NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued. The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Lumber Co., 200 U.S. 321, 337.




certiorari to the united states court of appeals for the seventh circuit

No. 95-191. Argued March 20, 1996 -- Decided June 28, 1996

Respondent city maintains a rotation list of available companies to perform towing services at its request. Until the events recounted here, the city's policy had been to remove companies from the list only for cause. Petitioner O'Hare Truck Service, Inc., was removed from the list after its owner, petitioner Gratzianna, refused to contribute to respondent mayor's reelection campaign and instead supported his opponent. Alleging that the removal was in retaliation for Gratzianna's campaign stance and caused petitioners to lose substantial income, petitioners filed this suit under 42 U.S.C. § 1983. The District Court dismissed the complaint in conformity with Seventh Circuit precedent that Elrod v. Burns, 427 U.S. 347 (plurality opinion), and Branti v. Finkel, 445 U.S. 507--in which the Court held that government officials may not discharge public employees for refusing to support a political party or its candidates, unless political affiliation is an appropriate requirement for the job in question--do not extend to independent contractors. The Seventh Circuit affirmed.

Held: The protections of Elrod and Branti extend to an instance 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. Pp. 3-14.

(a) In assessing when party affiliation, consistent with the First Amendment, may be an acceptable basis for terminating a public employee, "the ultimate inquiry is not whether the label `policymaker' or `confidential' fits a particular position; rather, 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." Branti, supra, at 518. A different, though related, inquiry, the balancing test from Pickering v. Board of Ed. of Township High School Dist. 205, Will Cty., 391 U.S. 563, is called for where a government employer takes adverse action on account of an employee or service provider's right of free speech. In Elrod and Branti, the raw test of political affiliation sufficed to show a constitutional violation. However, since the inquiry is whether the affiliation requirement is reasonable, it is inevitable that some case by case adjudication will be required even where political affiliation was the test the government imposed. The analysis will also accommodate cases where instances of the employee's speech or expression are intermixed with a political affiliation requirement. Pp. 3-7.

(b) Despite respondents' argument that the principles of Elrod and Branti have no force here because an independent contractor's First Amendment rights, unlike a public employee's, must yield to the government's asserted countervailing interest in sustaining a patronage system, this Court cannot accept the proposition that those who perform the government's work outside the formal employment relationship are subject to the direct and specific abridgment of First Amendment rights described in petitioners' complaint. The government may not coerce support in the manner petitioners allege, unless it has some justification beyond dislike of the individual's political association. As respondents offer no other justification for their actions, the complaint states a First Amendment claim. Allowing the constitutional claim to turn on a distinction between employees and independent contractors would invite manipulation by government, which could avoid constitutional liability simply by attaching different labels to particular jobs, Board of Comm'rs, Wabaunsee County v. Umbehr, ante, at ___. Accord, Lefkowitz v. Turley, 414 U.S. 70. Respondents present no convincing data to support their speculation that a difference of constitutional magnitude exists because independent contractors are less dependent on the government for income than employees are. There is little reason to suppose that a decision in petitioners' favor will lead to numerous lawsuits. While government officials may terminate at will relationships, unmodified by any legal constraints, without cause, it does not follow that this discretion can be exercised to impose conditions on expressing, or not expressing, specific political views, see Perry v. Sindermann, 408 U.S. 593, 597. In view of the large number of legitimate reasons why a contracting decision might be made, fending off baseless First Amendment lawsuits should not consume scarce government resources. If the government terminates its affiliation with a service provider for reasons unrelated to political association, Mt. Healthy City Bd. of Ed. v. Doyle, 429 U.S. 274, 287, as, for example, where the provider is unreliable, or if the service provider's political "affiliation is an appropriate requirement for the effective performance" of the task in question, Branti, supra, at 518, there will be no First Amendment violation. The absolute right to enforce a patronage scheme as a means of retaining control over independent contractors and satisfying government officials' concerns about reliability has not been shown to be a necessary part of a legitimate political system in all instances. This was the determination controlling the Court's decisions in Elrod, supra, at 365-368, 372-373, and Branti, supra, at 518-520. There is no basis for rejecting that reasoning in this context and drawing a line excluding independent contractors from the First Amendment safeguards of political association afforded to employees. Pp. 7-13.

(c) The lower courts, upon such further proceedings as are deemed appropriate, should decide whether the case is governed by the Elrod Branti rule or by the Pickering rule. P. 13.

47 F. 3d 883, reversed and remanded.

Kennedy, J., delivered the opinion of the Court, in which Rehnquist, C. J., and Stevens, O'Connor, Souter, Ginsburg, and Breyer, JJ., joined. Scalia, J., filed a dissenting opinion, in which Thomas, J., joined.