Full opinion text
MEMORANDUM OPINION ON PLAINTIFFS’ SECOND MOTION FOR PRELIMINARY INJUNCTION HAMILTON, District Judge. On October 2, 1995, defendant Indianapolis-Marion County Braiding Authority (“Building Authority”) revised one of its rules so as to prohibit all private uses of the lobby of the City-County Building in downtown Indianapolis. Plaintiffs Rabbi Abraham Grossbaum and Lubavitch of Indiana, Inc. wish to display a five-feet tall wooden menorah in the lobby, as they have done in the past. Plaintiffs agree that the Building Authority’s new policy is facially constitutional because it is viewpoint-neutral. They also agree that the Building Authority has the right to close what had been a “nonpublic forum.” The new policy therefore does not suffer from the First Amendment defect found by the Court of Appeals in an earlier policy that banned displays of seasonal religious symbols. See Grossbaum v. Indianapolis-Marion County Bldg. Auth., 63 F.3d 581 (7th Cir.1995). However, the new facially neutral policy still does not let plaintiffs do what they want to do: display their menorah in the lobby of the City-County Building. Plaintiffs have filed an amended complaint and a new motion for preliminary injunction. They assert that even though the new policy is facially neutral and closes the forum to all private uses, it still violates plaintiffs’ First Amendment rights solely because the Building Authority acted with improper motives when it approved the new policy. Specifically, plaintiffs contend the Building Authority acted with one or more of the following unconstitutional motives when it closed the forum to everyone: (1) a desire to retaliate against these plaintiffs for suing the defendants in this action; (2) a desire to retaliate against these plaintiffs for their religious expression; and (3) an intent to discriminate against these plaintiffs’ religious beliefs in particular and/or religion in general. The parties have quickly compiled and presented a substantial volume of evidence concerning the reasons for the Building Authority’s decision. That volume of evidence and the speed with which it must be analyzed account for much of the length of this opinion. Despite that length, the court’s decision ultimately turns on a factual determination about the Building Authority’s motives in adopting the facially constitutional policy. On the existing record, the court finds that the defendants did not act with any improper motive when they decided to “close” the forum by prohibiting all private displays in the common areas of the building. Because plaintiffs have not shown they are reasonably likely to succeed on the merits of their claims, the court denies plaintiffs’ motion for a preliminary injunction. I. Background Plaintiff Rabbi Abraham Grossbaum is an Orthodox Jewish rabbi affiliated with the Lu-baviteh Hasidic movement. He is a resident of Indianapolis. He is also the Executive Vice President of plaintiff Lubavitch of Indiana, Inc., which is a private, non-profit Orthodox Jewish organization incorporated under the laws of Indiana. Defendant Indianapolis-Marion County Building Authority is a municipal corporation organized under the laws of Indiana. The Building Authority is responsible for managing the City-County Building in downtown Indianapolis which houses a number of city and county agencies of government and some private tenants. Defendant Ronald L. Reinking is the general manager of the Building Authority. He administers the rules and regulations of the Building Authority and is responsible for granting or denying requests to use the lobby of the City-County Building for displays. From 1985 through 1992, plaintiffs requested and received permission from the Building Authority to display their five-feet tall menorah in the lobby of the City-County Building during Chanukah. In 1992 the Indiana Civil Liberties Union and the Jewish Community Relations Council questioned the display of the menorah in a public building like the City-County Building. In October 1993, the Building Authority adopted a new “Policy on Seasonal Displays” which prohibited displays of seasonal religious symbols in the lobby and other common areas of the building. Pursuant to that policy, plaintiffs were not permitted to display their menorah in 1993. Before Chanukah in 1994, plaintiffs filed this action and sought a preliminary injunction against enforcement of the Policy on Seasonal Displays. Plaintiffs argued that the policy banned only seasonal religious displays, which amounted to viewpoint discrimination concerning expression in the forum on the subject of “the holiday season.” See Lamb’s Chapel v. Center Moriches Union Free School Dist., — U.S.-, 113 S.Ct. 2141, 124 L.Ed.2d 352 (1993). On November 22, 1994, this court denied plaintiffs’ motion for a preliminary injunction. Grossbaum v. Indianapolis-Marion County Bldg. Auth., 870 F.Supp. 1450 (S.D.Ind.1994). On November 29, 1994, the Court of Appeals issued an injunction pending appeal that enjoined enforcement of the Poliey on Seasonal Displays. The Building Authority therefore permitted plaintiffs to display their menorah in the lobby of the City-County Building. Several other individuals and groups also applied for and received permission from the Building Authority to place religious displays in the lobby of the City-County Building. On August 15, 1995, the Court of Appeals reversed this court’s decision and held that the Building Authority’s Policy on Seasonal Displays subjected plaintiffs to unconstitutional viewpoint discrimination. Grossbaum v. Indianapolis-Marion County Bldg. Auth., 63 F.3d 581 (7th Cir.1995). With that background, we come to the more recent events at issue today. On August 28, 1995, Rabbi Grossbaum requested permission from the Building Authority to place a menorah display in the lobby of the City-County Building dining Chanukah in 1995. The Building Authority board of directors met on September 5, 1995, and discussed the possibility of amending the rules that govern access to the common areas of the City-County Building for display purposes. On October 2,1995, the board met in executive session to discuss the present litigation. After the executive session, the board met in a public session and amended the rules governing use of the common areas in the budding. The board voted to: (a) amend its “Rule 13” to prohibit all private displays in the common areas, including the lobby; (b) modify slightly the rule prohibiting political uses of the building; and (c) rescind the Policy on Seasonal Displays that the Court of Appeals had held unconstitutional. Relying on the amended Rule 13, Mr. Reinking wrote to Rabbi Grossbaum the next day denying his request to erect the menorah display in the lobby in 1995. Plaintiffs then investigated the new rule and took depositions of Mr. Reinking, his assistant, and all five members of the Building Authority board. On November 29,1995, plaintiffs filed an amended complaint and a second motion for preliminary injunction, this time seeking an injunction against enforcement of the new Rule 13 prohibition on all private displays in the lobby and other common areas. Plaintiffs do not challenge the facial constitutionality of the prohibition. Instead, they claim the new policy is unconstitutional because the Building Authority adopted it for one or more of three unconstitutional purposes: (1) to retaliate against plaintiffs for having sued the Building Authority; (2) to retaliate against plaintiffs for exercising their free speech rights by displaying the menorah; and/or (3) to discriminate against either plaintiffs’ viewpoint or all religious viewpoints toward the holiday season. Chanukah begins at sundown on Sunday, December 17, 1995. The parties have submitted briefs, documentary exhibits, and extensive passages from depositions. At a hearing on December 11, 1995, both sides presented oral argument. This opinion states the court’s findings of fact and conclusions of law for purposes of Fed.R.Civ.P. 65 and 52. II. Preliminary Injunction Standard Before the court may enter a preliminary injunction, the plaintiff must demonstrate “(1) some likelihood of succeeding on-the merits, and (2) that it has ‘no adequate remedy at law’ and will suffer ‘irreparable harm’ if preliminary relief is denied.” Abbott Labs. v. Mead Johnson & Co., 971 F.2d 6, 11 (7th Cir.1992). If those elements are not satisfied, then the inquiry is over and the preliminary injunction must be denied. If those elements are met, the court then proceeds to consider “(3) the irreparable harm the non-moving party will suffer if preliminary relief is granted, balancing that harm against the irreparable harm to the moving party if relief is denied; and (4) the public interest, meaning the consequences of granting or denying the injunction to non-parties.” Abbott Labs., 971 F.2d at 11-12. Accord, e.g., Vencor, Inc. v. Webb, 33 F.3d 840, 845 (7th Cir.1994); Lawson Products, Inc. v. Avnet, Inc., 782 F.2d 1429, 1433 (7th Cir.1986). There is no precise standard for the quantum of evidence required to obtain a preliminary injunction. Rather, the strength of the evidence and the potential harms involved are factors balanced on what the Seventh Circuit has called a discretionary sliding scale: The [district] court, sitting as would a chancellor in equity, ... “weighs” all four factors in deciding whether to grant the injunction, seeking at all times to “minimize the costs of being mistaken.” We call this process the “sliding scale” approach: the more likely it is the plaintiff will succeed on the merits, the less the balance of irreparable harms need weigh towards its side; the less likely it is the plaintiff will succeed, the more the balance need weigh towards its side. This weighing process, as noted, also takes into consideration the consequences to the public interest of granting or denying preliminary relief. While we have at times framed the sliding scale approach in mathematical terms, it is more properly characterized as subjective and intuitive, one which permits district courts to “weigh the competing considerations and mold appropriate relief.” Abbott Labs., 971 F.2d at 12 (citations and footnote omitted). Accord, Vencor, 33 F.3d at 845; Storck USA, L.P. v. Farley Candy Co., 14 F.3d 311, 314 (7th Cir.1994). See also 11A Wright, Miller & Kane, Federal Practice & Procedure § 2948.3, at 189-97 (1995). III. Likelihood of Success on the Merits The parties agree that the Building Authority’s new Rule 13 is facially neutral. By stipulating for purposes of the plaintiffs’ motion for preliminary injunction that the building lobby is a “nonpublic forum,” the parties also agree that the First Amendment permits the Building Authority to exclude all private displays using such a facially neutral standard. See Cornelius v. NAACP Legal Defense & Educational Fund, 473 U.S. 788, 806, 105 S.Ct. 3439, 3451, 87 L.Ed.2d 567 (1985) (government may limit access to nonpublic forum to particular class of speakers); Perry Educ. Ass’n v. Perry Local Educators’ Ass’n, 460 U.S. 37, 46, 49, 103 S.Ct. 948, 955, 957, 74 L.Ed.2d 794 (1983) (government may restrict access to nonpublie forum based on identity of speaker). However, even facially neutral policies may violate the First Amendment if they are adopted for an unconstitutional purpose, including retaliation against a person for engaging in constitutionally protected conduct, Mt. Healthy City School Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 288-84, 97 S.Ct. 568, 574-75, 50 L.Ed.2d 471 (1977), or a desire to suppress speech expressing a particular viewpoint or group of viewpoints, Cornelius, 473 U.S. at 812, 105 S.Ct. at 3454. Plaintiffs therefore attempt to show that the new Rule 13 is unconstitutional because the Building Authority had an unconstitutional motive in adopting the new rule. The court’s detailed factual findings may be more intelligible if the law governing those claims is set out first. A. Retaliation Standard Plaintiffs assert two different theories of retaliation. They claim that the Building Authority amended Rule 13 to retaliate for their filing of this lawsuit and/or to retaliate for their exercise of free speech rights. Plaintiffs are careful to distinguish between retaliation for the lawsuit and retaliation against their speech rights several times in their amended complaint and brief. Citizens have a right under the First Amendment to petition their governments for a redress of grievances by, among other things, filing lawsuits. If a government tries to punish a person for exercising that constitutional right, the person may assert a claim for retaliation, as plaintiffs have done here. See Harris v. Fleming, 839 F.2d 1232, 1238 (7th Cir.1988) (collecting other Seventh Circuit cases on constitutional right of access to the courts). See generally Mt. Healthy City School Dist. v. Doyle, 429 U.S. at 283-84, 97 S.Ct. at 574-75 (retaliation against constitutionally protected activity is actionable); Rakovich v. Wade, 850 F.2d 1180, 1189 (7th Cir.1988) (en banc) (same). The constitutional right on which plaintiffs rely in making their other claim of retaliation is their past and future free speech right to display the menorah. Although both of these theories can be called “retaliation,” plaintiffs point out that they are conceptually' distinct. To prevail on their claim of retaliation for, asserting free speech rights, plaintiffs must show that defendants acted out of hostility to plaintiffs’ speech — that is, the expressive content of the menorah. On this theory, plaintiffs must show that the defendants acted based on hostility toward religion in general or toward plaintiffs’ faith in particular. The proof necessary for plaintiffs’ Free Speech theory of retaliation is the same proof needed to establish their viewpoint discrimination claim under the Free Speech Clause. In claiming viewpoint discrimination, plaintiffs allege that the defendants’ ban on all private displays in the City-County Bufiding was motivated by a subjective hostility toward religion in general or plaintiffs’ faith in particular. Since both the retaliation claim and the viewpoint discrimination claim under the free speech theory are based on the same proof and require no analytically distinct treatment, the court will evaluate both of those claims in térms of viewpoint discrimination. On their claim of retaliation for filing the lawsuit, plaintiffs argue that this court, as finder of fact, may infer that the defendants harbored the impermissible motive — revenge over the lawsuit — if it finds that the defendants amended Rule 13 “in response” to the lawsuit which resulted in the Seventh Circuit decision adverse to the defendants. Plaintiffs point out correctly that they need not produce direct evidence of an intent to retaliate. That intent may be inferred from circumstantial evidence, including what plaintiffs say is a suspicious chronology of events. However, plaintiffs also go a step farther and argue that the court need not find that defendants were hostile toward plaintiffs. They contend that so long as the court finds that the defendants acted “in response” to the constitutionally protected activity — the lawsuit — and that the lawsuit was a “but for” cause of the defendants’ action, the court may (and perhaps must) find retaliation. Plaintiffs’ approach to “retaliation” obscures a critical distinction in this case. “Retaliation” is not the legal or linguistic equivalent of “response.” The distinction is between a losing litigant who is angry or hostile toward the prevailing party — who wants to “get even” for the lawsuit — and a losing litigant who considers several options for correcting the underlying violation and chooses one of several permissible ways to remedy it, without any desire for revenge or punishment. In both situations the litigation — the “protected activity" — is a “but for” cause of the losing party’s response. But the law of retaliation focuses on the desire to punish or get even. E.g., Egger v. Phillips, 710 F.2d 292, 320 (7th Cir.1983) (en banc) (material issue in free speech retaliation claim by public employee was whether defendant transferred plaintiff out of concern for effective functioning of office or “out of a desire to punish him for speaking out”); Harvey v. Merit Systems Protection Bd., 802 F.2d 537, 547 (D.C.Cir.1986) (“retaliation is to be defined broadly to include any action designed to punish an employee for exercising his protected rights or to deter him from exercising those rights”) (emphasis added). The difference is critical in this ease because of both the nature and the context of the underlying constitutional violation. The relevant context is that the defendants’ Policy on Seasonal Displays was not adopted because the defendant disliked plaintiffs or their religious beliefs. As discussed in detail below, the record as a whole shows that the policy was adopted because of constitutional concerns about the private display of religious symbols in the halls of government. The Justices’ opinions in Capitol Square Review and Advisory Bd. v. Pinette, — U.S. -, 115 S.Ct. 2440, 132 L.Ed.2d 650 (1995), illustrate the fact that reasonable people can and do disagree on such questions without being hostile toward a particular faith or religion in general. The nature of the underlying violation is critical here because it. was not the denial of access to the forum that was held unconstitutional, but the discriminatory denial of access. See Grossbaum, 63 F.3d at 595-96 (policy denied plaintiffs’ rights to free expression in nonpublic forum created by the Building Authority on the same terms as all other persons, regardless of religious or nonreligious nature of message). That violation could be remedied by opening access to the forum more widely, as plaintiffs wish. But the violation could also be remedied by closing off access to the forum. The Supreme Court’s decisions in this area show that the owner of a nonpublic forum always has the right to close the forum or to impose new nondiscriminatory restrictions on access. E.g., Cornelius, 473 U.S. at 802, 105 S.Ct. at 3448-49; Perry Educ. Ass’n, 460 U.S. at 46, 103 S.Ct. at 955-56. The Court has recently reaffirmed a government’s right to control its property, including the right to close a previously open forum: The fact that the Capitol lawn has been the' site of public protests and gatherings, and is the location of any number of the government’s own unattended displays, such as statues, does not disable the State from closing the square to all privately owned, unattended structures. Capitol Square Review and Advisory Board v. Pinette, — U.S. at-, 115 S.Ct. at 2457 (Souter, J., concurring in part and concurring in judgment, joined by O’Connor and Breyer, JJ.); see id. at-, 115 S.Ct. at 2467 (Stevens, J., dissenting) (expressly agreeing with this point). Accord, Rosenberger v. Rector and Visitors of University of Virginia, — U.S.-,-, 115 S.Ct. 2510, 2516-17, 132 L.Ed.2d 700 (1995) (“The necessities of confining a forum to the limited and legitimate purposes for which it was created may justify the State in reserving it for certain groups or for the discussion of certain topics.”) (citing Cornelius and Perry). Thus, when the Court of Appeals held that the Policy on Seasonal Displays violated the First Amendment, the Building Authority had a choice between constitutional alternatives. It could either leave its other policies alone, thus leaving the nonpublic forum with few restraints on access, or it could impose new, nondiscriminatory restrictions on that access. In making its decision, the owner of a nonpublic forum does not violate the First Amendment by considering the costs of litigation, the resources needed to administer the various options, or the results of litigation thus far. As plaintiffs conceded at the hearing, the Building Authority was entitled to respond to the Court of Appeals’ decision, so long as it did so with a proper motive. In addition, the facially neutral policy of closing the forum is clearly a constitutionally permissible option. The owner does not lose that option when it loses a lawsuit. However, the owner does violate the First Amendment if it makes its choice among permissible options based on a desire to get even with or punish a person who has sued it. See Egger v. Phillips, 710 F.2d at 320 (issue was whether defendant acted “out of a desire to punish [plaintiff] for speaking out”); Hale v. Townley, 19 F.3d 1068, 1073 (5th Cir.1994) (“state officials may not take retaliatory action against an individual designed either to punish him for exercising his constitutional right to seek judicial relief or to chill his exercise of that right in the future”) (emphasis added); Gagliardi v. Village of Pawling, 18 F.3d 188, 195 (2d Cir.1994) (“The ultimate question of retaliation involves a defendant’s motive and intent ...”). The parties have argued opposing positions about what evidence is needed to permit a finding of retaliatory motive. That question is often litigated in constitutional claims, labor law, and employment discrimination cases, especially where there are problems of so-called “mixed motives.” See, e.g., Mt. Healthy, 429 U.S. at 285-87, 97 S.Ct. at 575-76; Johnson v. University of Wisconsin-Eau Claire, 70 F.3d 469, 481-82 (7th Cir.1995) (claims of retaliation under both Title VII and First Amendment); Rakovich v. Wade, 850 F.2d at 1189-91. The question of causation can be difficult when the evidence shows that the defendant had some permissible reasons for its decision but also considered some improper reasons. Mt. Healthy teaches that in the constitutional setting, the finder of fact must decide whether the defendant would have made the same decision even if the improper reasons had not been present. These “mixed-motive” cases dealing with causation all assume, however, that the finder of fact either has found or would be permitted to find an improper motive. In this case, the court need not reach the question of causation with mixed motives. In this case, the decisive issue is not whether this lawsuit was a “but for” cause of the Building Authority’s new policy. Clearly, it was. The decisive issue is whether the Building Authority was in fact motivated by a desire to punish or get even with plaintiffs for having brought this lawsuit. That is the essence of “retaliation,” and that is what plaintiffs must prove to succeed on their claim of retaliation for this litigation. The rule that plaintiffs advocate, which would allow a finder of fact to infer retaliatory intent when the evidence shows only that the owner has lost a lawsuit and then, in response, chooses another facially permissible option that does not satisfy the prevailing plaintiff, would reach beyond truly retaliatory action and would prevent owners of public property from honestly remedying constitutional problems in their past rules in ways that are consistent with both their constitutional obligations and their rights to control their property. B. Viewpoint Discrimination Plaintiffs’ claim of viewpoint discrimination presents different legal issues. Government property managers may regulate the content of speech in a nonpublie forum, but they must be reasonable and viewpoint neutral in doing so. E.g., Cornelius, 473 U.S. at 800, 105 S.Ct. at 3447-48. In deciding last year’s motion, both this court and the Court of Appeals discussed at length the rights of government property managers to control access to the property they manage, and especially the law applicable to “nonpublic” forums. See Grossbaum, 63 F.3d at 586-88; 870 F.Supp. at 1454-59. In short, government property which has not been traditionally open to the public for all expressive activity or which has not been designated by the government as a place for a full range of expressive activity is a “nonpublic forum.” The government may exercise control over access to a nonpublic forum for expressive activity “based on subject matter and speaker identity so long as the distinctions drawn are reasonable in light of the purpose served by the forum and are viewpoint neutral.” Lamb’s Chapel v. Center Moriches Union Free School Dist., 508 U.S. 384,-, 113 S.Ct. 2141, 2147, 124 L.Ed.2d 352 (1993) (quoting Cornelius, 473 U.S. at 806, 105 S.Ct. at 3451). Accord, Perry Educ. Ass’n, 460 U.S. at 49, 103 S.Ct. at 957 (“Implicit in the concept of the nonpublic forum is the right to make distinctions in access on the basis of subject matter and speaker identity.”); Adderley v. Florida, 385 U.S. 39, 47, 87 S.Ct. 242, 247, 17 L.Ed.2d 149 (1966) (a state, “no less than a private owner of property, has power to preserve the property under its control for the use to which it is lawfully dedicated”). Thus, in nonpublic forums, government property managers may reasonably consider whether the content of particular subjects of expression accords with the purpose of the government property and may exclude subjects that do not further that purpose. The line of cases including Adderley, Perry, Cornelius, and Lamb’s Chapel has established beyond dispute that even when it regulates speech in a nonpublic forum, the government may not prefer one viewpoint over another on an “otherwise includible subject.” See Cornelius, 473 U.S. at 806, 106 S.Ct. at 3461. The Supreme Court’s decisions in Rosenberger and Lamb’s Chapel also show that “religion” is rarely a cognizable subject that may be totally excluded in a nonpublic forum. Rather, a particular expression that emanates from a religious perspective is likely to be a viewpoint that may not be suppressed if other viewpoints on the same general topic are allowed. See Rosenberger, — U.S. at-, 115 S.Ct. at 2517-18; Lamb’s Chapel, 508 U.S. at-, 113 S.Ct. at 2147; see also Air Line Pilots Ass’n Int’l v. Dept. of Aviation, 45 F.3d 1144, 1159 (7th Cir.1995) (“The appropriate focus of the viewpoint inquiry examines whether the proposed speech dealt with a subject that was ‘otherwise permissible’ in a given forum.”); Hedges v. Wauconda Community Unit School Dist. No. 118, 9 F.3d 1295, 1297-98 (7th Cir.1993) (putting Lamb’s Chapel in the context of prior viewpoint discrimination cases). In this case, the Court of Appeals found last year that the defendants’ Policy on Seasonal Displays would produce precisely the viewpoint discrimination that Lamb’s Chapel forbids. See 63 F.3d at 589-92. By its terms, the former policy would have allowed any private persons to the erect a secular holiday display such as a Christmas tree while prohibiting religious holiday displays such as a menorah. Therefore, the policy was held unconstitutional because it was not viewpoint neutral on the subject of the “holiday season.” 63 F.3d at 588. Plaintiffs’ claim of viewpoint discrimination this year is quite different. Both sides agree that the policy at issue here, the amended Rule 13, is facially viewpoint-neutral. In fact, Rule 13 does not even express a preference for particular subjects over others, which would be permissible in a nonpublic forum. It allows no private displays at all, on any subject. Plaintiffs claim, however, that the defendants adopted this new facially neutral exclusion of all private displays for the purpose of discriminating against plaintiffs’ viewpoint. A government property manager acts unconstitutionally when it adopts an apparently evenhanded rule excluding expression if it acts with a motive to discourage or suppress a particular viewpoint. See Rosenberger, — U.S. at-, 115 S.Ct. at 2516 (when the “rationale for the restriction” is “the specific motivating ideology or the opinion or perspective of the speaker,” the government engages in forbidden viewpoint discrimination); Cornelius, 473 U.S. at 811, 105 S.Ct. at 3453 (“The existence of reasonable grounds for limiting access to a nonpublic forum ... will not save a regulation that is in reality a facade for viewpoint-based discrimination.”); id. at 812, 105 S.Ct. at 3454 (such “justifications cannot save an exclusion that is in fact based on the desire to suppress a particular point of view”); Perry Educ. Ass’n, 460 U.S. at 49, 103 S.Ct. at 957 (upholding selective access to nonpublic forum in part because there was “no indication that the [government] intended to discourage one viewpoint and advance another”)., See also Church of Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, -, 113 S.Ct. 2217, 2227, 124 L.Ed.2d 472 (1993) (“Official action that targets religious conduct for distinctive treatment cannot be shielded by mere compliance with the requirement of facial neutrality. The Free Exercise Clause protects against governmental hostility which is masked, as well as overt.”). In Cornelius, the Supreme Court stated that it could not decide without a more developed factual record whether the government’s exclusions of certain advocacy groups from the nonpublic forum were based on impermissible motives. 473 U.S. at 812, 105 S.Ct. at 3454. The Court therefore remanded the case for a factual detérmination as whether .the otherwise permissible exclusion of some groups from the nonpublic forum “was impermissi-bly motivated by a desire to suppress a particular point of view.” Id. at 812-13, 105 S.Ct. at 3454-55. Similarly here, the focus must be on the Building Authority’s motives in amending Rule 13, for motive is the only basis upon which plaintiffs challenge the constitutionality of the rule. The cases in this area also illustrate that even if the government does not itself possess the illicit motive, it may act unconstitutionally if it adopts or regulates in deference to the hostility of another party toward a particular viewpoint. In Air Line Pilots Ass’n v. Dept. of Aviation, the Seventh Circuit held that a government property manager may not bar a speaker’s message solely in an effort to cater to the objections of others. 45 F.3d at 1157. Moreover, the Supreme Court warned in Cornelius that if a government property manager’s purported justification for excluding certain groups was to quell controversy, the purpose could be permissible, but the asserted purpose could be “in reality a facade for viewpoint-based discrimination.” 473 U.S. at 811, 105 S.Ct. at 3454. Cf. May v. Evansville-Vanderburgh School Corp., 787 F.2d 1105, 1109 (7th Cir.1986) (desire to avoid potentially disruptive controversy and to maintain appearance of neutrality could justify viewpoint neutral exclusion of speakers from nonpublic forum). C. Proving Motive To prevail on their new claims, plaintiffs must persuade the finder of fact that these defendants acted with an unconstitutional motive. In this case, plaintiffs have raised some evidentiary objections that require close attention to permissible methods of proving unconstitutional motive. For example, they have objected to testimony from Mr. Reinking, his assistant, and Building Authority board members about the reasons the Building Authority amended Rule 13 and about some details of the board’s discussions that are not reflected in the board’s official minutes. The court has overruled the plaintiffs’ objections to that evidence, but a more detailed explanation of the reasons may be helpful. Judges and juries often' must try to determine the subjective purpose for which a person took some action — such as firing an employee, or selecting one vendor, instead of another. Such inquiries are also common in cases claiming, for example, retaliatory discipline against a prison inmate. In cases challenging the constitutionality of legislation, the Supreme Court has sometimes said that it will not strike down legislation based solely on the motives of the legislators who voted for it. E.g., Palmer v. Thompson, 403 U.S. 217, 224, 91 S.Ct. 1940, 1944-45, 29 L.Ed.2d 438 (1971); United States v. O’Brien, 391 U.S. 367, 383-84, 88 S.Ct. 1673, 1682-83, 20 L.Ed.2d 672 (1968). Among the reasons supporting this practice is the difficulty of determining “the” motive for a group of legislators. See, e.g., Church of Lukumi Babalu Aye, Inc. V. City of Hialeah, 508 U.S. 520, -, 113 S.Ct. 2217, 2239, 124 L.Ed.2d 472 (1993) (Scalia, J., concurring) (“it is virtually impossible to determine the singular ‘motive’ of a collective legislative body”) (citing Edwards v. Aguillard, 482 U.S. 578, 636-39, 107 S.Ct. 2573, 2605-07, 96 L.Ed.2d 510 (1987) (Scalia, J., dissenting)); accord, Kassel v. Consolidated Freightways Corp., 450 U.S. 662, 702-03, 101 S.Ct. 1309, 1332-33, 67 L.Ed.2d 580 (1981) (Rehnquist, J., dissenting). In City of Hialeah and Edwards, however, a majority of the Court did consider evidence of legislative motives and struck down the challenged laws in those cases based on that evidence despite the potential difficulties. But in cases where the substantive constitutional claim does not depend on subjective motive, courts may refuse even to consider evidence offered to prove motive. See, e.g., Government Suppliers Consolidating Services, Inc. v. Bayh, 133 F.R.D. 531, 539 (S.D.Ind.1990) (refusing to allow discovery of “motive” evidence in dormant Commerce Clause case because motive did not affect constitutionality of statute); see generally Goldberg v. Whitman, 743 F.Supp. 943, 947-53 (D.Conn.1990) (distinguishing between constitutional claims that require motive analysis and those that do not). Despite the difficulties in determining motive, proof of an unconstitutional motive is essential to all of these plaintiffs’ new claims. Judicial inquiry into the motives of the deci-sionmaking body is unavoidable. In determining the motives of a government body alleged to have violated the neutrality principles of the First Amendment, the Supreme Court has said: “Relevant evidence includes, among other things, the historical background of the decision under challenge, the specific series of events leading to the enactment or official policy in question, as well as the legislative or administrative history, including contemporaneous statements made by members of the decisionmaking body.” City of Hialeah, 508 U.S. at-, 113 S.Ct. at 2230-31. The parties here have provided such evidence — evidence of the history of the dispute, the timing of the Building Authority’s change in policy, and other circumstantial evidence that bears upon the reasons for the Building Authority’s enactment of Rule 13, and contemporaneous records of the Building Authority’s decisional process in the form of minutes from board meetings. In addition, they have provided evidence of the effects of the Building Authority’s amended Rule 13 on private speech in the City-County Building. See City of Hialeah, at-, 113 S.Ct. at 2228 (“Apart from the text, the effect of a law in its real operation is strong evidence of its object.”). The defendants also submitted testimony from depositions taken of Mr. Reinking and all the members of the Building Authority board. Some of the excerpts defendants submitted are essentially after-the-fact statements by the decisionmakers offered to show that the board’s motives at the time of enacting Rule 13 were not illicit. Other statements fill in details of board discussions not reflected in the summaries in the minutes. Plaintiffs objected to the admission of all these statements at the hearing on the ground that neither Indiana nor federal law permits them. After hearing argument on the point, the court overruled plaintiffs’ objection and admitted defendants’ proffered deposition excerpts along with similar excerpts which plaintiffs then offered in rebuttal (without waiving their objection). Citing one line of Indiana cases, plaintiffs’ argue that the official minutes of a government body like the Building Authority board of directors may not be supplemented by oral testimony from members to show the body’s “intent.” See, e.g., Jones v. State of Indiana, 240 Ind. 230, 236-37, 163 N.E.2d 605, 608 (1960); Cundiff v. Schmitt Development Co., 649 N.E.2d 1063 (Ind.App.1995); Carter v. Allen, 631 N.E.2d 503, 509 n. 4 (Ind.App.1994). These cases establish that where state law requires a local government body to make a certain finding in writing or to take certain action on the record, members may not fill in gaps in the written record by testifying that they “intended” to make the required finding or to take the required action. The reasoning of these cases does not extend to forbid members accused of harboring some illicit motive from testifying about the reasons they took a certain action. Even if Indiana law governed the admissibility of the defendants’ testimony, and it does not, this fine of Indiana eases does not support plaintiffs’ objections. Plaintiffs also cite a line of Indiana and federal cases holding that a court may not consider testimony from individual legislators about their intentions when the court is trying to determine the legislature’s intent to help the court construe an ambiguous statute. See, e.g., O’Laughlin v. Barton, 582 N.E.2d 817, 821 (Ind.1991); Covalt v. Carey Canada, Inc., 860 F.2d 1434, 1438-39 (7th Cir.1988) (explaining that statements of individual legislators after the fact are not reliable guides to the intentions of the legislative body at the time it enacted the legislation). This line of cases does not forbid consideration of evidence from individual legislators where subjective motive is the decisive constitutional issue. Because of the obvious possibility that such after-the-fact statements made during litigation may not accurately reflect the deci-sionmaker’s true'motives, judges and juries need to treat them with caution. But treating such evidence with caution is different from refusing to consider it. Judges and juries consider such evidence from decision-makers in many contexts. Examples include employment cases brought under the Equal Protection Clause, e.g., Auriemma v. Rice, 910 F.2d 1449, 1455-56 (7th Cir.1990) (en banc) (defendant decisionmaker testified as to his motive because defendants’ motive crucial in Equal Protection challenge even in qualified immunity analysis), and retaliation eases involving prison officials, e.g., Harris v. Fleming, 839 F.2d 1232, 1238 (7th Cir.1988) (defendant prison guard relied on own affidavit denying retaliatory intent, but genuine issue of fact existed as to his motivation). There is also an element of basic fairness that should not be overlooked here. Where a decisionmaker’s motives are called into question based on inferences drawn from circumstantial evidence, whether the defendant is an individual or a group decisionmaker, the defendant should normally be able to deny that he, she, or it had an illicit motive by testifying to that effect. Plaintiffs’ objections here would require a defendant to stand silent in the face of serious accusations of acting for illicit motives. Moreover, plaintiffs are arguing for a one-way rule. They admit that if a plaintiff alleging an unconstitutional motive could obtain direct evidence of such a motive by admissions of a decisionmaker, the plaintiff would be entitled to use such evidence. They argue that only a defendant accused of illicit motive is barred from testifying to deny that motive. That is not the law. Of course, in eases where motive is the constitutional issue, more objective and contemporaneous evidence is likely to provide the better guidance about the decisionmaker’s true motives. However, the Supreme Court has stated that in determining whether a law was enacted because of “invidious discriminatory purpose,” “[i]n some extraordinary instances the members [of the decision-making body] might be called to the stand at trial to testify concerning the purpose of the official action....” Arlington Heights v. Metropolitan Housing Corp., 429 U.S. 252, 268, 97 S.Ct. 555, 565, 50 L.Ed.2d 450 (1977). A number of other cases support the admissibility of the decisionmakers’ testimony about their own motives. See La Crosse County v. Gershman, Brickner & Bratton, Inc., 982 F.2d 1171, 1175 (7th Cir.1993) (recognizing as “legally cognizable” the “difference between an individual legislator’s testifying in explanation of his or her own motive for voting in a particular way and the same person’s explanation of why a piece of legislation was enacted”); id. at 1177-78 (Fairchild, J. concurring); United States v. Board of School Comm’rs of Indianapolis, 637 F.2d 1101, 1108 n. 14 (7th Cir.1980) (district court properly considered under Arlington Heights “evidence presented on the question of racial motivation, including the statements of a black legislator who testified that race was never considered in drafting the legislation at issue”); Bonham v. District of Columbia Library Admin., 989 F.2d 1242, 1244 (D.C.Cir.1993) (in analyzing purpose prong of Lemon Establishment Clause test, court could look, to “testimony of parties who participated in the enactment or implementation of the challenged law or practice”). The preceding discussion is not to say that such after-the-fact statements must be given much weight. The potentially self-serving character is obvious. But treating such statements carefully and critically is a matter going to weight and not to admissibility. In any event, as the following discussion of the facts in this case shows, ultimately the court would not draw the inference that the Building Authority acted with an illicit motive in amending Rule 13 even if the specific deposition excerpts were excluded and the ease were decided on only plaintiffs’ designated evidence and the defendants’ evidence to which no objection was made. The testimony of the board members was essentially consistent with the reasons for the defendants’ actions as shown by circumstantial evidence and contemporaneous records in the case. D. Findings of Fact Against this legal background, the court will turn to a more detailed exposition of the facts relevant to the plaintiffs’ likelihood of success on the merits of their claims for retaliation based on litigation and hidden viewpoint discrimination. There.is substantial overlap between the facts relevant to these different theories. 1. Findings of Fact for Retaliation Claim For many years the Building Authority has had a set of written “Rules and Regulations Governing the City-County Building and Grounds.” Until October 2, 1995, Rule 13 of those rules provided: 18. USE OF COMMON AREAS. The common areas, such as the Public Assembly Room, meeting rooms, observatory and others as may be so designated, may be reserved for use by tenants or tenant sponsored activities. Use by outside and public groups prohibited. Pl.Ex. 2. Mr. ReinMng has testified and defendants have argued that this original version of Rule 13 applied to the lobby, so that private use, including displays like plaintiffs’ menorah, were prohibited all along. However, as defendants conceded at the hearing, and as is evident from the record of past private uses of the lobby, the original Rule 13 was never applied so as to prohibit private use of the lobby. Plaintiffs first sought permission to display their menorah in the City-County Building lobby in 1985. They were permitted to display the menorah each year from 1985 to 1992. Mr. Reinking consulted with legal counsel (at least in 1990, 1991, and 1992) and decided to allow this private use of the lobby because “we really didn’t see any harm in doing that.” Reinking Dep. at 140. Cf. May v. Evansville-Vanderburgh School Corp., 787 F.2d 1105, 1117 (7th Cir.1986) (“It would hardly occur to the average school administrator to think that when he allowed the girl scouts to use school premises he should be thinking what to do when the Ku Klux Klan asked to use these premises for its cookie sale_”). In 1992 the menorah display generated some controversy. The Indiana Civil Liberties Union (ICLU) objected to the display of the menorah under circumstances that might lead observers to conclude that the government endorsed the plaintiffs’ religious message. The ICLU proposed that the Building Authority solve this problem by adopting a policy that would make-the lobby an open public forum. Pl.Ex. 23 & 24. The Jewish Community Relations Council (JCRC) also objected to the display of the menorah on government property. The JCRC wrote that the display of religious symbols in the halls of government “gives the unavoidable message that government has placed its imprimatur on religion. At the very least, such a message is unwise.” PI. Ex. 31. The JCRC (correctly) cautioned that if the Building Authority declared the lobby a public forum, it would not be possible to discriminate among displays on the basis of content, and warned that the “logical, and inevitable outcome of declaring a public forum is made clear by the experience of Cincinnati in which the KKK was permitted to erect a cross, on the basis of the same arguments used by Lubavitch of Cincinnati to erect its menorah.” The JCRC argued that the Building Authority should not open the forum but should instead “develop a policy which does not permit religious displays within the City-County Building, so as to avoid the appearance of governmental endorsement of one religion over others.” The Building Authority did not adopt the ICLU’s proposal of an open public forum in the lobby. Board minutes and the testimony of Mr. Reinking show that in 1992 and 1993, the Budding Authority considered and explicitly rejected the idea of opening the forum because it would give up much of its control over uses of the lobby. Pl.Ex. 16; Reinking Dep. at 143, 148-49. However, the Building Authority adopted on October 4, 1993, its “Policy on Seasonal Displays,” which the Court of Appeals later held unconstitutional. The records relating to the board’s adoption of that policy show that the board was trying to deal with the “controversy” that the prior menorah displays had generated. The board’s records indicate that the principal reason the board adopted the policy was to ■ respond to the Establishment Clause concerns raised by both the ICLU and the JCRC. The board deliberately selected the policy option that would let it retain more control over the lobby while still accommodating at least some displays. See Pl.Ex. 16; Fox Dep. 57-59, 130-31; Hohmann Dep. 28, 36. Although this court and the Court of Appeals eventually concluded that a neutral policy allowing seasonal displays by private groups, including religious symbols, would not violate the Establishment Clause in this setting, the Building Authority’s concerns about the Establishment Clause were not at all unreasonable. The opinions in a recent Supreme Court decision indicate that at least some members of the nation’s highest court might well consider the Building Authority’s policy to have been mandated by the Establishment Clause. Capitol Square Review and Advisory Bd. v. Pinette, — U.S. at -, 115 S.Ct. at 2464-73 (Stevens, J., dissenting) (arguing that Establishment Clause prohibits display of religious symbols in traditional public forum at seat of government despite availability of neutral policy of equal access), and at -, 115 S.Ct. at 2474-75 (Ginsburg, J., dissenting) (same). After the Court of Appeals issued its order of November 29, 1994, prohibiting the Building Authority from enforcing the “Policy on Seasonal Displays,” plaintiffs immediately set up their menorah display during Chanukah in 1994. The Budding Authority put up a Christmas tree, as it has for many years. Other groups and individuals contacted the Building Authority seeking to put up related displays in the public lobby. One woman who said her religion was Wicca sought and received' permission to display a sign with a pentacle (a five-pointed star in a circle) to celebrate the winter solstice. A minister sought and received permission to display a Christian cross in the lobby for a few days at Christmas. Another man sought and received permission to display signs protesting the display of religious symbols in the public building. The Building Authority granted permission for these displays in 1994 solely on the basis of the Court of Appeals’ emergency order. Other groups and individuals contacted the Building Authority about similar displays but did not follow through. See Pl.Ex. 36 (request to display Nativity scene at Christmas); Pl.Ex. 38 (request to display sign reading “Jesus Christ Is A Myth; The Winter Solstice Is The Reason for the Season.”). These events attracted quite a bit of media attention. During the time these various displays were up, Mr. Reinking heard a number of negative comments about the Wicca pentacle. The pentacle display was apparently stolen only an hour after it was put up. Mr. Rein-king also heard negative comments about the cross that was displayed and about an event during which Rabbi Grossbaum brought a group of children into the lobby, “seemed to be conducting classes regarding the menorah and then led the children in some songs.” Reinking Dep. at 162-63. He said that the hostile comments he heard about all of these religious displays were to the effect that these religious symbols should not be permitted in or were not appropriate for the building. On August 15, 1995, the Court of Appeals issued its opinion holding that the Policy on Seasonal Displays violated plaintiffs’ Free Speech rights. A copy of the opinion was sent to each director of the Building Authority before the board’s September 5, 1995, meeting, and at the public meeting counsel reviewed with the board several litigation options. The board agreed to hold an executive session to consider these options in the next month. The board then discussed with its counsel Rules 13 and 14. The minutes state: It was observed that these original rules reflect the purpose served by the lobbies and corridors to provide unobstructed and safe ingress and egress to City and County government offices by employees and by the general public conducting business in the City-County Building. In this regard, the Board of Directors briefly discussed the effects that the new security measures at the City-County Building will have on pedestrian traffic in the common areas. Pl.Ex. 8. On October 2, 1995, the board held an executive session at which it considered this litigation. The board then met in public session. Among the matters considered was a proposal to: (1) revise Rule 13 to prohibit all private groups from displaying signs or other structures in the common areas, including the lobby; (2) revise Rule 14 to clarify which common areas are subject to its prohibition on political uses; and (3) rescind the Policy on Seasonal Displays. The minutes concerning these discussions provide as follows: The Directors reviewed rules 13 and 14 of the Rules and Regulations Governing the City-County Building. Legal counsel explained that these Rules and Regulations were adopted by the Authority pursuant to provisions contained in the City-County Building Lease dated August 3, 1959 between the Authority, the City of Indianapolis, and Marion County. In conjunction with a review of these two rules, the Directors also considered its policy on religious displays and symbols adopted on October 4,1993. Copies of the two rules and the policy had been furnished to the Directors prior to the meeting. The rules and the policy under review concern the use of the common areas of the City-County Building. - Legal counsel explained that the .common areas in the building are those public areas not leased to the City and County which include lobbies, corridors, the Public Assembly Room, Observatory, and other meeting areas. The purpose served by the lobbies and corridors is to provide unobstructed and safe ingress and egress to the City and County government offices by employees and by the general public conducting business with government offices and courts. Rule 13 restricted the use of the common areas to tenants or tenant-sponsored activities. The rule prohibited use of the common areas by outside groups. Legal counsel explained that from the opening of the City-County Building in 1962, rule 13 banned non-governmental, private groups from erecting displays and structures in the common areas. In recent years, however, certain private groups were permitted to erect displays and structures in the common areas, notwithstanding the prohibition in rule 13. The problem with private displays and structures is the need for the Authority to provide unobstructed and safe ingress and egress to government offices. Certain private displays and structures can create controversy, disruption, and hostility. This causes a concern for security, public safety and pedestrian control in the lobby and corridors. In one instance, a private display caused sufficient hostility that it was stolen within one hour after its erection. ■ The lobby of the City-County Building experiences an exceptionally high flow of daily people traffic for an office building. The area in the lobby around the Tower elevators has always been congested with traffic due to the under-elevatored condition of the building. In addition, access to and from the City-County Building will be impeded and space in the lobbies will become more limited with the new security measures approved by the City-County Council in June, 1995. A walk-through metal detector and an x-ray scan conveyor are to be installed in the lobby at the Court Wing elevators and access to the Court Wing from the Tower will be restricted. One of the effects of the new security measures will be an increased flow of traffic through the Tower lobby. Rule 14 prohibits the use of the common areas for political activities and the display of political signs. Legal counsel explained that this rule has from its inception always been strictly enforced by the Authority. The recommendation by legal counsel to the Board of Directors is that (i) rules 13 and 14 be restated to read in the form distributed to the Directors, (ii) the policy on religious displays and symbols adopted on October 4, 1993 be rescinded, and (iii) the General Manager be instructed to strictly enforce and adhere to restated rules 13 and 14. The Directors reaffirmed that the Authority is responsible for assuring unobstructed and safe access by employees and the general public to the government offices and courts housed in the building. The Directors observed that over the past two years, new proposals for security measures for the City-County Building have been- extensively reviewed and discussed including their impact on pedestrian traffic flow and ready-access by the public to the building. From time to time, the Authority has been asked by the City administration to find ways to improve the flow of traffic and the accessibility of government offices to the general public. The Directors agreed that the new security measures with the installation of metal detectors and x-ray scanners will slow the flow of traffic in the City-County Building and will to some degree increase the flow of traffic in the lobby of the Tower. The Directors also acknowledged that the under-elevatored condition of the building has placed a burden on moving people traffic in the lobby of the City-County Building. The Directors agreed that private displays and structures may impede the flow of traffic and may create a public safety risk. This is especially true with respect to private displays and structures which are prone to controversy, disruption and hostility. The Directors concluded that for these reasons, the use of the common areas of- the building should be restricted to the Authority and to City and County tenants. Upon motion duly made and seconded, the Board of Directors unanimously approved the following resolutions: RESOLVED, that rules 13 and 14 of the Rules and Regulations Governing the City-County Building be amended and restated to read as follows: Rule 13. USE OF THE COMMON AREAS. Use of the common areas of the City-County Building including lobbies, corridors, the Public Assembly Room, Observatory, and other meeting rooms (generally those public areas not leased to governmental tenants) is restricted to the Building Authority and its governmental tenants. No displays, signs or other structures shall be erected in the common areas by any non-governmental, private group or individual since such objects may interfere with unobstructed and safe ingress and egress by employees of the governmental tenants and by the general public conducting business with government offices and courts in the City-County Building. Rule 14. USE OF COMMON AREAS FOR POLITICAL ACTIVITIES. Use of the common areas of the City-County Building (generally those public areas not leased to governmental tenants) for political activities is prohibited. No political signs, pictures or other materials shall be posted or displayed in the common areas. RESOLVED, FURTHER, that the policy on religious displays and symbols adopted by the Board of Directors at its October 4,1993 meeting be, and it hereby is, rescinded effective immediately. RESOLVED, FURTHER, that the General Manager be, and he hereby is, instructed to strictly enforce and adhere to rules 13 and 14 as amended, restated and adopted. Upon motion duly made and seconded,' the Board of Directors unanimously approved the following resolution: RESOLVED, that legal counsel for the Authority is hereby instructed not to appeal the decision by the United States Court of Appeals to the United States Supreme Court by fifing a petition for writ of certiorari. PLEx. 9. As is often true in retaliation cases, plaintiffs have not offered any direct evidence showing that the Building Authority acted to retaliate against plaintiffs for fifing the lawsuit. Instead, plaintiffs argue that circumstantial evidence should lead the court to infer that the board acted for that purpose. Plaintiffs base their factual argument on (a) the timing of the Building Authority’s action; (b) the manner in which the Building Authority adopted the revised rule; and (c) plaintiffs’ contentions that the Building Authority’s proffered reasons for the new rule are pretexts and not worthy of credence. The Building Authority argues that it revised Rule 13 as a way of dealing with expected pedestrian traffic problems resulting from new security measures to be instituted in the near future in the City-County Building. The Building Authority was also concerned about the controversy and hostility generated by the activity in December 1994, and about what it perceived as a loss of its ability to control the lobby. Timing: The Building Authority took.up the matter of revising Rule 13 immediately after the Court of Appeals issued its decision on August 15, 1995, raising the issue at its, next meeting and passing the resolution at its second meeting after that decision. However, the scope of the forum was an issue the Building Authority had considered before. Mr. ReinMng testified in his deposition that in early 1993, he asked counsel to review the rules and regulations and to prepare “a larger scale” policy that would help the authority control the number and type of displays that are in the building. ReinMng Dep. at 143. At that time, the board and management of the Building Authority did not want to open up the lobby as a public forum, but the only step they took to restrict access was to adopt the Policy on Seasonal Displays, which dealt with the most immediate problem they had faced. See ReinMng Dep. at 143, 149; Fox Dep. at 57-59; Hohmann Dep. at 28, 36. The events of December 1994 obviously raised these concerns again, but the Building Authority board and management did not take action while the' appeal was pending in the Court of Appeals. There is no evidence of any new controversy concerning access during that interim, after the 1994 holiday season came to a close. In June 1995, the City-County Council appropriated funds to upgrade security for at least the courts wing of the City-Coun