Plantiffs'
Post-trial Brief
Conclusions of Law
Oct 9, 2000
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF TEXAS
SAN ANTONIO DIVISION
ESPERANZA PEACE & 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.
CIVIL ACTION NUMBER SA98CA0696-OG
Plaintiffs’
Amended Proposed Findings of Fact
With Citations to the Evidence
Conclusions of Law
A. Jurisdiction and Parties
1. The Court has federal question jurisdiction. 28 U.S.C. 1331, 1367, 2201 and 2202.
2. The Esperanza Center is a "person" entitled to sue under 42 U.S.C. 1983.
3. The Media Project is a "person" entitled to sue under 42 U.S.C. 1983.
4. VAN is a "person" entitled to sue under 42 U.S.C. 1983.
5. The City of San Antonio ("City") is a municipality and a "person" capable of acting under color of law.
6. Howard Peak is the Mayor of the City of San Antonio. In his official capacity, he is a person capable of acting under color of law.
7. In all of the acts found herein, the City acted through its representatives and agents, including the San Antonio City Council; the presiding officer of the City Council, Mayor Howard Peak; the ten individual Council Members; the City Department of Art and Cultural Affairs; the Director of the Department of Art and Cultural Affairs; the Department of Art and Cultural Affairs Peer Review Panels and their individual members; the Cultural Arts Board and its individual members; and the City Manager, Budget Office, and their staff and acted under color of law, pursuant to a policy or practice of the City.
B. Standards for determining viewpoint discrimination
in
government arts funding, mixed motive, multiple decision-maker cases
8. The First Amendment applies to arts funding or other tax subsidy cases. NEA v. Finley, 524 U.S. 569, 587, 118 S.Ct. 2168, 2179 (1998).
The Obligation of Viewpoint Neutrality
9. In the provision of Government subsidies, including arts funding, the government has "an obligation of viewpoint neutrality." University of Wisconsin v. Southworth, __ U.S. ___, 120 S.Ct. 1346, 1356 (2000) (holding that government has obligation of neutrality in government subsidy programs); Finley, 524 U.S. 569, 586, 118 S.Ct. 2168, 2178 (1998) (observing that government may not use its power to award subsidies in order to penalize disfavored viewpoints).
10. The City of San Antonio did not create nor operate its arts funding program in order to send a message of its own; therefore, this case is not governed by Rust v. Sullivan, 500 U.S. 173, 200, 111 S.Ct. 1759, 1776 (1991); cf. Finley, 524 U.S. at 586, 118 S.Ct. at 2178. Moreover, Rust is not applicable because the Plaintiffs are not bringing a facial challenge to the City's arts funding program.
11. Viewpoint discrimination -- i.e., discrimination because of the speaker's specific motivating ideology, opinion, or perspective is presumptively unconstitutional. Rosenberger v. Rector & Visitors of Univ. of Va., 515 U.S. 819, 828, 115 S.Ct. 2510, 2516 (1995). The government's discrimination aimed at one set of views is a subset of the more general concept of content discrimination, which is also presumptively unconstitutional . Rosenberger, 515 U.S. at 830-31, 115 S.Ct. at 2517; R.A.V. v. St. Paul, 505 U.S. 377, 391, 112 S.Ct. 2538, 2546 (1992); see also Turner Broadcasting Sys.. Inc. v. FCC, 512 U.S. 622, 641-43, 114 S.Ct. 2445, 2458-60 (1994).
12. Indeed, the Supreme Court has described viewpoint discrimination as an "egregious" type of content discrimination. Rosenberger, 515 U.S. at 828, 115 S.Ct. at 2516; see also R.A.V., 505 U.S. 377, 391, 112 S.Ct. 2538, 2547 (1992) ("the ordinance goes beyond mere content discrimination, to actual viewpoint discrimination").
13. Thus, the government may not discriminate against a speaker because of his or her viewpoint, regardless of whether the government action involves a public, designated, limited, nonpublic forum, tax subsidy, or other governmental funding. Rosenberger, 515 U.S. at 828, 115 S.Ct. at 2516; 151; Cornelius v. NAACP Legal Defense & Educ. Fund Inc., 473 U.S. 788, 812, 105 S.Ct. 3439, 3454 (1985) (in nonpublic forum, reasonable grounds for government action do not save viewpoint discriminatory regulation); Hobbs v. Hawkins, 968 F.2d 471,481 (5th Cir. 1992) ("viewpoint discrimination violates the First Amendment regardless of the forum's classification").
14. The government may define the purpose and criteria of a funding program, but once these are defined, the government cannot refuse "access to a speaker solely to suppress the point of view he espouses on an otherwise includible subject" Lamb's Chapel v. Center Moriches Union Free Sch. Dist., 508 U.S. 384, 394, 113 S.Ct. 2141, 2147 (1993) (quoting Cornelius, 473 U.S. 788, 806, 105 S.Ct. 3439, 3451 (1985)); Rosenberger 515 U.S. at 828, 115 S.Ct. at 2516 ("The 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"); Perry Educ. Ass'n v. Perry Local Educators' Ass'n, 460 U.S. 37, 46, 103 S.Ct. 948, 955 (1983). Proof of Viewpoint Discrimination
15. In order to establish viewpoint discrimination in the City's 1997 and 1998 decisions to eliminate the proposed arts funding for them from the City Budget for FY 1997-98 and FY 1998-99, Plaintiffs must establish: (1) that they expressed viewpoints that were protected by the First Amendment; Finley, 524 U.S. 569, 586, 118 S.Ct. 2168, 2178 (1998); Steadman v. Texas Rangers, 179 F.3d 360 (5th Cir. 1999) (2) that their viewpoints were a substantial or motivating factor in the City's decision. See Mount Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274,287,97 S.Ct. 568, 586 (1977) (burden-shifting analysis) North Mississippi Communications, Inc. v. Jones, 874 F.2d 1064, 1068 (5th Cir. 1989)
16. Under Mount Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274,287,97 S.Ct. 568, 586 (1977), the burden then shifts to Defendant to prove that it would have made the same decision even if Plaintiffs had not expressed their viewpoint. If Defendant does not meet this burden, then it is established that the Defendants decision was the result of viewpoint discrimination and is presumptively unconstitutional.
17. The presumption of unconstitutionality can be overcome "only if the government demonstrates that its regulation is narrowly drawn and is necessary to effectuate a compelling state interest." G.L.S.A. v. Gohn, 850 F.2d 361, 366 (8th Cir. 1988); see also R.A.V., 505 U.S. 377, 395 (1992). Protected Expression of Viewpoints
18. The Plaintiffs' programs involved in this case visual arts displays, speaker forums, performing arts, film festivals -- are classic examples of expression protected by the First Amendment. Finley, 524 U.S. 569, 586, 118 S.Ct. 2168, 2178 (1998). Substantial or Motivating Factor
19. The Plaintiffs may offer circumstantial evidence of motive or intent to establish that Plaintiffs' viewpoints were a substantial or motivating factor in the City's decision to defund the Plaintiffs. See Arlington Heights v. Metropolitan Housing Development Corp. , 429 U.S. 252, 266, 97 S.Ct. 555, 564 (1977) ("Determining whether invidious discriminatory purpose was a motivating factor demands a sensitive inquiry into such circumstantial and direct evidence of intent as may be available."); Cf. McMillan v. Escambia County, 638 F.2d 1239, 1243 (5th Cir.1981) (examining circumstantial proof of discriminatory intent).
20. Circumstantial evidence of governmental intent includes: (1) The impact of the official action -- whether it bears more heavily on one group than another, Arlington Heights, 426 U.S., at 242 (2) the historical background of the action, including: -- the specific sequence of events leading up to the challenged action; any procedural departures from the normal procedural sequence; -- 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 (3) the legislative history, especially where contemporary statements by members of the decisionmaking body exist. McMillian, 638 F.2d at 1243 (5th Cir.1981), citing Arlington Heights, 429 U.S. at 266, 97 S.Ct. at 564.
21. The City's singling-out of Esperanza is strong evidence that viewpoint discrimination was a substantial factor in Defendants' decision. Cf. Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 534-35 (1993) (fact that ordinance applied to only one religion's practices was evidence of intent to target that religion); Rolf v. City of San Antonio, 77 F.3d 823 (5th Cir. 1996) (fact that one landowner was named for condemnation provided evidence of intent to target that landowner).
22. The conclusion that viewpoint discrimination was a substantial factor in Defendants' decisions to defund the Plaintiffs is further supported by the fact that the City did not follow its normal evaluation procedure and criteria in making the decisions. See Arlington Heights, 429 U.S. at 266, 97 S.Ct. at 564.
23. A decision motivated by an applicant's "political views, associations or activities" or by an applicant's "style of advocacy" constitutes viewpoint discrimination. See FCC v. League of Women Voters of California, 468 U.S. 364, 375-76 (1984) (Political speech "is entitled to the most exacting degree of First Amendment protection.") Cf. Advocates for the Arts v. Thomson, 532 F.2d 792, 798 (1976) ("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.").
24. 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 decided to withhold arts funding because Museum presented "Sensation" exhibit); Cuban Museum of Arts and Culture, Inc. v. City of Miami, 766 F.Supp. 1121, (S.D.Fla.1991) (City decision to withhold support for Cuban Museum because of show and auction that included works by artists who had not renounced the Castro regime or by artists who had continued to live in a communist Cuba was viewpoint discrimination); see also Cinevision Corp v. City of Burbank, 745 F.2d 560, 577 (9th Cir. 1984), cert. denied, 471 U.S. 1054 (1985) ("Excluding a performer because of his political views, or those of the crowd that he might attract, or because the performer might say unorthodox things, as well as considering such arbitrary factors as the lifestyle or race of the crowd that a performer would attract, is not constitutionally permissible."); Advocates for Arts v. Thompson, 532 F.2d 792, 798 n.8 (1st Cir. 1976) ("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"), cert. denied, 429 U.S. 894 (1976); Amato v. Wilentz, 753 F. Supp. 543, 557 (D.N.J. 1990), vacated on other grounds, 952 F.2d 742 (3d Cir. 1991) (Chief Justice's refusal to permit use of courthouse for filming The Bonfire of the Vanities because the film might "erod[e] . . . the confidence of blacks and other minorities in the judicial system." was viewpoint discrimination); Sefick v. City of Chicago, 485 F. Supp. 644, 653 (N.D. Ill. 1979) (holding that the removal of sculpture from public forum violated First Amendment because it was based on "objection to the social and political nature of the art work"); cf. Bullfrog Films, Inc. v. Wick, 847 F.2d 502, 509, 511 (9th Cir. 1988) (denial of USIA certification to environmental and political films because they were "political propaganda" was probably not viewpoint-neutral).
25. In order to establish that an improper consideration was a substantial or motivating factor in the City's decision, it is not necessary to prove that the improper factor was the "final link in the chain of causation:" if an improper factor "sets in motion" the events that lead to the decision, the decision itself is improper. See Bowen v. Watkins, 669 F.2d 979, 986 (5th Cir. 1982).
26. In this case, Plaintiffs have established that Plaintiffs' viewpoints were a substantial or motivating factor in the City's decisions to defund the Plaintiffs in 1997 and 1998.
Not Narrowly Tailored to Achieve a Compelling State Interest
27. Scarcity of funds does not justify viewpoint discrimination. Rosenberger, 515 U.S. 819, 820 (1995).
28. Opposition to Plaintiffs' viewpoints by some constituents does not justify viewpoint discrimination. Indeed, it is the very purpose of the First Amendment to ensure the right to expression, even of unpopular ideas. See Texas v. Johnson, 491 U.S. 397, 407, 109 S.Ct. 2533, 2544 (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 because society finds the idea itself offensive or disagreeable.").
29. The First Amendment does not allow government to make decisions that suppress speech based on hostility to that speech or fear of controversy. See Forsyth Cty. v Nationalist Movement, 505 U.S. 123, 133-36 (1992); Cornelius, 473 U.S. 788, 812 (1985); Flanagan v. Munger, 890 F.2d 1557, 1566-67 (10th Cir. 1989); Cinevision Corp., 745 F.2d at 575-76.
30. The Defendants decisions to defund the Plaintiffs in 1997 and 1998 were not narrowly tailored to achieve any compelling governmental interest.
C. Defendants' Decisions to Defund the Plaintiffs Also Violated Plaintiffs' Rights to Equal Protection Because the Differential Treatment of Plaintiffs was not Based on Any Reason that Bore a "Rational Relation to Some Legitimate End."
Singling-Out Not Rationally Related to Some Legitimate End
31. Under the Equal Protection Clause, the City may not single-out the Plaintiffs for disfavorable treatment unless the City can show that, at a minimum, its action bears a "rational relation to some legitimate end." Romer v. Evans, 517 U.S. 620, 631 (1996).
32. In order to establish a violation of the Equal Protection Clause, Plaintiffs must establish: (1) That the City singled-out or classified one individual or organization for differential treatment; and (2) That the singling-out or classification was not rationally related to any legitimate governmental purpose. City of Cleburne v. Cleburne Living Center, 473 U.S. 432, 446-447, 105 S.Ct. 3249, 3258 (1985).
Legitimate Governmental Interest
33. "Some governmental objectives-- such as 'a bare ... desire to harm a politically unpopular group' -- are not legitimate state interests." Id., citing United States Dept. of Agriculture v. Moreno, 413 U.S. 528, 534, 93 S.Ct. 2821, 2826 (1973) and Zobel v. Williams, 457 U.S. 55, 63, 102 S.Ct. 2309, 2314 (1982).
34. The Supreme Court has long held that government actions that are based solely on dislike, prejudice or fear do not serve a legitimate end. See, e.g., Moreno, 413 U.S. 528 (1973) (striking down, as a violation of equal protection, provision in the federal food stamp program which sought to eliminate eligibility for "hippies" in communes); City of Cleburne, 473 U.S. 432, 448 (1985) (striking down, as a violation of equal protection, City's decision to deny zoning permit to group home for the mentally disabled).
35. "Mere negative attitudes, or fear, unsubstantiated by factors which are properly cognizable" in a City arts funding application are not permissible bases for treating one organization differently from other similarly-situated organizations. City of Cleburne, 473 U.S. 432, 448, 105 S.Ct. 3249, 3259 (1985)
36. Moreover, there is no legitimate governmental interest in deferring to the objections or wishes of some fraction of the electorate, and the government may not avoid the requirements of the Equal Protection Clause by deferring to the objections or wishes of some fraction of the electorate. Cleburne, 473 U.S. at 448, 105 S.Ct. at 3259. "'Private biases may be outside the reach of the law, but the law cannot, directly or indirectly, give them effect.'" Id., quoting Palmore v. Sidoti, 466 U.S. 429, 433, 104 S.Ct. 1879, 1882, 80 L.Ed.2d 421 (1984).
37. The proposition that a general "feeling of antipathy" against a group cannot be a proper government purpose applies with full force to state action which is based on prejudice against lesbians and gay men. See Romer v. Evans, 517 U.S. 620, 632 (1996) (Striking down a state Constitutional amendment which disfavored gays and lesbians, the Court held that a law which is "inexplicable by anything but animus toward the class that it affects . . . lacks a rational relationship to legitimate state interests.").
38. The City Council's desire to give effect to opposition voiced by some members of the public who disapprove of the Esperanza's co-sponsorship of the Out at the Movies film festival and the Esperanza's support for the rights and cultural expression of lesbians and gay men was a not a legitimate governmental interest. Romer v. Evans, 517 U.S. 620, 632 (1996).
Rationally Related
39. Even under rational basis scrutiny, a classification is unconstitutional if there is not both a legitimate governmental interest and a reasonable "fit" between the government's action and the claimed governmental purpose; the one must have a "fair and substantial relation" to the other. See Brennan v. Stewart, 834 F.2d 1248, 1259 (5th Cir. 1988); Zeigler v. Jackson, 638 F.2d 776, 779 (5th Cir. 1981). The State may not rely on a classification whose relationship to an asserted goal is so attenuated as to render the distinction arbitrary or irrational. City of Cleburne, 473 U.S. 432, 446-447, 105 S.Ct. 3249, 3258 (1985), citing Zobel, 457 U.S. 55, 61-63, 102 S.Ct. 2309, 2313-2314; Moreno, 413 U.S. 528, 535, 93 S.Ct. 2821, 2826 (1973).
40. Thus, if public opposition to a group "is based on nothing more than unsupported assumptions, outdated stereotypes, and animosity, it is necessarily irrational . . .", Weaver v. Nebo School Dist., 29 F.Supp.2d 1279, 1288-89 (D. Utah 1998).
41. Similarly, an objection to the Plaintiffs' political speech or social justice activism cannot form a rational basis for government action against them. See R.A.V., 505 U.S. 377, 406 (1992) (White, J., concurring) (government action "that drew distinctions on the basis of political affiliation or 'an ordinance prohibiting only those legally obscene works that contain criticism of the city government,' would unquestionably fail rational-basis review") (citation omitted); American Sugar Refining Co. v. Louisiana, 179 U.S. 89, 92 (1900) (if state tax exemption depended upon differences of political affiliations, "such exemption would be pure favoritism, and a denial of the equal protection).
42. Moreover, the fact that one person in a class has lost out to another person in the protected class is thus irrelevant, so long as he has lost out because of the classification. See O'Connor v. Consolidated Coin Caters Corp., 517 U.S. 308, 312, 116 S.Ct. 1307, 1310 (1996) (involving age discrimination).
43. The Defendants' decisions to single-out the Plaintiffs for defunding in 1997 and 1998 were not rationally related to any legitimate governmental interest identified by the City. Cf. Brennan v. Stewart, 834 F.2d 1248, 1259 (5th Cir. 1988); Zeigler, 638 F.2d at 779 (5th Cir. 1981).
D. The Defendants Violated the Texas Open Meetings Act In Their Deliberations on the Proposed Budget
Elements of Texas Open Meetings Act Violation
44. The Texas Supreme Court commands literal compliance with the Open Meetings Act. "Our citizens are entitled to know more than a result. They are entitled not only to know what government decides but to observe how and why every decision is reached." Acker v. Texas Water Comm'n, 790 S.W.2d 299, 300 (Tex. 1990) (emphasis added). The law was enacted to "assur[e] that the public has the opportunity to be informed concerning the transactions of public business," and thus demands that "[t]he executive and legislative decisions of our governmental officials as well as the underlying reasoning must be discussed openly before the public rather than secretly behind closed doors." Id. (emphasis added).
45. Section 551.002 of the Texas Government Code (the "Open Meetings Act") requires that "Every regular, special, or called meeting of a governmental body shall be open to the public, except as provided by this chapter." Tex. Gov. Code 551.002
46. "Meeting" is defined in section 551.001(4) as "a deliberation between a quorum of a governmental body, or between a quorum of a governmental body and another person, during which public business or public policy over which the governmental body has supervision or control is discussed or considered or during which the governmental body takes formal action." Tex. Gov. Code 551.001(4). [Footnote: This definition continues: The term does not include the gathering of a quorum of a governmental body at a social function unrelated to the public business that is conducted by the body, or the attendance by a quorum of a governmental body at a regional, state, or national convention or workshop, if formal action is not taken and any discussion of public business is incidental to the social function, convention, or workshop. The term includes a session of a governmental body.]
47. "Deliberation" is defined in section 551.001(2) as "a verbal exchange during a meeting between a quorum of a governmental body, or between a quorum of a governmental body and another person, concerning an issue within the jurisdiction of the governmental body or any public business." Tex. Gov. Code 551.001(2).
48. "Quorum" is defined in section 551.001(6) as "a majority of a governmental body, unless defined differently by applicable law or rule or the charter of the governmental body." Tex. Gov. Code 551.001(6).
The Act is Violated Even if a Quorum was Not in the Same Physical Place
49. A deliberation among a quorum of a governmental body can occur even if a majority of the members are not physically in one place. Hitt v. Mabry, 687 S.W. 2d 791 (Tex. App.-- San Antonio, 1985) (series of phone calls to poll a majority of the board members violated the Open Meetings Act, even though the board members were not physically in one place or on a single telephone conference call at one time.) [Footnote: Following the Courts decision in Hitt, the Legislature amended the Open Meetings Act to authorize a governmental body to hold a meeting by telephone conference call only if (1) there is an emergency or urgent public necessity and (2) it is difficult or impossible to convene a quorum at one location. Tex. Gov. Code 551.125.]
50. A series of meetings -- each one of which involved less than a quorum -- would violate the Open Meetings Act if a majority of the decision-making body was involved . Tex. Atty. Gen. Op. DM-95 (1992) (opining that a violation of Open Meetings Act likely would occur when a majority of the City Council signs a letter expressing an opinion on matters relevant to the city government, even if the letter was drafted and signed in "a series of closed meetings of members of less than a quorum"). See also Tex. Atty. Gen. Let. Op. 95-055 (1995), (opining that the Open Meetings Act would be violated by a member of the City Council telephoning a majority of the Council to express his or her views and/ or concerns about an issue pending before the board).
51. Indeed, the existence of a written statement of agreement signed by a majority of the City Council is sufficient evidence to demonstrate that the Council must have deliberated outside of public view, in violation of the Act. See City of Stephenville v. Texas Parks and Wildlife Dep't, 940 S.W.2d 667, 674 (Tex. Ct. App. 1996) (letter from Commission demonstrating agreement on seven separate items was, by itself, sufficient evidence to support a finding that the Commissioners violated the Act).
52. Moreover, the fact that there was no discussion of a controversial issue in the City Council's public meeting provides additional support for the conclusion that deliberations in violation of the Open Meetings Act have occurred. See Tex. Atty. Gen. Op. DM-95 (1992).
53. In this case, the Defendants violated the Open Meetings Act when Members of the City Council engaged in a series of meetings and telephone conversations regarding changes to the City Budget during the evening of September 10, 1997.
An Action Taken in Violation of the Open Meetings Act is Void and Cannot be Ratified
54. Actions taken in violation of Open Meetings Act are void and cannot be ratified. Fielding v. Anderson, 911 S.W.2d 858 (App. 11 Dist. 1995). See also Mayes v. City of De Leon, 922 S.W.2d 200 (App. 11 Dist. 1996) (City's subsequent ratification of termination of police chief which occurred at city council meeting which violated Open Meetings Act could not cure the defect in the open meeting notice).
D. The Defendants Violated the Plaintiffs' First Amendment Rights When the City Retaliated Against the Plaintiffs Because They Filed This Lawsuit
55. "The right of access to the courts is an aspect of the First Amendment right to petition the Government for redress of grievances." Bill Johnson's Restaurants Inc. v. National Labor Relations Bd., 461 U.S. 731, 741,103 S.Ct. 2161, 2169 (1983); California Motor Transp. Co. v. Trucking Unlimited, 404 U.S. 508, 510, 92 S.Ct. 609, 611(1972). It is a violation of the First Amendment rights for the City to retaliate against Plaintiffs because they filed this lawsuit. See Wilson v. Thompson, 593 F.2d 1375 (5th Cir. 1979).
56. In order to establish unconstitutional retaliation, Plaintiffs must show that their filing this lawsuit was a "substantial or motivating factor" in the Defendants decision not to fund the Plaintiffs in 1998. See Wilson v. Thompson, 593 F.2d 1375 (5th Cir. 1979).; Mount Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274,287,97 S.Ct. 568, 586 (1977) (burden- shifting analysis); Cf. Northern Mississippi Communications. Inc. v. Jones, 874 F.2d 1064, 1068 (5th Cir. 1989) (applying burden-shifting analysis to claim of withholding public patronage in retaliation for critical media coverage of government's conduct).
57. If the plaintiff satisfies this burden, then the Defendants must prove that the same decision would have been reached even if Plaintiffs had not filed suit. See Mt. Healthy, 429 U.S. at 287, 97 S.Ct. at 568; Jones, 874 F.2d at 1067.
58. Again, in order to establish that Plaintiffs' filing this lawsuit was a substantial or motivating factor in the City's decision, it is not necessary to prove that the retaliation was the "final link in the chain of causation:" if an improper factor "sets in motion" the events that lead to the decision, the decision itself is improper. See Bowen v. Watkins, 669 F.2d 979, 986 (5th Cir. 1982).
59. Defendants have not shown that their retaliation was narrowly tailored to serve a compelling governmental interest. See Mt. Healthy, 429 U.S. at 288, 97 S.Ct. at 569
60. In this case, Plaintiffs filing this lawsuit was the reason for the Defendants' decision not to fund the Plaintiffs' in 1998 and that decision is a violation of the First Amendment right to petition.