William & Mary Bill of Rights Journal
Board of County Commissioners v. Umbehr: The Inadequacies of Extending Pickering Analysis to Government Contractors
This Note challenges the restrictive First Amendment free speech protection that the Supreme Court gave to government contractors in Board of County Commissioners v. Umbehr when it applied the Pickering balancing test, developed nearly thirty years ago in Pickering v. Board of Education in the context of government employees. It does so by first questioning whether the First Amendment free speech protections given to government employees should be similar for government contractors. It then explores whether the Pickering balancing test should be applied to cases involving government contractors as it was in Umbehr.
The author concludes that the Court improperly restricted the First Amendment free speech rights of government contractors by failing to take into account the numerous modifications the Court has made to the Pickering balancing test that have gradually eroded the broader protections of Pickering and by failing to account for the potentially significant differences between public employees and government contractors. The author thus proposes a new test that would both incorporate the Court's views regarding the free speech rights of government employees and account for the potentially significant differences between public employees and government contractors.