explaining that plaintiffs’ equal protection and First Amendment claims “coalesce[d]” where plaintiffs alleged, among other things, that “[t]he defendant has deprived the plaintiffs of equal protection of the laws to punish them for exercising rights protected by the First Amendment”
How later courts described this case
- explaining that plaintiffs’ equal protection and First Amendment claims “coalesce[d]” where plaintiffs alleged, among other things, that “[t]he defendant has deprived the plaintiffs of equal protection of the laws to punish them for exercising rights protected by the First Amendment”
- finding that defendant’s deci sion not to consider plaintiffs for certain positions, even if premised only on the fact that plaintiffs spoke out publicly about defendant’s official conduct, would not be irrational
- holding that the plaintiffs’ First Amendment and equal protection claims coalesced because the alleged deprivation of equal protection was “punish[ment]” for plaintiffs’ exercise of their First Amendment rights
- finding that “plaintiffs’ factual allegations throughout the case require the conclusion that their equal protection claim [based on retaliation for political speech] and their First Amendment claim coalesce”
Written by the judges who cited it.
The opinion
KATZMANN, Circuit Judge,
concurring:
I concur in most respects with the thoughtful majority opinion but write separately to explain that it is not the absence of a decision by this court that leads me to conclude that the plaintiffs First Amendment claims must be dismissed on qualified immunity grounds. The decisive factor for me was the Supreme Court’s particular emphasis in Board of County Commissioners v. Umbehr, 518 U.S. 668 , 116 S.Ct. 2342 , 135 L.Ed.2d 843 (1996) that it was not considering whether the First Amendment right against retaliation protects contractors bidding for a state contract. Absent this language, I would have concluded that such a right was clearly established because its contours are foreshadowed by prior Supreme Court decisions. See, e.g., Rodriguez v. Phillips, 66 F.3d 470, 479 (2d Cir.1995) (“[W]e need only determine whether pre-existing law sufficiently foreshadows the direction it will take such that government officials have reasonable notice of the illegality of their actions.”).
While this Circuit has not explicitly extended First Amendment protection to contractors who are bidding for a contract, logic and Supreme Court precedent strongly suggest that the state may not retaliate against such contractors for speaking out on issues of public concern. Independent contractors applying for a contract are in a similar situation to applicants for government employment who are clearly protected by the First Amendment. 1 In the public employment context, the state “may not deny a benefit [such as public employment] to a person on a basis that infringes his constitutionally protected interests — especially, his interest in freedom of speech.'... regardless of the public employee’s contractual or other claim to a job.” Perry v. Sindermann, 408 U.S. 593, 597 , 92 S.Ct. 2694 , 33 L.Ed.2d 570 (1972). Thus, conditioning hiring decisions for government positions based on an applicant’s political beliefs violates the First Amendment. See, e.g., Rutan v. Republican Party of Illinois, 497 U.S. 62, 78 , 110 S.Ct. 2729 , 111 L.Ed.2d 52 (1990) (“Under our *365 sustained precedent, conditioning hiring decisions on political belief and association plainly constitutes an unconstitutional condition, unless the government has a vital interest in doing so.”) (citations omitted).
It would be anomalous to have a system where applicants for government jobs are protected by the First Amendment while applicants for government contracts are not. The Supreme Court has generally agreed with this common sense proposition and has acknowledged that there is no reason that a First Amendment retaliation claim “should turn on the distinction” between government employees and independent contractors. O’Hare Truck Serv., Inc. v. City of Northlake, 518 U.S. 712, 722 , 116 S.Ct. 2353 , 135 L.Ed.2d 874 (1996).
An argument could be made that First Amendment protection should not apply to contractors such as the plaintiffs because the government has a greater need for flexibility in its decisionmaking when it awards contracts than when it hires permanent employees. But it could also be contended that the need for flexibility is greater with respect to employment decisions. The government arguably takes on a greater commitment when it hires an employee with an indefinite tenure than when it hires a contractor whose tenure only lasts as long as the contract. Moreover, the Supreme Court has generally rejected the view that First Amendment suits would place an undue burden on the government’s ability to contract. See O’Hare, 518 U.S. at 725, 116 S.Ct. 2353 (“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.”).
The facts of this case illustrate the difficulty of drawing a distinction between independent contractors and government employees. The plaintiffs sought to be Connecticut’s trade representative to African countries. While technically an independent contractor position, in substance, this position may not be substantially different from an employment opportunity with the state. In this circumstance, it is difficult to fathom why the First Amendment would allow a state official to retaliate against the plaintiffs for speaking out on a matter of public concern because the job is technically an independent contract when it is clear that such retaliation would be impermissible under the First Amendment if the job entailed an employment contract. I do not think that the First Amendment supports such a fine distinction.
. In Umbehr, the Supreme Court noted that it generally looks to its First Amendment cases involving government employees for guidance in First Amendment cases involving independent contractors. Id. at 674, 116 S.Ct. 2342 .