Board of County Com'rs, Wabaunsee County, Kan. v. Umbehr | Cases | Westlaw

This case requires us to decide whether, and to what extent, the First Amendment protects independent contractors from the termination of at-will government contracts in retaliation for their exercise of the freedom of speech.

Under state law, Wabaunsee County, Kansas (County), is obliged to provide for the disposal of solid waste generated *671 within its borders. In 1981, and, after renegotiation, in 1985, the County contracted with respondent Umbehr for him to be the exclusive hauler of trash for cities in the County at a rate specified in the contract. Each city was free to reject or, on 90 days' notice, to opt out of, the contract. By its terms, the contract between Umbehr and the County was automatically renewed annually unless either party terminated it by giving notice at least 60 days before the end of the year or a renegotiation was instituted on 90 days' notice. Pursuant to the contract, Umbehr hauled trash for six of the County's seven cities from 1985 to 1991 on an exclusive and uninterrupted basis.

During the term of his contract, Umbehr was an outspoken critic of petitioner, the Board of County Commissioners of Wabaunsee County (Board), the three-member governing body of the County. Umbehr spoke at the Board's meetings, and wrote critical letters and editorials in local newspapers regarding the County's landfill user rates, the cost of obtaining official documents from the County, alleged violations by the Board of the Kansas Open Meetings Act, the County's alleged mismanagement of taxpayers' money, and other topics. His allegations of violation of the Kansas Open Meetings Act were vindicated in a consent decree signed by the Board's members. Umbehr also ran unsuccessfully for election to the Board.

The Board's members allegedly took Umbehr's criticism badly, threatening the official county newspaper with censorship for publishing his writings. In 1990, they voted, 2 to 1, to terminate (or prevent the automatic renewal of) Umbehr's contract with the County. That attempt at termination failed because of a technical defect, but in 1991, the Board succeeded in terminating Umbehr's contract, again by a 2 to 1 vote. Umbehr subsequently negotiated new contracts with five of the six cities that he had previously served.

In 1992, Umbehr brought this suit against the two majority Board members in their individual and official capacities *672 under Rev.Stat. § 1979, as amended, **2346 42 U.S.C. § 1983, alleging that they had terminated his government contract in retaliation for his criticism of the County and the Board. The Board members moved for summary judgment. The District Court assumed that Umbehr's contract was terminated in retaliation for his speech, and that he suffered consequential damages. But it held that “the First Amendment does not prohibit [the Board] from considering [Umbehr's] expression as a factor in deciding not to continue with the trash hauling contract at the end of the contract's annual term,” because, as an independent contractor, Umbehr was not entitled to the First Amendment protection afforded to public employees. Umbehr v. McClure, 840 F.Supp. 837, 839 (Kan.1993). It also held that the claims against the Board members in their individual capacities would be barred by qualified immunity, id., at 841, a ruling which was affirmed on appeal and which is not at issue here.

The United States Court of Appeals for the Tenth Circuit reversed (except as to qualified immunity), holding that “an independent contractor is protected under the First Amendment from retaliatory governmental action, just as an employee would be,” and that the extent of protection is to be determined by weighing the government's interests as contractor against the free speech interests at stake in accordance with the balancing test that we used to determine government employees' First Amendment rights in Pickering v. Board of Ed. of Township High School Dist. 205, Will Cty., 391 U.S. 563, 568, 88 S.Ct. 1731, 1734, 20 L.Ed.2d 811 (1968). 44 F.3d 876, 883 (C.A.10 1995). It therefore remanded the official capacity claims to the District Court for further proceedings, including consideration of whether the termination was in fact retaliatory. The Board members who were the original defendants in this suit subsequently resigned their positions on the Board, so in this Court, the Board was substituted for them as petitioner. See this Court's Rule 35.3.

*673 We granted certiorari to resolve a conflict between the Courts of Appeals regarding whether, and to what extent, independent contractors are protected by the First Amendment. The Fifth and Eighth Circuits agree with the Tenth Circuit. See Blackburn v. Marshall, 42 F.3d 925, 931–935 (C.A.5 1995); Copsey v. Swearingen, 36 F.3d 1336, 1344 (C.A.5 1994); North Mississippi Communications, Inc. v. Jones, 792 F.2d 1330 (C.A.5 1986); Smith v. Cleburne County Hospital, 870 F.2d 1375, 1381 (C.A.8), cert. denied, 493 U.S. 847, 110 S.Ct. 142, 107 L.Ed.2d 100 (1989); but see Sweeney v. Bond, 669 F.2d 542 (C.A.8), cert. denied, 459 U.S. 878, 103 S.Ct. 174, 74 L.Ed.2d 143 (1982). See also Abercrombie v. Catoosa, 896 F.2d 1228, 1233 (C.A.10 1990) (allowing an independent contractor to sue for termination based on his speech and political activities). The Third and Seventh Circuits have, however, held that an independent contractor who does not have a property interest in his contract with the government has no right not to have that contract terminated in retaliation for his exercise of First Amendment freedoms of political affiliation and participation. See Horn v. Kean, 796 F.2d 668 (C.A.3 1986) (en banc); O'Hare Truck Service, Inc. v. Northlake, 47 F.3d 883 (C.A.7 1995), reversed, 518 U.S. 712, 116 S.Ct. 2353, 135 L.Ed.2d 874; Downtown Auto Parks, Inc. v. Milwaukee, 938 F.2d 705 (C.A.7), cert. denied, 502 U.S. 1005, 112 S.Ct. 640, 116 L.Ed.2d 657 (1991); Triad Assocs., Inc. v. Chicago Housing Authority, 892 F.2d 583 (C.A.7 1989), cert. denied, 498 U.S. 845, 111 S.Ct. 129, 112 L.Ed.2d 97 (1990).

We agree with the Tenth Circuit that independent contractors are protected, and that the Pickering balancing test, adjusted to weigh the government's interests as contractor rather than as employer, determines the extent of their protection. We therefore affirm.

This Court has not previously considered whether, and to what extent, the First Amendment restricts the freedom of *674 federal, state, or local governments to terminate their relationships with independent contractors because of the contractors' speech. We have, however, considered the same issue in the context of government employees' rights on several occasions. The **2347 similarities between government employees and government contractors with respect to this issue are obvious. The government needs to be free to terminate both employees and contractors for poor performance, to improve the efficiency, efficacy, and responsiveness of service to the public, and to prevent the appearance of corruption. And, absent contractual, statutory, or constitutional restriction, the government is entitled to terminate them for no reason at all. But either type of relationship provides a valuable financial benefit, the threat of the loss of which in retaliation for speech may chill speech on matters of public concern by those who, because of their dealings with the government, “are often in the best position to know what ails the agencies for which they work,” Waters v. Churchill, 511 U.S. 661, 674, 114 S.Ct. 1878, 1887, 128 L.Ed.2d 686 (1994) (plurality opinion). Because of these similarities, we turn initially to our government employment precedents for guidance.

Those precedents have long since rejected Justice Holmes' famous dictum, that a policeman “may have a constitutional right to talk politics, but he has no constitutional right to be a policeman,” McAuliffe v. Mayor of New Bedford, 155 Mass. 216, 220, 29 N.E. 517 (1892). Recognizing that “constitutional violations may arise from the deterrent, or ‘chilling,’ effect of governmental [efforts] that fall short of a direct prohibition against the exercise of First Amendment rights,” Laird v. Tatum, 408 U.S. 1, 11, 92 S.Ct. 2318, 2324, 33 L.Ed.2d 154 (1972), our modern “unconstitutional conditions” doctrine holds that the government “may not deny a benefit to a person on a basis that infringes his constitutionally protected ... freedom of speech” even if he has no entitlement to that benefit, Perry v. Sindermann, 408 U.S. 593, 597, 92 S.Ct. 2694, 2697, 33 L.Ed.2d 570 (1972). We have held that government workers are constitutionally protected from dismissal for refusing *675 to take an oath regarding their political affiliation, see, e.g., Wieman v. Updegraff, 344 U.S. 183, 73 S.Ct. 215, 97 L.Ed. 216 (1952); Keyishian v. Board of Regents of Univ. of State of N.Y., 385 U.S. 589, 87 S.Ct. 675, 17 L.Ed.2d 629 (1967), for publicly or privately criticizing their employer's policies, see Perry, supra; Mt. Healthy City Bd. of Ed. v. Doyle, 429 U.S. 274, 97 S.Ct. 568, 50 L.Ed.2d 471 (1977); Givhan v. Western Line Consol. School Dist., 439 U.S. 410, 99 S.Ct. 693, 58 L.Ed.2d 619 (1979), for expressing hostility to prominent political figures, see Rankin v. McPherson, 483 U.S. 378, 107 S.Ct. 2891, 97 L.Ed.2d 315 (1987), or, except where political affiliation may reasonably be considered an appropriate job qualification, for supporting or affiliating with a particular political party, see, e.g., Branti v. Finkel, 445 U.S. 507, 100 S.Ct. 1287, 63 L.Ed.2d 574 (1980). See also United States v. Treasury Employees, 513 U.S. 454, 115 S.Ct. 1003, 130 L.Ed.2d 964 (1995) (Government employees are protected from undue burdens on their expressive activities created by a prohibition against accepting honoraria); Abood v. Detroit Bd. of Ed., 431 U.S. 209, 234, 97 S.Ct. 1782, 1799, 52 L.Ed.2d 261 (1977) (government employment cannot be conditioned on making or not making financial contributions to particular political causes).

While protecting First Amendment freedoms, we have, however, acknowledged that the First Amendment does not create property or tenure rights, and does not guarantee absolute freedom of speech. The First Amendment's guarantee of freedom of speech protects government employees from termination because of their speech on matters of public concern. See Connick v. Myers, 461 U.S. 138, 146, 103 S.Ct. 1684, 1689, 75 L.Ed.2d 708 (1983) (speech on merely private employment matters is unprotected). To prevail, an employee must prove that the conduct at issue was constitutionally protected, and that it was a substantial or motivating factor in the termination. If the employee discharges that burden, the government can escape liability by showing that it would have taken the same action even in the absence of the protected conduct. See Mt. Healthy, supra, at 287, 97 S.Ct., at 576. And even termination because of protected speech may be justified when legitimate countervailing government interests are sufficiently strong. *676 Government employees' First Amendment rights depend on the “balance between the interests of the [employee], as a citizen, in commenting upon matters of **2348 public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees.” Pickering, 391 U.S., at 568, 88 S.Ct., at 1734. In striking that balance, we have concluded that “[t]he government's interest in achieving its goals as effectively and efficiently as possible is elevated from a relatively subordinate interest when it acts as sovereign to a significant one when it acts as employer.” Waters, 511 U.S., at 675, 114 S.Ct., at 1888 (plurality opinion). We have, therefore, “consistently given greater deference to government predictions of harm used to justify restriction of employee speech than to predictions of harm used to justify restrictions on the speech of the public at large.” Id., at 673, 114 S.Ct., at 1887; accord, Treasury Employees, supra, at 475, 115 S.Ct., at 1017.

The parties each invite us to differentiate between independent contractors and employees. The Board urges us not to “extend” the First Amendment rights of government employees to contractors. Umbehr, joined by the Solicitor General as amicus curiae, contends that, on proof of viewpoint-based retaliation for contractors' political speech, the government should be required to justify its actions as narrowly tailored to serve a compelling state interest.

Both parties observe that independent contractors in general, and Umbehr in particular, work at a greater remove from government officials than do most government employees. In the Board's view, the key feature of an independent contractor's contract is that it does not give the government the right to supervise and control the details of how work is done. The Board argues that the lack of day-to-day control accentuates the government's need to have the work done by someone it trusts, cf. Branti, supra, at 518, 100 S.Ct., at 1294 (certain positions in government employment implicate such a need for trust that their award on the basis of party political affiliation is *677 justified), and to resort to the sanction of termination for unsatisfactory performance.^* Umbehr, on the other hand, argues that the government interests in maintaining harmonious working environments and relationships recognized in our government employee cases are attenuated where the contractor does not work at the government's workplace and does not interact daily with government officers and employees. He also points out that to the extent that he is publicly perceived as an independent contractor, any government concern that his political statements will be confused with the government's political positions is mitigated. The Board and the dissent, post, at 2367–2368, retort that the cost of fending off litigation, and the potential for government contracting practices to ossify into prophylactic rules to avoid potential litigation and liability, outweigh the interests of independent contractors, who are typically less financially dependent on their government contracts than are government employees.

Each of these arguments for and against the imposition of liability has some force. But all of them can be accommodated by applying our existing framework for government employee cases to independent contractors. Mt. Healthy assures the government's ability to terminate contracts so long as it does not do so in retaliation for protected First Amendment activity. Pickering requires a fact-sensitive and deferential weighing of the government's legitimate interests. *678 The dangers of burdensome litigation and the de facto imposition of rigid contracting rules necessitate attentive application of the Mt. Healthy requirement of proof of causation and substantial deference, as mandated by Pickering, Connick, and Waters, to the government's reasonable view of its legitimate **2349 interests, but not a per se denial of liability. Nor can the Board's and the dissent's generalization that independent contractors may be less dependent on the government than government employees, see post, at 2366–2367, justify denial of all First Amendment protection to contractors. The tests that we have established in our government employment cases must be judicially administered with sensitivity to governmental needs, but First Amendment rights must not be neglected.

Umbehr's claim that speech threatens the government's interests as contractor less than its interests as employer will also inform the application of the Pickering test. Umbehr is correct that if the Board had exercised sovereign power against him as a citizen in response to his political speech, it would be required to demonstrate that its action was narrowly tailored to serve a compelling governmental interest. But in this case, as in government employment cases, the Board exercised contractual power, and its interests as a public service provider, including its interest in being free from intensive judicial supervision of its daily management functions, are potentially implicated. Deference is therefore due to the government's reasonable assessments of its interests as contractor.

We therefore see no reason to believe that proper application of the Pickering balancing test cannot accommodate the differences between employees and independent contractors. There is ample reason to believe that such a nuanced approach, which recognizes the variety of interests that may arise in independent contractor cases, is superior to a bright-line rule distinguishing independent contractors from employees. The bright-line rule proposed by the Board and *679 the dissent would give the government carte blanche to terminate independent contractors for exercising First Amendment rights. And that bright-line rule would leave First Amendment rights unduly dependent on whether state law labels a government service provider's contract as a contract of employment or a contract for services, a distinction which is at best a very poor proxy for the interests at stake. See Comment, Political Patronage in Public Contracting, 51 U. Chi. L.Rev. 518, 520 (1984) ( “[N]o legally relevant distinction exists between employees and contractors in terms either of the government's interest in using patronage or of the employee or contractor's interest in free speech”); cf. Perry, 408 U.S., at 597, 92 S.Ct., at 2697 (the prohibition of unconstitutional conditions on speech applies “regardless of the public employee's contractual or other claim to a job”). Determining constitutional claims on the basis of such formal distinctions, which can be manipulated largely at the will of the government agencies concerned, see Logue v. United States, 412 U.S. 521, 532, 93 S.Ct. 2215, 2222, 37 L.Ed.2d 121 (1973) (noting that independent contractors are often employed to perform “tasks that would ... otherwise be performed by salaried Government employees”), is an enterprise that we have consistently eschewed. See, e.g., Lefkowitz v. Turley, 414 U.S. 70, 83, 94 S.Ct. 316, 325, 38 L.Ed.2d 274 (1973) (in the context of the privilege against self-incrimination, “[w]e fail to see a difference of constitutional magnitude between the threat of job loss to an employee of the State, and a threat of loss of contracts to a contractor”); cf. Colorado Republican Federal Campaign Comm. v. Federal Election Comm'n, 518 U.S. 604, 622, 116 S.Ct. 2309, 2319, 135 L.Ed.2d 795 (1996) (opinion of BREYER, J.) (“[T]he government ‘cannot foreclose the exercise of [First Amendment] rights by mere labels' ”) (quoting NAACP v. Button, 371 U.S. 415, 429, 83 S.Ct. 328, 336, 9 L.Ed.2d 405 (1963)); Escobedo v. Illinois, 378 U.S. 478, 486, 84 S.Ct. 1758, 1762, 12 L.Ed.2d 977 (1964) (declining to “exalt form over substance” in determining the temporal scope of Sixth Amendment protections); Crowell v. Benson, 285 U.S. 22, 53, 52 S.Ct. 285, 293, 76 L.Ed. 598 (1932) (“Regard must be had, ... in ... cases where constitutional limits are invoked, not to mere matters of form *680 but to the substance of what is required”); Chicago, B. & Q.R. Co. v. Chicago, 166 U.S. 226, 235, 17 S.Ct. 581, 584, 41 L.Ed. 979 (1897) (“In determining what is due process of law regard must be had to substance, not to form”); **2350 Browning–Ferris Industries of Vt., Inc. v. Kelco Disposal, Inc., 492 U.S. 257, 299, 109 S.Ct. 2909, 2933, 106 L.Ed.2d 219 (1989) (O'CONNOR, J., concurring in part and dissenting in part) (“The 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, 78 S.Ct. 1332, 2 L.Ed.2d 1460 (1958), users of public facilities, e.g., Lamb's Chapel v. Center Moriches Union Free School Dist., 508 U.S. 384, 390–394, 113 S.Ct. 2141, 2146–2148, 124 L.Ed.2d 352 (1993); Healy v. James, 408 U.S. 169, 92 S.Ct. 2338, 33 L.Ed.2d 266 (1972), and recipients of small government subsidies, e.g., FCC v. League of Women Voters of Cal., 468 U.S. 364, 104 S.Ct. 3106, 82 L.Ed.2d 278 (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 2362, that the decision below represents an unwarranted “extension” of *681 special protections afforded to government employees is, therefore, not persuasive.

The dissent's fears of excessive litigation, see post, at 2367–2368, cannot justify a special exception to our unconstitutional conditions precedent to deprive independent government contractors of protection. Nor can its assertion that the allocation of government contracts on the basis of political bias is a “long and unbroken tradition of our people.” Post, at 2363. We do not believe that tradition legitimizes patronage contracting, regardless of whether one approaches the role of tradition in First Amendment adjudication from the perspective of Part I of the Rutan dissent, see post, at 2362 (quoting Rutan v. Republican Party of Ill., 497 U.S. 62, 95, 110 S.Ct. 2729, 2748, 111 L.Ed.2d 52 (1990) (SCALIA, J., dissenting)) (a practice that “ ‘bears the endorsement of a long tradition of open, widespread, and unchallenged use that dates back to the beginning of the Republic’ ” is presumed constitutional) (emphasis added), or from that of Justice Holmes, compare post, at 2363–2364 (quoting Holmes' discussion of traditional usage of legal terminology in a tax case) with Abrams v. United States, 250 U.S. 616, 630, 40 S.Ct. 17, 22, 63 L.Ed. 1173 (1919) (Holmes, J., dissenting) (rejecting both the self-interested “logi[c]” and the long history of the suppression of free speech, including the Sedition Act of 1798 and “the common law as to seditious libel,” in favor of the true “theory of our Constitution,” which values free speech as essential to, not subject to the vicissitudes of, our political system).

The examples to which the dissent cites, post, at 2362–2363 are not, in our view, “ ‘the stuff out of which the Court's principles are to be formed,’ ” post, at 2362 (quoting Rutan, supra, at 96, 110 S.Ct., at 2748 (SCALIA, J., dissenting)). Consider, for example, the practice of “courtroom patronage,” whereby “[e]lected judges, who owe their nomination and election to the party, give the organization lucrative refereeships, trusteeships, *682 and receiverships which often yield legal fees unjustified by the work required,” M. Tolchin & S. Tolchin, To The Victor: Political Patronage from the Clubhouse to the White House 15 (1971); see also Wolfinger, Why Political Machines Have Not Withered Away and Other Revisionist Thoughts, 34 J. Politics **2351 365, 367, 371 (1972) (similar), or the award of “gift[s]” to political supporters under the guise of research grants, Tolchin, supra, at 61, or the allocation of contracts based on “contributions resulting from the compound of bribery and extortion” and “kickbacks,” A. Heard, The Costs of Democracy 143, 144 (1960), or the practice of “ ‘beer politics,’ ” whereby “wholesale liquor licenses issued by the state were traded for campaign contributions,” id., at 144, or the extortion of political support and “campaign contributions” on pain of being branded a “Communist,” R. Caro, The Power Broker: Robert Moses and the Fall of New York 726 (1975), or the “favorable consideration in the courts or by public agencies” expected in one city by the clients of “ ‘political’ attorneys with part-time public jobs,” Wolfinger, supra, at 389, or the question reportedly asked by a party official of a businessman who was reluctant to contribute to a mayoralty campaign, “ ‘Look, you [expletive deleted], do you want a snow-removal contract or don't you?,’ ” id., at 368. These examples, cited by the dissent, many of which involve patronage in employment and appointments rather than in contracting, cf. Comment, Political Patronage, at 518, n. 4 (“[P]atronage systems have traditionally centered around the distribution of government jobs ” (emphasis added)), may suggest that abuses of power in the name of patronage are not “highly unusual,” post, at 2373. It may also be the case that the victims whose speech is chilled and whose contributions are extracted by such government action are often “ ‘honorable and prudent businessmen.’ ” Post, at 2363 (quoting Heard, supra, at 145). But the dissent's examples do not establish an “open and unchallenged” tradition of allocating government contracts on the basis of political bias—much *683 less on the basis of disapproval of political speech. The dissent's own sources note that the patronage practices that they report were denied and disavowed by their alleged practitioners, see Wolfinger, supra, at 367, n. 2, 372–373, n. 11, that they were most significant in secret and specialized contexts such as defense contracting that “operat[e] in an atmosphere uninhibited by the usual challenges of representative government,” Tolchin, supra, at 233, and that in many cases they were illegal, see Heard, supra, at 143–144, n. 4. We of course agree with the dissent that mere “obnoxious[ness],” post, at 2363, and criminality do not make a practice unconstitutional. Nor, however, do the dissent's examples of covert, widely condemned, and sometimes illegal government action legitimize the government discrimination based on the viewpoint of one's speech or one's political affiliations that is involved here.

The dissent's own description of the “lowest-responsible-bidder” and other, similar requirements covering a wide range of government contracts that the Federal Government, all 50 States, and many local government authorities, have voluntarily adopted, see post, at 2364–2366, at least suggests that government contracting norms incompatible with political bias have proliferated without unduly burdening the government. In fact, lowest- and lowest-responsible-bidder requirements have a long history, as a survey of 19th century state constitutions and federal territorial legislation reveals. See, e.g., Ala. Const., Art. IV, § 30 (1875), in 1 Federal and State Constitutions 161 (F. Thorpe ed.1909); Civil Government in Alaska Act, Tit. I, § 2 (1900), in id., at 243; Ark. Const., Art. XIX, §§ 15, 16 (1874), in id., at 366; Colo. Const., Art. V, § 29 (1876), in id., at 485; Del. Const., Art. XV, § 8 (1897), in id., at 631; Permanent Government for District of Columbia Act, § 5 (1878), in id., at 645–646; Ill. Const., Art. III, § 39 (1848), in 2 id., at 991; Ill. Const., Art. IV, § 25 (1870), in id., at 1022; Kan. Const., Art. XVI, § 2 (1858), in *684 id., at 1236; Ky. Const., § 247 (1890), in 3 id., at 1353; La. Const., Art. 42 (1879), in id., at 1447–1478; La. Const., Art. 44 (1898), in id., at 1529; Mich. Const., Art. IV, § 22 (1850), in 4 id., at 1948–1949; Miss. Const., Art. 4, § 107 (1890), in id., at 2102; Mont. Const., Art. V, § 30 (1889), in id., at 2308; Neb. Const., Art. II, § 23 (1866–1867), in id., at 2353; Ohio Const., Art. XV, § 2 (1851), in 5 id., at 2932; Pa. Const., Art. III, § 12 (1873), in id., at 3127; Tex. Const., Art. XVI, § 21 (1876), in 6 id., at 3658–3659; W. Va. Const., Art. VI, § 34 (1872), in 7 id., at 4044; Wis. Const., Art. IV, § 25 (1848), in **2352 id., at 4083; Wyo. Const., Art. III, § 31 (1889), in id., at 4124; see also Ky. Const., § 164 (1890), in 3 id., at 1341 (“highest and best bidder” rule for municipal and local franchise awards); Miss. Const., Art. I, § 5 (1817, 1832), in 4 id., at 2033, 2049 (“[N]o person shall be molested for his opinions on any subject whatsoever, nor suffer any civil or political incapacity, or acquire any civil or political advantage, in consequence of such opinions, except in cases provided for in this constitution”). We are aware of no evidence of excessive or abusive litigation under such provisions. And, unlike the dissent, post, at 2367–2368, we do not believe that a deferentially administered requirement that the government not unreasonably terminate its commercial relationships on the basis of speech or political affiliation poses a greater threat to legitimate government interests than the complex and detailed array of modern statutory and regulatory government contracting rules.

In sum, neither the Board nor Umbehr have persuaded us that there is a “difference of constitutional magnitude,” Lefkowitz, 414 U.S., at 83, 94 S.Ct., at 324, between independent contractors and employees in this context. Independent government contractors are similar in most relevant respects to government employees, although both the speaker's and the government's interests are typically—though not always—somewhat less strong in the independent contractor case. *685 We therefore conclude that the same form of balancing analysis should apply to each.

Because the courts below assumed that Umbehr's termination (or nonrenewal) was in retaliation for his protected speech activities, and because they did not pass on the balance between the government's interests and the free speech interests at stake, our conclusion that independent contractors do enjoy some First Amendment protection requires that we affirm the Tenth Circuit's decision to remand the case. To prevail, Umbehr must show that the termination of his contract was motivated by his speech on a matter of public concern, an initial showing that requires him to prove more than the mere fact that he criticized the Board members before they terminated him. If he can make that showing, 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, 97 S.Ct. 568, 50 L.Ed.2d 471 (1977). The Board will also prevail if it can persuade the District Court that the County's legitimate interests as contractor, deferentially viewed, outweigh the free speech interests at stake. 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 his subsequent contracts with the cities, would be relevant in assessing what remedy is appropriate.

Finally, we emphasize the limited nature of our decision today. Because Umbehr's suit concerns the termination of a pre-existing commercial relationship with the government, we need not address the possibility of suits by bidders or applicants for new government contracts who cannot rely on such a relationship.

*686 Subject to these limitations and caveats, however, we recognize the right of independent government contractors not to be terminated for exercising their First Amendment rights. The judgment of the Court of Appeals is, therefore, affirmed, and the case is remanded for proceedings consistent with this opinion.