Cite as: 518 U. S. 668 (1996)
Syllabus
pendent contractors and government employees are unavailing. Each of their arguments for and against the imposition of liability has some force, but all of them can be accommodated by applying the existing government employee framework. Moreover, application of the nuanced Pickering approach is superior to a bright-line rule giving the government carte blanche to terminate independent contractors for exercising their speech rights. Although both the individual's and the government's interests are typically—though not always—somewhat less strong in an independent contractor case, the fact that such contractors are similar in most relevant respects to government employees compels the conclusion that the same form of balancing analysis should apply to each. Pp. 673-681. (b) Neither the dissent's fears of excessive litigation, nor its assertion that the allocation of government contracts on the basis of political bias is a longstanding tradition, can deprive independent contractors of protection. Its own description of "lowest-responsible-bidder" requirements in a wide range of government contracting laws voluntarily adopted by federal and state authorities suggests that government contracting norms incompatible with political bias have proliferated without unduly burdening the government, and such laws have a long history. Pp. 681-685. (c) Because the courts below assumed that Umbehr's termination (or nonrenewal) was in retaliation for his protected speech activities, and did not pass on the balance between the government's interests and his free speech interests, the conclusion that independent contractors do enjoy some First Amendment protection requires affirmance of the Tenth Circuit's decision to remand the case. To prevail, Umbehr must show initially that the termination of his contract was motivated by his speech on a matter of public concern, see Connick, supra, at 146; he must therefore prove more than the mere fact that he criticized the Board members before he was terminated. If he can do so, the Board will have a valid defense if it can show, by a preponderance of the evidence, that, in light of their knowledge, perceptions, and policies at the time of the termination, the Board members would have terminated the contract regardless of his speech. See Mt. Healthy City Bd. of Ed. v. Doyle, 429 U. S. 274, 287. The Board will also prevail if it can demonstrate that the County's legitimate interests as contractor, deferentially viewed, outweigh the free speech interests at stake. See, e. g., Pickering, supra, at 568. And, if Umbehr prevails, evidence that the Board members discovered facts after termination that would have led to a later termination anyway, and evidence of mitigation of his loss by means of subsequent trash hauling contracts with cities in the County, would be relevant in assessing the appropriate remedy. Because
669
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