board county commissioners wabaunsee county kansas umbehr argued november decided june term contract wabaunsee county kansas county haul trash respondent umbehr outspoken critic petitioner board county commissioners board commissioners voted terminate prevent automatic renewal contract allegedly took umbehr criticism badly brought suit two section district granted summary judgment tenth circuit reversed relevant part remanded holding first amendment protects independent contractors governmental retaliation speech extent protection must determined weighing government interests contractor free speech interests stake accordance balancing test applied government employment context pickering board ed township high school dist held first amendment protects independent contractors termination prevention automatic renewal government contracts retaliation exercise freedom speech pickering balancing test adjusted weigh government interests contractor rather employer determines extent protection pp obvious similarities government employees government contractors respect issue guided government employment precedents among things precedents recognized government workers constitutionally protected dismissal publicly privately criticizing employer policies see perry sindermann also acknowledged first amendment guarantee absolute freedom speech see connick myers required deferential weighing government employer legitimate interests employees first amendment rights see pickering supra parties attempts differentiate independent contractors government employees unavailing arguments imposition liability force accommodated applying existing government employee framework moreover application nuanced pickering approach superior brightline rule giving government carte blanche terminate independent contractors exercising speech rights although individual government interests less strong independent contractor case fact contractors similar relevant respects government employees compels conclusion form balancing analysis apply pp neither dissent fears excessive litigation assertion allocation government contracts basis political bias longstanding tradition deprive independent contractors protection description requirements wide range government contracting laws voluntarily adopted federal state authorities suggests government contracting norms incompatible political bias proliferated without unduly burdening government laws long history pp nonrenewal retaliation protected speech activities pass balance government interests free speech interests conclusion independent contractors enjoy first amendment protection requires affirmance tenth circuit decision remand case prevail umbehr must show initially termination contract motivated speech matter public concern see connick supra must therefore prove mere fact criticized board members terminated board valid defense show preponderance evidence light knowledge perceptions policies time termination board members terminated contract regardless speech see mt healthy city bd ed doyle board also prevail demonstrate county legitimate interests contractor deferentially viewed outweigh free speech interests stake see pickering supra umbehr prevails evidence board members discovered facts termination led later termination anyway evidence mitigation loss means subsequent trash hauling contracts cities county relevant assessing appropriate remedy umbehr suit concerns termination nonrenewal commercial relationship government need address possibility suits bidders applicants new government contracts rely relationship pp affirmed remanded delivered opinion respect parts iii rehnquist stevens kennedy souter ginsburg breyer joined opinion respect part stevens kennedy souter ginsburg breyer joined scalia filed dissenting opinion thomas joined notice opinion subject formal revision publication preliminary print reports readers requested notify reporter decisions washington typographical formal errors order corrections may made preliminary print goes press end syllabus board county commissioners county kansas petitioner keen umbehr term contract umbehr outspoken critic petitioner board county commissioners wabaunsee county board governing body county umbehr spoke board meetings wrote critical letters editorials local newspapers regarding county landfill user rates cost obtaining official documents county alleged violations board kansas open meetings act county alleged mismanagement taxpayers money topics allegations violation kansas open meetings act vindicated consent decree signed board members umbehr also ran unsuccessfully election board board members allegedly took umbehr criticism badly threatening official county newspaper censorship publishing writings voted terminate prevent automatic renewal umbehr contract county attempt termination failed technical defect board succeeded terminating umbehr contract vote umbehr subsequently negotiated new contracts five six cities previously served umbehr brought suit two majority board members individual official capacities section alleging terminated government contract retaliation criticism county board board members moved summary judgment district assumed umbehr contract terminated retaliation speech suffered consequential damages held first amendment prohibit board considering umbehr expression factor deciding continue trash hauling contract end contract annual term independent contractor umbehr entitled first amendment protection afforded public employees umbehr mcclure supp also held claims board members individual capacities barred qualified immunity ruling affirmed appeal issue appeals tenth circuit reversed except qualified immunity holding independent contractor protected first amendment retaliatory governmental action employee extent protection determined weighing government interests contractor free speech interests stake accordance balancing test used determine government employees first amendment rights pickering board ed township high school dist therefore remanded official capacity claims district proceedings including consideration whether termination fact retaliatory board members original defendants suit subsequently resigned positions board board substituted petitioner see rule granted certiorari resolve conflict courts appeals regarding whether extent independent contractors protected first amendment fifth eighth circuits agree tenth circuit see blackburn marshall copsey swearingen north mississippi communications jones smith cleburne county hospital cert denied see sweeney bond cert denied see also abercrombie catoosa allowing independent contractor sue termination based speech political activities third seventh circuits however held independent contractor property interest contract government right contract terminated retaliation exercise first amendment freedoms political affiliation participation see horn kean en banc truck northlake reversed post downtown auto parks milwaukee cert denied triad chicago housing cert denied agree tenth circuit independent contractors protected pickering balancing test adjusted weigh government interests contractor rather employer determines extent protection therefore affirm ii precedents long since rejected justice holmes famous dictum policeman may constitutional right talk politics constitutional right policeman mcauliffe mayor new bedford mass recognizing constitutional violations may arise deterrent chilling effect governmental efforts fall short direct prohibition exercise first amendment rights laird tatum modern unconstitutional conditions doctrine holds government may deny benefit person basis infringes constitutionally protected freedom speech even entitlement benefit perry sindermann held government workers constitutionally protected dismissal refusing take oath regarding political affiliation see wieman updegraff keyishian board regents univ state publicly privately criticizing employer policies see perry supra mt healthy city bd ed doyle givhan western line consol school expressing hostility prominent political figures see rankin mcpherson except political affiliation may reasonably considered appropriate job qualification supporting affiliating particular political party see branti finkel see also treasury employees government employees protected undue burdens expressive activities created prohibition accepting honoraria abood detroit bd government employment conditioned making making financial contributions particular political causes protecting first amendment freedoms however acknowledged first amendment create property tenure rights guarantee absolute freedom speech first amendment guarantee freedom speech protects government employees termination speech matters public concern see connick myers speech merely private employment matters unprotected prevail employee must prove conduct issue constitutionally protected substantial motivating factor termination employee discharges burden government escape liability showing taken action even absence protected conduct see mt healthy supra even termination protected speech may justified legitimate countervailing government interests sufficiently strong government employees first amendment rights depend balance interests employee citizen commenting upon matters public concern interest state employer promoting efficiency public services performs employees pickering striking balance concluded government interest achieving goals effectively efficiently possible elevated relatively subordinate interest acts sovereign significant one acts employer waters slip plurality opinion therefore consistently given greater deference government predictions harm used justify restriction employee speech predictions harm used justify restrictions speech public large slip accord treasury employees supra parties invite us differentiate independent contractors employees board urges us extend first amendment rights government employees contractors umbehr joined solicitor general amicus curiae contends proof retaliation contractors political speech government required justify actions narrowly tailored serve compelling state interest parties observe independent contractors general umbehr particular work greater remove government officials government employees board view key feature independent contractor contract give government right supervise control details work done board argues lack control accentuates government need work done someone trusts cf branti supra certain positions government employment implicate need trust award basis party political affiliation justified resort sanction termination unsatisfactory performance umbehr hand argues government interests maintaining harmonious working environments relationships recognized government employee cases attenuated contractor work government workplace interact daily government officers employees also points extent publicly perceived independent contractor government concern political statements confused government political positions mitigated board dissent post retort cost fending litigation potential government contracting practices ossify prophylactic rules avoid potential litigation liability outweigh interests independent contractors typically less financially dependent government contracts government employees arguments imposition liability force accommodated applying existing framework government employee cases independent contractors mt healthy assures government ability terminate contracts long retaliation protected first amendment activity pickering requires deferential weighing government legitimate interests dangers burdensome litigation de facto imposition rigid contracting rules necessitate attentive application mt healthy requirement proof causation substantial deference mandated pickering connick waters government reasonable view legitimate interests per se denial liability board dissent generalization independent contractors may less dependent government government employees see post justify denial first amendment protection contractors tests established government employment cases must judicially administered sensitivity governmental needs first amendment rights must neglected umbehr claim speech threatens government interests contractor less interests employer also inform application pickering test umbehr correct board exercised sovereign power citizen response political speech required demonstrate action narrowly tailored serve compelling governmental interest case government employment cases board exercised contractual power interests public service provider including interest free intensive judicial supervision daily management functions potentially implicated deference therefore due government reasonable assessments interests contractor therefore see reason believe proper application pickering balancing test accommodate differences employees independent contractors ample reason believe nuanced approach recognizes variety interests may arise independent contractor cases superior brightline rule distinguishing independent contractors employees brightline rule proposed board dissent give government carte blanche terminate independent contractors exercising first amendment rights brightline rule leave first amendment rights unduly dependent whether state law labels government service provider contract contract employment contract services distinction best poor proxy interests stake see comment political patronage public contracting chi rev legally relevant distinction exists employees contractors terms either government interest using patronage employee contractor interest free speech cf perry prohibition unconstitutional conditions speech applies regardless public employee contractual claim job determining constitutional claims basis formal distinctions manipulated largely government agencies concerned see logue noting independent contractors often employed perform tasks otherwise performed salaried government employees enterprise consistently eschewed see lefkowitz turley context privilege fail see difference constitutional magnitude threat job loss employee state threat loss contracts contractor cf colorado republican campaign committee federal election commission slip opinion breyer government foreclose exercise first amendment rights mere labels quoting naacp button escobedo illinois declining exalt form substance determining temporal scope sixth amendment protections crowell benson regard must cases constitutional limits invoked mere matters form substance required chicago chicago determining due process law regard must substance form industries kelco disposal concurring part dissenting part applicability provision constitution never depended vagaries state federal law furthermore arguments made parties demonstrate far clear general matter whether balance interests stake favorable government independent contractor cases employee cases unconstitutional conditions precedents span spectrum government employees whose close relationship government requires balancing important free speech government interests claimants tax exemptions speiser randall users public facilities lamb chapel center moriches union free school healy james recipients small government subsidies fcc league women voters much less dependent government like ordinary citizens whose viewpoints matters public concern government legitimate interest repressing first amendment permits neither firing janitors discriminatory pricing state lottery tickets based government disagreement certain political expression independent contractors appear us lie somewhere case government employees closest relationship government unconstitutional conditions precedents involve persons less close relationships government board dissent assertion post decision represents unwarranted extension special protections afforded government employees therefore persuasive examples dissent cites post view stuff principles formed post quoting rutan supra scalia dissenting consider example practice courtroom patronage whereby lected judges owe nomination election party give organization lucrative refereeships trusteeships receiverships often yield legal fees unjustified work required tolchin tolchin victor political patronage clubhouse white house see also wolfinger political machines withered away revisionist thoughts politics similar award gift political supporters guise research grants tolchin supra allocation contracts based contributions resulting compound bribery extortion kickbacks heard costs democracy practice beer politics whereby wholesale liquor licenses issued state traded campaign contributions extortion political support campaign contributions pain branded communist caro power broker robert moses fall new york favorable consideration courts public agencies expected one city clients political attorneys public jobs wolfinger supra question reportedly asked party official businessman reluctant contribute mayoralty campaign look expletive deleted want contract examples cited dissent many involve patronage employment appointments rather contracting cf comment political patronage patronage systems traditionally centered around distribution government jobs emphasis added may suggest abuses power name patronage highly unusual post may also case victims whose speech chilled whose contributions extracted government action often honorable prudent businessmen post quoting heard supra dissent examples establish open unchallenged tradition allocating government contracts basis political less basis disapproval political speech dissent sources note patronage practices report denied disavowed alleged practitioners see wolfinger supra significant secret specialized contexts defense contracting operat atmosphere uninhibited usual challenges representative government tolchin supra many cases illegal see heard supra course agree dissent mere obnoxious ness post criminality make practice unconstitutional however dissent examples covert widely condemned sometimes illegal government action legitimize government discrimination based viewpoint one speech one political affiliations involved sum neither board umbehr persuaded us difference constitutional magnitude lefkowitz independent contractors employees context independent government contractors similar relevant respects government employees although speaker government interests less strong independent contractor case therefore conclude form balancing analysis apply iii finally emphasize limited nature decision today umbehr suit concerns termination commercial relationship government need address possibility suits bidders applicants new government contracts rely relationship subject limitations caveats however recognize right independent government contractors terminated exercising first amendment rights judgment appeals therefore affirmed case remanded proceedings consistent opinion ordered justice scalia justice thomas joins dissenting taken together today decisions board waubansee cty umbehr ante truck service northlake ante demonstrate process called reasoned adjudication formalistic sense today addition another justice believes basis proscribing unconstitutional practices violate explicit text constitution regarded constitutional ever since framing see bennis michigan slip thomas concurring one think inconceivable elrod branti extended far beyond rutan massive field government contracting yet amazingly two lopsided votes profoundly disturbing varying political practices across vast country coast coast transformed overnight institution whose conviction constitution means fickle basic reason dissent today one reasons gave one joined justice rutan hen practice expressly prohibited text bill rights bears endorsement long tradition open widespread unchallenged use dates back beginning republic proper basis striking venerable accepted tradition laid examining table scrutinized conformity abstract principle first amendment adjudication devised contrary traditions stuff principles formed uncertain areas points reference legitimacy illegitimacy practices figured appears latest rule test balancing test devised placed us collision course landmark practice former must recalculated us latter must abandoned citizens know way formulate constitutional jurisprudence reflects principles adhered time american people rather favored personal necessarily shifting philosophical dispositions majority rutan supra scalia dissenting omitted case today observes long since rejected justice holmes famous dictum policeman may constitutional right talk politics constitutional right policeman umbehr ante quoting mcauliffe mayor new bedford mass see ante quoting activist also repeatedly rejects important aphorism justice holmes expresses fundamental philosophy inseparable part approach constitutional law case challenging constitutionality federal estate tax ground unapportioned direct tax violation article section justice holmes wrote matter disposed attempt make scientific distinction least difficult interpretation language traditional practical historical ground kind tax always regarded antithesis direct tax upon point page history worth volume logic new york trust eisner emphasis added ii decision enter field justified consideration ever justification democratic institutions government paying adequate attention problems presents american people evidently decided political influence government contracting like many things entirely constitutional entirely desirable set passing laws prohibit instances consequence government contracting subject extraordinary number laws regulations federal state local levels similar systems detailed statutes regulations exist throughout addition various statutes criminalizing bribes government officials forms public corruption enacted legislation imposing competitive bidding requirements various types contracts government government contracting standard area state regulation model procurement code developed set forth book complete proposed statutes regulations explanations see aba section urban state local government law model procurement code state local governments enacted legislation based model code see aba section urban state local government law annotations model procurement code ed statutes cited local jurisdictions also adopted legislation based model procurement code see ix thousands counties municipalities time devised measures new york city example ach year enter approximately contracts worth almost billion regulated public contracting process myriad codes regulations seek assure scrupulous neutrality choosing contractors consequently impose multiple layers investigation accountability anechiarico jacobs purging corruption public contracting solutions part problem rev hereinafter anechiarico jacobs examples federal state local statutes codes ordinances regulations multiplied fill many volumes way government contracts regulated way public policy problems arise area addressed since founding republic see federal procurement regulations policy practice procedures describing history federal government procurement regulation laws regulations brought field degree discrimination discernment predictability achieved blunt instrument constitutional prohibition title code federal regulations contain pages make fine distinctions permitting certain actions government acquisition areas prohibiting others similarly many competitive bidding statutes cited contain exceptions simply written include contracts particular dollar amount covering certain subject matters political unit decision enact contracting regulations suspend regulations certain circumstances amounts decision permit degree political favoritism shall discuss shortly umbehr first amendment permits least none known litigation iii possible dig cleats point end holding first amendment requires city chicago potholes republican wards democratic defensible point termination indefensible exercise public employment public employee always individual public employee highest political level exempt elrod virtually always individual rich termination denial public job termination denial livelihood public contractor hand usually corporation contract loses rarely entire business even indispensable part entire business judge posner put although business firms sell government government contractors also private customers contractor get particular government contract bids outs incumbent state laws requiring award contract low bidder laws enforced end world government entities bid private ones well like losing job lafalce houston opinion shrugs concern response reason believe governments bear like burden employment context defending suits alleging denial first amendment freedoms public contractors ante burden suggested likely much greater employment context relevant question one rejects history determinant simply whether governments bear whether inconvenience bearing outbalanced degree abridgment supposed first amendment rights corporate shareholders part occur burden imposed umbehr dismisses risk litigation analogy employment context analogy many laws type discussed aware says evidence excessive abusive litigation provisions umbehr ante sure aware evidence existed fact litigation nonexcessive conveniently imprecise term provisions scant indication nonexcessive first amendment uncertainty breeds litigation laws clear detailed whether violated typically easy ascertain contract put bid umbehr new first amendment contrast requires sensitive balancing case factual question whether political affiliation disfavored speech reason award loss contract usually litigable short experience laws little predictive value additionally asserts line drawn employment independent contracting applicability provision constitution never depended vagaries state federal law umbehr ante quoting industries kelco disposal concurring part dissenting part see also umbehr ante citing cases state law frequently plays dispositive role issue whether constitutional provision applicable fact invented first amendment right fired political views litigation field government employment revolved around fourteenth amendment due process clause asked whether firing deprived plaintiff property interest without due process property interest entitled fourteenth amendment protection roperty interests said created constitution rather created dimensions defined existing rules understandings stem independent source state law law texas teacher respondent position contractual claim job tenure respondent federal constitutional claim defeated perry sindermann internal quotation marks citation omitted see also mt healthy city bd ed doyle whether government entity possesses eleventh amendment immunity depends least part upon nature entity created state law spoken thus far though problem involved practical one though best possible worlds judicial system resources governmental entities manage desirable individual suffer disadvantage whatever hands government solely political denial employment refusal contracts discrimination social programs even potholes believe first amendment guarantees say believe whatever like subject exceptions obscenity fighting words without going jail fined guarantee beyond simple question assumes ability discourage eccentric views mild means historically employed set face may well important social cohesion take uncomfortable example real life organization shall call white aryan supremacist party though organization involved actual incident mind undoubtedly entitled constitution maintain propagate racist antisemitic views department housing urban development lets contracts private security forces maintain law order units public housing must really treat bidder others may determine views organization political views wishes subsidize public funds political views wishes hold exemplar law residents public housing state local regulation described earlier takes account reality even requirements applicable far always almost invariably require contract awarded lowest bidder lowest responsible bidder word responsible important word lowest cohen public construction contracts law interpreted permit elected officials exercise political discretion new york courts example upheld agency refusals award contract low bidder contractor technically financially capable morally responsible anechiarico jacobs leading case picone new york misc sup cty stated determining whether lowest bidder particular contract lowest responsible bidder new york city officials permissibly considered whether bidder possessed integrity moral worth new jersey similarly said settled legislative mandate bidder responsible embraces moral integrity surely embraces capacity supply labor materials trap rock industries kohl future presumably permitted disfavored moral views bidder never verbalized otherwise first amendment produce entitlement contract least guarantee lawsuit treading area left realm law entered domain political science rutan scalia dissenting judge posner rightly perceived issue today disposes like textbook exercise logic raises profound questions political science exceed judicial competence answer lafalce houston iv decision umbehr appears improvement trilogy one sense rutan recent decisions provided government justify patronage employment practices proved patronage narrowly tailored vital governmental interests rutan supra four us dissent explained hat standard finds support cases argued new constitutional right invented criterion violation test announced pickering board ed township high school dist rutan supra scalia dissenting thus appears happy development umbehr explicitly rejects suggestion urged umbehr amicus curiae proof retaliation contractors political speech government required justify actions narrowly tailored serve compelling state interest umbehr ante accord ante instead holds pickering balancing test adjusted weigh government interests contractor rather employer determines extent independent contractors protection first amendment ante pickering balancing course requires assessment government contractor interests pickering progeny involve post hoc analysis one employee speech impact employee public responsibilities treasury employees slip see also slip concurring judgment part dissenting part pickering requires application rankin mcpherson connick myers pickering board ed township high school dist clear opinion umbehr anticipates deferential weighing government legitimate interests ante emphasis added accords eference government reasonable assessments interests contractor ante emphasis removed uch nuanced approach umbehr says recognizes variety interests may arise independent contractor cases superior brightline rule ante sets umbehr however rips part iii latter opinion makes application first amendment facts case found single reference pickering see ante indeed quite astonishing concludes need inquire government interests patronage contracting may generally much less particular case elrod branti establish patronage justify coercion person political beliefs associations ante leaving aside coercion assertion obviously contradicts need balancing announced companion umbehr decision rejection balancing evident elsewhere rejects irrelevant seventh circuit observation lafalce houston contractors elect curr favor diverse political parties ground fact hat citizens thus find way mitigate governmental overreaching refrain complaining excuse wrongs done exercise rights ante whether government action issue wrong precisely issue case thought per umbehr determined balancing one thought two opinions products courts last resort two different legal systems presenting fertile material course freedom speech single paragraph veritable deus ex machina legal analysis reconciles irreconcilable penultimate paragraph portion opinion sets forth general principles law governing case see ante advises henceforth freedom speech alluded bill rights divided two categories right free speech apply balancing test pickering since right free speech presumably exhaust free speech clause political affiliation apply rigid rule elrod branti least says advantage confining inquiry political affiliation alone concerned one beliefs allegiances subject probing testing government ante frankly advantage discern novel distinction provides explanation matter difficult grasp two opinions issue day raises many questions right free speech category come play contractor republican says republican point course fatal need probing testing allegiance disappears right free speech issue goes still says believe principles set forth republican platform perhaps one must decide whether rubicon right free speech protected political affiliation crossed basis contracting authority motivation matter whether contractor says republican even says believes republican platform long reason disfavored simply whatever says believes republican analysis change perhaps contracting authority really nothing republicans ca stand people believe republican platform stands except perhaps change contractor never actually said perhaps never actually said believed republican platform many variations provide endless diversion courts appeals one sanguine believe facts involving right free speech facts involving political affiliation actually segregated separate categories arises course problem involved one expect rigid test elrod nonbalancing prevail certainly happens elsewhere law one categorically liable defamatory statement liable threatening statement places subject immediate fear physical harm utterance combines sir shall punch lying mouth least defamatory portion categorically actionable however new first amendment law told specific instances employee speech expression require balancing pickering context intermixed political affiliation requirement balancing rather categorical liability result ante confusion enough explanatory paragraph makes doubly sure setting forth comprehensible rule adding immediately description elrod rather pickering balancing test applies political affiliation cases following true hand inquiry whether affiliation requirement reasonable one inevitable adjudication required even political affiliation test government imposed ante said rutan hat means anybody guess scalia dissenting worse still learn conduct balancing may perhaps includ ed among many cases require balancing one intermixed cases discussed paragraph immediately ante one inclined ask conduct balancing answer contained next brief paragraph opinion appeals based understanding pleadings considered simply affiliation case held based circuit precedent constitutional protection one simply outside contractor consider case terms disagree appeals conclusion ante unless course pickering balancing never support granting motion dismiss proposition today opinion total confusion must stand nothing else explains assert intermixed case requires pickering balancing acknowledge complaint may set forth intermixed case yet reverse dismissal without determining whether complaint set forth intermixed case proceeding conduct least preliminary pickering balancing course reason principle particular issue consequence making given burdens discovery say nothing trial make litigation subject even useful device harassment weapon commercial competition must acknowledged however proceeding way present case one unquestionable advantage leaves entirely district clean without guidance assistance us mess figure whether saying vote paxson paxson hack paxson project municipal stadium wasteful whatever else gratzianna campaign posters might said removes case political affiliation clause constitution places within right free speech clause one final observation sweep today holdings opinion umbehr swallowed camel first amendment extension contracting penultimate paragraph demonstrates judicial conservatism ostentatiously straining following gnat finally emphasize limited nature decision today umbehr suit concerns termination commercial relationship government need address possibility suits bidders applicants new government contracts rely relationship umbehr ante facts umbehr course involved termination nothing vague commercial relationship government board commissioners terminated umbehr contract fuzzier terminology used presumably involve termination contract far appears paid promised anything placed list operators offered individual contracts came company right sue city failed call city right sue company turned offered tow short might called infinity things might called commercial relationship city one operators regularly called quoted statement umbehr invites bar believe therefore declined draw line first amendment liability short firing government employment elrod branti short nonhiring government employment rutan short termination government contract umbehr short denial government contract someone commercial relationship government may take firm stand extending constitution every little thing comes denying government contract someone commercial relationship likely fact even believable begun make habit disclaiming natural foreseeable jurisprudential consequences pathbreaking opinions major step abridgment people right govern portrayed extremely limited indeed sui juris romer evans slip op announced last month asserted colorado constitutional amendment issue distinctive defies conventional inquiry confounds normal process judicial review virginia ante announced two days ago purported address specifically educational opportunity recognized district appeals unique cases announced today emphasize limited nature decision umbehr ante people deceived present sits major undemocratic restructuring national institutions mores constantly progress say hard cases make bad law cases today set blood boiling arrogance seem display part elected officials shall american system justice let insolent politicians get away one tends forget heard plaintiffs tale suits dismissed trial facts recites opinions assume truth allegations made preliminary evidence presented plaintiffs idea whether allegations true true certainly highly unusual elected officials thrive arrogance every extreme case sort alleged expect thousands contracts awarded favoritism basis one get excited democratic mayor gives city municipal bond business known solid democratic law away solid republican law firm business previous republican administration else new declines give construction contract new municipal stadium company opposed bond issue construction fact tried get stadium built across river next state else expect awards cable monopoly entirely responsible local company always good citizen means supported money personal efforts management civic initiatives vast majority electorate favor though oppose hooray favoritism happens time american political life one ever thought first amendment constitution must living another world day day case case busy designing constitution country recognize depending upon today cases one chooses consider authoritative either thrown vast numbers practices routine american political life order get rid bad apples umbehr purpose mind subjected routine practices endless uncertain litigation dissent footnotes chief justice joins part opinion board also asserts state local government decisions individual contracts insulated tenth amendment legislative immunity constitutional scrutiny liability see brief petitioner tenth amendment claim raised petition address see rule claims board members official capacities us immunity suit section extends public servants individual capacities see leatherman tarrant county narcotics intelligence coordination unit legislative immunity claim moot see code section section section supp alaska stat ann section rev stat ann section ark code ann section cal pub cont code ann section west supp cal pub util code ann section west cal rev tax code ann section west supp rev stat section supp stat section supp del code tit section tit section stat section supp section supp code ann section section supp haw rev stat section supp idaho code section section supp section section section idaho sess laws ch comp ch section ch section ch section supp ind code section supp iowa code section stat ann section supp section supp sess laws rev stat ann section baldwin la rev stat ann section west rev stat tit section md ann code art section supp md laws ch art section supp md nat res code ann section supp mass laws ch section supp comp laws ann section west supp stat section supp miss code ann section section supp mo rev stat section supp mont code ann section neb rev stat section rev stat section rev stat ann section section vi supp section stat ann section west stat ann section alt county govt law section mckinney mun law section mckinney supp stat section section cent code section supp ohio rev code ann section section okla tit section tit section tit section rev stat section cons stat section supp laws section supp code ann section supp codified laws section section supp section section section code ann section supp tex educ code ann section tex loc govt code ann section supp utah code ann section stat tit section code ann section rev code section supp code section stat section supp section supp wyo stat section see section certain federal contracting laws rendered inapplicable contract subcontract greater cal pub cont code ann section west supp requirement certain goods materials applicable contracts involving annual expenditure fifty thousand dollars comp ch section requirement certain construction contracts applicable contracts mun law section mckinney supp covering contracts less purchase contracts less codified laws section supp requiring competitive bidding process certain contracts involv ing expenditure thousand dollars texas local govt code ann section supp applying contract require expenditure exceeding see idaho code section stat ann section ohio rev code ann section supp okla tit section utah code ann section see del code tit section stat section supp stat section rev stat ann section code ann section makes brief attempt minimize seriousness litigation concern pointing amicus brief filed behalf respondents position represents six years since opinion rutan suits alleging first amendment violations employment decisions filed illinois state officials ante fact brief said least eighteen cases brief illinois state officials amici curiae emphasis added includes suits state officials officials illinois counties even numerous municipalities statistics pertain employment suits discussed contracting suits much numerous also says found reported case tenth circuit involving first amendment patronage claim independent contractor six years since appeals first recognized claims see abercrombie catoosa ante respect abercrombie discussed issue two short paragraphs obscure case even district umbehr located tenth circuit cite though discussed cases jurisdictions umbehr mcclure supp tenth circuit reversed district basis noted simply assumed independent contractor assert first amendment retaliation claim given little reasoning matter merely suggested without analysis emphasis added abercrombie short muffled clarion even courts hear much less public large see cal pub cont code ann section west supp comp ch section ch section mun law section mckinney supp dissenters rutan republican party agreed greatly exaggerates constraints entailed patronage call coercion since generally make distinction inducement compulsion public official offered bribe coerced violate law private citizen offered patronage job coerced work party scalia dissenting