Americans prize the First Amendment as the cornerstone of a free society and even relish the idea of being able to speak their minds about public officials. But that doesn’t mean a rodeo clown banned for life from performing at the Missouri State Fair after a controversial act has a First Amendment claim against the fair commission.
The clown, Tuffy Gessling, was performing Aug. 10 in the rodeo at the state fair in Sedalia. He entered the ring before the bull-riding event wearing a mask of President Barack Obama and with a broom stuck up the back of his shirt. A voice heard over the sound system asked “if anyone would like to see Obama run down by a bull,” according to fairgoer Perry Beam, who posted this account on his Facebook page.
“The crowd went wild. He asked it again and again, louder each time, whipping the audience into a lather,” Beam continued.
Beam’s report, along with photos and video, quickly set the Twittersphere ablaze.
After politicians on both sides of the aisle soundly condemned the act, Missouri State Fair officials banned Gessling from performing at the fair for life and required the Missouri Rodeo Cowboy Association to make available for review all acts before they are performed at the fair.
The association announced on its website that it will take no further action against Gessling.
Gessling has apologized a few times on his personal Facebook page, which has recently seen in influx of more than 1,900 friends. His supporters have created a fan page on Facebook — “Support Tuffy Gessling, Professional Rodeo Entertainer” — where they argue Gessling shouldn’t be punished for speaking his mind.
“As blunt and crass as the whole thing may have been, it’s kind of core political protest,” Washington University law professor Greg Magarian said in a telephone interview. “This isn’t just somebody randomly insulting someone. … It’s political theater of a certain kind.”
And if Gessling had made his remarks in a public forum, where citizens could get on a soapbox and express their opinions, his speech clearly would have been protected, Magarian said.
Instead, the clown appeared to be a public employee or public contractor, at least while he was performing, and the Missouri State Fair had the right to control his message.
The idea that Gessling was a public employee comes from the fact that the State Fair Commission was established by statute, that its members are appointed by the governor and that the fair gets taxpayer funding.
Allen Rostron, a law professor at the University of Missouri-Kansas City, said the government can tell its employees, when they are in the course of fulfilling their duties as employees, what to say and what not to say.
He cited Garcetti v. Ceballos, a 5-4 decision from the U.S. Supreme Court that held speech by a public official, Richard Ceballos, of the Los Angeles District Attorney’s office, is protected only if engaged in as a private citizen.
“Government employees don’t totally lose their freedom of speech. … But you don’t have a right to say whatever you want in the course of doing your job for the government,” Rostron said.
Gessling’s statements unquestionably would be considered statements of public concern, said law professor Christina Wells, of the University of Missouri. But even if fair officials are engaging in viewpoint discrimination by banning him from performing there, public employees or contractors “have lesser rights if those viewpoints or those expressions of public concern cause disruption in the workplace,” she said.
Alan Howard, a law professor at Saint Louis University, likened the act to a breach of contract.
If the State Fair Commission contracted with the Missouri Rodeo Cowboy Association for acts for “an apolitical, PG-rated, family-fun rodeo,” that’s not what it got when Gessling performed his act, he explained. The exact wording of Gessling’s contract has not been released.
Doug Linder, a law professor at the University of Missouri-Kansas City, agreed that the fair can impose requirements on performers to be politically neutral, family-friendly to otherwise serve the purposes of the fair.
“I think it’s pretty clear … that the Missouri State Fair, if it wants to, can kiss the [clown], and the announcer for that matter, goodbye if they wish, and they don’t have a First Amendment claim, at least a substantial one,” he said.
But Magarian said courts are generally too deferential to such claims by the government. Any court looking at this case “shouldn’t lightly assume that the state fair board just has absolute discretion to punish whatever sort of speech gets in the way of optimal happiness and neutrality,” he said.
Mark Ficken, the Boonville superintendent who was announcing the rodeo when the incident occurred, can’t use the First Amendment to defend against any adverse action his employer might take because he didn’t make any offensive statements, his lawyer, Albert Watkins, said in a telephone interview.
According to Watkins, the only thing Ficken did was to warn the clown when the bull was getting too close, saying: “Watch out for that bull, Obama!”
Ficken is protected by a contract, which the school board recently renewed for another three years, Watkins, of Kodner Watkins Kloecker in Clayton, said. He also has claims against the news organizations and the individual that misattributed the clown’s statements to Ficken, the lawyer said.
He said the school board and the superintendent have been inundated with hate mail, and the school board is conducting an investigation. The board was expected to issue a resolution after press time on Friday, Watkins said.
Ficken was elected president of the rodeo association on Saturday and resigned his membership on Monday when the group refused to expel the clown, his lawyer said.
If Ficken, or someone in his position, made the comments initially attributed to him, he would have a substantial First Amendment claim to defend against adverse action by his public employer, Linder said.
“The question would be … has his role in this, does it have the potential to cause strife, political problems in the school district so he can no longer be effective in his role?” Linder said. “Because unless the state can show that, this would be commenting on a matter of public concern and probably would be protected by the First Amendment.”