John Rosenberg points to a Detroit Free Press article by a columnist who says that
Establishment opposition has also hampered the initiative’s efforts to find legal counsel. Most of the lawyers who specialize in state constitutional law work for firms affiliated with one of the two parties, and law firms who work for the University of Michigan have been put on notice that assisting Connerly’s campaign could jeopardize their firm’s business relationships with U-M.
If this allegation is correct, then it seems likely (not certain but likely) that U of M would be violating the First Amendment. Under Board of Commissioners v. Umbehr (1996), the government may no more discriminate against contractors based on their political advocacy than it may fire employees based on the employees’ political speech. The government does have some power to fire employees or retaliate against contractors if the employees’ or contractors’ speech interferes with the efficiency of the government operation (for instance, if it causes a substantial amount of dissension within the workplace, or jeopardizes confidential relationships). But it may not retaliate simply because it disapproves of the political position that the employee or contractor has taken, or the laws that the employee or contractor is trying to promote. Moreover, while Umbehr said it was limited to decisions about whether to terminate or to fail to automatically renew a contract, the analogy to government employees suggests that the same rule should apply to decisions about not entering into a contract in the first place, or refusing to renew a contract where the renewal wouldn’t have otherwise been automatic.
So, as I said, it’s not clear that there’s a First Amendment violation here: The government, whether as employer or as contractor, has considerable latitude in terminating employees or contractors whose speech jeopardizes the government’s efficiency. But when the speech is advocacy of a ballot measure (or, I would say, legal support for groups that advocate a ballot measure), then the government would have to show some really serious disruption that the speech causes. Absent some such evidence, which I doubt would be present here, the U of M’s action would be unconstitutional.
UPDATE: The original version of the post erroneously asserted that U of M’s president is Lee Bollinger, is a noted First Amendment scholar — reader Aaron Hill, however, pointed out that I was behind the times: Bollinger is apparently now president of Columbia.
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