“Wandering Dago” food truck. Credit: WanderingDago / Facebook 
State authorities violated the state and federal rights of two Albany food truck operators when they were prevented from setting up shop in the Empire State Plaza solely because their name was potentially offensive, the U.S. Court of Appeals for the Second Circuit ruled Wednesday.
The panel of U.S. Circuit Judges Guido Calabresi and José Cabranes, with U.S. District Judge Carol Bagley Amon of the Eastern District of New York sitting by designation, applied the recently decided U.S. Supreme Court case Matal v. Tam, which found officials in the state Office of General Services committed viewpoint discrimination against the plaintiffs, who operated the “Wandering Dago” food truck.

The food truck had twice applied to a summer program for food trucks operating outside of the state capital, and was twice denied. In both instances, the truck’s name and the names of sandwiches they planned to serve that used ethnic slurs were identified as the sole reason for denying their participation.
The truck’s owners said the use of terms like “dago” and “polack” were meant to weaken the negative force of such words, while branding the truck as working-class and irreverent.
The Wandering Dago operators sued the state in federal court, alleging First Amendment and other violations and arguing on commercial speech protection grounds. U.S District Judge Mae D’Agostino of the Northern District of New York disagreed, siding with the government that the decision to bar the food truck was allowed under a form of government speech as the forum, in this case, was the summer outdoor lunch program, not the physical plaza itself.
As the suit was proceeding, Matal was making its way through the courts. Ahead of the district court’s decision in New York, D’Agostino was alerted by counsel to the decision by the U.S. Court of Appeals for the Fifth Circuit siding with the plaintiffs against the government in that case.
In a footnote in her March 2016 order granting summary judgment in favor of the government, D’Agostino found that the then-appellate ruling was “largely irrelevant” in Wandering Dago, as the government forum wasn’t followed.
The Supreme Court’s June 2017 ruling in Matal ultimately led the Second Circuit panel to find it was very much relevant in Wandering Dago. The decision provides ”substantial guidance regarding viewpoint discrimination” when it comes to potentially offensive language. While the justices were split, all agreed that the U.S. Patent and Trademark Office’s rejection, based on a disparagement statute, of a band’s name—the all-Asian-American band The Slants—was a matter of viewpoint discrimination.
The decision dismissed the government’s assertion that a registered trademark amounts to protected government speech and therefore able to be prohibited. The government demanding only positive or benign speech had the potential to squelch dissent and a free flow of ideas, the justices ruled. Likewise, its attempts to decide for an audience what is and isn’t offensive, rather than looking at the intent behind the speech, amounts to inappropriate censorship by the government.
Applying these notions to Wandering Dago, the panel said New York officials, like their counterparts at the PTO, had engaged in viewpoint-specific discrimination. While the panel noted many areas of speech remain subject to government restrictions, defendants never argued that the plaintiffs’ actions fell into such unprotected categories.
“Although ethnic slurs are used to express a variety of opinions and obtain a variety of effects, under Matal the mere use of these potentially offensive words in the factual setting presented here reflects a viewpoint and cannot be framed by the government as a larger viewpoint‐neutral category of speech content available to advance multiple viewpoints and therefore subject to less First Amendment protection,” the panel found.
The panel further found that the state’s argument, bolstered by the district court’s ruling, that it was essentially regulating government speech because the food truck would have been participating in a government-run program was also rejected.
Unlike the U.S. Supreme Court’s ruling in 2015′s Walker v. Texas Division, Sons of Confederate Veterans, where license plates were found to be protected government speech, Matal solidified the idea that “speech that is otherwise private does not become speech of the government merely because the government provides a forum for the speech or in some way allows or facilitates it.”
The case was reversed and remanded back to the district court with instructions for summary judgment in favor of the plaintiffs, finding the state violated their federal and state free speech rights. The state will be enjoined from denying Wandering Dago access to the food truck program solely over ethnic slurs as part of its branding.
Boies Schiller Flexner partner George Carpinello, along with associate John Dew, represented plaintiffs. Speaking with the New York Law Journal, Carpinello said the decision in Matal was, as he had argued to the district court, critical and was pleased the panel agreed,
“The decision really ratified what we had been saying all along,” he said.
The Second Circuit’s decision “fortifies” First Amendment commercial speech protections, according to Carpinello.
“Commercial speech has always been considered the poor cousin to political speech,” he said. “This case really fortifies the standards for commercial speech because in effect the Second Circuit’s decision doesn’t make much distinction between the two.”
A spokeswoman for the New York state Attorney General’s Office referred comment to the Office of General Services. A spokeswoman there said the office was reviewing the decision.