Law School Case Brief
Bd. of Cty. Comm'rs v. Umbehr - 518 U.S. 668, 116 S. Ct. 2342 (1996)
The United States Supreme Court agrees 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.
An independent contractor hauled trash for the county but publicly criticized the board's general mismanagement of the county's affairs. The board terminated the independent contractor's contract as a result. The contractor brought an action against the board under 42 U.S.C.S. § 1983, alleging that the board members had terminated his contract in retaliation for his criticism of the county and of the board. The district court, in granting summary judgment in favor of the board, assumed that the contractor’s contract was terminated in retaliation for his speech, but held that the Federal Constitution’s First Amendment did not prohibit the board from considering his expression as a factor in deciding to terminate his contract because, as an independent contractor, he was not entitled to the First Amendment protection afforded to public employees. The United States Court of Appeals for the Tenth Circuit, in reversing and remanding, held that the contractor was protected under the First Amendment from retaliatory governmental action, just as an employee would be, and the extent of that protection was to be determined by weighing the interests of the parties in accordance with the balancing test used by the United States Supreme Court to determine government employees' First Amendment rights in Pickering v Board of Ed. of Township High School Dist 205, Will Cty. (1968) 391 U.S. 563, 20 L.Ed. 2d 811, 88 S.Ct. 1731. The present petition for certiorari followed.
Under the Federal Constitution’s First Amendment, was the independent contractor protected from retaliatory governmental action?
The Court held that an independent contractor was protected under the First Amendment from retaliatory governmental action, just as an employee would have been because the independent contractor was most like a public employee. The Court further averred that the extent of protection was to be determined by weighing the government's interests as contractor against the free speech interests at stake in accordance with the Pickering balancing test.
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