Board of Comm'rs, Wabaunsee Cty. v. Umbehr

Background

A local trash hauler had an at-will contract to collect garbage for most towns in Wabaunsee County and repeatedly criticized the county board in meetings and newspapers. After a failed 1990 vote, the county commissioners voted again in 1991 to terminate (or not renew) his contract. The hauler then got new city contracts and sued the two majority commissioners in 1992 under the civil-rights statute, saying they ended his contract in retaliation for his speech.

Reasoning

The District Court had held that independent contractors do not get the same First Amendment protection as public employees. The Tenth Circuit disagreed, and the Supreme Court affirmed the Tenth Circuit. The Court explained that independent contractors fall between ordinary citizens and public employees, so they get some First Amendment protection. The Court said courts must use the Pickering balancing approach—adjusted to weigh the government’s interests as a contractor—to decide if retaliation violated speech rights. If the contractor proves the termination was motivated by protected speech, the government can show it would have made the same decision anyway or that its contracting interests outweigh the speech interest.

Real world impact

The ruling lets independent contractors sue when a government ends an existing contract in retaliation for their speech and requires lower courts to weigh speech interests against practical government contracting needs. The Court limited its decision to termination of pre-existing commercial relationships and did not decide whether bidders or applicants for new contracts have the same protection.

Dissents or concurrances

Justice Scalia’s dissent argued the Court wrongly extended employee-style protections to contracting, warned of increased litigation and disruption to traditional contracting practices, and emphasized historical traditions of patronage.