WANDERING DAGO INC v. John Does, 1–5, New York State Office of General Services, New York Racing Association, Inc., Christopher K. Kay, Stephen Travers, State of New York, Defendants.
United States Court of Appeals, Second Circuit.
WANDERING DAGO, INC., Plaintiff–Appellant, v. RoAnn M. DESTITO, Joseph J. Rabito, William F. Bruso, Jr., Aaron Walters, Defendants–Appellees, John Does, 1–5, New York State Office of General Services, New York Racing Association, Inc., Christopher K. Kay, Stephen Travers, State of New York, Defendants.
Docket No. 16-622
Decided: January 03, 2018
Plaintiff-appellant Wandering Dago, Inc., (“WD”) operates a food truck and brands itself and the food it sells with language generally viewed as ethnic slurs. Defendants-appellees (“defendants”)1 are officials within the New York State Office of General Services (“OGS”) who played a part in twice denying WD's applications to participate as a food vendor in the Summer Outdoor Lunch Program (“Lunch Program”), an activity that is organized by OGS and takes place in Albany's Empire State Plaza annually in the summer months. WD contends that defendants violated its rights to free speech and equal protection under the United States Constitution and the New York State Constitution by denying WD's application because of its branding practices.
We conclude that the District Court erred in granting summary judgment in defendants' favor, and should instead have awarded judgment to WD. It is undisputed that defendants denied WD's applications solely because of its ethnic-slur branding. The Supreme Court's recent decision in Matal v. Tam, ––– U.S. ––––, 137 S.Ct. 1744, 198 L.Ed.2d 366 (2017), clarifies that this action amounts to viewpoint discrimination and, if not government speech or otherwise protected, is prohibited by the First Amendment. That the action violates the First Amendment leads directly to the conclusion that defendants also violated WD's equal protection rights and its rights under the New York State Constitution. We find unpersuasive defendants' argument that their actions were unobjectionable because they were either part of OGS's government speech or permissible regulation of a government contractor's speech.
For these reasons, the District Court's judgment is REVERSED and the cause is REMANDED for the entry of a revised judgment consistent with this opinion.
BACKGROUND 2
WD is a New York corporation owned and operated by Andrea Loguidice and Brandon Snooks. WD operates a food truck using the “Wandering Dago” brand, serving food for a variety of functions, including catering events, fairs and festivals, and street-side lunch service. Loguidice and Snooks declare that they view their food truck as “the people's truck” and as giving a “nod to [their] Italian heritage” and to their ancestors, who immigrated to the United States as day laborers. App. 73, 169. Using ethnic slurs in the names of their business and of the food that they sell reflects that philosophy, in their view. WD characterizes this practice as “signaling an irreverent, blue collar solidarity with its customers” and “signal[ing] to ․ immigrant groups that this food truck is for them.” Appellant's Br. 3, 39. It notes that using slurs in this way can “weaken the derogatory force” of the slur or “convey affiliation with ․ members of that minority group.” Id. at 38 (internal quotation marks omitted).
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