Section 1983--First Amendment

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Re: Brief of Appellant: 42 USC § 1983 Application to Employment Dismissal Case

II. The District Court erred in disregarding Mason County District Attorney’s Office involvement with respect to the firing of Mr. Brady, an independent contractor, who was fired in retaliation to his comments criticizing the Mason County District Attorney’s Immigration policy, and in concluding that the Pickering test only protects full-time government employees.

The District Court incorrectly held that the Pickering protections are only meant to protect full-time governmental employees, and not employees of private agencies who may be acting as independent contractors for the government. The United States Supreme Court has clearly established that independent government contractors like Mr. Brady are not to be terminated for exercising their rights under the First Amendment. See Bd. Of County Comm’rs v. Umbehr, 518 U.S. 668, 672 (1996) (declaring “the right of independent government contractors not to be terminated for exercising their First Amendment rights”); see also O’Hare Truck Serv., Inc. v. City of Northlake, 518 U.S. 712, 723 (1996) (“Independent contractors, as well as public employees, are entitled to protest wrongful government interference with their rights of speech.”)

The United States Supreme Court has repeatedly rejected arguments that allege the Pickering test does not extend to independent contractors. The court emphasized that allowing the constitutional claim to turn on a distinction between employees and independent contractors would invite manipulation by government, which would avoid constitutional liability simply by attaching different labels to particular jobs. Bd. Of County Comm’rs v. Umbehr, 518 U.S. at 679.

Given that principle, the District Court was wrong in limiting protection to Brady’s speech. There should be no deferential merely because he was supervised by Arrowmax. The Constitution guards the basic liberties of...
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