Board of Comm'rs, Wabaunsee Cty. v. Umbehr, 518 U.S. 668 (1996)

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certiorari to the united states court of appeals for the tenth circuit

No. 94-1654. Argued November 28, 1995—Decided June 28, 1996

During the term of his at-will contract with Wabaunsee County, Kansas

(County), to haul trash, respondent Umbehr was an outspoken critic of petitioner Board of County Commissioners (Board). After the commissioners voted to terminate (or prevent the automatic renewal of) the contract, allegedly because they took Umbehr's criticism badly, he brought this suit against two of them under 42 U. S. C. 1983. The District Court granted them summary judgment, but the Tenth Circuit reversed in relevant part and remanded, holding that the First Amendment protects independent contractors from governmental retaliation against their speech, and that the extent of that protection must be determined by weighing the government's interests as contractor against the free speech interests at stake in accordance with the balancing test applied in the government employment context under Pickering v. Board of Ed. of Township High School Dist. 205, Will Cty., 391 U. S. 563, 568.

Held: The First Amendment protects independent contractors from the termination or prevention of automatic renewal of at-will government contracts in retaliation for their exercise of the freedom of speech, and the Pickering balancing test, adjusted to weigh the government's interests as contractor rather than as employer, determines the extent of that protection. Pp. 673-686. (a) Because of the obvious similarities between government employees and government contractors with respect to this issue, the Court is guided by its government employment precedents. Among other things, those precedents have recognized that government workers are constitutionally protected from dismissal for publicly or privately criticizing their employer's policies, see, e. g., Perry v. Sinder-mann, 408 U. S. 593, but have also acknowledged that the First Amendment does not guarantee absolute freedom of speech, see, e. g., Connick v. Myers, 461 U. S. 138, 146, and have required a fact-sensitive and deferential weighing of the government employer's legitimate interests against its employees' First Amendment rights, see, e. g., Pickering, supra, at 568. The parties' attempts to differentiate between inde-

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