680
Opinion of the Court
but to the substance of what is required"); Chicago, B. & Q. R. Co. v. Chicago, 166 U. S. 226, 235 (1897) ("In determining what is due process of law regard must be had to substance, not to form"); Browning-Ferris Industries of Vt., Inc. v. Kelco Disposal, Inc., 492 U. S. 257, 299 (1989) (O'Connor, J., concurring in part and dissenting in part) ("[T]he applicability of a provision of the Constitution has never depended on the vagaries of state or federal law").
Furthermore, the arguments made by both parties demonstrate that it is far from clear, as a general matter, whether the balance of interests at stake is more favorable to the government in independent contractor cases than in employee cases. Our unconstitutional conditions precedents span a spectrum from government employees, whose close relationship with the government requires a balancing of important free speech and government interests, to claimants for tax exemptions, Speiser v. Randall, 357 U. S. 513 (1958), users of public facilities, e. g., Lamb's Chapel v. Center Moriches Union Free School Dist., 508 U. S. 384, 390-394 (1993); Healy v. James, 408 U. S. 169 (1972), and recipients of small government subsidies, e. g., FCC v. League of Women Voters of Cal., 468 U. S. 364 (1984), who are much less dependent on the government but more like ordinary citizens whose viewpoints on matters of public concern the government has no legitimate interest in repressing. The First Amendment permits neither the firing of janitors nor the discriminatory pricing of state lottery tickets based on the government's disagreement with certain political expression. Independent contractors appear to us to lie somewhere between the case of government employees, who have the closest relationship with the government, and our other unconstitutional conditions precedents, which involve persons with less close relationships with the government. The Board's and the dissent's assertion, post, at 687, 696-697, that the decision below represents an unwarranted "extension" of
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