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.
Gucci and Adidas Apologize and Drop Products Called Racist
By Tiffany Hsu and Elizabeth Paton
Less than a week into Black History Month, in two episodes of retail déjà vu, Adidas and Gucci have apologized and pulled products criticized as racist.
The offending Gucci item was an $890 black-knit women’s balaclava that could be pulled up over the lower half of the wearer’s face. The sweater included bright red lips ringing an opening for the mouth, a detail widely denounced on social media as evoking blackface imagery.
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