OCTOBER TERM, 1995
Syllabus
O'HARE TRUCK SERVICE, INC., ET AL.
v. CITY OF NORTHLAKE
ET AL.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH
CIRCUIT
No.95-191. Argued March 20, 1996-Decided June 28,1996
Respondent city maintains a rotation list of available companies
to perform towing services at its request. Until the events
recounted here, the city's policy had been to remove companies from
the list only for cause. Petitioner O'Hare Truck Service, Inc., was
removed from the list after its owner, petitioner Gratzianna,
refused to contribute to respondent mayor's reelection campaign and
instead supported his opponent. Alleging that the removal was in
retaliation for Gratzianna's campaign stance and caused petitioners
to lose substantial income, petitioners filed this suit under 42 U.
S. C. § 1983. The District Court dismissed the complaint in
conformity with Seventh Circuit precedent that
Elrod v.
Burns, 427 U.
S. 347 (plurality opinion), and
Branti v.
Finkel,
445 U. S. 507-in
which the Court held that government officials may not discharge
public employees for refusing to support a political party or its
candidates, unless political affiliation is an appropriate
requirement for the job in question-do not extend to independent
contractors. The Seventh Circuit affirmed.
Held: The protections of
Elrod and
Branti
extend to an instance where government retaliates against a
contractor, or a regular provider of services, for the exercise of
rights of political association or the expression of political
allegiance. Pp. 716-726.
(a) In assessing when party affiliation, consistent with the
First Amendment, may be an acceptable basis for terminating a
public employee, "the ultimate inquiry is not whether the label
'policymaker' or 'confidential' fits a particular position; rather,
the question is whether the hiring authority can demonstrate that
party affiliation is an appropriate requirement for the effective
performance of the public office involved."
Branti, supra,
at 518. A different, though related, inquiry, the balancing test
from
Pickering v.
Board of Ed. of Township High School
Dist. 205, Will Cty., 391 U. S. 563, is called
for where a government employer takes adverse action on account of
an employee or service provider's right offree speech. In
Elrod and
Branti, the raw test of political
affiliation sufficed to show a constitutional violation. However,
since the inquiry is whether the affiliation requirement is
reasonable, it is inevitable that some case-by-case adjudication
will be required even
713
where political affiliation was the test the government imposed.
The analysis will also accommodate cases where instances of the
employee's speech or expression are intermixed with a political
affiliation requirement. Pp.716-720.
(b) Despite respondents' argument that the principles of
Elrod and
Branti have no force here because an
independent contractor's First Amendment rights, unlike a public
employee's, must yield to the government's asserted countervailing
interest in sustaining a patronage system, this Court cannot accept
the proposition that those who perform the government's work
outside the formal employment relationship are subject to the
direct and specific abridgment of First Amendment rights described
in petitioners' complaint. The government may not coerce support in
the manner petitioners allege, unless it has some justification
beyond dislike of the individual's political association. As
respondents offer no other justification for their actions, the
complaint states a First Amendment claim. Allowing the
constitutional claim to turn on a distinction between employees and
independent contractors would invite manipulation by government,
which could avoid constitutional liability simply by attaching
different labels to particular jobs,
Board of Comm'rs, Wabaunsee
Cty. v.
Umbehr, ante, at 679. Accord,
Lefkowitz
v.
Turley, 414
U. S. 70. Respondents present no convincing data to support
their speculation that a difference of constitutional magnitude
exists because independent contractors are less dependent on the
government for income than employees are. There is little reason to
suppose that a decision in petitioners' favor will lead to numerous
lawsuits. While government officials may terminate at-will
relationships, unmodified by any legal constraints, without cause,
it does not follow that this discretion can be exercised to impose
conditions on expressing, or not expressing, specific political
views, see
Perry v.
Sindermann, 408 U. S. 593, 597. In
view of the large number of legitimate reasons why a contracting
decision might be made, fending off baseless First Amendment
lawsuits should not consume scarce government resources. If the
government terminates its affiliation with a service provider for
reasons unrelated to political association,
Mt. Healthy City Bd.
of Ed. v.
Doyle, 429 U. S. 274, 287, as,
for example, where the provider is unreliable, or if the service
provider's political "affiliation is an appropriate requirement for
the effective performance" of the task in question,
Branti,
supra, at 518, there will be no First Amendment violation. The
absolute right to enforce a patronage scheme as a means of
retaining control over independent contractors and satisfying
government officials' concerns about reliability has not been shown
to be a necessary part of a legitimate political system in all
instances. This was the determination controlling the Court's
decisions in
Elrod, supra, at 365-368, 372-373,
714
and
Branti, supra, at 518-520. There is no basis for
rejecting that reasoning in this context and drawing a line
excluding independent contractors from the First Amendment
safeguards of political association afforded to employees.
Pp.720-726.
(c) The lower courts, upon such further proceedings as are
deemed appropriate, should decide whether the case is governed by
the
ElrodBranti rule or by the
Pickering rule. P.
726.
47 F.3d
883, reversed and remanded.
KENNEDY, J., delivered the opinion of the Court, in which
REHNQUIST, C. J., and STEVENS, O'CONNOR, SOUTER, GINSBURG, and
BREYER, JJ., joined. SCALIA, J., filed a dissenting opinion, in
which THOMAS, J., joined,
ante, p. 686.
Harvey Grossman argued the cause for petitioners. With him on
the briefs were Jane M. Whicher, Barbara P. O'Toole, Steven R.
Shapiro, Michael P. McGovern, Colleen K. Connell, and Marc 0.
Beem.
Gary M. Feiereisel argued the cause for respondents.
With him on the brief was
Frank P. Kasbohm. *
JUSTICE KENNEDY delivered the opinion of the Court. Government
officials may not discharge public employees for refusing to
support a political party or its candidates, unless political
affiliation is a reasonably appropriate requirement for the job in
question.
Elrod v.
Burns, 427 U. S. 347 (1976);
Branti v.
Finkel, 445 U. S. 507 (1980). We
must decide whether the protections of
Elrod and
Branti extend to an independent contractor, who, in
retaliation for refusing to comply with demands for political
support, has a government contract terminated or is removed from an
official list of contractors authorized to perform public services.
Although the government has broad discretion in formulating its
contracting policies, we hold that the protections of
Elrod
and
* Robert A. Hirsch filed a brief for the Towing
& Recovery Association of America, Inc., as
amicus
curiae urging reversal.
Jeffrey D. Colman, Edward
J. Lewis II, and David
Jimenez-Ekman filed a brief for Illinois State Officials as amicus
curiae urging affirmance.
715
Branti extend to an instance like the one before us,
where government retaliates against a contractor, or a regular
provider of services, for the exercise of rights of political
association or the expression of political allegiance.
I
The suit having been dismissed by the District Court for failure
to state a claim, the complaint's factual allegations are taken as
true.
Leatherman v.
Tarrant County Narcotics Intelligence
and Coordination Unit, 507 U. S. 163, 164
(1993). John Gratzianna is the owner and operator of O'Hare Truck
Service, which provides towing services in Cook and DuPage
Counties, Illinois. Gratzianna and his company are petitioners
here, and we sometimes refer to them as O'Hare.
The city of Northlake, a respondent in this Court, coordinates
towing services through its Police Department and for at least 30
years has maintained a rotation list of available towing companies.
When the police receive a tow request, they call the company next
on the list to provide the service. Until the events recounted
here, the city's policy had been to remove a tow truck operator
from the rotation list only for cause. O'Hare had been on the list
since 1965, performing towing services at the city's request.
O'Hare and the city's former Mayor, Gene Doyle, had a mutual
understanding that the city would maintain O'Hare's place on the
rotation list so long as O'Hare provided good service. In 1989,
soon after being elected Northlake's new Mayor, respondent Reid
Paxson told Gratzianna he was pleased with O'Hare's work and would
continue using and referring its services.
Four years later, when Paxson ran for reelection, his campaign
committee asked Gratzianna for a contribution, which Gratzianna
refused to make. Gratzianna instead supported the campaign of
Paxson's opponent and displayed the opponent's campaign posters at
O'Hare's place of business. Soon after, O'Hare was removed from the
rotation list. We shall
716
assume, as the complaint alleges, that the removal was in
retaliation for Gratzianna's stance in the campaign. Petitioners
allege the retaliation caused them to lose substantial income.
O'Hare and Gratzianna sued in the United States District Court
for the Northern District of Illinois, alleging infringement of
First Amendment rights in violation of Rev. Stat. § 1979, 42 U. S.
C. § 1983. In conformity with binding Seventh Circuit precedent,
which does not extend
Elrod and
Branti to independent
contractors, see,
e. g., Downtown Auto Parks, Inc. v.
Milwaukee, 938 F.2d
705, cert. denied, 502 U. S. 1005 (1991), the District Court
dismissed the complaint, 843 F. Supp. 1231 (1994). The Court of
Appeals for the Seventh Circuit affirmed, adhering to the view that
"it should be up to the Supreme Court to extend
Elrod."
47 F.3d
883, 885 (1995). (The Court of Appeals also affirmed dismissal
of O'Hare's claim that respondents' failure to give it notice of
removal from the list or provide a hearing on the matter deprived
O'Hare of due process of law. That ruling is not before us.)
The Courts of Appeals take different positions concerning
Elrod and
Branti's applicability to independent
contractors. Compare
47 F.3d
883 (1995) (opinion below);
Horn v.
Kean,
796 F.2d
668 (CA3 1986) (en bane);
Sweeney v.
Bond, 669 F.
2d 542 (CA8), cert. denied
sub nom. Schenberg v.
Bond, 459 U. S. 878 (1982), with
Blackburn v.
Marshall, 42 F.3d
925 (CA5 1995);
Abercrombie v.
Catoosa, 896 F.2d
1228 (CAlO 1990). We granted certiorari to resolve the
conflict, 516 U. S. 1020, and now reverse.
II
The Court has rejected for decades now the proposition that a
public employee has no right to a government job and so cannot
complain that termination violates First Amendment rights, a
doctrine once captured in Justice Holmes' aphorism that although a
policeman "may have a constitutional right to talk politics ... he
has no constitutional right to be
717
a policeman,"
McAuliffe v.
Mayor of New Bedford,
155 Mass. 216, 220, 29 N. E. 517 (1892). A State may not condition
public employment on an employee's exercise of his or her First
Amendment rights. See,
e. g., Keyishian v.
Board of
Regents of Univ. of State of N.
Y., 385 U. S. 589 (1967);
Pickering v.
Board of Ed. of Township High School Dist.
205, Will Cty., 391 U. S. 563 (1968);
Perry v.
Sindermann, 408 U. S. 593 (1972). See also
Board of Comm'rs, Wabaunsee Cty. v.
Umbehr, ante, at
674-675 (collecting cases). As we have said: "[I]f the government
could deny a benefit to a person because of his constitutionally
protected speech or associations, his exercise of those freedoms
would in effect be penalized and inhibited. This would allow the
government to 'produce a result which [it] could not command
directly.' Such interference with constitutional rights is
impermissible."
Perry v.
Sindermann, supra, at 597,
quoting
Speiser v.
Randall, 357 U. S. 513, 526
(1958). Absent some reasonably appropriate requirement, government
may not make public employment subject to the express condition of
political beliefs or prescribed expression.
In
Elrod v.
Burns, 427 U. S. 347 (1976), we
considered whether to apply the principles of the unconstitutional
conditions cases to public employees dismissed on account of their
political association. In keeping with local tradition, a newly
elected county sheriff had discharged non-civil-service employees
because they were not members of his political party. It was by no
means self-evident whether our First Amendment precedents applied,
for as Justice Powell explained in dissent,
id., at 377-387,
the patronage practices at issue had been sanctioned by history and
had been thought by some to contribute to the effective operation
of political parties. See also
Branti v.
Finkel, 445
U. S., at 522, n. 1, 527-532 (Powell, J., dissenting);
Rutan
v.
Republican Party of Ill.,
497 U. S. 62, 104-109
(1990) (SCALIA, J., dissenting). If indeed those patronage
practices fortify the party system, they may serve important First
Amendment interests, since
718
parties promote and generate political discourse, see,
e.
g., Buckley v.
Valeo, 424 U. S. 1, 14-15 (1976)
(per curiam); Democratic Party of United States v.
Wisconsin ex rel. La Follette, 450 U. S. 107, 121-122
(1981).
We need not inquire, however, whether patronage promotes the
party system or serves instead to entrench parties in power, see
Elrod v.
Burns, supra, at 364-373 (plurality
opinion);
Rutan v.
Republican Party of Ill., supra,
at 88-89, n. 4 (STEVENS, J., concurring), for
Elrod and
Branti establish that patronage does not justify the
coercion of a person's political beliefs and associations. Although
no opinion in
Elrod commanded a majority of the Court, five
Justices found common ground in the proposition that subjecting a
nonconfidential, nonpolicymaking public employee to penalty for
exercising rights of political association was tantamount to an
unconstitutional condition under
Perry v.
Sindermann,
supra. See
Elrod v.
Burns, supra, at 359
(plurality opinion) ("The threat of dismissal for failure to
provide [support for the favored political party] unquestionably
inhibits protected belief and association, and dismissal for
failure to provide support only penalizes its exercise"); 427 U.
S., at 375 (Stewart, J., concurring in judgment) ("The single
substantive question involved in this case is whether a
nonpolicymaking, nonconfidential government employee can be
discharged or threatened with discharge from a job that he is
satisfactorily performing upon the sole ground of his political
beliefs. I agree with the plurality that he cannot").
Four Terms later, in
Branti v.
Finkel, supra, we
reaffirmed
Elrod's common holding and said government
termination of a public employee on account of his political
affiliation brings our unconstitutional conditions cases into play,
for "[i]f the First Amendment protects a public employee from
discharge based on what he has said, it must also protect him from
discharge based on what he believes," 445 U. S., at 515. We also
modified the standard, announced in the two opinions supporting the
Elrod judgment, for assess-
719
ing when party affiliation, consistent with the First Amendment,
may be an acceptable basis for terminating a public employee:
"[T]he ultimate inquiry is not whether the label 'policymaker' or
'confidential' fits a particular position; rather, the question is
whether the hiring authority can demonstrate that party affiliation
is an appropriate requirement for the effective performance of the
public office involved." 445 U. S., at 518.
Our cases call for a different, though related, inquiry where a
government employer takes adverse action on account of an employee
or service provider's right of free speech. There, we apply the
balancing test from
Pickering v.
Board of Ed. of Township
High School Dist. 205, Will Cty., supra. See generally
Board
of Comm'rs, Wabaunsee Cty. v.
Umbehr, ante, at 675-678.
Elrod and
Branti involved instances where the raw
test of political affiliation sufficed to show a constitutional
violation, without the necessity of an inquiry more detailed than
asking whether the requirement was appropriate for the employment
in question. There 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. It is true, on the other hand, as we stated at the
outset of our opinion,
supra, at 714, 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. A reasonableness analysis will also accommodate those many
cases, perhaps including the one before us, where specific
instances of the employee's speech or expression, which require
balancing in the
Pickering context, are intermixed with a
political affiliation requirement. In those cases, the balancing
Pickering mandates will be inevitable. This case-by-case
process will allow the courts to consider the necessity of
according to the government the discretion it requires in the
administration
720
and awarding of contracts over the whole range of public works
and the delivery of governmental services.
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.
III
There is no doubt that if Gratzianna had been a public employee
whose job was to perform tow truck operations, the city could not
have discharged him for refusing to contribute to Paxson's campaign
or for supporting his opponent. In
Branti, we considered it
settled that to fire a public employee as a penalty for refusing a
request for political and financial support would impose an
unconstitutional condition on government employment. See 445 U. S.,
at 516. Respondents insist the principles of
Elrod and
Branti have no force here, arguing that an independent
contractor's First Amendment rights, unlike a public employee's,
must yield to the government's asserted countervailing interest in
sustaining a patronage system. We cannot accept the proposition,
however, that those who perform the government's work outside the
formal employment relationship are subject to what we conclude is
the direct and specific abridgment of First Amendment rights
described in this complaint. As respondents offer no justification
for their actions, save for insisting on their right to condition a
continuing relationship on political fealty, we hold that the
complaint states an actionable First Amendment claim.
The complaint alleges imposition of a burden on an individual's
right of political association, a concerted effort to coerce its
relinquishment. 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
721
business in a region the government rewards or spurns in the
construction of public works. Gratzianna instead was targeted with
a specific demand for political support. When Gratzianna refused,
the city terminated a relationship that, based on longstanding
practice, he had reason to believe would continue. We see nothing
to distinguish this from the coercion exercised in our other
unconstitutional conditions cases. See,
e. g., Keyishian v.
Board of Regents of Univ. of State of N.
Y., 385 U. S. 589 (1967)
(teaching position conditioned upon nonmembership in "subversive"
organizations);
Perry v.
Sindermann, 408 U. S. 593 (1972)
(teaching position conditioned upon not criticizing college
administration). Had Paxson or his backers solicited the
contribution as a
quid pro quo for not terminating O'Hare's
arrangement with the city, they might well have violated criminal
bribery statutes. Cf. Ill. Compo Stat., ch. 720, §§ 5/33-1, 5/33-3;
ch. 65, § 5/4-8-2 (1994). That Paxson may have steered clear of
criminal liability, however, does little to diminish the attempted
coercion of Gratzianna's political association, enforced by a
tangible punishment. Our cases make clear that the government may
not coerce support in this manner, unless it has some justification
beyond dislike of the individual's political association. See,
e. g., Branti v.
Finkel, 445 U. S., at 516-517.
Respondents say this case is different because it involves a
claim by an independent contractor. We are not persuaded. A rigid
rule "giv[ing] the government
carte blanche to terminate
independent contractors for exercising First Amendment rights ...
would leave [those] 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."
Board of
Comm'rs, Wabaunsee Cty. v.
Umbehr, ante, at 679. It is
true that the distinction between employees and independent
contractors has deep roots in our legal tradition, see,
e.
g., 9 W. Jaeger,
722
Williston on Contracts § 1012A (3d ed. 1967); 1 Restatement of
Agency §§ 2, 220 (1933), and often serves as a line of demarcation
for differential treatment of individuals who otherwise may be
situated in similar positions, see,
e. g.,
Community for Creative Non-Violence v.
Reid, 490 U. S. 730 (1989);
Nationwide Mut. Ins. Co. v.
Darden, 503 U. S. 318 (1992); 2
Restatement (Second) of Torts § 409 (1964). We see no reason,
however, why the constitutional claim here should turn on the
distinction, which is, in the main, a creature of the common law of
agency and torts. Recognizing the distinction in these
circumstances would invite manipulation by government, which could
avoid constitutional liability simply by attaching different labels
to particular jobs,
Board of Comm'rs, Wabaunsee Cty. v.
Umbehr, ante, at 679. The fact of interference here is not
altered by the circumstance that the victims are not classified as
employees.
Our conclusion is in accord with
Lefkowitz v.
Turley, 414 U.
S. 70 (1973), where independent contractor status did not
suffice to allow government to insist upon a waiver of the Fifth
Amendment's privilege against self-incrimination. After reviewing
our rulings extending the Fifth Amendment's privilege to government
employees, we said that "[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."
Id., at 83.
Some Courts of Appeals, refusing to extend
Elrod and
Branti to independent contractors, find "a difference of
constitutional magnitude" in the relative degree to which employees
and contractors depend on government sources for their income. See
LaFalce v.
Houston, 712 F.2d
292, 294 (CA7 1983) ("An independent contractor would tend we
imagine to feel a somewhat lesser sense of dependency"), cert.
denied, 464 U. S. 1044 (1984);
Horn v.
Kean, 796 F.
2d, at 675 (same). Respondents present no convincing data to
support this speculation, however, and we doubt it is true for many
service providers who come under the formal clas-
723
sification of "independent contractor," cf.,
e. g.,
Havekost v.
United States Dept. of Navy, 925 F.2d
316 (CA9 1991) (worker was licensed grocery bagger at Navy
commissary). The only statistics presented to us in the briefs are
relevant to tow truck services, and these data point the other way.
A national association of towing and recovery service operators,
appearing as
amicus, estimates that 75 percent of towing
companies provide services in connection with government requests,
the referrals generating between 30 and 60 percent of their gross
revenues. Brief for Towing & Recovery Assn. of America, Inc.,
as
Amicus Curiae 9. Petitioners, furthermore, allege a loss
of substantial income due to their termination.
Perhaps some contractors are so independent from government
support that the threat of losing business would be ineffective to
coerce them to abandon political activities. The same might be true
of certain public employees, however; they, too, might find work
elsewhere if they lose their government jobs. If results were to
turn on these sorts of distinctions, courts would have to inquire
into the extent to which the government dominates various job
markets as employer or as contractor. We have been, and we remain,
unwilling to send courts down that path. See,
e. g., Perry
v.
Sindermann, supra, at 597-598. Courts are not well suited
to the task of measuring levels of employee dependence, but there
is a more fundamental concern. Independent contractors, as well as
public employees, are entitled to protest wrongful government
interference with their rights of speech and association.
Some Courts of Appeals surmise that independent contractors
doing business with the government "are political hermaphrodites,"
LaFalce v.
Houston, supra, at 294, who find it in
their self-interest to stay on good terms with both major political
parties and so are not at great risk of retaliation for political
association. The facts here, if the allegations in the complaint
are true, indicate this dubious course
724
of action may not be followed by many small independent
contractors who are either unable or unwilling to maintain close
ties to all the organized political forces in their communities. In
all events, even if some independent contractors adjust to their
precarious position by currying favor with diverse political
parties, the question here concerns coercive government action
taken against those who do not. That some citizens find a way to
mitigate governmental overreaching, or refrain from complaining,
does not excuse wrongs done to those who exercise their rights.
Respondents argue that any decision in O'Hare's favor will lead
to numerous lawsuits, which will interfere with the sound
administration of government contracting. We have little reason to
accept the assessment. The
amicus brief filed on behalf of
respondents' position represents that in the six years since our
opinion in
Rutan v.
Republican Party of Ill.,
497 U. S. 62
(1990), which extended
Elrod and
Branti to public
employment promotion, transfer, recall, and hiring decisions based
on political affiliation, only 18 suits alleging First Amendment
violations in employment decisions have been filed against Illinois
state officials, Brief for Illinois State Officials as
Amicus
Curiae 3. Furthermore, 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). We have no reason to believe that governments
cannot bear a like burden in defending against suits alleging the
denial of First Amendment freedoms to public contractors, and we
doubt that our decision today will lead to the imposition of a more
extensive burden.
Cities and other governmental entities make a wide range of
decisions in the course of contracting for goods and services. The
Constitution accords government officials a large measure of
freedom as they exercise the discretion inherent
725
in making these decisions.
Board of Comm'rs, Wabaunsee
Cty. v.
Umbehr, ante, at 674. Interests of economy may
lead a governmental entity to retain existing contractors or
terminate them in favor of new ones without the costs and
complexities of competitive bidding. A government official might
offer a satisfactory justification, unrelated to the suppression of
speech or associational rights, for either course of action. The
first may allow the government to maintain stability, reward good
performance, deal with known and reliable persons, or ensure the
uninterrupted supply of goods or services; the second may help to
stimulate competition, encourage experimentation with new
contractors, or avoid the appearance of favoritism. These are
choices and policy considerations that ought to remain open to
government officials when deciding to contract with some firms and
not others, provided of course the asserted justifications are not
the pretext for some improper practice. In view of the large number
of legitimate reasons why a contracting decision might be made,
fending off baseless First Amendment lawsuits should not consume
scarce government resources. If the government terminates its
affiliation with a service provider for reasons unrelated to
political association,
Mt. Healthy City Bd. of Ed. v.
Doyle, 429 U.
S. 274, 287 (1977), as, for example, where the provider is
unreliable, or if the service provider's political "affiliation is
an appropriate requirement for the effective performance" of the
task in question,
Branti v.
Finkel, 445 U. S., at
518, there will be no First Amendment violation.
Respondents' theory, in essence, is that no justification is
needed for their actions, since government officials are entitled,
in the exercise of their political authority, to sever relations
with an outside contractor for any reason including punishment for
political opposition. Government officials may indeed terminate
at-will relationships, unmodified by any legal constraints, without
cause; but it does not follow
726
that this discretion can be exercised to impose conditions on
expressing, or not expressing, specific political views, see
Perry v.
Sindermann, 408 U. S., at 597.
The absolute right to enforce a patronage scheme, insisted upon
by respondents as a means of retaining control over independent
contractors, Brief for Respondents 13, and satisfying government
officials' concerns about reliability, Tr. of Oral Arg. 34-39, has
not been shown to be a necessary part of a legitimate political
system in all instances. This was the determination controlling our
decisions in
Elrod, 427 U. S., at 365-368, 372-373
(plurality opinion), and
Branti, supra, at 518-520, and we
see no basis for rejecting that reasoning in this context. We
decline to draw a line excluding independent contractors from the
First Amendment safeguards of political association afforded to
employees.
IV
Upon such further proceedings as are deemed appropriate by the
Court of Appeals or the District Court, including upon motion for
summary judgment if there is no genuine issue as to material facts,
the courts on remand should decide whether the case is governed by
the
Elrod-Branti rule or by the
Pickering rule.
The judgment of the Court of Appeals is reversed, and the case
is remanded for further proceedings consistent with this
opinion.
It is so ordered.
[For dissenting opinion of JUSTICE SCALIA, see
ante,
p.686.]
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