Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
Some of the earliest unconstitutional conditions cases involving free speech arose in the public employment context. Perry v. Sindermann, a 1972 case, involved a state college’s decision not to renew the contract of a professor who had publicly criticized the college administration’s policies.1 The Supreme Court held that, even though the professor did not have a “contractual or tenure right to re-employment,” he could still contend that the college impermissibly retaliated against him for exercising his First Amendment rights.2 The Court reasoned that “if the government could deny a benefit to a person because of his constitutionally protected speech or associations, his exercise of those freedoms would in effect be penalized and inhibited,” thus allowing the government to “'produce a result which [it] could not command directly.’” 3
The Court reiterated its skepticism of “indirect” constraints on freedom of speech in its 1976 decision in Elrod v. Burns. In Elrod, the Court ruled unconstitutional a county sheriff’s practice of firing non-policymaking employees solely because of their political party affiliation after a change in leadership.4 Writing for a plurality of the Court, Justice Brennan reasoned that the “threat of dismissal” for failure to support “the favored political party” “unquestionably inhibits protected belief and association.” 5 Like the Perry Court, the Elrod plurality rejected the “notion that because there is no right to a government benefit, such as public employment, the benefit may be denied for any reason.” 6 Instead, it concluded that the government cannot use an indirect means (i.e., the benefit of public employment) “to achieve what it may not command directly” (i.e., support for a particular political party).7 While acknowledging the long history of patronage politics in America,8 the plurality evaluated the dismissal practice under the “exacting” scrutiny standard used to judge the validity of other “significant impairment[s]” of free speech rights.9 If patronage dismissal was to “survive constitutional challenge,” Justice Brennan wrote, “it must further some vital government end by a means that is least restrictive of freedom of belief and association.” 10 The plurality rejected the argument that patronage dismissals further “government effectiveness and efficiency.” 11 While acknowledging that the practice might foster “political loyalty” or preserve aspects of the democratic process, the plurality concluded that the practice was not narrowly tailored to achieve these ends.12
Following Elrod, the Court clarified in Branti v. Finkel that “the ultimate inquiry” in evaluating a patronage dismissal “is not whether the label ‘policymaker’ or ‘confidential’ fits a particular position.” 13 Instead, “the question is whether the hiring authority can demonstrate that party affiliation is an appropriate requirement for the effective performance of the public office involved.” 14 In the case of an assistant public defender, the Court found it “manifest” that the attorney’s continued employment could not “properly be conditioned upon his allegiance to the political party in control of the county government.” 15 The Court reasoned that the “primary, if not the only, responsibility of an assistant public defender is to represent individual citizens in controversy with the State” —a duty untethered to “partisan political interests.” 16
The Court extended the reasoning of Elrod and Branti to other forms of political patronage decisions in Rutan v. Republican Party of Illinois.17 The Rutan Court held that a state governor’s office could not constitutionally base “promotion, transfer, recall [after a layoff], and hiring decisions involving low-level public employees . . . on party affiliation and support.” 18 The Court concluded that, like patronage dismissals, these practices significantly infringed public employees’ First Amendment rights.19 The Court then held that the political patronage practices were not “narrowly tailored to further vital governmental interests.” 20 Citing less speech-restrictive alternatives, the Court reasoned that a “government’s interest in securing effective employees can be met by discharging, demoting, or transferring staff members whose work is deficient,” and its “interest in securing employees who will loyally implement its policies can be adequately served by choosing or dismissing certain high-level employees on the basis of their political views.” 21
- Perry v. Sindermann, 408 U.S. 593, 595 (1972).
- Id. at 596–98 (reaffirming the holdings of Shelton v. Tucker, 364 U.S. 479 (1960) and Keyishian v. Board of Regents, 385 U.S. 589 (1967)).
- Id. at 597 (quoting Speiser v. Randall, 357 U.S. 513, 526 (1958)). The Court remanded the case for consideration of whether the college, in fact, declined to renew the professor’s contract on an “impermissible basis” and whether due process entitled the professor to a hearing on the grounds for the college’s decision. Id. at 598, 603.
- Elrod v. Burns, 427 U.S. 347, 353 (1976) (plurality opinion); see also id. at 374–75 (Stewart and Blackmun, JJ., concurring in the judgment) ( “The single substantive question involved in this case is whether a nonpolicymaking, nonconfidential government employee can be discharged or threatened with discharge from a job that he is satisfactorily performing upon the sole ground of his political beliefs. I agree with the plurality that he cannot.” ).
- Id. at 359 (plurality opinion).
- Id. at 360.
- Id. at 361.
- Id. at 362.
- Id. (citing Buckley v. Valeo, 424 U.S. 1, 64–65 (1976); NAACP v. Alabama, 357 U.S. 449, 460–61 (1958)).
- Id. at 363.
- Id. at 364–66.
- See id. at 367, 369.
- Branti v. Finkel, 445 U.S. 507, 518 (1980).
- Id. at 519.
- Id. at 519.
- Rutan v. Republican Party of Ill., 497 U.S. 62, 79 (1990); see also O’Hare Truck Serv. v. City of Northlake, 518 U.S. 712, 726 (1996) (extending “the protections of Elrod and Branti” to situations “where government retaliates against a contractor, or a regular provider of services, for the exercise of rights of political association or the expression of political allegiance” ).
- Rutan, 497 U.S. at 65.
- Id. at 73.
- Id. at 74.
- Id.; see also id. at 78 (finding no “vital” governmental interest in patronage hiring practices for the same reasons).