the Governor of New Hampshire and the State Executive Council from revoking a previously approved state arts grant to a literary magazine that had published a poem they found offensive. Id. at 793. The First Circuit held that there had been no unconstitutional denial of the magazine's first amendment rights. Id. at 795. The court reasoned that because the very nature of the competitive grant application process ensures not all artistic expressions will be supported by the government, the "decision to withhold support is unavoidably based in some part on the `subject matter' or `content' of expression . . . ." Id. Thus, although subjective discretion is part of the grant review process, to be constitutional, as the court noted, the discretion must be based on the grant's artistic merit and not on political or ideological grounds. Id. at 798 n.8 ("We agree with the district court that distribution of arts grants on the basis of such extrinsic considerations as the applicants' political views, associations, or activities would violate the equal protection clause, if not the first amendment, by penalizing the exercise of those freedoms.").

B. Causation standard.

Having noted that the City cannot discriminate against an arts organization based on its viewpoint, the Court must next decide whether the City actually did so. A yardstick is required with which to measure the City's actions. The Court believes the proper causation standard is set out in Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274 (1977).

The Mt. Healthy test was developed to address the difficult problem of factually proving which of several factors motivated an employment decision. In Mt. Healthy, the school board declined to renew the contract of Doyle, an untenured teacher. In a statement, the board noted two reasons for its decision — Doyle had made obscene gestures at students in the lunchroom, and had made comments and provided information to a local radio station concerning new rules relating to teacher dress codes. The district court held that Doyle's call to the radio station was constitutionally protected and ordered his reinstatement. The Supreme Court held that this reasoning was inadequate. The Court stated that "[a] rule of causation which focuses solely on whether protected conduct played a part, `substantial' or otherwise, in a decision not to rehire, could place an employee in a better position as a result of the exercise of constitutionally protected conduct than he would have occupied had he done nothing." Id. at 285. Such an inflexible rule is unnecessary: "[t]he constitutional principle at stake is sufficiently vindicated if such an employee is placed in no worse a position than if he had not engaged in the conduct." Id. at 285-86. Once Doyle had shown that his "protected conduct" played a "substantial" or "motivating" part in the board's decision not to rehire him, the burden shifted to the board to show by a preponderance of the evidence that it would have reached the same decision absent its consideration of Doyle's protected conduct. Id. at 287. Thus, the Court sought to strike a balance by protecting the constitutional rights of employees while also protecting the employer's right to make legitimate personnel decisions.

To reiterate, under the Mt. Healthy burden-shifting analysis, the plaintiff must first show by a preponderance of the evidence that his conduct was constitutionally protected and that his conduct was a substantial or motivating factor in the defendant's decision. Mt. Healthy, 429 U.S. at 287. To meet the second element of its proof and shift the burden to the defendant, a plaintiff must show that the defendant's decision was motivated in part by a constitutionally impermissible motive. Village of Arlington Heights v. Metropolitan Housing Dev. Corp., 429 U.S. 252, 270 n.21 (1977). If the plaintiff makes this showing, the burden shifts to the defendant to prove by a preponderance of the evidence that it would have made the same decision in the absence of the protected conduct. Mt. Healthy, 429 U.S. at 287. Significantly, the defendant cannot satisfy its burden of proof by the mere assertion or demonstration that legitimate reasons existed for adverse action.

[P]roving that the same decision would have been justified . . . is not the same as proving that the same decision would have been made. . . . An employer may not, in other words, prevail in a mixed-motives case by offering a legitimate and sufficient reason for its decision if that reason did not motivate it at the time of the decision. Finally, an employer may not meet its burden in such a case by merely showing that at the time of the decision it was motivated only in part by a legitimate reason . . . The employer instead must show that its legitimate reason, standing alone, would have induced it to make the same decision. Price Waterhouse v. Hopkins, 490 U.S. 228, 252 (1989) (citations omitted, emphasis added).

As far as the Court is aware, the Mt. Healthy burden-shifting analysis has not been applied to a pure claim of viewpoint discrimination. The Mt. Healthy formula has, however, been applied in numerous areas of the law in which intentions and motivations play a key role. As the Fifth Circuit noted in Carter v. South Central Bell Tel. Co., 912 F.2d 832, 843 (5th Cir. 1990), "the Supreme Court has consistently shifted the burden of proof to the defendant in mixed-motive cases involving constitutional violations." The Carter court cited Mt. Healthy and Hunter v. Underwood, 471 U.S. 222, 228 (1985), which applied the Mt. Healthy standard in an equal protection case that challenged a prisoner disenfranchisement statute in order to determine the motive behind the legislation. See also NLRB v. Transportation Management Corp., 462 U.S. 393, 403 (1983) (applying the standard to mixed-motives cases in the unfair labor practice area); Village of Arlington Heights, 429 U.S. at 270 & n.21 (applying the Mt. Healthy test to determine the intent of legislators in passing on a zoning issue). In Board of Educ. v. Pico, 457 U.S. 853 (1982) the Court considered whether a school board had acted properly in removing books from the school library. The plurality opinion, authored by Justice Brennan, applied the Mt. Healthy standard. In doing so, Justice Brennan explained:

Our Constitution does not permit the official suppression of ideas. Thus whether petitioners' removal of books from their school libraries denied respondents their First Amendment rights depends upon the motivation behind petitioners' actions. If petitioners intended by their removal decision to deny respondents access to ideas with which petitioners disagreed, and if this intent was the decisive factor in petitioners' decision, then petitioners have exercised their discretion in violation of the Constitution. 477 U.S. at 871 (emphasis in original).[fn88]

The Fifth Circuit uniformly applies the Mt. Healthy test in retaliatory discharge cases. See. e.g., Robinson v. Boyer, 825 F.2d 64, 68 (5th Cir. 1987); Montgomery v. Trinity Indep. Sch. Dist., 809 F.2d 1058, 1061 (5th Cir. 1987). In North Mississippi Communications, Inc. v. Jones, 874 F.2d 1064, 1068 (5th Cir. 1989) ("Jones II"), the Fifth Circuit extended the Mt. Healthy test to a case involving retaliatory action for the exercise of First Amendment rights. There the owner of the North Mississippi Times newspaper brought an action against the DeSoto County Board of Supervisors contending that the county had withheld its advertising in the Times in retaliation for the newspaper's publication of editorials and news stories that were critical of the Board of Supervisors. In explaining the applicability of Mt. Healthy, the court stated:

The facts here parallel those of a retaliatory discharge from employment case, in the sense that it is alleged that the defendants refused to employ the plaintiffs to provide services in retaliation for their having exercised their constitutional rights. It is also clearly a mixed motive case because the defendants, while acknowledging that the plaintiffs engaged in constitutionally protected conduct, assert that there were other legitimate grounds that motivated them to provide less business to the Times than they had previously. . . . [W]e consider this to be a mixed-motives case in which the Mt. Healthy analysis is appropriate. Id.

There is no doubt that this is a mixed-motives case; council members listed numerous reasons for their withholding of funds from plaintiffs, some constitutionally acceptable, others not. Moreover, both parties recognize the burden-shifting test. Plaintiffs have argued for it all along. The City, while not mentioning Mt. Healthy by name, appears to have adopted it in its discussion of the evidence: "Esperanza cannot show that its gay and lesbian advocacy was a substantial [or] motivating factor in the City's decision,"[fn89] and "the evidence demonstrates that council would have made the same decision."[fn90]

The Court will apply Mt. Healthy.

Before proceeding to the evidence, however, it is important to note that this is not a facial challenge to the budget, which is facially benign. Thus, liability under § 1983 can attach to the passage of the budget "only if one peers behind the textual facade and concludes the legislative body acted out of a constitutionally impermissible motive." Scott-Harris v. City of Fall River, 134 F.3d 427, 436 (1st Cir. 1997), rev'd on other grounds, 523 U.S. 44 (1998). Impermissible motive of council members may be proven by "a sensitive inquiry into such circumstantial and direct evidence of intent as may be available." Village of Arlington Heights, 429 U.S. at 266. In Village of Arlington Heights, the Court suggested several possible evidentiary sources for such a determination including:

(1) the impact of the action, i.e., whether it bears more heavily on one group than another;

(2) the historical background of the action, particularly if a series of actions have been taken for invidious purposes;

(3) the specific sequence of events leading up to the challenged action;

(4) any procedural departures from the normal procedural sequence;

(5) any substantive departures from normal procedure, i.e., whether factors normally considered important by the decisionmaker strongly favor a decision contrary to the one reached; and

(6) the legislative history, especially where contemporary statements by members of the decisionmaking body exist. Id. at 266-68.

But this leaves unanswered the more difficult problem of proof how many council members must be impelled by a constitutionally impermissible motive to hold the City liable under § 1983? The City argues that Esperanza must demonstrate that a majority of council members were improperly motivated by its viewpoints.[fn91]

The City reasons that a municipal ordinance can only become law through a majority vote of the council, therefore, the City has not engaged in unconstitutional viewpoint discrimination unless Esperanza can show that a majority of the council members were improperly motivated. The Fifth Circuit has taken no position on this question, the courts are split, and the Supreme Court, although presented with the opportunity to decide the issue in the Scott-Harris case, did not do so.

Basic municipal liability law teaches that a governmental entity can be found liable under § 1983 only if the entity itself causes the constitutional violation at issue; respondent superior or vicarious liability are not bases for recovery. Monell v. Department of Social Services, 436 U.S. 658, 694 (1978). In order to recover a judgment against a local governmental entity under § 1983, a plaintiff must establish that he sustained a deprivation of constitutional or other federally-protected rights as a result of some official policy, practice, or custom of that governmental entity. Board of County Comm'rs of Bryan County, Okla. v. Brown, 520 U.S. 397, 403 (1997); Snyder v. Trepagnier, 142 F.3d 791, 795 (5th Cir. 1998). In this case we are concerned with an official policy in the form of a budget ordinance passed by the city council. Such an ordinance cannot become law — that is, the official policy of the City — unless a majority of the council votes in favor. As the Supreme Court explained in Pembaur v. City of Cincinnati, 475 U.S. 469 (1986):

The "official policy" requirement was intended to distinguish acts of the municipality from acts of employees of the municipality, and thereby make clear that municipal liability is limited to action for which the municipality is actually responsible. Monell reasoned that recovery from a municipality is limited to acts that are, properly speaking, acts "of the municipality" — that is, acts which the municipality has officially sanctioned or ordered. Id. at 479-80 (footnote omitted).

The courts take two approaches. Some have determined that a majority of the members of a legislative body must have been motivated by a constitutionally impermissible motive for liability to attach. In Church v. City of Huntsville, 30 F.3d 1332 (11th Cir. 1994), several homeless individuals alleged that the city had adopted a policy of harassing them to drive them from the city. The plaintiffs based their § 1983 claim on statements of one member of the five-member city council. Two of the remaining four members' conduct had been clearly nondiscriminatory while the other two had been silent. Because the plaintiffs could not show that a majority had acted with discriminatory intent, the city was not liable. Id. at 1343-44 & n.5. See also Holt Cargo Sys., Inc. v. Delaware River Port Auth., 20 F. Supp.2d 803 (E.D. Pa. 1998) (to impute improper motives of two regulatory-board members to the board, plaintiffs must show that a majority of the board knew of the improper motives and ratified them), aff'd 165 F.3d 242 (3rd Cir. 1999).

The second approach, recognizing the difficulty of proving the discriminatory intent of a majority of a legislative body, holds that a city may be liable if discriminatory intent was a motivating factor for less than a majority. In Scott-Harris, the plaintiff, a city employee, claimed that her constitutional rights were violated when the city council passed a neutral ordinance that eliminated her position. The city council voted eight to two in favor of eliminating the position, and the defendants asserted they did so for budgetary concerns in order to erase a widening deficit. The jury found the city liable under § 1983. The city appealed, arguing that it could not be liable for the city council's decision to eliminate the position when only two of the ten city officials involved in the decision (nine-member city council plus the mayor) harbored a discriminatory motive for doing so. The court of appeals determined that evidence that a minority of the board members operated in bad faith was insufficient to hold the city liable, but assumed, without deciding, that in a sufficiently compelling case the requirement that the plaintiff prove bad motive on the part of a majority of the legislative body might be relaxed and a proxy accepted instead. Nevertheless, any such relaxation would be contingent on the plaintiff mustering evidence of both (a) bad motive on the part of at least a significant bloc of legislators, and (b) circumstances suggesting probable complicity of others. Scott-Harris, 134 F.3d at 438.

Other courts have taken the same approach. In United States v. City of Birmingham, 538 F. Supp. 819 (E.D. Mich. 1982), aff'd, 727 F.2d 560 (6th Cir. 1984), the plaintiff claimed that a seven-member municipal commission blocked the construction of a racially-integrated housing project for discriminatory reasons. The district court held the city liable for violations of the Fair Housing Act. It is sufficient, the court opined, if "racial considerations were a motivating factor among a significant percentage of those who were responsible for the city's conduct." Id. at 828. Noting evidence that racial concerns motivated "at least two of the four members of the majority faction," the court declared that "[t]hat fact alone may be sufficient to attribute a racially discriminatory intent to the City." Id. at 829. In Southern Worcester County Regional Voc. Sch. Dist. v. Labor Relations Comm'n, 386 Mass. 414, 436 N.E.2d 380 (1982), the Court upheld a lower court's finding that the plaintiffs had been discharged based on their union activity. The court declared that "it is not fatal to the [plaintiffs'] claims that only three of the seven members of the school committee made anti-union statements." Id. at 385. The court concluded that the statements of three members of the seven member board, coupled with evidence of bias on the part of the school superintendent (who had no vote), sufficed to support the finding of liability. Id. Similarly, in Northeast Metropolitan Regional Vocational Sch. Dist. Sch. Comm. v. Massachusetts Comm'n Against Discrimination, 31 Mass. App. Ct. 84, 90, 575 N.E.2d 77 (1991), a gender discrimination case involving a refusal to hire, while direct evidence of bias had been exhibited by only two of the twelve members of the school committee, the court upheld a finding of liability based on this evidence and on statements by three other committee members that the plaintiff had been a victim of discrimination or had been the best qualified candidate for the job. Id. at 81-82.

The dilemma facing the courts considering this question is succinctly expressed:

On the one hand, because a municipal ordinance can become law only by a majority vote of the city council, there is a certain incongruity in allowing fewer than a majority of the council members to subject the city to liability under section 1983. On the other hand, because discriminatory animus is insidious, and a clever pretext can be hard to unmask, the law sometimes constructs procedural devices to ease a victim's burden of proof. Scott-Harris, 134 F.3d at 438. The argument against the Scott-Harris approach is that holding a municipality liable for the discriminatory motivations of a minority of its council does not meet the "official policy" requirement articulated by the Supreme Court in Monell. On the other hand, few legislators will admit to unconstitutional motivations behind their vote. It thus becomes an exceedingly difficult and perilous enterprise to establish the intent of a lone legislator. And when the legislative body consists of numerous legislators, each with his or her own myriad and conflicting motivations, the plaintiffs burden is multiplied, if not impossible. See Edwards v. Aguillard, 482 U.S. 614, 636-39 (1987) (Scalia, J., dissenting). It is precisely because the plaintiffs burden of proof is so onerous that Scott-Harris left open the possibility of a "relaxed" approach, and City of Birmingham, and the Massachusetts decisions have applied it.

The Court believes the Scott-Harris approach is preferable because it strikes the proper balance between difficulty of proving a legislative body's motivation and the fact that a municipal ordinance can only become law by majority vote of council. See Scully v. Borough of Hawthorne, 58 F. Supp.2d 435, 455-56 (D. N.J. 1999). It the present case, however, as will be explained below in discussing the evidence of viewpoint discrimination, the Court finds that plaintiffs' constitutionally protected conduct was a substantial or motivating factor in the decision of a majority of council members. Thus resort to Scott-Harris will only become necessary if the Court is mistaken in its tally of the member's motivations.

C. Applying Mt. Healthy with the Arlington Heights factors.

1. Protected conduct.

No one argues that art is not protected by the First Amendment. See, e.g., Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, Inc., 515 U.S. 557, 569 (1995) (painting, music, and poetry are "unquestionably shielded"); Schad v. Mount Ephraim, 452 U.S. 61, 65 (1981) ("[e]ntertainment, as well as political and ideological speech, is protected; motion pictures, programs broadcast by radio and television, and live entertainment, such as musical and dramatic works, fall within the First Amendment guarantee"); Kaplan v. California, 413 U.S. 115, 119-20 (1973) ("pictures, films, paintings, drawings, and engravings . . . have First Amendment protection").

2. Substantial or motivating factor.

The substantial or motivating factor inquiry, as described in Price Waterhouse, 490 U.S. at 250, is whether, if the employer had been asked at the time of its decision what its reasons were, and gave a truthful response, one of those reasons would be the impermissible motive. This is enough to shift the burden of proof to the defendant. Jones II, 874 F.2d at 1068 n.1. Accord Pico, 457 U.S. 853 at 871 n.22 (plurality) (The improper motive must have been the decisive factor. "By `decisive factor' we mean a `substantial factor' in the absence of which the opposite decision would have been reached.").

a. Proper motivations.

Before reviewing what factors specifically motivated the council members, we should consider which motivations are constitutionally acceptable and which are not. The City advances several possible motivations, arguing that all are constitutionally permissible motivations.

i. Back to basics, and no public funding for any art. Many members felt "back to basics" projects, such as education, roads, drainage, and police and fire protection, should receive priority over funding for the arts. At least one or two members expressed a preference to eliminate public funding for all arts organizations. Both motivations are constitutionally permissible.

ii. Constituents' belief that City should not fund groups "advocating a gay and lesbian lifestyle." The City admits that "some" opponents of Esperanza's funding believe that homosexuality is immoral, and it points out that this belief is "neither [a] novel nor new" viewpoint, as if homophobia's "ancient roots" makes discrimination against homosexuals or against those that promote the artistic expressions of lesbians and gay men constitutionally acceptable.[fn92]

The City goes further, however, and argues that even if opposition to the advocacy of gay and lesbian lifestyles or artistic expression "had . . . been a substantial [or] motivating factor, the City's decision was not constitutionally infirm."[fn93] Why? Because the City can refuse to pay for Esperanza's advocacy of gay and lesbian lifestyles out of discretionary arts funds. The City relies on Bowers v. Hardwick, 478 U.S. 186 (1986), which held that the belief of the majority of the Georgia electorate that homosexual sodomy is immoral and unacceptable provided a rational basis for criminalizing that behavior. Id. at 196. The City confuses the apparent lack of constitutional protection for homosexual sodomy with the unquestionable First Amendment protection afforded the expression of viewpoints, both popular and unpopular. See id. at 195 (distinguishing Stanley v. Georgia, 394 U.S. 557 (1969) on the ground that Stanley was a First Amendment case). At issue here is not homosexual activity, but the fundamental right of a citizen of this country to advocate his or her beliefs, even if those beliefs are detested by a majority of one's fellow citizens. The Supreme Court has made crystal clear that viewpoint discrimination in subsidy programs is not permissible. Finley, 524 U.S. at 587 ("even in the provision of subsidies, the Government may not `ai[m] at the suppression of dangerous ideas.'" (quoting Regan v. Taxation with Representation, 461 U.S. 540, 550 (1983)); Rosenberger, 515 U.S. at 828-29 ("[t]he government must abstain from regulating speech when the specific motivating ideology or the opinion or perspective of the speaker is the rationale for the restriction").

The City argues that its council has the right and the obligation to listen to constituent opinion in making arts funding decisions.[fn94] of course this is true. And if its constituents decided that they wanted to fund, say, performing arts at the expense of visual arts, no constitutional prohibition would forbid the council from enacting their will. Likewise, if its constituents preferred to fund arts projects that would attract tourist dollars instead of projects geared only to local participation, that too is acceptable. But the voters cannot require the council to deny funding to an arts group merely because that group promotes a social or political viewpoint a those voters find objectionable. The City cites Finley in support of its argument, but its reliance on that case is mistaken. The City correctly quotes Finley as noting that the government "may allocate competitive funding based on criteria that would be impermissible were direct regulation of speech or a criminal penalty at stake." 524 U.S. at 587-88. But the City ignores the rest of the