Board of County Commissioners, Wabaunsee County, Kansas v. Umbehr

Summary

The Court, in an opinion by Justice O'Connor, held that independent government contractors receive First Amendment protection against retaliatory termination or nonrenewal of existing contracts. The Pickering balancing test applies, adjusted to consider the government's interests as contractor rather than employer. The Court affirmed the Tenth Circuit and remanded for consideration of causation, the government's defenses, and the competing interests; it reserved whether applicants for new contracts receive similar protection. Chief Justice Rehnquist joined all but Part II–B-1, and Justices Stevens, Kennedy, Souter, Ginsburg, and Breyer joined the entire opinion. Justice Scalia, joined by Justice Thomas, dissented, arguing that historical practice did not support constitutional restrictions on patronage contracting, that regulation should remain with elected institutions, and that the Court's approach would generate costly and uncertain litigation.