OCTOBER TERM, 1995
Syllabus
BOARD OF COUNTY COMMISSIONERS, WABAUNSEE COUNTY, KANSAS
v. UMBEHR
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE TENTH
CIRCUIT
No. 94-1654. Argued November 28, 1995-Decided June 28,1996
During the term of his at-will contract with Wabaunsee County,
Kansas (County), to haul trash, respondent Umbehr was an outspoken
critic of petitioner Board of County Commissioners (Board). After
the commissioners voted to terminate (or prevent the automatic
renewal of) the contract, allegedly because they took Umbehr's
criticism badly, he brought this suit against two of them under 42
U. S. C. § 1983. The District Court granted them summary judgment,
but the Tenth Circuit reversed in relevant part and remanded,
holding that the First Amendment protects independent contractors
from governmental retaliation against their speech, and that the
extent of that protection must be determined by weighing the
government's interests as contractor against the free speech
interests at stake in accordance with the balancing test applied in
the government employment context under
Pickering v.
Board of Ed. of Township High School Dist. 205, Will Cty.,
391 U. S. 563, 568.
Held: The First Amendment protects independent
contractors from the termination or prevention of automatic renewal
of at-will government contracts in retaliation for their exercise
of the freedom of speech, and the
Pickering balancing test,
adjusted to weigh the government's interests as contractor rather
than as employer, determines the extent of that protection. Pp.
673-686.
(a) Because of the obvious similarities between government
employees and government contractors with respect to this issue,
the Court is guided by its government employment precedents. Among
other things, those precedents have recognized that government
workers are constitutionally protected from dismissal for publicly
or privately criticizing their employer's policies, see,
e. g.,
Perry v.
Sindermann, 408 U. S. 593, but have
also acknowledged that the First Amendment does not guarantee
absolute freedom of speech, see,
e. g.,
Connick v.
Myers, 461 U. S. 138, 146, and
have required a fact-sensitive and deferential weighing of the
government employer's legitimate interests against its employees'
First Amendment rights, see,
e. g., Pickering, supra, at
568. The parties' attempts to differentiate between inde-
669
pendent contractors and government employees are unavailing.
Each of their arguments for and against the imposition of liability
has some force, but all of them can be accommodated by applying the
existing government employee framework. Moreover, application of
the nuanced
Pickering approach is superior to a bright-line
rule giving the government
carte blanche to terminate
independent contractors for exercising their speech rights.
Although both the individual's and the government's interests are
typically-though not always-somewhat less strong in an independent
contractor case, the fact that such contractors are similar in most
relevant respects to government employees compels the conclusion
that the same form of balancing analysis should apply to each. Pp.
673-681.
(b) Neither the dissent's fears of excessive litigation, nor its
assertion that the allocation of government contracts on the basis
of political bias is a longstanding tradition, can deprive
independent contractors of protection. Its own description of
"lowest-responsible-bidder" requirements in a wide range of
government contracting laws voluntarily adopted by federal and
state authorities suggests that government contracting norms
incompatible with political bias have proliferated without unduly
burdening the government, and such laws have a long history. Pp.
681-685.
(c) Because the courts below assumed that Umbehr's termination
(or nonrenewal) was in retaliation for his protected speech
activities, and did not pass on the balance between the
government's interests and his free speech interests, the
conclusion that independent contractors do enjoy some First
Amendment protection requires affirmance of the Tenth Circuit's
decision to remand the case. To prevail, Umbehr must show initially
that the termination of his contract was motivated by his speech on
a matter of public concern, see
Connick, supra, at 146; he
must therefore prove more than the mere fact that he criticized the
Board members before he was terminated. If he can do so, 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 Ed. of Ed. v.
Doyle, 429 U. S. 274,287. The
Board will also prevail if it can demonstrate that the County's
legitimate interests as contractor, deferentially viewed, outweigh
the free speech interests at stake. See,
e. g., Pickering,
supra, at 568. 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 subsequent trash hauling contracts with cities in the
County, would be relevant in assessing the appropriate remedy.
Because
670
670 BOARD OF COMM'RS, WABAUNSEE CTY.
v. UMBEHR
Umbehr's suit concerns the termination or nonrenewal of a
pre-existing commercial relationship with the government, this
Court need not address the possibility of suits by bidders or
applicants for new government contracts who cannot rely on such a
relationship. Pp. 685-686.
44 F.3d
876, affirmed and remanded.
O'CONNOR, J., delivered the opinion of the Court with respect to
Parts I, II-A, II-B-2, and III, in which REHNQUIST, C. J., and
STEVENS, KENNEDY, SOUTER, GINSBURG, and BREYER, JJ., joined, and
the opinion of the Court with respect to Part II-B-1, in which
STEVENS, KENNEDY, SOUTER, GINSBURG, and BREYER, JJ., joined.
SCALIA, J., filed a dissenting opinion, in which THOMAS, J.,
joined,
post, p. 686.
Donald Patterson argued the cause for petitioner. With
him on the briefs was
Steve R. Fabert.
Robert A. Van Kirk argued the cause for respondent.
With him on the brief was
Richard H. Seaton.
Beth S. Brinkmann argued the cause for the United States as
amicus curiae urging affirmance. On the brief were Solicitor
General Days, Assistant Attorney General Hunger, Deputy Solicitor
General Bender, Cornelia T. L. Pillard, William Kanter, and Robert
D. Kamenshine.*
JUSTICE O'CONNOR delivered the opinion of the Court.t 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.
I
Under state law, Wabaunsee County, Kansas (County), is obliged
to provide for the disposal of solid waste generated
*Briefs of amici curiae urging affirmance were filed for the
American Civil Liberties Union et al. by Robin L. Dahlbert,
Marjorie Heins, and Steven R. Shapiro; and for the Planned
Parenthood Federation of America, Inc., by Bruce
J. Ennis,
Jr., Anthony C. Epstein, Julie M. Carpenter, Nory Miller, Roger K.
Evans, Dara Klassel, and Eve W Paul.
tTHE CHIEF JUSTICE joins all but Part II -B-1 of this
opinion.
671
within its borders. In 1981, and, after renegotiation, in 1985,
the County contracted with respondent U mbehr for him to be the
exclusive hauler of trash for cities in the County at a rate
specified in the contract. Each city was free to reject or, on 90
days' notice, to opt out of, the contract. By its terms, the
contract between U mbehr and the County was automatically renewed
annually unless either party terminated it by giving notice at
least 60 days before the end of the year or a renegotiation was
instituted on 90 days' notice. Pursuant to the contract, U mbehr
hauled trash for six of the County's seven cities from 1985 to 1991
on an exclusive and uninterrupted basis.
During the term of his contract, U mbehr was an outspoken critic
of petitioner, the Board of County Commissioners of Wabaunsee
County (Board), the three-member governing body of the County. U
mbehr 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. U mbehr also ran unsuccessfully for election to the
Board.
The Board's members allegedly took U mbehr'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 U mbehr's
contract, again by a 2 to 1 vote. U mbehr subsequently negotiated
new contracts with five of the six cities that he had previously
served.
In 1992, U mbehr brought this suit against the two majority
Board members in their individual and official capacities
672
under Rev. Stat. § 1979, as amended, 42 U. S. C. § 1983,
alleging that they had terminated his government contract in
retaliation for his criticism of the County and the Board. The
Board members moved for summary judgment. The District Court
assumed that U mbehr's contract was terminated in retaliation for
his speech, and that he suffered consequential damages. But it held
that "the First Amendment does not prohibit [the Board] from
considering [U mbehr's] expression as a factor in deciding not to
continue with the trash hauling contract at the end of the
contract's annual term," because, as an independent contractor,
Umbehr was not entitled to the First Amendment protection afforded
to public employees.
Umbehr v.
McClure, 840 F. Supp.
837, 839 (Kan. 1993). It also held that the claims against the
Board members in their
individual capacities would be barred
by qualified immunity,
id., at 841, a ruling which was
affirmed on appeal and which is not at issue here.
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 (CAlO 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.
673
We granted certiorari to resolve a conflict between the Courts
of Appeals regarding whether, and to what extent, independent
contractors are protected by the First Amendment. The Fifth and
Eighth Circuits agree with the Tenth Circuit. See
Blackburn
v.
Marshall, 42 F.3d
925, 931-935 (CA5 1995);
Copsey v.
Swearingen,
36 F.3d
1336, 1344 (CA5
1994); North Mississippi Communications,
Inc. v.
Jones, 792 F.2d
1330 (CA5 1986);
Smith v.
Cleburne County
Hospital, 870 F.2d
1375, 1381 (CA8), cert. denied, 493 U. S. 847 (1989); but see
Sweeney v.
Bond, 669 F.2d
542 (CA8), cert. denied, 459 U. S. 878 (1982). See also
Abercrombie v.
Catoosa, 896 F. 2d 1228, 1233 (CAlO
1990) (allowing an independent contractor to sue for termination
based on his speech and political activities). The Third and
Seventh Circuits have, however, held that an independent contractor
who does not have a property interest in his contract with the
government has no right not to have that contract terminated in
retaliation for his exercise of First Amendment freedoms of
political affiliation and participation. See
Horn v.
Kean, 796 F.2d
668 (CA3 1986) (en banc);
O'Hare Truck Service, Inc. v.
Northlake, 47 F.3d
883 (CA7 1995), reversed,
post, p. 712;
Downtown Auto
Parks, Inc. v.
Milwaukee, 938 F.2d
705 (CA7), cert. denied, 502 U. S. 1005 (1991);
Triad
Assocs., Inc. v.
Chicago Housing Authority, 892 F.2d
583 (CA7 1989), cert. denied, 498 U. S. 845 (1990).
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.
II A
This Court has not previously considered whether, and to what
extent, the First Amendment restricts the freedom of
674
federal, state, or local governments to terminate their
relationships with independent contractors because of the
contractors' speech. We have, however, considered the same issue in
the context of government
employees' rights on several
occasions. The similarities between government employees and
government contractors with respect to this issue are obvious. The
government needs to be free to terminate both employees and
contractors for poor performance, to improve the efficiency,
efficacy, and responsiveness of service to the public, and to
prevent the appearance of corruption. And, absent contractual,
statutory, or constitutional restriction, the government is
entitled to terminate them for no reason at all. But either type of
relationship provides a valuable financial benefit, the threat of
the loss of which in retaliation for speech may chill speech on
matters of public concern by those who, because of their dealings
with the government, "are often in the best position to know what
ails the agencies for which they work,"
Waters v.
Churchill, 511
U. S. 661, 674 (1994) (plurality opinion). Because of these
similarities, we turn initially to our government employment
precedents for guidance.
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 re-
675
fusing to take an oath regarding their political affiliation,
see,
e. g., Wieman v.
Updegraff, 344 U. S. 183 (1952);
Keyishian v.
Board of Regents of Univ. of State of N.
Y., 385 U. S.
589 (1967), for publicly or privately criticizing their
employer's policies, see
Perry, supra; Mt. Healthy City Bd. of
Ed. v.
Doyle, 429 U. S. 274 (1977);
Givhan v.
Western Line Consolo School Dist., 439 U. S. 410 (1979), for
expressing hostility to prominent political figures, see
Rankin v.
McPherson, 483 U. S. 378 (1987), or, except
where political affiliation may reasonably be considered an
appropriate job qualification, for supporting or affiliating with a
particular political party, see,
e. g., Branti v.
Finkel, 445 U.
S. 507 (1980). See also
United States v.
Treasury
Employees, 513 U.
S. 454 (1995) (Government employees are protected from undue
burdens on their expressive activities created by a prohibition
against accepting honoraria);
Abood v.
Detroit Bd. of
Ed., 431 U. S.
209, 234 (1977) (government employment cannot be conditioned on
making or not making financial contributions to particular
political causes).
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.
676
Government employees' First Amendment rights depend on the
"balance between the interests of the [employee], as a citizen, in
commenting upon matters of public concern and the interest of the
State, as an employer, in promoting the efficiency of the public
services it performs through its employees."
Pickering, 391
U. S., at 568. In striking that balance, we have concluded that
"[t]he government's interest in achieving its goals as effectively
and efficiently as possible is elevated from a relatively
subordinate interest when it acts as sovereign to a significant one
when it acts as employer."
Waters, 511 U. S., at 675
(plurality opinion). We have, therefore, "consistently given
greater deference to government predictions of harm used to justify
restriction of employee speech than to predictions of harm used to
justify restrictions on the speech of the public at large."
Id., at 673; accord,
Treasury Employees, supra, at
475.
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 U mbehr 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
677
justified), and to resort to the sanction of termination for
unsatisfactory performance. * U mbehr, on the other hand, argues
that the government interests in maintaining harmonious working
environments and relationships recognized in our government
employee cases are attenuated where the contractor does not work at
the government's workplace and does not interact daily with
government officers and employees. He also points out that to the
extent that he is publicly perceived as an
independent
contractor, any government concern that his political statements
will be confused with the government's political positions is
mitigated. The Board and the dissent,
post, at 697-699,
retort that the cost of fending off litigation, and the potential
for government contracting practices to ossify into prophylactic
rules to avoid potential litigation and liability, outweigh the
interests of independent contractors, who are typically less
financially dependent on their government contracts than are
government employees.
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.
*The Board also asserts that state and local government
decisions on individual contracts are insulated by the Tenth
Amendment or legislative immunity from constitutional scrutiny and
liability. See Brief for Petitioner 23-26, 37. The Tenth Amendment
claim was not raised in its petition, so we do not address it. See
this Court's Rule 14.1(a). Because only claims against the Board
members in their
official capacities are before us, and
because immunity from suit under § 1983 extends to public servants
only in their
individual capacities, see,
e. g.,
Leatherman v.
Tarrant County Narcotics Intelligence and
Coordination Unit, 507 U. S. 163, 166
(1993), the legislative immunity claim is moot.
678
The dangers of burdensome litigation and the
de facto
imposition of rigid contracting rules necessitate attentive
application of the
Mt. Healthy requirement of proof of
causation and substantial deference, as mandated by
Pickering,
Connick, and
Waters, to the government's reasonable view
of its legitimate interests, but not a
per se denial of
liability. Nor can the Board's and the dissent's generalization
that independent contractors may be less dependent on the
government than government employees, see
post, at 696,
justify denial of all First Amendment protection to contractors.
The tests that we have established in our government employment
cases must be judicially administered with sensitivity to
governmental needs, but First Amendment rights must not be
neglected.
U mbehr'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. U mbehr 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
679
the dissent would give the government
carte blanche to
terminate independent contractors for exercising First Amendment
rights. And that bright-line rule would leave First Amendment
rights unduly dependent on whether state law labels a government
service provider's contract as a contract of employment or a
contract for services, a distinction which is at best a very poor
proxy for the interests at stake. See Comment, Political Patronage
in Public Contracting, 51 U. Chi. L. Rev. 518, 520 (1984) ("[N]o
legally relevant distinction exists between employees and
contractors in terms either of the government's interest in using
patronage or of the employee or contractor's interest in free
speech"); cf.
Perry, 408 U. S., at 597 (the prohibition of
unconstitutional conditions on speech applies "regardless of the
public employee's contractual or other claim to a job").
Determining constitutional claims on the basis of such formal
distinctions, which can be manipulated largely at the will of the
government agencies concerned, see
Logue v.
United
States, 412 U. S.
521, 532 (1973) (noting that independent contractors are often
employed to perform "tasks that would ... otherwise be performed by
salaried Government employees"), is an enterprise that we have
consistently eschewed. See,
e. g., Lefkowitz
v.
Turley, 414
U. S. 70, 83 (1973) (in the context of the privilege against
self-incrimination, "[w]e fail to see a difference of
constitutional magnitude between the threat of job loss to an
employee of the State, and a threat of loss of contracts to a
contractor"); cf.
Colorado Republican Federal Campaign Comm.
v.
Federal Election Comm'n, ante, at 622 (opinion of BREYER,
J.) ("[T]he government 'cannot foreclose the exercise of [First
Amendment] rights by mere labels''') (quoting
NAACP v.
Button, 371 U.
S. 415, 429 (1963));
Escobedo v.
Illinois,
378 U. S. 478,
486 (1964) (declining to "exalt form over substance" in determining
the temporal scope of Sixth Amendment protections);
Crowell
v.
Benson, 285
U. S. 22, 53 (1932) ("[R]egard must be had, ... in ... cases
where constitutional limits are invoked, not to mere matters of
form
680
but to the substance of what is required");
Chicago, B.
&
Q. R. Co. v.
Chicago, 166 U. S. 226, 235 (1897)
("In determining what is due process of law regard must be had to
substance, not to form");
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) ("[T]he
applicability of a provision of the Constitution has never depended
on the vagaries of state or federal law").
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
681
special protections afforded to government employees is,
therefore, not persuasive.
B 1
The dissent's fears of excessive litigation, see
post, at
697699, 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,
682
and receiverships which often yield legal fees unjustified by
the work required," M. Tolchin & S. Tolchin, To The Victor:
Political Patronage from the Clubhouse to the White House 15
(1971); see also Wolfinger, Why Political Machines Have Not
Withered Away and Other Revisionist Thoughts, 34 J. Politics 365,
367, 371 (1972) (similar), or the award of "gift[s]" to political
supporters under the guise of research grants, Tolchin,
supra, at 61, or the allocation of contracts based on
"contributions resulting from the compound of bribery and
extortion" and "kickbacks," A. Heard, The Costs of Democracy 143,
144 (1960), or the practice of "'beer politics,'" whereby
"wholesale liquor licenses issued by the state were traded for
campaign contributions,"
id., at 144, or the extortion of
political support and "campaign contributions" on pain of being
branded a "Communist," R. Caro, The Power Broker: Robert Moses and
the Fall of New York 726 (1975), or the "favorable consideration in
the courts or by public agencies" expected in one city by the
clients of "'political' attorneys with part-time public jobs,"
Wolfinger,
supra, at 389, or the question reportedly asked
by a party official of a businessman who was reluctant to
contribute to a mayoralty campaign, "'Look, you [expletive
deleted], do you want a snow-removal contract or don't you?,'"
id., at 368. These examples, cited by the dissent, many of
which involve patronage in employment and appointments rather than
in contracting, cf. Comment, Political Patronage, at 518, n. 4
("[P]atronage systems have traditionally centered around the
distribution of government
jobs" (emphasis added)), may
suggest that abuses of power in the name of patronage are not
"highly unusual,"
post, at 710. It may also be the case that
the victims whose speech is chilled and whose contributions are
extracted by such government action are often " 'honorable and
prudent businessmen.'"
Post, at 689 (quoting Heard,
supra, at 145). But the dissent's examples do not establish
an "open and unchallenged" tradition of allocating government
contracts on the basis of political bias-much
683
less on the basis of disapproval of political speech. The
dissent's own sources note that the patronage practices that they
report were denied and disavowed by their alleged practitioners,
see Wolfinger,
supra, at 367, n. 2, 372-373, n. 11, that
they were most significant in secret and specialized contexts such
as defense contracting that "operat[e] in an atmosphere uninhibited
by the usual challenges of representative government," Tolchin,
supra, at 233, and that in many cases they were illegal, see
Heard,
supra, at 143-144, n.4. We of course agree with the
dissent that mere "obnoxious[ness],"
post, at 690, and
criminality do not make a practice unconstitutional. Nor, however,
do the dissent's examples of covert, widely condemned, and
sometimes illegal government action legitimize the government
discrimination based on the viewpoint of one's speech or one's
political affiliations that is involved here.
2
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
684
1236; Ky. Const., §247 (1890), in 3
id., at 1353; La.
Const., Art. 42 (1879), in
id., at 1447-1478; La. Const.,
Art. 44 (1898), in
id., at 1529; Mich. Const., Art. IV, § 22
(1850), in 4
id., at 1948-1949; Miss. Const., Art. 4, § 107
(1890), in
id., at 2102; Mont. Const., Art. V, § 30 (1889),
in
id., at 2308; Neb. Const., Art. II, §23 (1866-1867), in
id., at 2353; Ohio Const., Art. XV; § 2 (1851), in 5
id., at 2932; Pa. Const., Art. III, § 12 (1873), in
id., at 3127; Tex. Const., Art. XVI, § 21 (1876), in 6
id., at 3658-3659; W. Va. Const., Art. VI, § 34 (1872), in 7
id., at 4044; Wis. Const., Art. IV, § 25 (1848), in
id., at 4083; Wyo. Const., Art. III, § 31 (1889), in
id., at 4124; see also Ky. Const., § 164 (1890), in 3
id., at 1341 ("highest and best bidder" rule for municipal
and local franchise awards); Miss. Const., Art. I, § 5 (1817,
1832), in 4
id., at 2033, 2049 ("[N]o person shall be
molested for his opinions on any subject whatsoever, nor suffer any
civil or political incapacity, or acquire any civil or political
advantage, in consequence of such opinions, except in cases
provided for in this constitution"). We are aware of no evidence of
excessive or abusive litigation under such provisions. And, unlike
the dissent,
post, at 699-700, we do not believe that a
deferentially administered requirement that the government not
unreasonably terminate its commercial relationships on the basis of
speech or political affiliation poses a greater threat to
legitimate government interests than the complex and detailed array
of modern statutory and regulatory government contracting
rules.
In sum, neither the Board nor U mbehr 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 alwayssomewhat less strong in the independent
contractor case.
685
We therefore conclude that the same form of balancing analysis
should apply to each.
III
Because the courts below assumed that U mbehr'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, U mbehr 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 U
mbehr 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 U mbehr'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.
686
686 BOARD OF COMM'RS, WABAUNSEE CTY.
v. UMBEHR
SCALIA, J., dissenting
Subject to these limitations and caveats, however, we recognize
the right of independent government contractors not to be
terminated for exercising their First Amendment rights. The
judgment of the Court of Appeals is, therefore, affirmed, and the
case is remanded for proceedings consistent with this opinion.
It is so ordered.
JUSTICE SCALIA, with whom JUSTICE THOMAS joins, dissenting.
*
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.
I
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.,
*[This opinion applies also to No. 95-191,
O'Hare Truck
Service, Inc. v.
City of Northlake, post, p. 712.]
687
at 110-111. At the very least, the dissenters maintained,
Elrod and
Branti "should not be extended beyond their
facts." 497 U. S., at 114.
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:
"[W]hen a practice not expressly prohibited by the text of the
Bill of Rights bears the endorsement of a long tradition of open,
widespread, and unchallenged use that dates back to the beginning
of the Republic, we have no proper basis for striking it down. Such
a venerable and accepted tradition is not to be laid on the
examining table and scrutinized for its conformity to some abstract
principle of First Amendment adjudication devised by this Court. To
the contrary, such traditions are themselves the stuff out of which
the Court's principles are to be formed. They are, in these
uncertain areas, the very points of reference by which the
legitimacy or illegitimacy of other practices is to be
figured out. When it appears that the latest 'rule,' or 'three-part
test,' or 'balancing test' devised by the Court has placed us on a
collision course with such a landmark practice, it is the
688
former that must be recalculated by us, and not the latter that
must be abandoned by our citizens. I know of no other way to
formulate a constitutional jurisprudence that reflects, as it
should, the principles adhered to, over time, by the American
people, rather than those favored by the personal (and necessarily
shifting) philosophical dispositions of a majority of this Court."
497 U. S., at 95-96 (dissenting opinion) (footnote omitted).
There can be no dispute that, like rewarding one's allies, the
correlative act of refusing to reward one's opponentsand at bottom
both of today's cases involve exactly that-is an American
political tradition as old as the Republic. This is true not only
with regard to employment matters, as Justice Powell discussed in
his dissenting opinions in
Elrod, supra, at 377-379, and
Branti, supra, at 522, n. 1, but also in the area of
government contracts, see,
e. g., M. Tolchin & S.
Tolchin, To the Victor: Political Patronage from the Clubhouse to
the White House 14-15,61,233-241,273-277 (1971); A. Heard, The
Costs of Democracy 143-145 (1960); R. Caro, The Power Broker:
Robert Moses and the Fall of New York 723-726, 738, 740-741, 775,
799, 927 (1975); M. Royko, Boss:
Richard J. Daley of Chicago 69 (1971); Wolfinger, Why Political
Machines Have Not Withered Away and Other Revisionist Thoughts, 34
J. Politics 365, 367-368, 372, 389 (1972); The Bond Game Remains
the Same, Nat. L. J., July 1, 1996, pp. A1, A20-A21. If that long
and unbroken tradition of our people does not decide these cases,
then what does? The constitutional text is assuredly as susceptible
of one meaning as of the other; in that circumstance, what
constitutes a "law abridging the freedom of speech" is either a
matter of history or else it is a matter of opinion. Why are not
libel laws such an "abridgment"? The only satisfactory answer is
that they never were. What secret knowledge, one must wonder, is
breathed into lawyers when they become Justices of this Court, that
enables them to discern that a practice which the
689
text of the Constitution does not clearly proscribe, and which
our people have
regarded as constitutional for 200 years, is
in fact unconstitutional?
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,
690
and indeed no one ever thought, prior to our decisions in
Elrod and
Branti, that patronage contracting could
violate
the First Amendment. The Court's attempt to contest
this point, or at least to becloud the issue, by appeal to
obnoxious and universally condemned patronage practices simply
displays the feebleness of its case.
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] matter ... is disposed of ... , not by an attempt to make
some scientific distinction, which would be at least difficult, but
on an interpretation of language by its traditional use-on the
practical and historical ground that this kind of tax always has
been regarded as the antithesis of a direct tax .... Upon this
point a page of history is worth a volume of logic." New York Trust
Co. v. Eisner, 256 U. S. 345, 349 (1921)
(emphasis added).
II
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
691
entirely constitutional, is not entirely desirable, and so they
have set about passing laws to prohibit it in some but not all
instances. As a consequence, government contracting is subject to
the most extraordinary number of laws and regulations at the
federal, state, and local levels.
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
692
of public corruption, all 50 States have enacted legislation
imposing competitive bidding requirements on various types of
contracts with the government.1 Government contract-
1 See,
e.g., Ala. Code
§11-43C-70 (1989);
id., §24-1-83 (1992);
id., §4116-20 (Supp. 1995);
Alaska Stat. Ann. § 36.30.100 (1992); Ariz. Rev. Stat. Ann.
§41-2533 (1992); Ark. Code Ann. §§ 14-47-120,14-47-138,14-48-117,
14-48-129 (1987); Cal. Pub. Cont. Code Ann. §§ 10302, 10309, 10373,
10501, 10507.7, 20723, 20736, 20751, 20803, 20921, 21501, 21631
(West 1985 and Supp. 1996); Cal. Pub. Util. Code Ann. § 131285
(West 1991); Cal. Rev. & Tax. Code Ann. §674 (West Supp. 1996);
Colo. Rev. Stat. §24-103-202 (Supp. 1995); Conn. Gen. Stat. § 4a-57
(Supp. 1996); Del. Code Ann., Tit. 9, § 671 (1989);
id.,
Tit. 29, § 6903(a) (1991); Fla. Stat. § 190.033 (Supp. 1996);
id., §287.057 (1991 and Supp. 1996); Ga. Code Ann. §2-10-1O
(1990);
id., §§32-10-7, 32-10-68 (1991 and Supp. 1995); Haw.
Rev. Stat. § 103D-302 (Supp. 1995); Idaho Code §33-1510 (1995);
id., §43-2508 (Supp. 1995);
id., § 50-1710 (1994);
id., §
67-5711C (1995);
id., § 67-5718 (1995,
and 1996 Idaho Sess. Laws, ch. 198); Ill. Compo Stat., ch. 50, §
20/20 (1993);
id., ch. 65, § 5/ 8-10-3 (1993);
id.,
ch. 70, §§205/25, 225/25, 265/25, 280/1-24, 280/2-24, 290/ 26,
310/5-24, 320/1-25, 320/2-25, 325/1-24, 325/2-24, 325/3-24,
325/5-24, 325/6-24, 325/7-24, 325/8-24, 340/25, 2305/11, 2405/11,
2805/14, 2905/5-4 (1993 and Supp. 1996); Ind. Code §§2-6-1.5-2,
10-7-2-28,4-13.6-5-2,816-3.5-5.5 (Supp. 1995); Iowa Code § 18.6
(1995); Kan. Stat. Ann. § 49417(a) (Supp. 1990);
id., §§
75-3739 to 75-3741 (1989 and Supp. 1990, and 1996 Kan. Sess. Laws,
ch. 201); Ky. Rev. Stat. Ann. § 162.070 (Baldwin 1990); La. Rev.
Stat. Ann. § 39:1594 (West 1989); Me. Rev. Stat. Ann., Tit. 5, §§
1743, 1743-A (1989); Md. Ann. Code, Art. 25, §3(l) (Supp. 1995, and
1996 Md. Laws, ch. 66);
id., Art. 25A, §5(F) (Supp. 1995);
Md. Nat. Res. Code Ann. §§3-103(g)(3), 8-1005(c) (Supp. 1995);
Mass. Gen. Laws §§ 14944A to 149-44M (1989 and Supp. 1996); Mich.
Compo Laws Ann. § 247.661c (West Supp. 1996); Minn. Stat. § 16B.07
(1988 and Supp. 1996); Miss. Code Ann. §27-35-101 (1995);
id., §§31-7-13, 37-151-17 (Supp. 1995); Mo. Rev. Stat. §§
34.040.1, 34.042.1, 68.055.1 (Supp. 1996); Mont. Code Ann. §§
7-31323, 7-5-2301, 7-5-2302, 7-5-4302, 7-14-2404 (1995); Neb. Rev.
Stat. §§ 81-885.55, 84-1603 (1994); Nev. Rev. Stat. § 332.065
(1984); N. H. Rev. Stat. Ann. § 28:8 (1988);
id., §
186-C:22(VI) (Supp. 1995);
id., § 228:4 (1993); N. J. Stat.
Ann. §28:1-7 (West 1981); N. M. Stat. Ann. § 13-1-102 (1992); N. Y.
Alt. County Govt. Law § 401 (McKinney 1993); N. Y. Gen. Mun. Law §
103 (McKinney 1986 and Supp. 1996); N. C. Gen. Stat. § 133-10.1
(1995);
id., § 143-49 (1993); N. D. Cent. Code § 54-44.4-05
(Supp. 1995); Ohio Rev. Code Ann. §§ 307.90, 511.12 (1994);
id., § 3381.11 (1995); Okla. Stat., Tit. 11, § 24-114
(1994);
id., Tit. 52, § 318 (1991);
id., Tit. 61, §
101 (1989); Ore. Rev.
693
ing is such a standard area for state regulation that a model
procurement code has been developed, which is set forth in a
265-page book complete with proposed statutes, regulations, and
explanations. See ABA Section of Urban, State and Local Government
Law, Model Procurement Code for State and Local Governments (1981).
As of 1989, 15 States had enacted legislation based on the model
code. See ABA Section of Urban, State and Local Government Law,
Annotations to the Model Procurement Code vii-viii (2d ed. 1992)
(and statutes cited).
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
Stat. §279.015 (1991); 53 Pa. Cons. Stat. §23308.1 (Supp. 1996);
R. I. Gen. Laws §45-55-5 (Supp 1995); S. C. Code Ann. § 11-35-1520
(Supp. 1995); S. D. Codified Laws §§ 5-18-2, 5-18-3 (1994);
id., § 5-18-9 (Supp. 1996);
id., §§ 9-42-5, 11-7-44
(1995);
id., § 13-49-16, 42-7A-5 (1991); Tenn. Code Ann. §§
12-3-202, 12-3-203, 12-3-1007 (1992 and Supp. 1995); Tex. Educ.
Code Ann. § 51.907 (1987); Tex. Loc. Govt. Code Ann. §§ 252.021,
262.023, 262.027,271.027,375.221 (1988 and Supp. 1996); Utah Code
Ann. § 17A-21195 (1991); Vt. Stat. Ann., Tit. 29, § 152(12) (1986);
Va. Code Ann. §§ 11-41, 11-41.1 (1993); Wash. Rev. Code
§§28A.160.140, 36.32.250 (Supp. 1996); w. Va. Code §§4-7-7, 5-6-7
(1994); Wis. Stat. §30.32 (1989 and Supp.
1995); id., §
60.47 (1988 and Supp. 1995); Wyo. Stat. § 35-2-429 (1994).
694
have been regulated, and the way in which public policy problems
that arise in the area have been addressed, since the founding of
the Republic. See,
e. g., Federal Procurement
Regulations: Policy, Practice and Procedures, at 11-196 (describing
the history of Federal Government procurement regulation). But
these laws and regulations have brought to the field a degree of
discrimination, discernment, and predictability that cannot be
achieved by the blunt instrument of a constitutional
prohibition.
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,2 or those covering certain subject matters,3 or those that
are time sensitive.4 A politi-
2 See,
e. g., 41 U. S. C. §§ 252a(b), 403(11)
(certain federal contracting laws rendered inapplicable "to a
contract or subcontract that is not greater than" $100,000); Cal.
Pub. Cont. Code Ann. § 10507.7 (West Supp. 1996)
(lowest-responsible-bidder requirement for certain goods and
materials only applicable to "contracts involving an [annual]
expenditure of more than fifty thousand dollars"); Ill. Compo
Stat., ch. 50, § 20/20 (1993) (lowest-responsible-bidder
requirement for certain construction contracts not applicable to
contracts for more than $5,000); N. Y. Gen. Mun. Law § 103.1
(McKinney Supp. 1996) (not covering public-work contracts for
$20,000 or less or purchase contracts for $10,000 or less); S. D.
Codified Laws § 5-18-3 (Supp. 1996) (requiring competitive bidding
process for certain public-improvement contracts "involv[ing] the
expenditure of twenty-five thousand dollars or more"); Tex. Loc.
Govt. Code Ann. § 262.023(a) (Supp. 1996) (applying only to "a
contract that will require an expenditure exceeding $15,000").
3 See,
e. g., Idaho Code §33-151O (1995); N. J.
Stat. Ann. §28:1-7 (West 1981); Ohio Rev. Code Ann. § 511.12 (Supp.
1995); Okla. Stat., Tit. 52, § 318 (1991); Utah Code Ann. §
17A-2-1195 (1991).
4 See,
e. g., Del. Code Ann., Tit. 29, §
6903(a)(2) (1991); Fla. Stat. § 287.057(3)(a) (Supp. 1996); Minn.
Stat. § 16B.08(6) (1988); N. H. Rev. Stat. Ann. §228:4(I)(e)
(1993); Tenn. Code Ann. §§ 12-3-202(3),12-3-206 (1992).
695
cal unit's decision not to enact contracting regulations, or to
suspend the regulations in certain circumstances, amounts to a
decision to permit some degree of political favoritism. As I shall
discuss shortly,
O'Hare's and
Umbehr's First
Amendment permits no such selectivity-or at least none that can be
known before litigation is over.
III
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
696
is a powerful price to pay for one's politics. But the Court
then found itself on the fabled slippery slope that Justice
Holmes's aphorism about history and logic warned about: one logical
proposition detached from history leads to another, until the Court
produces a result that bears no resemblance to the America that we
know. The next step was
Rutan, which extended the
prohibition of political motivation from firing to hiring. The
third step is today's
Umbehr, which extends it to the
termination of a government contract. And the fourth step (as I
shall discuss anon) is today's
O'Hare, which extends it to
the refusal to enter into contractual relationships.
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:
"Although some business firms sell just to government, most
government contractors also have private customers. If the
contractor does not get the particular government contract on which
he bids, because he is on the outs with the incumbent and the state
does not have laws requiring the award of the contract to the low
bidder (or the laws are not enforced), it is not the end of the
world for him; there are other government entities to bid to, and
private ones as well. It is not like losing
697
your job." LaFalce v. Houston, 712 F.2d
292, 294 (CA71983).
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
outbalanced by the degree of abridgment of supposed First Amendment
rights (of corporate shareholders, for the most part) that
698
would occur if the burden were not imposed.5 The Court in
Umbehr dismisses the risk of litigation, not by analogy to
the employment context, but by analogy to the many
government-contracting laws of the type I have discussed. "We are
aware," it says, "of no evidence of excessive or abusive litigation
under such provisions."
Ante, at 684. I am not sure the
Court
would be aware of such evidence if it existed, but if
in fact litigation has been "nonexcessive" (a conveniently
imprecise term) under these provisions, that is scant indication
that it will be "nonexcessive" under the First Amendment.
Uncertainty breeds litigation. Government-contracting laws are
clear and detailed, and whether they have been violated is
typically easy to as-
5 O'Hare makes a brief attempt to minimize the
seriousness of the litigation concern, pointing out that "[t]he
amicus brief filed on behalf of respondents' position
represents that in the six years since our opinion in
[Rutan]
... only 18 suits alleging First Amendment violations in
employment decisions have been filed against Illinois state
officials."
Post, at 724. In fact the brief said
"at
least eighteen cases," Brief for Illinois State Officials as
Amici Curiae 3 (emphasis added), and that includes only
suits against state officials, and not those against the officials
of Illinois' 102 counties or its even more numerous municipalities.
Those statistics pertain to
employment suits, moreover-and
as I have discussed, the contracting suits will be much more
numerous.
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.
699
certain: the contract was put out for bid, or it was not.
Umbehr's new First Amendment, by contrast, requires a
sensitive "balancing" in each case; and the factual question
whether political affiliation or disfavored speech was the reason
for the award or loss of the contract will usually be litigable. In
short, experience under the government-contracting laws has little
predictive value.
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,
700
at least in part, upon the nature of the entity created by state
law").
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
701
the lowest bidder but to the "lowest
responsible bidder."
6 "The word 'responsible' is as important as the word 'lowest,'" H.
Cohen, Public Construction Contracts and the Law 81 (1961), and has
been interpreted in some States to permit elected officials to
exercise political discretion. "Some New York courts," for example,
"have upheld agency refusals to award a contract to a low bidder
because the contractor, while technically and financially capable,
was not morally responsible." Anechiarico & Jacobs 146-147. In
the leading case of
Picone v.
New York, 176 Misc.
967, 29 N. Y. S. 2d 539 (Sup. Ct. N. Y. Cty. 1941), the court
stated that in determining whether a lowest bidder for a particular
contract was the "lowest responsible bidder," New York City
officials had permissibly considered "whether [the bidder]
possessed integrity and moral worth."
Id., at 969, 29 N. Y.
S. 2d, at 541. The New Jersey Supreme Court has similarly said: "It
is settled that the legislative mandate that a bidder be
'responsible' embraces moral integrity just as surely as it
embraces a capacity to supply labor and materials."
Trap Rock
Industries, Inc. v.
Kohl, 59 N. J. 471, 481, 284 A. 2d
161, 166 (1971). In the future, presumably, this will be permitted
only if the disfavored moral views of the bidder have never been
verbalized, for otherwise the First Amendment will produce
entitlement to the contract, or at least guarantee a lawsuit.
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.
6 See,
e. g., Cal. Pub. Cont. Code Ann. §§
10302,10507.7,20803 (West 1985 and Supp. 1996); Ill. Compo Stat.,
ch. 50, §§ 20/20, 25/3;
id., ch. 70, §§ 15/8, 15/9, 205/25,
220/1-24, 220/2-24 (1993); N. Y. Gen. Mun. Law § 103.1 (McKinney
Supp. 1996).
702
IV
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,
703
J., concurring in judgment in part and dissenting in part)
(Pickering requires "case-by-case application");
Rankin v.
McPherson, 483 U. S. 378, 388-392
(1987);
Connick v.
Myers, 461 U. S. 138, 150-154
(1983);
Pickering v.
Board of Ed. of Township High School
Dist. 205, Will Cty., 391 U. S. 563, 568-573
(1968). It is clear that this is what the Court's opinion in
Umbehr anticipates: "a
fact-sensitive and deferential
weighing of the government's legitimate interests,"
ante, at
677 (emphasis added), which accords "[d]eference ... to the
government's reasonable assessments of its interests as
contractor,"
ante, at 678 (emphasis deleted). "[S]uch a
nuanced approach,"
Umbehr says, "which recognizes the
variety of interests that may arise in independent contractor
cases, is superior to a bright-line rule."
Ibid.
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,7 the assertion obviously contradicts the need for
"balancing" announced in the companion
Umbehr decision. This
rejection of "balancing" is evident elsewhere in
O'Hare-as
when the Court rejects as irrelevant the Seventh
7 As the dissenters in
Rutan v.
Republican Party of
Ill., 497 U. S.
62 (1990), agreed: "[I]t greatly exaggerates [the constraints
entailed by patronage] to call them 'coercion' at all, since we
generally make a distinction between inducement and compulsion. The
public official offered a bribe is not 'coerced' to violate the
law, and the private citizen offered a patronage job is not
'coerced' to work for the party."
Id., at 109-110 (SCALIA,
J., dissenting).
704
Circuit's observation in
LaFalce v.
Houston,
712 F.2d
292 (1983), that some contractors elect to "curr[y] favor with
diverse political parties," on the ground that the fact "[t]hat
some citizens [thus] find a way to mitigate governmental
overreaching, or refrain from complaining, does not excuse wrongs
done to those who exercise their rights."
Post, at 724. But
whether the government action at issue here
is a "wrong" is
precisely the issue in this case, which we thought (per
Umbehr) was to be determined by "balancing."
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. I t 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,
705
the fatal need for "probing or testing" his allegiance
disappears.) Or is the "right of free speech" at issue only if he
goes still further, and says, "I believe in the principles set
forth in the Republican platform"? Or perhaps one must decide
whether the Rubicon between the "right of free speech" and the more
protected "political affiliation" has been crossed on the basis of
the contracting authority's
motivation, so that it does not
matter whether the contractor
says he is a Republican, or
even
says that he believes in the Republican platform, so
long as the reason he is disfavored is simply that (whatever he
says or believes) he is a Republican. But the analysis would
change, perhaps, if the contracting authority really has nothing
against Republicans as such, but can't stand people who believe
what the Republican platform stands for. Except perhaps it would
not change if the contractor never actually
said he
was a Republican-or perhaps only if he never actually
said
that he believed in the Republican platform. The many variations
will provide endless diversion for the courts of appeals.
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
706
rather than categorical liability will be the result.
O'Hare,
post, at 719.
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:
"The Court of Appeals, based on its understanding of the
pleadings, considered this simply an affiliation case, and held,
based on Circuit precedent, there was no constitutional protection
for one who was simply an outside contractor. We consider the case
in those same terms, but we disagree with the Court of Appeals'
conclusion." Post, at 720.
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
707
them to be. When, as here, "the decision we review
adjudicated a motion to dismiss, we accept all of the factual
allegations in petitioners'
complaint as true and ask
whether, in these circumstances, dismissal of the complaint was
appropriate."
Berkovitz v.
United States, 486 U. S. 531, 540 (1988)
(emphasis added). It is at least highly arguable that the complaint
alleged what the Court calls a violation of the "right of free
speech" rather than merely the right of "political affiliation."
The count at issue was entitled "FREEDOM OF SPEECH," see App. in
No. 95-191, p. 15, and contended that petitioners had been
retaliated against because of "the exercise of their constitutional
right of freedom of speech,"
id., at 17. One of the two
central factual allegations is the following: "John A. Gratzianna
openly supported Paxson's opponent for the office of Mayor.
Campaign posters for Paxson's opponent were displayed at plaintiff
O'Hare's place of business."
Id., at 16. It is particularly
inexcusable to hide behind the Court of Appeals' treatment of this
litigation as "simply an affiliation case," since when the Court of
Appeals wrote its opinion the world had not yet learned that the
Free Speech Clause is divided into the two categories of "right of
free speech" and "political affiliation." As far as that court
knew, it could have substituted "freedom of speech" for "freedom of
political affiliation" whenever it used the term, with no effect on
the outcome. It did not, in other words, remotely make a "finding"
that the case involves only the right of political affiliation.
Unavoidably, therefore, if what the
O'Hare Court says in its
first explanatory paragraph is to be believed-that is, what it says
in the latter part of that paragraph, to the effect that
"intermixed" cases are governed by
Pickering-there is simply
no basis for reversing the Court of Appeals
without
balancing, and directing that the case proceed, effectively
depriving the city of its right to judgment on the pleadings.
Unless, of course,
Pickering balancing can never support
the granting of a motion to dismiss. That is the proposition
708
that today's
O'Hare opinion, if it is not total
confusion, must stand for. Nothing else explains how the Court can
(1) assert that an "intermixed" case requires
Pickering
balancing, (2) acknowledge that the complaint here
may set
forth an "intermixed" case, and yet (3) reverse the dismissal
without determining whether the complaint
does set forth an
"intermixed" case and, if so, proceeding to conduct at least a
preliminary
Pickering balancing. There is of course no
reason in principle why this particular issue should be dismissal
proof, and the consequence of making it so, given the burdens of
pretrial discovery (to say nothing of trial itself) will be to make
litigation on this subject even more useful as a device for
harassment and weapon of commercial competition. It must be
acknowledged, however, that proceeding this way in the present case
has one unquestionable advantage: it leaves it entirely to the
District Court to clean up, without any guidance or assistance from
us, the mess that we have made-to figure out whether saying "Vote
against Paxson," or "Paxson is a hack," or "Paxson's project for a
100,OOO-seat municipal stadium is wasteful," or whatever else Mr.
Gratzianna's campaign posters might have said, removes this case
from the Political Affiliation Clause of the Constitution and
places it within the Right of Free Speech Clause.
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 U mbehr'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
709
of Commissioners had terminated U mbehr's
contract. The
fuzzier terminology is used, presumably, because
O'Hare did
not involve termination of a contract. As far as appears,
O'Hare had not paid or promised anything to be placed on a list of
tow-truck operators who would be offered individual contracts as
they came up. The company had no right to sue if the city failed to
call it, nor the city any right to sue if the company turned down
an offered tow. It had, in short, only what might be called (as an
infinity of things might be called) "a pre-existing commercial
relationship" with the city: it was one of the tow-truck operators
they regularly called. The quoted statement in
Umbehr
invites the bar to believe, therefore, that the Court which
declined to draw the line of First Amendment liability short of
firing from government employment
(Elrod and
Branti),
short of nonhiring for government employment
(Rutan), short
of termination of a government contract
(Umbehr), and short
of
denial of a government contract to someone who had a
"pre-existing commercial relationship with the government"
(O'Hare) may take a firm stand against extending the
Constitution into every little thing when it comes to denying a
government contract to someone who had
no "pre-existing
commercial relationship." Not likely; in fact, not even
believable.
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
710
Appeals as 'unique.'" And in the cases announced today, "we
emphasize the limited nature of our decision."
Umbehr, ante,
at 685. The people should not be deceived. While the present Court
sits, a major, undemocratic restructuring of our national
institutions and mores is constantly in progress.
***
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-corne-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!
711
Favoritism such as this happens all the time in American
political life, and no one has ever thought that it violatedof all
things-the First Amendment to the Constitution of the United
States.
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.
I dissent.
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