First Amendment Rights
DiCesare, Constance B., Monthly Labor Review
Two recent Supreme Court decisions have extended important First Amendment protections to independent contractors. Ruling 7-2 in each case, the High Court declared that the claims of independent contractors who allege that a public entity has violated their free speech and association rights should be judged by the same legal standards that apply to the claims of full-fledged government employees. Justices Antonin Scalia and Clarence Thomas dissented from each majority opinion.
The first case, Board of County Commissioners v. Umbehr,(8) involved a trash hauler's at-will contract with a county in Kansas. During the term of his contract, Keen A. Umbehr was an outspoken critic of the county's governing body, the Board of County Commissioners. He spoke at board meetings and wrote letters and editorials in local newspapers, alleging, among other things, that the board had mismanaged taxpayers' money. The board responded by threatening to censor the official county newspaper for publishing Umbehr's writings and, in 1991, it terminated the trash hauler's contract. The following year, Umbehr sued the board members who had voted to end his contract, claiming that they had done so in retaliation for criticisms he had made of the county and its board.
The district court granted summary judgment to the board, holding that independent contractors like Umbehr are not entitled to the First Amendment protections that are given to public employees.(9) The Court of Appeals for the Tenth Circuit reversed, holding that the First Amendment does protect independent contractors from retaliatory government action.(10) The Supreme Court affirmed.
Justice Sandra Day O'Connor, for the Court, expressed concern that recognizing a "brightline" rule that distinguishes between government employees and independent contractors on free speech issues "would give the government carte blanche to terminate independent contractors for exercising First Amendment rights."(11) In her view, such a 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."(12) She conceded that independent contractors and government employees are, in some respects, different, but she said that any such difference is not a difference of constitutional magnitude.
Instead of applying a "brightline" rule, Justice O'Connor said that the Court should apply the same balancing-of-interests test that it uses to determine whether government workers' First Amendment rights have been abridged. That test, which was first announced in Pickering v. Board of Education,(13) balances the interests of the employee, as a citizen, in commenting on matters of public concern, against the interest of the State, as an employer, in promoting the efficiency of its public services. By taking into account the government's interest - in this case its interest as a contractor - this test can accommodate the legitimate differences between contractors and employees, she concluded.
In the other First Amendment case, O'Hare Truck Service, Inc. v. City of Northlake,(14) an Illinois towing service was removed from a city's list of contractors after the owner of the service refused to contribute to the mayor's campaign and instead supported his opponent. The trucking owner filed suit, claiming that the removal was in retaliation for his campaign stance. The district court dismissed the complaint, holding that it was bound by legal precedent in the Seventh Circuit, which did not give contractors the same First Amendment protections from dismissal that public employees enjoy if they refuse to support a political candidate. …