Justice O'Connor delivered the opinion of the Court.
This case requires us to decide whether, and to what extent, the First Amendment protects independent contractors from the termination of at-will government contracts in retaliation for their exercise of the freedom of speech.
Under state law, Wabaunsee County, Kansas (County), is obliged to provide for the disposal of solid waste generated
During the term of his contract, Umbehr was an outspoken critic of petitioner, the Board of County Commissioners of Wabaunsee County (Board), the three-member governing body of the County. Umbehr spoke at the Board's meetings, and wrote critical letters and editorials in local newspapers regarding the County's landfill user rates, the cost of obtaining official documents from the County, alleged violations by the Board of the Kansas Open Meetings Act, the County's alleged mismanagement of taxpayers' money, and other topics. His allegations of violation of the Kansas Open Meetings Act were vindicated in a consent decree signed by the Board's members. Umbehr also ran unsuccessfully for election to the Board.
The Board's members allegedly took Umbehr's criticism badly, threatening the official county newspaper with censorship for publishing his writings. In 1990, they voted, 2 to 1, to terminate (or prevent the automatic renewal of) Umbehr's contract with the County. That attempt at termination failed because of a technical defect, but in 1991, the Board succeeded in terminating Umbehr's contract, again by a 2 to 1 vote. Umbehr subsequently negotiated new contracts with five of the six cities that he had previously served.
In 1992, Umbehr brought this suit against the two majority Board members in their individual and official capacities
The United States Court of Appeals for the Tenth Circuit reversed (except as to qualified immunity), holding that "an independent contractor is protected under the First Amendment from retaliatory governmental action, just as an employee would be," and that the extent of protection is to be determined by weighing the government's interests as contractor against the free speech interests at stake in accordance with the balancing test that we used to determine government employees' First Amendment rights in Pickering v. Board of Ed. of Township High School Dist. 205, Will Cty., 391 U.S. 563, 568 (1968). 44 F.3d 876, 883 (CA10 1995). It therefore remanded the official capacity claims to the District Court for further proceedings, including consideration of whether the termination was in fact retaliatory. The Board members who were the original defendants in this suit subsequently resigned their positions on the Board, so in this Court, the Board was substituted for them as petitioner. See this Court's Rule 35.3.
We agree with the Tenth Circuit that independent contractors are protected, and that the Pickering balancing test, adjusted to weigh the government's interests as contractor rather than as employer, determines the extent of their protection. We therefore affirm.
This Court has not previously considered whether, and to what extent, the First Amendment restricts the freedom of
Those precedents have long since rejected Justice Holmes' famous dictum, that a policeman "may have a constitutional right to talk politics, but he has no constitutional right to be a policeman," McAuliffe v. Mayor of New Bedford, 155 Mass. 216, 220, 29 N. E. 517 (1892). Recognizing that "constitutional violations may arise from the deterrent, or `chilling,' effect of governmental [efforts] that fall short of a direct prohibition against the exercise of First Amendment rights," Laird v. Tatum, 408 U.S. 1, 11 (1972), our modern "unconstitutional conditions" doctrine holds that the government "may not deny a benefit to a person on a basis that infringes his constitutionally protected . . . freedom of speech" even if he has no entitlement to that benefit, Perry v. Sindermann, 408 U.S. 593, 597 (1972). We have held that government workers are constitutionally protected from dismissal for refusing
While protecting First Amendment freedoms, we have, however, acknowledged that the First Amendment does not create property or tenure rights, and does not guarantee absolute freedom of speech. The First Amendment's guarantee of freedom of speech protects government employees from termination because of their speech on matters of public concern. See Connick v. Myers, 461 U.S. 138, 146 (1983) (speech on merely private employment matters is unprotected). To prevail, an employee must prove that the conduct at issue was constitutionally protected, and that it was a substantial or motivating factor in the termination. If the employee discharges that burden, the government can escape liability by showing that it would have taken the same action even in the absence of the protected conduct. See Mt. Healthy, supra, at 287. And even termination because of protected speech may be justified when legitimate countervailing government interests are sufficiently strong.
The parties each invite us to differentiate between independent contractors and employees. The Board urges us not to "extend" the First Amendment rights of government employees to contractors. Umbehr, joined by the Solicitor General as amicus curiae, contends that, on proof of viewpoint-based retaliation for contractors' political speech, the government should be required to justify its actions as narrowly tailored to serve a compelling state interest.
Both parties observe that independent contractors in general, and Umbehr in particular, work at a greater remove from government officials than do most government employees. In the Board's view, the key feature of an independent contractor's contract is that it does not give the government the right to supervise and control the details of how work is done. The Board argues that the lack of day-to-day control accentuates the government's need to have the work done by someone it trusts, cf. Branti, supra, at 518 (certain positions in government employment implicate such a need for trust that their award on the basis of party political affiliation is
Each of these arguments for and against the imposition of liability has some force. But all of them can be accommodated by applying our existing framework for government employee cases to independent contractors. Mt. Healthy assures the government's ability to terminate contracts so long as it does not do so in retaliation for protected First Amendment activity. Pickering requires a fact-sensitive and deferential weighing of the government's legitimate interests.
Umbehr's claim that speech threatens the government's interests as contractor less than its interests as employer will also inform the application of the Pickering test. Umbehr is correct that if the Board had exercised sovereign power against him as a citizen in response to his political speech, it would be required to demonstrate that its action was narrowly tailored to serve a compelling governmental interest. But in this case, as in government employment cases, the Board exercised contractual power, and its interests as a public service provider, including its interest in being free from intensive judicial supervision of its daily management functions, are potentially implicated. Deference is therefore due to the government's reasonable assessments of its interests as contractor.
We therefore see no reason to believe that proper application of the Pickering balancing test cannot accommodate the differences between employees and independent contractors. There is ample reason to believe that such a nuanced approach, which recognizes the variety of interests that may arise in independent contractor cases, is superior to a bright-line rule distinguishing independent contractors from employees. The bright-line rule proposed by the Board and
Furthermore, the arguments made by both parties demonstrate that it is far from clear, as a general matter, whether the balance of interests at stake is more favorable to the government in independent contractor cases than in employee cases. Our unconstitutional conditions precedents span a spectrum from government employees, whose close relationship with the government requires a balancing of important free speech and government interests, to claimants for tax exemptions, Speiser v. Randall, 357 U.S. 513 (1958), users of public facilities, e. g., Lamb's Chapel v. Center Moriches Union Free School Dist., 508 U.S. 384, 390-394 (1993); Healy v. James, 408 U.S. 169 (1972), and recipients of small government subsidies, e. g., FCC v. League of Women Voters of Cal., 468 U.S. 364 (1984), who are much less dependent on the government but more like ordinary citizens whose viewpoints on matters of public concern the government has no legitimate interest in repressing. The First Amendment permits neither the firing of janitors nor the discriminatory pricing of state lottery tickets based on the government's disagreement with certain political expression. Independent contractors appear to us to lie somewhere between the case of government employees, who have the closest relationship with the government, and our other unconstitutional conditions precedents, which involve persons with less close relationships with the government. The Board's and the dissent's assertion, post, at 687, 696-697, that the decision below represents an unwarranted "extension" of
The dissent's fears of excessive litigation, see post, at 697— 699, cannot justify a special exception to our unconstitutional conditions precedent to deprive independent government contractors of protection. Nor can its assertion that the allocation of government contracts on the basis of political bias is a "long and unbroken tradition of our people." Post, at 688. We do not believe that tradition legitimizes patronage contracting, regardless of whether one approaches the role of tradition in First Amendment adjudication from the perspective of Part I of the Rutan dissent, see post, at 687 (quoting Rutan v. Republican Party of Ill., 497 U.S. 62, 95 (1990) (Scalia, J., dissenting)) (a practice that "`bears the endorsement of a long tradition of open, widespread, and unchallenged use that dates back to the beginning of the Republic' " is presumed constitutional) (emphasis added), or from that of Justice Holmes, compare post, at 690 (quoting Holmes' discussion of traditional usage of legal terminology in a tax case) with Abrams v. United States, 250 U.S. 616, 630 (1919) (Holmes, J., dissenting) (rejecting both the self-interested "logi[c]" and the long history of the suppression of free speech, including the Sedition Act of 1798 and "the common law as to seditious libel," in favor of the true "theory of our Constitution," which values free speech as essential to, not subject to the vicissitudes of, our political system).
The examples to which the dissent cites, post, at 688-690, are not, in our view, "`the stuff out of which the Court's principles are to be formed,' " post, at 687 (quoting Rutan, supra, at 96 (Scalia, J., dissenting)). Consider, for example, the practice of "courtroom patronage," whereby "[e]lected judges, who owe their nomination and election to the party, give the organization lucrative refereeships, trusteeships,
The dissent's own description of the "lowest-responsiblebidder" and other, similar requirements covering a wide range of government contracts that the Federal Government, all 50 States, and many local government authorities, have voluntarily adopted, see post, at 690-695, at least suggests that government contracting norms incompatible with political bias have proliferated without unduly burdening the government. In fact, lowest- and lowest-responsible-bidder requirements have a long history, as a survey of 19th century state constitutions and federal territorial legislation reveals. See, e. g., Ala. Const., Art. IV, § 30 (1875), in 1 Federal and State Constitutions 161 (F. Thorpe ed. 1909); Civil Government in Alaska Act, Tit. I, § 2 (1900), in id., at 243; Ark. Const., Art. XIX, §§ 15, 16 (1874), in id., at 366; Colo. Const., Art. V, § 29 (1876), in id., at 485; Del. Const., Art. XV, § 8 (1897), in id., at 631; Permanent Government for District of Columbia Act, § 5 (1878), in id., at 645-646; Ill. Const., Art. III, § 39 (1848), in 2 id., at 991; Ill. Const., Art. IV, § 25 (1870), in id., at 1022; Kan. Const., Art. XVI, § 2 (1858), in id., at
In sum, neither the Board nor Umbehr have persuaded us that there is a "difference of constitutional magnitude," Lefkowitz, 414 U. S., at 83, between independent contractors and employees in this context. Independent government contractors are similar in most relevant respects to government employees, although both the speaker's and the government's interests are typically—though not always— somewhat less strong in the independent contractor case.
Because the courts below assumed that Umbehr's termination (or nonrenewal) was in retaliation for his protected speech activities, and because they did not pass on the balance between the government's interests and the free speech interests at stake, our conclusion that independent contractors do enjoy some First Amendment protection requires that we affirm the Tenth Circuit's decision to remand the case. To prevail, Umbehr must show that the termination of his contract was motivated by his speech on a matter of public concern, an initial showing that requires him to prove more than the mere fact that he criticized the Board members before they terminated him. If he can make that showing, the Board will have a valid defense if it can show, by a preponderance of the evidence, that, in light of their knowledge, perceptions, and policies at the time of the termination, the Board members would have terminated the contract regardless of his speech. See Mt. Healthy City Bd. of Ed. v. Doyle, 429 U.S. 274 (1977). The Board will also prevail if it can persuade the District Court that the County's legitimate interests as contractor, deferentially viewed, outweigh the free speech interests at stake. And, if Umbehr prevails, evidence that the Board members discovered facts after termination that would have led to a later termination anyway, and evidence of mitigation of his loss by means of his subsequent contracts with the cities, would be relevant in assessing what remedy is appropriate.
Finally, we emphasize the limited nature of our decision today. Because Umbehr's suit concerns the termination of a pre-existing commercial relationship with the government, we need not address the possibility of suits by bidders or applicants for new government contracts who cannot rely on such a relationship.
Taken together, today's decisions in Board of Comm'rs, Wabaunsee Cty. v. Umbehr, ante, p. 668, and O'Hare Truck Service, Inc. v. City of Northlake, post, p. 712, demonstrate why this Court's Constitution-making process can be called "reasoned adjudication" only in the most formalistic sense.
Six years ago, by the barest of margins, the Court expanded Elrod v. Burns, 427 U.S. 347 (1976), and Branti v. Finkel, 445 U.S. 507 (1980), which had held that public employees cannot constitutionally be fired on the basis of their political affiliation, to establish the new rule that applicants for public employment cannot constitutionally be rejected on the basis of their political affiliation. Rutan v. Republican Party of Ill., 497 U.S. 62 (1990). The four dissenters argued that "the desirability of patronage is a policy question to be decided by the people's representatives" and "a political question if there ever was one." Id., at 104, 114 (Scalia, J., dissenting). They were "convinced" that Elrod and Branti had been "wrongly decided," 497 U. S., at 114; indeed, that those cases were "not only wrong, not only recent, not only contradicted by a long prior tradition, but also . . . unworkable in practice" and therefore "should be overruled," id. ,
Today, with the addition to the Court of another Justice who believes that we have no basis for proscribing as unconstitutional practices that do not violate any explicit text of the Constitution and that have been regarded as constitutional ever since the framing, see, e. g., Bennis v. Michigan, 516 U.S. 442, 454-455 (1996) (Thomas, J., concurring), one would think it inconceivable that Elrod and Branti would be extended far beyond Rutan to the massive field of all government contracting. Yet amazingly, that is what the Court does in these two opinions—and by lopsided votes, at that. It is profoundly disturbing that the varying political practices across this vast country, from coast to coast, can be transformed overnight by an institution whose conviction of what the Constitution means is so fickle.
The basic reason for my dissent today is the same as one of the reasons I gave (this one not joined by Justice O'Connor) in Rutan:
The Court seeks to avoid the charge that it ignores the centuries-old understandings and practices of our people by recounting, Umbehr, ante, at 681-683, shocking examples of raw political patronage in contracting, most of which would be unlawful under the most rudimentary bribery law. (It selects, of course, only the worst examples from the sources I have cited, omitting the more common practices that permit one author to say, with undeniable accuracy, that "honorable and prudent businessmen competing for government ventures make campaign contributions" out of "a desire to do what [is] thought necessary to remain eligible," and that "[m]any contractors routinely do so to both parties." Heard, supra, at 145.) These "examples of covert, widely condemned, and sometimes illegal government action," it says, do not "legitimize the government discrimination." Umbehr, ante, at 683. But of course it is not the county's or city's burden (or mine) to "legitimize" all patronage practices; it is Umbehr's and O'Hare's (and the Court's) to show that all patronage practices are not only "illegitimate" in some vague moral or even precise legal sense, but that they are unconstitutional. It suffices to demonstrate the error of the Court's opinions that many contracting patronage practices have been open, widespread, and unchallenged since the beginning of the Republic; and that those that have been objected to have not been objected to on constitutional grounds. That the Court thinks it relevant that many patronage practices are "covert, widely condemned and sometimes illegal" merely displays its persistent tendency to equate those many things that are or should be proscribed as a matter of social policy with those few things that we have the power to proscribe under the Constitution. The relevant and inescapable point is this: No court ever held,
In each case today, the Court observes that we "have long since rejected Justice Holmes' famous dictum, that a policeman `may have a constitutional right to talk politics, but he has no constitutional right to be a policeman.' " Umbehr, ante, at 674 (quoting McAuliffe v. Mayor of New Bedford, 155 Mass. 216, 220, 29 N. E. 517 (1892)); see O'Hare, post, at 716-717 (quoting same). But this activist Court also repeatedly rejects a more important aphorism of Justice Holmes, which expresses a fundamental philosophy that was once an inseparable part of our approach to constitutional law. In a case challenging the constitutionality of a federal estate tax on the ground that it was an unapportioned direct tax in violation of Article I, § 9, Justice Holmes wrote:
The Court's decision to enter this field cannot be justified by the consideration (if it were ever a justification) that the democratic institutions of government have not been paying adequate attention to the problems it presents. The American people have evidently decided that political influence in government contracting, like many other things that are
The United States Code contains a categorical statutory prohibition on political contributions by those negotiating for or performing contracts with the Federal Government, 2 U. S. C. § 441c, competitive bidding requirements for contracts with executive agencies, 41 U. S. C. §§ 252-253, public corruption and bribery statutes, e. g., 18 U. S. C. § 201, and countless other statutory requirements that restrict Government officials' discretion in awarding contracts. "There are already over four thousand individual statutory provisions that affect the [Defense Department's] procurement process." Pyatt, Procurement Competition at Work: The Navy's Experience, 6 Yale J. Reg. 319, 319-320 (1989). Federal regulations are even more widespread. As one handbook in the area has explained, "[t]heir procedural and substantive requirements dictate, to an oftentimes astonishing specificity, how the entire contracting process will be conducted." ABA General Practice Section, Federal Procurement Regulations: Policy, Practice and Procedures 1 (1987). That is why it is no surprise in this area to find a 253-page book just setting forth "fundamentals," E. Massengale, Fundamentals of Federal Contract Law (1991), or a mere "deskbook" that runs 436 pages, ABA Section of Public Contract Law, Government Contract Law: The Deskbook for Procurement Professionals (1995). Such "summaries" are indispensable when, for example, the regulations that constitute the "Federal Acquisition Regulations System" total some 5,037 pages of fine print. See Title 48 CFR (1995).
Similar systems of detailed statutes and regulations exist throughout the States. In addition to the various statutes criminalizing bribes to government officials and other forms
By 1992, more than 25 local jurisdictions had also adopted legislation based on the Model Procurement Code, see id. , at ix, and thousands of other counties and municipalities have over time devised their own measures. New York City, for example, which "[e]ach year . . . enter[s] into approximately 40,000 contracts worth almost $6.5 billion," has regulated the public contracting process by a myriad of codes and regulations that seek to assure "scrupulous neutrality in choosing contractors and [consequently impose] multiple layers of investigation and accountability." Anechiarico & Jacobs, Purging Corruption from Public Contracting: The `Solutions' Are Now Part of the Problem, 40 N. Y. L. S. L. Rev. 143, 143-144 (1995) (hereinafter Anechiarico & Jacobs).
These examples of federal, state, and local statutes, codes, ordinances, and regulations could be multiplied to fill many volumes. They are the way in which government contracts
Title 48 of the Code of Federal Regulations would not contain the 5,000+ pages it does if it did not make fine distinctions, permitting certain actions in some Government acquisition areas and prohibiting them in others. Similarly, many of the competitive bidding statutes that I have cited contain exceptions for, or are simply written not to include, contracts under a particular dollar amount,
If inattention by the democratic organs of government is not a plausible reason for the Court's entry into the field, then what is? I believe the Court accepts (any sane person must accept) the premise that it is utterly impossible to erect, and enforce through litigation, a system in which no citizen is intentionally disadvantaged by the government because of his political beliefs. I say the Court accepts that, because the O'Hare opinion, in a rare brush with the real world, points out that "O'Hare was not part of a constituency that must take its chance of being favored or ignored in the larger political process—for example, by residing or doing business in a region the government rewards or spurns in the construction of public works." Post, at 720-721. Of course. Government favors those who agree with its political views, and disfavors those who disagree, every day—in where it builds its public works, in the kinds of taxes it imposes and collects, in its regulatory prescriptions, in the design of its grant and benefit programs—in a million ways, including the letting of contracts for government business. What good reason has the Court given for separating out this last way, and declaring it to be (as all the others for some reason are not) an "abridgment of the freedom of speech"?
As I have explained, I would separate the permissible from the impermissible on the basis of our Nation's traditions, which is what I believe sound constitutional adjudication requires. In Elrod and Branti, the Court rejected this criterion—but if what it said did not make good constitutional law, at least it made some sense: the loss of one's job
If it is to be possible to dig in our cleats at some point on this slope—before we end up holding that the First Amendment requires the city of Chicago to have as few potholes in Republican wards (if any) as in Democratic ones—would not the most defensible point of termination for this indefensible exercise be public employment? A public employee is always an individual, and a public employee below the highest political level (which is exempt from Elrod ) is virtually always an individual who is not rich; the termination or denial of a public job is the termination or denial of a livelihood. A public contractor, on the other hand, is usually a corporation; and the contract it loses is rarely its entire business, or even an indispensable part of its entire business. As Judge Posner put it:
Another factor that suggests we should stop this new enterprise at government employment is the much greater volume of litigation that its extension to the field of contracting entails. The government contracting decisions worth litigating about are much more numerous than the number of personnel hirings and firings in that category; and the litigation resources of contractors are infinitely more substantial than those of fired employees or rejected applicants. Anyone who has had even brief exposure to the intricacies of federal contracting law knows that a lawsuit is often used as a device to stay or frustrate the award of a contract to a competitor. See, e. g., Delta Data Systems Corp. v. Webster, 744 F.2d 197 (CADC 1984); Delta Data Systems Corp. v. Webster, 755 F.2d 938 (CADC 1985). What the Court's decisions today mean is that all government entities, no matter how small, are at risk of § 1983 lawsuits for violation of constitutional rights, unless they adopt (at great cost in money and efficiency) the detailed and cumbersome procedures that make a claim of political favoritism (and a § 1983 lawsuit) easily defended against.
The Court's opinion in O'Hare shrugs off this concern with the response that "[w]e have no reason to believe that governments cannot bear a like burden [to that in the employment context] in defending against suits alleging the denial of First Amendment freedoms to public contractors." Post, at 724. The burden is, as I have suggested, likely much greater than that in the employment context; and the relevant question (if one rejects history as the determinant) is not simply whether the governments "can bear" it, but whether the inconvenience of bearing it is out balanced by the degree of abridgment of supposed First Amendment rights (of corporate shareholders, for the most part) that
The Court additionally asserts that the line cannot be drawn between employment and independent contracting, because "`the applicability of a provision of the Constitution has never depended on the vagaries of state or federal law.' " Umbehr, ante, at 680 (quoting Browning-Ferris Industries of Vt., Inc. v. Kelco Disposal, Inc., 492 U.S. 257, 299 (1989) (O'Connor, J., concurring in part and dissenting in part)); see also Umbehr, ante, at 678-680 (citing other cases). That is not so. State law frequently plays a dispositive role in the issue whether a constitutional provision is applicable. In fact, before we invented the First Amendment right not to be fired for political views, most litigation in this very field of government employment revolved around the Fourteenth Amendment's Due Process Clause and asked whether the firing had deprived the plaintiff of a "property" interest without due process. And what is a property interest entitled to Fourteenth Amendment protection? "[P]roperty interests," we said, "are not created by the Constitution. Rather, they are created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law . . . . If it is the law of Texas that a teacher in the respondent's position has no contractual or other claim to job tenure, the respondent's [federal constitutional] claim would be defeated." Perry v. Sindermann, 408 U.S. 593, 602, n. 7 (1972) (internal quotation marks and citation omitted). See also Mt. Healthy City Bd. of Ed. v. Doyle, 429 U.S. 274, 280-281 (1977) (whether a government entity possesses Eleventh Amendment immunity "depends,
I have spoken thus far as though the only problem involved here were a practical one: as though, in the best of all possible worlds, if our judicial system and the resources of our governmental entities could only manage it, it would be desirable for an individual to suffer no disadvantage whatever at the hands of the government solely because of his political views—no denial of employment, no refusal of contracts, no discrimination in social programs, not even any potholes. But I do not believe that. The First Amendment guarantees that you and I can say and believe whatever we like (subject to a few tradition-based exceptions, such as obscenity and "fighting words") without going to jail or being fined. What it ought to guarantee beyond that is not at all the simple question the Court assumes. The ability to discourage eccentric views through the mild means that have historically been employed, and that the Court has now set its face against, may well be important to social cohesion. To take an uncomfortable example from real life: An organization (I shall call it the White Aryan Supremacist Party, though that was not the organization involved in the actual incident I have in mind) is undoubtedly entitled, under the Constitution, to maintain and propagate racist and antisemitic views. But when the Department of Housing and Urban Development lets out contracts to private security forces to maintain law and order in units of public housing, must it really treat this bidder the same as all others? Or may it determine that the views of this organization are not political views that it wishes to "subsidize" with public funds, nor political views that it wishes to hold up as an exemplar of the law to the residents of public housing?
The state and local regulation I described earlier takes account of this reality. Even where competitive-bidding requirements are applicable (which is far from always), they almost invariably require that a contract be awarded not to
In treading into this area, "we have left the realm of law and entered the domain of political science." Rutan, 497 U. S., at 113 (Scalia, J., dissenting). As Judge Posner rightly perceived, the issue that the Court today disposes of like some textbook exercise in logic "raises profound questions of political science that exceed judicial competence to answer." LaFalce v. Houston, 712 F. 2d, at 294.
If, however, the Court is newly to announce that it has discovered that the granting or withholding of a contract is a First Amendment issue, a coherent statement of the new law is the least that those who labor in the area are entitled to expect. They do not get it from today's decisions, which contradict each other on a number of fundamental points.
The decision in Umbehr appears to be an improvement on our Elrod -Branti -Rutan trilogy in one sense. Rutan, the most recent of these decisions, provided that the government could justify patronage employment practices only if it proved that such patronage was "narrowly tailored to further vital governmental interests." 497 U. S., at 74. The four of us in dissent explained that "[t]hat strict-scrutiny standard finds no support in our cases," and we argued that, if the new constitutional right was to be invented, the criterion for violation should be "the test announced in Pickering [v. Board of Ed. of Township High School Dist. 205, Will Cty., 391 U.S. 563 (1968)]." Id., at 98, 100 (opinion of Scalia, J.). It thus appears a happy development that the Court in Umbehr explicitly rejects the suggestion, urged by Umbehr and by the United States as amicus curiae, that "on proof of viewpoint-based retaliation for contractors' political speech, the government should be required to justify its actions as narrowly tailored to serve a compelling state interest," ante, at 676; accord, ante, at 678, and instead holds "that the Pickering balancing test, adjusted to weigh the government's interests as contractor rather than as employer, determines the extent of [independent contractors'] protection" under the First Amendment, ante, at 673. Pickering balancing, of course, requires a case-by-case assessment of the government's and the contractor's interests. "Pickering and its progeny . . . involve a post hoc analysis of one employee's speech and its impact on that employee's public responsibilities." United States v. Treasury Employees, 513 U.S. 454, 466-467 (1995). See also id., at 480-481 (O'Connor,
What the Court sets down in Umbehr, however, it rips up in O'Hare. In Part III of that latter opinion, where the Court makes its application of the First Amendment to the facts of the case, there is to be found not a single reference to Pickering. See post, at 720-726. Indeed, what is quite astonishing, the Court concludes that it "need not inquire" into any government interests that patronage contracting may serve—even generally, much less in the particular case at hand—"for Elrod and Branti establish that patronage does not justify the coercion of a person's political beliefs and associations." Post, at 718. Leaving aside that there is no coercion here,
One would have thought these two opinions the products of the courts of last resort of two different legal systems, presenting fertile material for a comparative-law course on freedom of speech were it not for a single paragraph in O'Hare, a veritable deus ex machina of legal analysis, which reconciles the irreconcilable. The penultimate paragraph of that portion of the O'Hare opinion which sets forth the general principles of law governing the case, see post, at 719, advises that henceforth "the freedom of speech" alluded to in the Bill of Rights will be divided into two categories: (1) the "right of free speech," where "we apply the balancing test from Pickering, " and (since this "right of free speech" presumably does not exhaust the Free Speech Clause) (2) "political affiliation," where we apply the rigid rule of Elrod and Branti. The Court (or at least the O'Hare Court) says that "[t]here is an advantage in so confining the inquiry where political affiliation alone is concerned, for one's beliefs and allegiances ought not to be subject to probing or testing by the government." Post, at 719.
Frankly, the only "advantage" I can discern in this novel distinction is that it provides some explanation (no matter how difficult to grasp) of how these two opinions can issue from the same Court on the same day. It raises many questions. Does the "right of free speech" (category (1), that is) come into play if the contractor not only is a Republican, but says, "I am a Republican"? (At that point, of course,
If one is so sanguine as to believe that facts involving the "right of free speech" and facts involving "political affiliation" can actually be segregated into separate categories, there arises, of course, the problem of what to do when both are involved. One would expect the more rigid test (Elrod nonbalancing) to prevail. That is certainly what happens elsewhere in the law. If one is categorically liable for a defamatory statement, but liable for a threatening statement only if it places the subject in immediate fear of physical harm, an utterance that combines both ("Sir, I shall punch you in your lying mouth!") would be (at least as to the defamatory portion) categorically actionable. Not so, however, with our new First Amendment law. Where, we are told, "specific instances of the employee's speech or expression, which require balancing in the Pickering context, are intermixed with a political affiliation requirement," balancing
Were all this confusion not enough, the explanatory paragraph makes doubly sure it is not setting forth any comprehensible rule by adding, immediately after its description of how Elrod, rather than the Pickering balancing test, applies in "political affiliation" cases, the following: "It is true, on the other hand, . . . that the inquiry is whether the affiliation requirement is a reasonable one, so it is inevitable that some case-by-case adjudication will be required even where political affiliation is the test the government has imposed." O'Hare, post, at 719. As I said in Rutan, "[w]hat that means is anybody's guess." 497 U. S., at 111 (dissenting opinion). Worse still, we learn that O'Hare itself, where the Court does not conduct balancing, may "perhaps [be] includ[ed]" among "those many cases . . . which require balancing" because it is one of the "intermixed" cases I discussed in the paragraph immediately above. Post, at 719. Why, then, one is inclined to ask, did not the Court conduct balancing?
The answer is contained in the next brief paragraph of the O'Hare opinion:
This is a deus ex machina sent in to rescue the Court's deus ex machina, which was itself overwhelmed by the plot of this tragedy of inconsistency. Unfortunately, this adjutor adjutoris (to overextend, perhaps, my classical analogy) is also unequal to the task: The respondent in this case is entitled to defend the judgment in its favor on the basis of the facts as they were alleged, not as the Court of Appeals took
Unless, of course, Pickering balancing can never support the granting of a motion to dismiss. That is the proposition
One final observation about the sweep of today's holdings. The opinion in Umbehr, having swallowed the camel of First Amendment extension into contracting, in its penultimate paragraph demonstrates the Court's deep-down judicial conservatism by ostentatiously straining out the following gnat: "Finally, we emphasize the limited nature of our decision today. Because Umbehr's suit concerns the termination of a pre-existing commercial relationship with the government, we need not address the possibility of suits by bidders or applicants for new government contracts who cannot rely on such a relationship." Ante, at 685. The facts in Umbehr, of course, involved the termination of nothing so vague as a "commercial relationship with the government"; the Board
This Court has begun to make a habit of disclaiming the natural and foreseeable jurisprudential consequences of its pathbreaking (i. e., Constitution-making) opinions. Each major step in the abridgment of the people's right to govern themselves is portrayed as extremely limited or indeed sui juris. In Romer v. Evans, 517 U.S. 620, 632, 633 (1996), announced last month, the Court asserted that the Colorado constitutional amendment at issue was so distinctive that it "defies . . . conventional inquiry" and "confounds [the] normal process of judicial review." In United States v. Virginia, ante, at 534, n. 7, announced two days ago, the Court purported to address "specifically and only an educational opportunity recognized by the District Court and the Court of
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They say hard cases make bad law. The cases before the Court today set the blood boiling, with the arrogance that they seem to display on the part of elected officials. Shall the American System of Justice let insolent, petty-tyrant politicians get away with this? What one tends to forget is that we have heard only the plaintiffs' tale. These suits were dismissed before trial, so the "facts" the Court recites in its opinions assume the truth of the allegations made (or the preliminary evidence presented) by the plaintiffs. We have no idea whether the allegations are true or false—but if they are true, they are certainly highly unusual. Elected officials do not thrive on arrogance.
For every extreme case of the sort alleged here, I expect there are thousands of contracts awarded on a "favoritism" basis that no one would get excited about. The Democratic mayor gives the city's municipal bond business to what is known to be a solid Democratic law firm—taking it away from the solid Republican law firm that had the business during the previous, Republican, administration. What else is new? Or he declines to give the construction contract for the new municipal stadium to the company that opposed the bond issue for its construction, and that in fact tried to get the stadium built across the river in the next State. What else would you expect? Or he awards the cable monopoly, not to the (entirely responsible) Johnny-come-lately, but to the local company that has always been a "good citizen"— which means it has supported with money, and the personal efforts of its management, civic initiatives that the vast majority of the electorate favor, though some oppose. Hooray!
The Court must be living in another world. Day by day, case by case, it is busy designing a Constitution for a country I do not recognize. Depending upon which of today's cases one chooses to consider authoritative, it has either (O'Hare) thrown out vast numbers of practices that are routine in American political life in order to get rid of a few bad apples; or (Umbehr) with the same purpose in mind subjected those routine practices to endless, uncertain, case-by-case, balance-all-the-factors-and-who-knowswho-will-win litigation.
O'Hare also says that "we have found no reported case in the Tenth Circuit involving a First Amendment patronage claim by an independent contractor in the six years since its Court of Appeals first recognized such claims, see Abercrombie v. Catoosa, 896 F.2d 1228 (1990)." Post, at 724. With respect, Abercrombie (which discussed this issue in two short paragraphs) was such an obscure case that even the District Court in Umbehr, located in the Tenth Circuit, did not cite it, though it discussed cases in other jurisdictions. Umbehr v. McClure, 840 F.Supp. 837 (Kan. 1993). And when the Tenth Circuit reversed the District Court, it did not do so on the basis of Abercrombie —which, it noted, had "simply assumed that an independent contractor could assert a First Amendment retaliation claim" and had given "little reasoning" to the matter but merely so "suggested, without analysis." 44 F.3d 876, 880 (1995) (emphasis added). Abercrombie was, in short, such a muffled clarion that even the courts did not hear it, much less the public at large.