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Wandering Dago, Inc. v. Destito
Docket No. 16-622 August Term, 2016
01-03-2018
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.
George F. Carpinello (John F. Dew, on the brief), Boies, Schiller & Flexner LLP, Albany, NY, for Plaintiff–Appellant Wandering Dago, Inc. Zainab A. Chaudhry, Assistant Solicitor General (Barbara D. Underwood, Solicitor General, Andrea Oser, Deputy Solicitor General, on the brief), for Eric T. Schneiderman, Attorney General of the State of New York, Albany, NY, for Defendants–Appellees RoAnn M. Destito, Joseph J. Rabito, William F. Bruso, Jr., and Aaron Walters.
George F. Carpinello (John F. Dew, on the brief), Boies, Schiller & Flexner LLP, Albany, NY, for Plaintiff–Appellant Wandering Dago, Inc.
Zainab A. Chaudhry, Assistant Solicitor General (Barbara D. Underwood, Solicitor General, Andrea Oser, Deputy Solicitor General, on the brief), for Eric T. Schneiderman, Attorney General of the State of New York, Albany, NY, for Defendants–Appellees RoAnn M. Destito, Joseph J. Rabito, William F. Bruso, Jr., and Aaron Walters.
Before: Calabresi and Carney, Circuit Judges, Amon, District Judge.
Judge Carol Bagley Amon, of the United States District Court for the Eastern District of New York, sitting by designation.
Susan L. Carney, Circuit Judge:
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") 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 refer to "defendants," but note that not all of the original defendants are party to this appeal. The John Does named in the complaint remain unidentified. WD’s claims against the New York State Office of General Services and the State of New York were dismissed on sovereign immunity grounds; that dismissal is not challenged on appeal. Finally, WD filed a stipulation of dismissal of its claims against the New York Racing Association, Inc., Christopher K. Kay, and Stephen Travers.
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 caus
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