Cite as: 518 U. S. 668 (1996)
Scalia, J., dissenting
the fatal need for "probing or testing" his allegiance disappears.) Or is the "right of free speech" at issue only if he goes still further, and says, "I believe in the principles set forth in the Republican platform"? Or perhaps one must decide whether the Rubicon between the "right of free speech" and the more protected "political affiliation" has been crossed on the basis of the contracting authority's motivation, so that it does not matter whether the contractor says he is a Republican, or even says that he believes in the Republican platform, so long as the reason he is disfavored is simply that (whatever he says or believes) he is a Republican. But the analysis would change, perhaps, if the contracting authority really has nothing against Republicans as such, but can't stand people who believe what the Republican platform stands for. Except perhaps it would not change if the contractor never actually said he was a Republican—or perhaps only if he never actually said that he believed in the Republican platform. The many variations will provide endless diversion for the courts of appeals.
If one is so sanguine as to believe that facts involving the "right of free speech" and facts involving "political affiliation" can actually be segregated into separate categories, there arises, of course, the problem of what to do when both are involved. One would expect the more rigid test (Elrod nonbalancing) to prevail. That is certainly what happens elsewhere in the law. If one is categorically liable for a defamatory statement, but liable for a threatening statement only if it places the subject in immediate fear of physical harm, an utterance that combines both ("Sir, I shall punch you in your lying mouth!") would be (at least as to the defamatory portion) categorically actionable. Not so, however, with our new First Amendment law. Where, we are told, "specific instances of the employee's speech or expression, which require balancing in the Pickering context, are intermixed with a political affiliation requirement," balancing
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