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Wandering Dago, Inc. v. Destito, No. 16-622 (2d Cir. 2018)

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Justia Opinion Summary

WD filed suit against OGS, alleging that defendants violated its rights under the First Amendment, the Equal Protection Clause, and the New York State Constitution by denying WD's applications to participate as a food truck vendor in the Lunch Program based on its ethnic-slur branding. The Second Circuit reversed the district court's grant of summary judgment for defendant, holding that defendants' action violated WD's equal protection rights and its rights under the New York State Constitution. In this case, it was undisputed that defendants denied WD's applications solely because of its ethnic-slur branding. In Matal v. Tam, 137 S. Ct. 1744 (2017), the Supreme Court clarified that this action amounted to viewpoint discrimination and, if not government speech or otherwise protected, was prohibited by the First Amendment. The court rejected 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.

Our Professor’s Views Are Vile, University Says. But We Can’t Fire Him.

A provost at Indiana University has earned praise for harshly condemning a professor’s views while respecting the First Amendment.

Comments by an Indiana University professor that its provost deemed racist, sexist and homophobic were shared via social media this week, prompting calls for the school to fire him.Credit...Luke Sharrett for The New York Times

By Nicholas Bogel-Burroughs

• Nov. 22, 2019
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The provost did not mince her words about the opinions of a professor on her campus. His views were racist, sexist and homophobic, she wrote in a statement this week. They were “vile and stupid,” she said, and “more consistent with someone who lived in the 18th century than the 21st.”

But the provost, Lauren Robel of Indiana University Bloomington, was equally clear on another point: The First Amendment prohibited the university from firing the professor, Eric Rasmusen, for expressing those views. “That is not a close call,” wrote Professor Robel, who also teaches at the law school. 

The unusually candid statement quickly drew attention from students, academics and lawyers, many of whom praised the provost for publicly excoriating the professor’s opinions while respecting one of the nation’s basic freedoms.

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