No. 94-1654

In The Supreme Court of The United States

OCTOBER TERM, 1995

GLEN HEISER AND GEORGE SPENCER, PETITIONERS

v. 

KEEN A. UMBEHR

ON WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT

BRIEF FOR THE UNITED STATES
AS AMICUS CURIAE SUPPORTING RESPONDENT 

DREW S. DAYS, III
Solicitor General

FRANK W. HUNGER
Assistant Attorney General

PAUL BENDER
Deputy Solicitor General

CORNELIA T.L. PILLARD
Assistant to the Solicitor General

WILLIAM KANTER
ROBERT D. KAMENSHINE
Attorneys

Department of Justice
Washington, D.C. 20530
(202)514-2217
     
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QUESTIONS PRESENTED

1. Whether the First Amendment protects govern-
ment contractors from contract termination or other
adverse contract action based on their publicly expressed
viewpoints.
2. Whether Pickering v. Board of Educ., 391 U.S. 563
(1968), governing the First Amendment rights of govern-
ment employees, is applicable to government contractors.

(I)

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TABLE OF CONTENTS

Page

Interest of the United States . . . . 1
Statement . . . . 2
Summary of argument . . . . 9
Argument: 
I. The Constitution prohibits the county from
terminating respondent's government con-
tract in retaliation for his speech . . . . 12
II. The analysis of this Court's cases restricting
political patronage in public employment
supports respondent's claim . . . . 15
III. The Pickering balancing test is inapplicable
here because respondent's speech did not im-
pair any supervisory or managerial function . . . . 23
Conclusion . . . . 30

TABLE OF AUTHORITIES

Cases:

Abercrombie v. City of Catoosa, 896 F.2d 1228 (10th
Cir. 1990) . . . . 21 
Anderson v. Liberty Lobby, Inc., 477 U.S. 242
(1987) . . . . 2
Arkansas Writers' Project v. Ragland, 481 U.S.
221 (1987) . . . . 12 
Blackburn v. City of Marshall, 42 F.3d 925 (5th
Cir. 1995) . . . . 21 
Branti v. Finkel, 445 U.S. 507(1980)  . . . . 8, 9, 15, 16, 19, 20
Caine v. Hardy, 943 F.2d 1406 (5th Cir. 1991), cert.
denied, 503 U.S. 936 (1992) . . . . 26
Capitol Square Review and Advisory Bd. v. Pinette,
115 S. Ct. 2442 (1995) . . . . 28
Connick v. Myers, 461 U.S. 138 (1983) . . . . 23, 24, 25, 29
Copsey v. Swearingen, 36 F.3d 1336 (5th Cir.
1994) . . . . 26

(III)

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IV

Cases-Continued:              

Page

Davis v. West Community Hospital, 755 F.2d 455
(5th Cir. 1985) . . . . 26
Downtown Auto Parks v. City of Milwaukee, 938
F.2d 705 (7th Cir.), cert. denied, 502 U.S. 1005
(1991) . . . . 17, 18, 21
Elrod v. Burns, 427 U.S. 347 (1976) . . . . 8, 15, 16, 19, 20
Enplanar, Inc. v. Marsh, 11 F.3d 1284 (5th Cir.)
cert. denied, 115 S. Ct. 312 (1994) . . . . 21
FCC v. League of Women Voters, 468 U.S. 364
(1984) . . . . 12, 16, 20
Fox & Co. v. Schoemehl, 671 F.2d 303 (8th Cir.
1982) . . . . 18
Garrison v. Louisiana, 379 U.S. 64 (1964) . . . . 9
Havekost v. United States Dep't of the Navy, 925
F.2d 316 (9th Cir. 1991) . . . . 26
Hobbie v. Unemployment Appeals Comm'n of Flu.,
480 U.S. 136 (1987) . . . . 16
Horn v. Kean, 796 F.2d 668 (3d Cir. 1986) . . . . 8, 9, 18
Keyishian v. Board of Regents, 385 U.S. 589
(1967) . . . . 12
LaFalce v. Houston, 712 F.2d 292 (7th Cir. 1983),
cert. denied, 464 US. 1044 (1984)  . . . . 8, 9, 18, 21
Lamb's Chapel v. Center Moriches Union Free
School Dist., 113 S. Ct. 2141 (1993) . . . . 12, 15
Lefkowitz v. Turley, 414 U.S. 70 (1973) . . . . 16
Mt. Healthy v. Doyle, 429 U.S. 274 (1977) . . . .  14
New York Times Co. v. Sullivan, 376 U.S. 254
(1964) . . . . 10
Perry v. Sindemann, 408 U.S. 593 (1972) . . . . 10, 13, 14
Pickering v. Board of Educ., 391 U.S. 563
(1968) . . . . 11, 23, 24, 28
Planned Parenthood of Dutchess-Ulster, Inc. v.
Steinhaus, 60 F.3d 122 (2d Cir. 1995) . . . . 17

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V

Cases-Continued:               

Page

Rankin v. McPherson, 483 U.S. 378 (1987) . . . . 25, 27
Rosenberger v. Rector, 115 S. Ct. 2510 (1995) . . . . 10, 12, 13
15, 16
Rutan v. Republican Party of Ill., 497 U.S. 62
(1990) . . . . 8, 15, 16, 19, 20
Smith v. Cleburne County Hosp., 870 F.2d 1375
(8th Cir.), cert. denied, 493 U.S. 847 (1989) . . . . 26
Speiser v. Randall, 357 U.S. 513 (1958) . . . . 12, 17
Sweeney v. Bond, 669 F.2d 542 (8th Cir.), cert.
denied, 459 U.S. 878 (1982) . . . . 18
Terminate Control Corp. v. Horowitz, 28 F.3d 1335
(2d Cir. 1994) . . . . 21
Thornhill v. Alabama, 310 U.S. 88 (1940) . . . . 20
Triad Assocs., Inc. v. Chicago Housing Authority,
892 F.2d 583 (7th Cir. 1989), cert. denied, 498 U.S.
845 (1990) . . . . 17
Umbehr v. Board of County Comm'rs, 843 P.2d
176 (Kan. 1992) . . . . 5
United States v. National Treasury Employees
Union, 115 S. Ct. 1003 (1995) . . . . 26, 27, 28
Waters v. Churchill, 114 S. Ct. 1878 (1994) . . . . 23, 25
White Plains Towing Corp. v. Patterson 991 F.2d
1049 (2d Cir.), cert. denied, 114 S. Ct. 185 (1993) . . . . 17, 21

Constitution, statutes and regulations:

U.S. Const.:
Art. I,  6, Cl. 1 (Speech Clause) . . . . 12
Amend. I . . . . passim
Amend. V . . . . 16
Amend. XIV . . . . 12
Armed Services Procurement Act of 1947, 10 U.S.C.
2301-2314 . . . . 21
10 U.S.C. 2304-2305 . . . . 22
Contract Disputes Act of 1978, 41 U.S.C. 601-613 . . . . 22
41 U.S.C. 605(a) . . . . 22
41 U.S.C. 605(b) . . . . 22

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VI

Statutes and regulations-Continued:
41 U.S.C. 606 . . . . 22
41 U.S.C. 607(g) . . . . 22
41 U.S.C. 609 . . . . 22
Federal Property and Administrative Services Act
of 1949:
40 U.S.C. 490(a)(12) . . . . 22
40 U.S.C. 759 . . . . 22
41 U.S.C. 251-260 . . . . 21
41 U.S.C. 253(a) . . . . 22
41 U.S.C. 253(c)-(f) . . . . 22
41 U.S.C. 253a . . . . 22
41 U.S.C. 253b . . . . 22
41 U.S.C. 254 . . . . 22
40 U.S.C. 601-619 . . . . 22
41 U.S.C. 405(b) . . . . 21
41 U.S.C. 405a . . . . 21
42 U.S.C. 1983 . . . . 6
Kansas Open Meetings Act, Kans. Stat. Ann. 
75-4317 et seq. (1989 & Supp. 1994)) . . . . 4
Kansas Open Records Act,  45-215 et seq. (1993 &
Supp. 1994) . . . . 4
48 C.F.R.:
Pt. 33 . . . . 22
Pt. 37: . . . . 27
Section 37.101 . . . . 27
Section 37.102(b) . . . . 27
Section 37.104 . . . . 27
Section 37.104(a) . . . . 27
Section 37.104(c)(2) . . . . 27
Section 37.404 . . . . 27
Pt. 52 . . . . 22
Sections 52.233-1 to 52.233-2 . . . . 22
Section 52.249-8 . . . . 23
Section 52.249-10 . . . . 22

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VII

Miscellaneous:

OMB Circ. No. A-76 (Aug. 4, 1993) . . . . 27
Random House Dictionary of the English Language
(1987) . . . . 19
C. Singer, Conduct and Belief: Public Employees'
First Amendment Rights to Free Expression and
Political Affiliation, 59 U. Chi. L. Rev. 897 (1992) . . . . 20

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In the Supreme Court of the United States 
      
OCTOBER TERM, 1995

No. 94-1654

GLEN HEISER AND GEORGE SPENCER, PETITIONERS

v.

KEEN A. UMBEHR

ON WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT

BRIEF FOR THE UNITED STATES
AS AMICUS CURIAE SUPPORTING RESPONDENT

INTEREST OF THE UNITED STATES

This case concerns the extent to which the First
Amendment restricts the ability of government to rely
upon a person's publicly expressed viewpoints in making
decisions relating to contracting with that person. The
United States has a substantial interest in the
preservation of constitutional rights of free expression.
As the nation's largest single public purchaser of goods,
services and property, the United States also has a
substantial interest in the constitutional standards
governing the circumstances in which government may
take speech into account in its contracting determina-
tions.

(1)

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2

STATEMENT

Respondent, Keen A. Umbehr, the operator of a trash
hauling business, sued petitioners Glen Heiser and George
Spencer, members of the Board of the Wabaunsee (Kansas)
Country Commission, alleging that they violated the First
Amendment by terminating his trash hauling contract
with the county in retaliation for his criticisms of county
government at public meetings, and in letters and columns
in local newspapers. J.A. 21-24. The district court held
that the First Amendment does not protect government
contractors from termination of their contracts based on
their speech. The court of appeals reversed, holding that
the First Amendment protects public contractors to the
same extent that it protects public employees from
adverse action based on speech. 1.
1. Kansas law obligates each county in the State to
make a plan for solid waste disposal, and the contract at
issue was developed pursuant to the county's waste
disposal plan. Respondent is an independent contractor
doing business as Solid Waste Systems. In 1981, re-
spondent bid on and was awarded the county trash col-
lection contract, and the parties revised and renewed the
contract in 1985. The contract gave each of the seven
towns in the county the opportunity, by ratifying the
contract, to use respondent as its exclusive residential
trash hauling service at a specified per-residence price.
Any town that elected not to ratify the contract remained
responsible for its own trash collection, and each ratifying

___________________(footnotes)

1 The district court's decision was rendered in response to
petitioners' motion for summary judgment. The court was therefore
required to view the evidence and all justifiable inferences therefrom
in the light most favorable to respondent. See Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 255 (1987). This statement of the facts
reflects that procedural posture.

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3

town retained the right to opt out of the contract on 90
days' notice. The contract also gave respondent the right
to dispose of the collected waste in the county landfill at a
rate established by the county and incorporated in the con-
tract.  The contract provided that it was to be auto-
matically renewed annually, unless a party gave 60 days'
notice of intent to terminate, or 90 days' notice of intent to
renegotiate. J.A. 12-13,21-24; see also C.A. App. 106-113
(contract). 2.
The contract specified that "[i]t is mutually agreed and
understood that the contractor is an independent con-
tractor and that he, his agents, and employees are not
agents or employees of the County or any City." C.A. App.
108. The contractor was expected to use his own per-
sonnel and equipment, and the contract specified that his
vehicles must have "clearly visible on each side the name
and phone number of the contractor."  Id. at 109. The
contractor was required to deal with the county's
designated solid waste administrator on all issues relating
to the contract. Id. at 110. Six of the seven towns in the
county ratified the contract, and respondent hauled trash
for them for approximately ten years. J.A. 21-22.
During 1989, respondent was increasingly outspoken in
his public criticisms of county government and the Board
of County Commissioners. 3. He "spoke out at county com-
mission meetings and wrote letters and columns in local

___________________(footnotes)      

2 References to "C.A. App." are to the Appendix to Brief of
Appellant in the court of appeals. Appellees filed a separate Appendix
in the court of appeals, which is referred to herein as "Appellees' C.A.
App." 3 The opinion of the district court states that respondent spoke out
"throughout the 1980s and in 1990," J.A. 13, but the record suggests that
respondent publicly expressed his criticisms of the county primarily
beginning in 1989.

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4

newspapers about a variety of topics, including landfill
user rates, the cost of obtaining county documents from
the county, alleged violations by the county commission of
the Kansas Open Meetings Act, and a number of alleged
improprieties, including mismanagement of taxpayer
money, by the county road and bridge department." J.A.
22.
Several of respondent's criticisms appeared in letters to
the editors of the local newspapers, or in his newspaper
column, "My Perspective," published from February, 1989,
through June, 1990.  Respondent publicly assailed the
county's practices of charging both per-page and hourly
labor charges for copying public records, and imposing a
three-day waiting period for copies, which he viewed as
impediments to citizens' lawful access to public infor-
mation. C.A. App. 56, 72. He contended that the policy on
copies violated the Kansas Open Records Act, Kan. Stat.
Ann. (K.S.A.)  45-215. et seq. (1993 & Supp. 1994), C.A.
App. 73, 77. 4.  Respondent also publicly questioned the
accuracy of official minutes of meetings of the Board of
County Commissioners, id. at 66, 70, and accused the
Board of having violated the Kansas Open Meetings Act
(KOMA), K.S.A.  75-4317 et seq. (1989 & Supp. 1994), by
repeatedly holding closed-door sessions on controversial
issues, C.A. App. 67, 68, 71, 73, 83. 5.

___________________(footnotes)

4 In response to respondent's allegations, the county attorney
concluded that the Board should change its policy. Appellees' C.A. App.
537.

5 Au Attorney General investigation of alleged KOMA violations
resulted in a consent decree between the Attorney General and the
commissioners in which the commissioners acknowledged that they had
violated the Act, agreed to conduct all future meetings in compliance
with the Act, and also agreed to conduct a public meeting regarding the
requirements of the Act. Appellees' C.A. App, 160-162.

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5

Respondent also argued publicly against closing the
county landfill, see C.A. App. 57, 58, 61, 66, and criticized
landfill user rate hikes. Although respondent acknow-
ledged a need for increased landfill user rates, id. at 120-
121, he opposed the size of the proposed increases as
unjustified, id. at 77, 78,81,82,84, 85, 121. 6. Respondent
further asserted that the county road and bridge depart-
ment misused public resources by, among other things,
using county equipment to assist a private construction
company on a private job. Id. at 60, 61, 62, 64. 7.
Petitioners reacted negatively to respondent's public
expression of his views. Petitioner Heiser stated at a May
31, 1989, Board meeting that he found respondent's
newspaper articles offensive and suggested they should be
"censored," and that the official county newspaper, the
Signal-Enterprise, should "take a second look at what is
put in the paper, to avoid anyone getting into trouble."

___________________(footnotes)

6 Respondent challenged the rate increase in state court. The
District Court of Wabaunsee County, noting that a commissioner had
acknowledged that the calculation of the proposed new rates was "a
shot in the dark," held that the commission had not established a proper
factual basis for the new rates and granted respondent's request for a
temporary injunction. C.A. App. 121. On the merits, the court found
that the rate increase was unreasonable and arbitrary. See Umbehr v.
Board of County Comm'rs, 843 P.2d 176, 178 (Kan. 1992) . The Kansas
Supreme Court reversed on the ground that the state courts lacked
jurisdiction to review the commission's action. Id. at 181-182.

7 The Kansas Attorney General conducted an investigation into
alleged misuse of county property and concluded in December, 1989,
that the county had "loose administrative practices and accounting
procedures: had "not had adequate controls on the disposition of
gasoline, oil and other consumable supplies from the county facilities,"
and failed adequately to document projects undertaken with county
equipment that benefit private citizens. The Attorney General also
concluded, however, that there was "no misconduct or neglect of duty on
the part of any county commissioner." Appellees' C. A. App. 157-159.

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6

CA. App. 92; see id. at 69. 8. Petitioner Spencer said that
he would like to see some of respondent's newspaper
articles eliminated, id. at 88, and that the newspaper's
editors should "take out anything that was offensive," id.
at 90. Spencer stated that he believed that the trash
hauling contract gave respondent a "platform" to cause
problems for the county because, as Spencer put it, "as
long as we had the contract with him that gave him the
excuse to come into our meetings." Id. at 89.
The Board voted in February, 1990, to terminate
respondent's contract. J.A. 23. 9. The vote was legally de-
fective, however, because the resolution mistakenly
referred to the defunct 1981 contract instead of the then-
current 1985 contract. See Appellees' C.A. App. 164. In
January, 1991, the Board voted again and successfully
terminated the contract. J.A. 23.
2. Respondent brought suit under 42 U.S.C. 1983 in the
United States District Court for the District of Kansas,
alleging that the county commissioners' termination of his
contract in retaliation for his speech violated the First
Amendment.  Following discovery, the district court
granted petitioners' motion for summary judgment. J.A.
10-20. In light of the evidence submitted at the summary

___________________(footnotes)

8 The editor of the Signal Enterprise noted in a front-page com-
mentary on June 8, 1989, that he had been threatened at the Board of
Commissioner's meeting and "criticized for not screening the articles of
Keen A. Umbehr," Appellees' C.A. App. 154.

9 The minutes of the Board meeting reflect no discussion of the
reasons for termination except that "Commissioner Spencer stated that
the present agreement with Solid Waste Systems on the County
Contract and the contract with the cities indicate a number of officials
who are no longer in office and with this in mind, Commissioner
Spencer made a motion to open the Solid Waste Contract for bid this
year." Appellees' C.A. App. 164.

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7

judgment stage, the court assumed that "[respondent's]
comments did motivate the votes in favor of terminating
[respondent's] contract with Wabaunsee County." J.A. 14. 10.
It determined that, "if [respondent] had been a government
employee, he would have been protected from termination in
retaliation for his statements."  Ibid.  The court
nonetheless concluded that "the First Amendment does not
prohibit defendants from considering plaintiff's expression
as a factor in deciding not to continue with the trash
hauling contract at the end of the contract's annual term."
Ibid. In the court's view, respondent's contractor status
was determinative: "[A]s an independent contractor,
[respondent] cannot claim that his First Amendment rights
were violated by the alleged retaliatory termination of his
contract with Wabaunsee County." J.A. 17-18. 11.
3. The court of appeals reversed. J.A. 21-39. The court
held that "an independent contractor is protected under
the First Amendment from retaliatory governmental
action, just as an employee would be. Thus, the Pickering
[v. Board of Educ., 391 U.S. 563 (1968),] balancing test
would apply to such a retaliatory action." J.A. 37. The
court observed that "in its role as sovereign, the

___________________(footnotes)         

10 See also C.A. App. 24 (joint pretrial order identifying as a
material issue in dispute "[w]hether the exercise by plaintiff of his
First Amendment rights was a substantial motivating factor in the
termination of plaintiff's contract with the Board of County Com-
missioners.").

11 Respondent sued the third member of the three-person county
commission, Joe McClure, in his individual capacity only. The district
court dismissed the individual-capacity claims against each com-
missioner based on qualified immunity, J.A. 18, and also granted
summary judgment for McClure because, unlike Spencer and Heiser,
he did not vote in favor of terminating respondent's contract, J.A. 19.
The court of appeals affirmed as to McClure on both grounds. J.A. 38.
McClure thus is not a party before this Court.

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8

government cannot punish or otherwise burden the speech
of citizens criticizing the government, except in very
limited circumstances." J.A. 34. When government acts
as employer, it "can only punish or burden speech of its
employees criticizing the government when it shows that
such speech interferes with the government's ability to
function."  Ibid.  Permitting government to burden
independent contractors' speech without any showing of
interference with the government's ability to function
would "accord those who contract with the government a
lesser degree of First Amendment protection than
ordinary citizens enjoy vis-a-vis their government or than
government employees enjoy vis-a-vis their employer."
Ibid. The court rejected that anomalous result.
In Elrod v. Burns, 427 U.S. 347 (1976), Branti v. Finkel,
445 U.S. 507 (1980), and Rutan v. Republican Party of
Illinois, 497 U.S. 62 (1990), this Court held that govern-
mental employment decisions made on the basis of political
party affiliation are presumptively unconstitutional under
the First Amendment. In reaching its decision in this
case, the court of appeals noted (J.A. 30-31) that several
courts of appeals had viewed those patronage decisions as
inapplicable outside the employment context, and had thus
upheld patronage contracting practices against First
Amendment challenges. E.g., Horn v. Kean, 796 F.2d 668
(3d Cir. 1986) (en bane); LaFalce v. Houston, 712 F.2d 292
(7th Cir. 1983), cert. denied, 464 U.S. 1044 (1984). The
court of appeals stated its disagreement with the analysis
of those courts in limiting the employee-patronage
decisions, 12. and commented that, in any event, decisions

___________________(footnotes)

12 The court of appeals analyzed at length and expressly rejected
the two principal rationales upon which the Horn/LaFalce line of cases
distinguished the patronage-employment decisions in upholding patron-
age-based contracting. Those courts relied in part on a footnote in

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9

dealing with patronage employment practices have
"limited relevance to whether independent contractors
should be protected against retaliation for speech on
matters of public concern." J.A. 37.

SUMMARY OF ARGUMENT

The decision of the court of appeals should be affirmed
based on a straightforward application of this Court's
established unconstitutional-conditions doctrine. When a
private business is hired to haul trash for a county govern-
ment, the First Amendment prohibits the government
from terminating that contract because the owner of that
business criticizes the government at public meetings and
publishes newspaper articles critical of the county.
"[S]peech concerning public affairs is more than self-
expression; it is the essence of self-government."
Garrison v. Louisiana, 379 U.S. 64, 74-75 (1964). Such
speech lies at the heart of First Amendment protection.
There is no question that the First Amendment prohibits

___________________(footnotes)

Branti, 445 U.S. at 513 n.7, specifying that "the only practice at issue"
in both Elrod and Branti was "the dismissal of public employees for
partisan reasons," and that the case thus did not involve other patron-
age practices, including "granting supporters lucrative government
contracts." See Horn, 796 F.2d at 674; LaFalce, 712 F.2d at 294-295. In
the court of appeals' view, however, Rutan "undermined the rationale
of Horn and LaFalce that relied upon the Supreme Court's reluctance to
extend Elrod and Branti." J.A. 34-35.
The court of appeals was also unpersuaded by the contention that
patronage contracting is not subject to constitutional scrutiny because
independent contractors "have less at stake" in their public contracts
than public employees have in their jobs. J.A. 35; see also J.A. 32.
The court "reject[ed] any categorical distinction based on whether
independent contractors have more or less of an economic interest in
their governmental contracts, both because such categorical
distinctions are impossible to make and because, in this context, they
are irrelevant." J.A. 36.

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10

viewpoint-based discrimination against an individual be-
cause of that person's political expression in public fora
such as newspapers and open meetings of government
bodies. See New York Times Co. v. Sullivan, 376 U.S. 254
(1964); Perry v. Sindermann, 408 U.S. 593, 597 (1972).
The fact that in this case respondent's expression was
not punished directly by a fine or other penalty, but by
termination of a public contract that he, otherwise would
have retained, does not change the result. As the court of
appeals correctly recognized, "permitting governments to
terminate a public contract because of the contractor's
speech" permits them "to accomplish indirectly that
which they cannot accomplish directly-punishment of
speech that they do not like." J.A. 33-34 A decision to
grant or withdraw a public contract because of the publicly
expressed viewpoints of the contractor generally should be
treated, like a viewpoint-based decision to grant or
withdraw any other government benefit, as presumptively
unconstitutional. See, e.g., Rosenberger v. Rector, 115 S.
Ct. 2510, 2516-2520 (1995).
The simplicity of this case is obscured by petitioners'
and the lower courts' reliance on two inapplicable lines of
First Amendment cases-those relating to political
patronage, and those recognizing the special prerogatives
of government to regulate the speech of public employees.
As petitioners acknowledge (Pet. Br. 15), this is not a
political patronage case; respondent was terminated
because of the critical viewpoint of his public expression,
not because of his political party affiliation.  Thus,
although some circuits have held that there is no First
Amendment obstacle to awarding public contracts as a
form of political patronage, the district court erred in
relying on those cases (J.A. 14-16) to hold that respondent
lacked any First Amendment rights against termination

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11

of his contract in retaliation for the public expression of
his critical views.
Although the court of appeals was correct in recogniz-
ing that respondent is not completely without First
Amendment protection, the court of appeals in our view
invoked the wrong First Amendment analysis in holding
that Pickering v. Board of Educ., 391 U.S. 563 (1968),
provides the proper test on remand. Respondent was not a
public employee, and the county lacked the authority to
regulate his speech to the same extent that it may, under
Pickering, regulate the speech of government employees.
Pickering appropriately applies to contractual relation-
ships that involve supervision of contract performance by
the government similar to governmental supervision over
employee subordinates.  Where, as here, however, the
kinds of relationships the Pickering test aims to protect
are absent, that test is inapplicable.
Petitioners have not, moreover, asserted that respond-
ent's speech was not on matters of public concern, or that
it interfered with the efficient performance of re-
spondent's contract. Therefore, even if Pickering applied,
petitioners lacked any valid justification for reacting to
respondent's speech by terminating his contract. The sole
task for the finder of fact on remand should there fore be to
decide whether opposition to respondent's speech did,
indeed, motivate petitioners and, if it did, to enter
judgment in respondent's favor.

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12

ARGUMENT

I. THE CONSTITUTION PROHIBITS THE COUNTY
FROM TERMINATING RESPONDENT'S GOVERN-
MENT CONTRACT IN RETALIATION FOR HIS
SPEECH

The First and Fourteenth Amendments prohibit
petitioners from terminating respondent's public contract
in retaliation for his public statements critical of the
county and its Board" of Commissioners. It is firmly
established that government may not withdraw a benefit
because the recipient expresses viewpoints objectionable
to government officials. 13. Denying government contracts
based on the viewpoint of contractors' public expression
"is in effect to penalize them for such speech.  Its
deterrent effect is the same as if the [government] were to
fine them for such speech." Speiser v. Randall, 357 U.S.
513, 518 (1958). Last Term in Rosenberger v. Rector, 115
S. Ct. 2510 (1995), this Court reaffirmed the basic principle
that government benefits cannot constitutionally be
conditioned on the views expressed by the recipient in
exercising the right of free speech.  Rosenberger in-
validated under the Speech Clause the University of
Virginia's refusal to authorize payments from the
University's Student Activities Fund to support a student
newspaper containing particular views. The Court accept-
ed, as "compelled" by its own precedents, the University's
acknowledgement that "[i]deologically driven attempts to

___________________(footnotes)

13 See, e.g.,  Rosenberger v. Rector, 115 S. Ct. 2510, 2516-2520 (1995);
Lamb's Chapel v. Center Moriches Union Free School Dist., 113 S. Ct.
2141, 2147 (1993); Arkansas Writers' Project v. Ragland, 481 U.S. 221,
227-231 (1987); FCC v. League of Women Voters, 468 U.S. 364, 399-401
(1984); Keyishian v. Board of Regents, 385 U.S. 689, 606 (1967); Speiser
v. Randall, 357 U.S. 513, 518 (1958).

---------------------------------------- Page Break ----------------------------------------

13

suppress a particular viewpoint are presumptively
unconstitutional in funding, as in other contexts." Id. at
2517. Petitioners' assertion (Pet. Br. 28) that "a retalia-
tory motive engendered by harsh political debate" is a
constitutionally permissible basis upon which to ter-
minate a public contract is flatly contradicted by the
settled prohibition on unconstitutional view point-based
conditions. 14.
Petitioners emphasize that the trash hauling contract
was terminable at will, Pet. Br. i. 11. but such a contract                              
nonetheless cannot be terminated for unconstitutional
reasons:

[E]ven though a person has no "right" to a valuable
governmental benefit and even though the government
may deny him the benefit for any number of reasons,
there are some reasons upon which the government
may not rely. It may not deny a benefit to a person
on a basis that infringes his constitutionally protected
interests-especially, his interest in freedom of
speech.

Perry, 408 U.S. at 597. Respondent's lack of a "right" to
the trash hauling contract "is immaterial to his free
speech claim." Id. at 598.
The Constitution does not, of course, place a person who
engages in public protest or criticism in a better position
than one who remains silent. Petitioners' principal
contention is that application of the First Amendment in

___________________(footnotes)         

14 There are circumstances, not present in this case, in which the
content of speech may constitutionally be considered in decisions
regarding allocation of government funds. For example, this, Court has
"permitted the government to regulate the content of what is or is not
expressed when it is the speaker or when it enlists private entities to
convey its own message." Rosenberger, 115 S. Ct. at 2518-2519.

---------------------------------------- Page Break ----------------------------------------

14

this case would "tie the hands of responsible government
officials," Pet., Br. 12, and "prevent the cancellation of
* * * contracts so long as [the contractors] publicly
criticize the public officials who control the decision to
cancel or not," id. at 17. It has been long established,
however, that no such consequences flow from recognition
that government benefits cannot be conditioned on the
surrender of First Amendment rights. This Court held
nearly two decades ago, in Mt. Healthy v. Doyle, 429 U.S.
274 (1977), that a public employee who has exercised
constitutional rights should be left "in no worse a position
than if he had not engaged in the conduct," but also "ought
not to be able, by engaging in such conduct, to prevent
his employer from assessing his performance record and
reaching a decision not to rehire on the basis of that
record, simply because the protected conduct makes
the employer more certain of the correctness of the
decision."  Id. at 285-286. Accordingly, if respondent
shows on remand that his speech was a "motivating
factor" in the Board's decision not to renew the contract,
the Board will have the opportunity to prove "that it would
have reached the same decision as to respondent's
[contract] even in the. absence of the protected conduct."
Id. at 287.
Contrary to petitioners' contention, this case does not
concern "decisions which are content neutral and which
only incidentally burden speech." Pet. Br. 16; see id. at 26-
27, The issue is whether, if petitioners voted not to renew
respondent's contract because of his outspoken criticisms
of the county on civic issues such as open public meetings,
open public records, and landfill use, that vote violated
respondent's First Amendment rights. The district court
assumed, as it was required to do in view of the evidentiary
record at the summary judgment stage, that "[re-

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15

spondent's] comments did motivate the votes in favor of
terminating [respondent's] contract with Wabaunsee
County." J.A. 14. Under that assumption, the termination
was a classic instance of viewpoint-based discrimination.
See Rosenberger, 115 S. Ct. at 2516-2518; Lamb's Chapel,
113 S. Ct. at 2147. Petitioners may seek to prove on
remand that respondent's comments did not play a
motivating role in the Board's decision to terminate the
contract.  It is clear, however, that respondent has
presented a claim of unconstitutional viewpoint dis-
crimination.

II. THE ANALYSIS OF THIS COURT'S CASES
RESTRICTING POLITICAL  PATRONAGE IN
PUBLIC EMPLOYMENT SUPPORTS RESPOND-
ENT'S CLAIM

A. This Court's decisions restricting political patron-
age in the context of public employment have used a
traditional  unconstitutional- conditions  analysis  that
supports respondent's First Amendment claim in this
case. See Rutan v. Republican Party of Ill,, 497 U.S. 62
(1990); Branti v. Finkel, 445 U.S. 507 (1980); Elrod v.
Burns, 427 U.S. 347 (1976) (plurality opinion). The Court
has held that patronage-based employment decisions are
presumptively unconstitutional because, like petitioners'
viewpoint-based retaliation, they penalize the exercise of
First Amendment rights. 15. Unless patronage practices

___________________(footnotes)

15 [C]onditioning employment on political activity pressures
employees to pledge political allegiance to a party with which they
prefer not to associate, to work for the election of political candidates
they do not support, and to contribute money to be used to further
policies with which they do not agree." Rutan, 497 U.S. at 69. Under
a patronage system as described in Elrod, "[t]he threat of dismissal for
failure to provide * * * support [for the favored political party]
unquestionably inhibits protected belief, and association, and dismissal

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16

"are narrowly tailored to further vital government
interests,"  they "impermissibly encroach on First
Amendment freedoms." Rutan, 497 U.S. at 74. Only
where "party affiliation is an appropriate requirement for
the effective performance of the public office involved" may
it be taken into account. Branti, 445 U.S. at 518.
As explained above, terminating respondent's contract
in retaliation for his publicly expressed views similarly
burdened his exercise of his First Amendment rights.
Although respondent's claim involves neither political
patronage nor public employment, it rests on the same
basic constitutional analysis that this Court employed in
Rutan, Branti and Elrod. The principle those cases apply
is not limited to public employment or patronage, but
applies generally where government conditions a benefit
on the exercise of constitutional rights.  See, e.g.,
Rosenberger, supra (access to student activities funds
cannot be conditioned on viewpoint expressed in student
magazine); FCC v. League of Women Voters, 468 U.S. 364
(1984) (eligibility for public broadcasting funding cannot be
conditioned on broadcaster refraining from "editorial-
izing" with own funds); Hobbie v. Unemployment Appeals
Comm'n of Fla., 480 U.S. 136 (1987) (unemployment com-
pensation cannot be denied based on conduct mandated by
religious belief); Lefkowitz v. Turley, 414 U.S. 70 (1973)
(eligibility for public contracts cannot be conditioned on
waiver of Fifth Amendment privilege against self

___________________(footnotes)
                                      
for failure to provide support only penalizes its exercise. The belief
and association which government may not ordain directly are
achieved by indirection." 427 U.S. at 359. See also Branti, 445 U.S. at
516 (referring to "the coercion of belief that necessarily flows from the
knowledge that one must have a sponsor in the dominant party in
order to retain one's job") (quoted in Rutan, 497 U.S. at 71).

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17

incrimination); Speiser, 357 U.S. 513 (eligibility for tax
exemptions cannot be conditioned on taking loyalty oath).
B. In reaching the opposite conclusion, the district
court in this case followed the Seventh Circuit's decision
in Downtown Auto Parks v. City of Milwaukee, 938 F.2d
705, cert. denied, 502 U.S. 1005 (1991). Downtown Auto
Parks held that an independent contractor who operated
city parking lots had no First Amendment protection
when the city terminated his parking lot leases because he
lobbied the state legislature. The court of appeals stated
that "[t]he adjudicated cases in this Circuit do not extend
First Amendment protection to independent contractors
whose bids for public contracts are rejected on the basis of
their political views." Id. at 708. The district court here
similarly concluded that courts "do not extend to
independent contractors the same First Amendment
protections granted to government employees." J.A. 14. 16.
The district court, and the Seventh Circuit in
Downtown Auto Parks, arrived at this conclusion by two
steps, neither of which was correct. First, they relied on a
line of appellate decisions holding that public contractors
do not have the same constitutional protection against
patronage practices in government contracting as this
Court has held public employees have against patronage in
government employment. 17. Second, without additional

___________________(footnotes) 

16 The Second Circuit has since stated, in a case involving speech
unrelated to political patronage, that it had not yet resolved whether to
follow Downtown Auto Parks. Planned Parenthood of Dutchees-Ulster,
Inc. v. Steinhaus, 60 F.3d 122, 128 (2d Cir. 1995). But see White Plains
Towing Corp. v. Patterson, 991 F.2d 1049, 1057, 1061 (2d Cir.), cert.
denied, 114 S. Ct. 185 (1993) (assuming that contractors may bring First
Amendment claims, but finding no actionable claim on the facts).
17 See J.A. 14-17 (citing Triad Assocs., Inc. v. Chicago Housing
Authority, 892 F.2d 583 (7th Cir. 1989), cert. denied, 498 U.S. 845 (1990);

---------------------------------------- Page Break ----------------------------------------

18

analysis, they extended those cases to hold that
contractors  who lack protection  against political
patronage also lack protection against viewpoint-based
retaliation. See Downtown Auto Parks, 938 F.2d at 709
n.5. The court of appeals cases authorizing patronage
contracting seem inconsistent with Rutan, Branti and
Elrod.  But even if one were to accept them as a
constitutionally  valid effort to preserve the non-
employment aspects of traditional methods of political
patronage, they would be inapplicable here, where
viewpoint discrimination, rather than patronage, watt
involved. 18.
This is not a patronage case. As petitioners acknowl-
edge, "[t]here has never been any suggestion that Mr.
Umbehr's contract was terminated so that he could be
replaced with a political ally." Pet. Br. 15. 19. Indeed, the
record does not even reflect the litigants' political party
affiliations.  Petitioners did not terminate respondent's
contract for patronage reasons, nor did they find a replace-
ment for him on partisan political grounds. Thus, even if
patronage in government contracting were to be held to be
consistent with the First Amendment, that plainly would
not justify petitioners' public-speech-based retaliation.
Horn v. Kean, 796 F.2d 668 (3d Cir. 19861 en banc); LaFalce v.
Houston, 712 F.2d 292 (7th Cir. 1983), cert. denied, 464 U.S. 1044 (1984);
Fox & Co. v. Schoemehl, 671 F.2d 303 (8th Cir. 1982); Sweeney v. Bond,
669 F.2d 542, (8th Cir.), cert. denied, 459 U.S. 878 (1982)); Downtown
Auto Parks, 938 F.2d at 708-710 (citing eases).

___________________(footnotes) 

18 The question whether patronage contracting is subject to First
Amendment scrutiny is before the Court in the petition for a writ of
certiorari in O'Hare Truck Service, Inc. v. City of Northlake, petition
for cert. pending, No. 95-191 (filed July 31, 1995).

19 Petitioner stated in the district court, too, that they were "the
first to concede that no patronage was involved" in the termination of
respondent's contract. Appellees' Supp. C.A. App. 657.

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19

Political patronage and suppression of free expression
are different practices. Political patronage refers to the
use of party affiliation in the dispensation of government
largesse, rather than to suppression of disfavored political
speech. 20. This Court's political-patronage decisions uni-
formly refer to plaintiffs' "political affiliation," not their
speech, as the basis for the challenged employment
decisions. 21. The constitutional right involved in each of
those cases was not the First Amendment right of em-
ployees to express themselves, but their right to freedom
of political association. 22.        

___________________(footnotes)

20 The Random House Dictionary of the English Language (1987)
offers as one definition of "patronage " "the distribution of jobs and
favors on a political basis, as to those who have supported one's party
or political campaign."

21 For example, the claim in Elrod was that the plaintiffs,
Republican non-civil-service employees of the Cook County, Illinois,
sheriffs office, were fired upon the election of a new sheriff (a
Democrat), solely on the ground that they were not affiliated with or
sponsored by the Democratic Party, and replaced with persons who
were. 427 U.S. at 350. In Branti, a newly appointed Democratic public
defender discharged Republican assistant public defenders based solely
on their party affiliation. 445 U.S. at 520. Plaintiffs in Rutan were
low-level state employees in Illinois who challenged the governor's
policy of limiting all beneficial state employment decisions, including
beneficial decisions as to promotion, transfer and recall, to supporters
of the Republican Party. 497 U.S. at 66-67.

22 In the context of public employment the Constitution affords
different protections to political affiliation and political speech. For
example, Rutan allows employment decisions regarding a confidential
or high-level policymaking employee whose job requires political
loyalty to be based on partisan political concerns. Such an employee,
however, retains protection against speech-based retaliation insofar as
the employee's speech is on matters of public concern and the
employee's interest in the speech at issue outweighs the employer's
interest in efficient and effective job performance.  It is conceivable
that a patronage case could also involve adverse action on the basis of

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20

Accordingly, even if this Court were to accept the
reasoning of the appellate decisions that have upheld
patronage contracting, that would not lead to rejection of
respondent's claim in this case. A rule aimed at protecting
patronage practices in government contracting would not
justify removing constitutional protection for contractors'
public expression.  Retaliation based on the view point
expressed in speech is not part of the historical tradition
described by those who view patronage systems-because
of their relationship to the two-party system-as a
constitutionally permissible political choice. 23. The free
expression of opinions on public issues,  such as
respondent's public statements and written editorials, has
fulfilled an "historic function in this nation" by
"informing and arousing the public, and by criticizing and
cajoling those who hold government office in order to help
launch new solutions to the problems of the time." FCC v.
League of Women Voters, 468 U.S. at 382 (quoting
Thornhill v. Alabama, 310 U.S. 88, 101-102 (1940)).
Retaliation against public contractors for expressing
views at public meetings and in newspaper editorials has,
in contrast, never been identified in First Amendment
jurisprudence as playing a beneficial role in fostering the
political culture of the United States.

___________________(footnotes)
                                             
speech of the employee from the disfavored political party, thus
requiring analysis under both lines of authority, See, e.g., C. Singer,
Conduct and Belief: Public Employees' First Amendment Rights to
Free Expression and Political Affiliation, 59 U. Chi. L. Rev. 897, 897-
898, 918-923 (1992) (describing application of Rutan and Pickering to a
hypothetical case involving both speech- and political-affiliation-based
motives). This case requires no such dual analysis.
23 See Rutan, 497 U.S. at 104-108 (Scalia, J., dissenting); Branti,
445 U.S. at 527-534 (Powell, J., dissenting); Elrod, 427 U.S. at 375-376
(Burger, J., dissenting); id. at 376-389 (Powell, J., dissenting).

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21

C. In declining to recognize contractors' First
Amendment claims, the Seventh Circuit relied in, part on
the risk that allowing such claims to proceed would "invite
every disappointed bidder for a public contract to bring a
federal suit  against the government purchaser."
Downtown Auto Parks, 938 F.2d at 709 (quoting LaFalce,
712 F.2d at 294). There are, however, few reported cases of
non-patronage-related  First Amendment claims  by
independent contractors, 24. notwithstanding that only the
Seventh Circuit categorically bars such claims.  The
danger the Seventh Circuit identified is too speculative to
justify eliminating constitutional protection altogether.
Where contracting with the federal government is
concerned, the virtual absence of First Amendment claims
may result from the fact that procedures for contracting
by the Executive Branch are prescribed in detail by
statutes and regulations. 25.  Federal law generally re-

___________________(footnotes)      

24 See, e.g., Blackburn v. City of Marshall, 42 F.3d 925, (5th Cir.
1995); Terminate Control Corp. v. Horowitz, 28 F.3d 1335, 1353 (2d Cir.
1994); Enplanar, Inc. v. Marsh, 11 F.3d 1284, 1296 (5th Cir.), cert.
denied, 115 S. Ct. 312 (1994); Downtown Auto Parks, supra; White
Plains Towing Corp. v. Patterson, 991 F.2d 1049, 1057, 1061 (2d Cir.
1993); Abercrombie v. City of Catoosa, 896 F.2d 1228 (10th Cir. 1990).
25 Government contracting law covers several broad categories of
contracting, including (1) procurement of property, other than real
property, (2) Procurement of services, including research and develop-
ment, and (3) construction, alteration, repair, or maintenance of real
property. See 41 U.S.C. 405(b). The Armed Services Procurement Act
of 1947 (ASPA), 10 U.S.C. 2301-2314, covers procurement for the
Department of Defense, and the Federal Property and Administrative
Services Act of 1949 (FPASA), 41 U.S.C. 251-260, covers procurement
outside the military context. The Office of Federal Procurement Policy
generally administers federal contracting law, including the ASPA
and the FPASA. 41 U.S.C. 405a. Contracts for real property and
automatic data processing and  telecommunications  equipment,

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22

quires full and open competition for government contracts.
See generally 10 U.S.C. 2304-2305; 41 U.S.C. 253(a), 253a,
253b. 26. The Federal Acquisition Regulations include
hundreds of approved standard contract clauses for use in
federal contracting, 48 C.F.R. Pt. 52, and use of those
clauses helps to ensure fair and uniform contracts and to
eliminate claims of unequal treatment.
The risk that disgruntled contractors will bring
frivolous constitutional claims in federal court may also be
diminished by the availability of federal administrative
processes to resolve contractors' complaints of unfair
treatment. See generally Contract Disputes Act of 1978
(CDA), 41 U.S.C. 601-613; 48 C.F.R. Pt. 33; 48 C.F.R.
52.233-1 to 52.233-2. Claims subject to administrative re-
solution include all claims against the government "re-
lating to a contract." 41 U.S.C. 605(a). 27. Because the per-
missible reasons for adverse contract action are tightly
circumscribed, see, e.g., 48 C.F.R. 52.249-8, 52.249-10
(regarding contract termination), actions taken for imper-
missible reasons often can be resolved administratively
under the contract.
The federal scheme illustrates that there are means by
which to minimize the kind of discretionary decision-
making that can lead to claims of unconstitutional treat-
ment, and to provide appropriate mechanisms for resolving

___________________(footnotes)

however, are administered by the General Services Administration, 40
U.S.C. 490(a)(12), 601-619, 759.

26 Exceptions to the competitive requirements are made only in
statutorily specified circumstances in which use of such requirements is
not feasible. See e.g., 10 U.S.C. 2304-2305; 41 U.S.C. 253(c)-( f), 254.

27 A claimant may appeal to an agency board of contract appeals
and then to the Federal Circuit, 41 U.S.C. 605(b), 606, 607(g), or, in
lieu of such an appeal, may bring an action on the claim directly in the
United States Claims Court, 41 U.S.C. 609.

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23

contract disputes when they arise. The flood of First
Amendment claims in federal court that the Seventh
Circuit predicted has thus far been avoided under the
federal government contracting system. In the absence of
any demonstrated basis for believing that continued
recognition of contractors' First Amendment rights is
incompatible with efficient and effective government
contracting, those rights should not completely be denied
protection.
III. THE  PICKERING  BALANCING  TEST IS
INAPPLICABLE HERE BECAUSE RESPOND-
ENT'S  SPEECH  DID NOT IMPAIR ANY
SUPERVISORY OR MANAGERIAL FUNCTION

This Court's analysis of whether and when Pickering
applies to public contractors must take into account both
the legitimate interests of the government in ensuring
effective contract performance and the constitutional
rights of individuals who enter into contractual relation-
ships with the government. The Pickering test reflects
the fact that certain types of employee speech can impair
managerial authority, and that ineffective management
hinders the operations of government. 28. The same is true
of contractor speech that impairs the effectiveness of
governmental contracting officers in ensuring contract
            
___________________(footnotes)

28 To be protected under the Pickering test, a public employee's
speech "must be on a matter of public concern, and the employee's
interest in expressing herself on this matter must not be outweighed by
any injury the speech could cause to '" the interest of the State, as an
employer, in promoting the efficiency of the public services it performs
through its employees."'" Waters v. Churchill, 114 S. Ct. 1878, 1884
(1994) (Plurality opinion) (quoting Connick v. Myers, 461 U.S. 138, 142
(1983) (quoting Pickering, 391 U.S. at 568)). Whether speech addresses
matters of public concern is a fact-specific inquiry based on the content,
form and context of the speech. Connick, 461 U.S. at 147-148.

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24

effectiveness. The courts of appeals that have addressed
the question have thus held that, where the relationship
between the government and the contractor is similar to a
public employment relationship, Pickering should apply.
See note 30, infra. Public contracting often, however,
involves arms-length transactions between contracting
officers and private businesses- that do not implicate the
structural concerns to which Pickering responds. In
those contexts, Pickering does not supply the appropriate
test.
A. Pickering is inapplicable here. Respondent's claim
should be evaluated under the level of First Amendment
scrutiny that generally applies to viewpoint-based con-
ditions imposed on recipients of government benefits.
Under that analysis, no public-concern threshold applies,
and the government may only suppress speech where
necessary to ensure effective government contracting.
The Pickering balancing test applicable to restrictions
on public employee speech does not apply to non-employee
speech such as respondent's, that takes place outside the
workplace and does not impair the management abilities of
governmental supervisors or contracting officers. The
government's increased authority to regulate speech
under the Pickering public employee speech doctrine
derives from the need of government, when acting as an
employer, to preserve the integrity of supervisory
relations-hips  and the smooth functioning  of the
government workplace. Waters, 114 S. Ct. at 1887-1888;
Rankin v. McPherson, 483 U.S. 378, 3840987); Connick v.
Myers, 461 U.S. 138,151-152 (1983); Pickering, 391 U.S. at
568-570, 572-574. As this Court stated in Connick,
"government officials should enjoy wide latitude in
managing their offices, without intrusive oversight by the
judiciary in the name of the First Amendment." 461 U.S.

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25

at 146. Employees' workplace complaints can "threaten[]
the authority of the employer to run the office." Id. at 153.
The public employee speech doctrine accordingly
establishes that "the First Amendment does not require a
public office to be run as a roundtable for employee
complaints over internal office affairs." Id. at 149.
The typical government-contract setting does not
require prerogatives analogous to those that the employee
speech cases seek to protect.  Public contracts are
generally performed outside of the government workplace,
according to contractually established specifications, and
without repeated and ongoing interaction between the
governmental contracting officer or other governmental
supervisory personnel and the contractor. This case is an
apt illustration. Respondent contracted with the county
for trash collection service at a specified price. He was
not supervised by government personnel in the
performance of that service, nor did he perform the
contract in a government workplace, where he might have
engaged in speech that undermined the authority of
government supervisory personnel, such as by directly
challenging supervisory credibility or distracting co-
workers with discussions of personal workplace griev-
ances. Cf. Connick, supra. 29. Even where public employee
                  
___________________(footnotes)

29 Petitioners themselves distinguish arms-length contracting of
the kind at issue here with the supervisory relationships inherent in
public employment. Pet. Br. 18. As they describe it, "[t]he relation-
ship between an employer and an employee differs significantly
from the relationship between a principal and an independent
contractor." Ibid. Whereas public employers must "maintain day to
day control of the details of the manner in which the work is performed
by employees: under many contracts, the government has a right to
delivery of the end product, but "the contractor exercises the right to
control the details on a daily basis." Ibid. Petitioners contend that
those differences should entitle the government to greater latitude to

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26

speech was at issue, the Court has recognized that the
interest asserted in Pickering-preventing "immediate
workplace disruption''-does not justify restrictions on
speech that "does not involve the subject matter of
government employment and takes place outside the
workplace."  United States v. National Treasury
Employees' Union (NTEU), 115 S. Ct. 1003, 1015 (1995).
Some government contractors are, for purposes of
Pickering, in a role sufficiently similar to that of public
employees that the Pickering test should apply to them.
Courts of appeals have, therefore, consistently held that
the limitations on speech that Pickering authorizes for
public employees are appropriate for public contractors
who operate under the ongoing managerial supervision of
government personnel. 30. Although there are likely many
            
___________________(footnotes)

rely on speech in terminating contracts.  The logic of Picketing,
however, suggests the opposite conclusion.

30 See, e.g., Smith v. Cleburne County Hosp., 870 F.2d 1375, 1381
(8th Cir.) (applying Pickering to non-employee doctor with contract
granting him staff privileges and responsibilities at public hospital
because, "[w]hile there is not a direct salaried employment
relationship, there is an association between the independent contractor
doctor and the Hospital that have similarities to that of an employer-
employee relationship."), cert. denied, 493 U.S. 847 (1989): Caine v.
Hardy, 943 F.2d 1406, 1415-1416 (5th Cir. 1991) (en bane) (same), cert.
denied, 493 U.S. 847 (1989); Davis v. West Community Hospital, 755
F.2d 455 (5th Cir. 1985) (same); Copsey v. Swearingen, 38 F.3d 1336,
1344 (5th Cir. 1994) (applying Pickering to non-employee vendor in
program for the blind in State capitol building); Havekost v. United
States Dep't of the Navy, 925 F.2d 316, 317-318 (9th Cir. 1991) (applying
Pickering to non-employee grocery bagger licensed to work in Naval
commissary).
Personal Service contracts provide an example, at the federal
government level, of contractors who should be governed by Pickering.
Under federal law, a "personal services contract" is one that, "by its
express terms or as administered, makes the contractor personnel

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27

situations in which the relationship between government
and its public contractors is sufficiently intertwined to
make a Pickering analysis applicable," this is not such a
case.
That respondent's speech should not be subject to
Pickering is underscored by the lack of a direct relation-
ship between his speech and his contract obligations. Cf.
NTEU, 115 S. Ct. at 1013 (noting that Rankin v.
McPherson, 483 U.S. 378 (1987), "is the only case in which
[the Court] applied the Pickering balance to speech whose
content had nothing to do with the workplace").
Respondent's contract in this case was under the
supervision of the county's Solid Waste Administrator.
None of respondent's expression was directed at the
Administrator, nor did respondent question the county's
implementation of the contract.  His public utterances
primarily criticized county government on issues relating
to open governance. Although respondent also addressed
the continued operation of the county landfill and

___________________(footnotes)                              

appear, in effect, [to be] Government employees," 48 C.F.R. 37.101, i.e.,
one that is "characterized by the employer-employee relationship it
creates," 48 C.F.R. 37.104(a). An employer-employee relationship is
created where the government will "exercise relatively continuous
supervision and control over the contractor personnel performing the
contract." 48 C.F.R. 37.104(c)(2); see generally 48 C.F.R. 37.404 (de-
tailing types of circumstances in which such control exists). Federal
personal service contracts must be statutorily authorized, because "the
Governments normally required to obtain its employees by direct hire
under competitive appointment or other procedures required by the
civil service laws." 48 C.F.R. 37.104. "In no event," however, "may a
contract be awarded for the performance of an inherently governmental
function," 48 C.F.R. 37.102(b), i.e., a function so intimately related to
the public interest, such as one requiring the exercise of personal
judgment and discretion, as to require performance by government
employees, see OMB Circ. No, A-76, at Par. 5(b), 6e (Aug. 4, 1993).

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criticized proposed increases in landfill user rates, he did
so as a citizen rather than a contractor. 31. Respondent's
public speech therefore is not analogous to the kind of
speech to which Pickering is addressed.
Where Pickering does not apply, the government
nonetheless retains the ability to ensure effective per-
formance of its contracts. The government has a vital
interest in restricting contractors' activities that would
interfere with the performance of a government contract.
NTEU, 115 S. Ct. at 1016 ("operational efficiency is
undoubtedly a vital governmental interest").  Where no
less restrictive means than suppression of speech is
available to protect it, 32. such an interest will satisfy the
First Amendment standard.
B. Even if Pickering applied in this case, the judgment
of the court of appeals reinstating respondent's First
Amendment claim was correct. Respondent's expression
met the Connick public-concern threshold, and the
Picketing balance, inapplicable, would tip decidedly in his
favor. Petitioners clearly err in their assertion that,

___________________(footnotes)

31 See Pickering, 391 U.S. at 574 (where "the fact of employment is
only tangentially and insubstantially involved in the subject matter of
the public communication," the plaintiff must be regarded "as the
member of the general public he seeks to be"), To be sure, just as the
teacher in Pickering was knowledgeable about the operation of the
school system because he-was a teacher, id. at 571-572, respondent, due
to his role as the country's trash collector, may have been more
knowledgeable than the average county resident regarding landfill
issues.

32 If contractors self-expression would otherwise be mistaken for
speech by or on behalf of the government, we believe that the
government may, consistent with the First Amendment, require the
contractor to make clear that the government does not endorse the
contractor's message. Cf. Capitol Square Review and Advisory Bd. v.
Pinette, 115 S. Ct. 2442, 2450 (1995).

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29

"[h]ad [respondent] been an employee he could have been
fired for insubordination for the remarks he made in
county commission meetings, despite the public interest
in the issues at stake, under the balancing test of
Pickering." Pet. Br. 22.
The matters upon which respondent spoke at the Board
meetings and in the newspapers were not, as petitioners
claim (Pet. Br. 32), "personal matters," but were issues of
public concern.  Petitioners' non-compliance with state
law regarding open meetings and open records is, in the
judgment of the State's own legislature, a matter of impor-
tance to the proper administration of state and local
government. Questions regarding the continued func-
tioning and financing of the county landfill were also of
public concern. The lack of an operating landfill in the
count y could, as respondent pointed out in his column,
result in greater illegal roadside refuse dumping, C.A.
App. 57, and if the landfill remained open but substantially
increased its rates, the residents themselves could pay
higher fees, id. at 106-107. The public at large could
readily be expected to have an interest in hearing about
issues that could thus affect their wallets and the clean-
liness of their environment. There is also no evidence
that respondent's speech interfered in any way with per-
formance of the trash hauling service under the contract,
and thus no factual basis for a conclusion under Pickering
that a government interest outweighed respondent's right
to speak out on matters of public concern.

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30

CONCLUSION

The judgment of the court of appeals should be affirmed,
and the case remanded. for further proceedings.

Respectfully submitted.

DREW S. DAYS, III
Solicitor General

FRANK W. HUNGER
Assistant Attorney General

PAUL BENDER
Deputy Solicitor General

CORNELIA T.L. PILLARD
Assistant to the Solicitor General

WILLIAM KANTER
ROBERT D. KAMENSHINE
Attorneys

OCTOBER 1995