An Upstate NY food truck that serves fusion barbecue fare under the name “Wandering Dago” scored a significant victory at the end of a legal battle with the State, which had banned Wandering Dago from serving its offerings at the Saratoga Race Track. and as part of the NY State Lunch Program on the Empire State Plaza in Albany. A decision from last week from the U.S. Court of Appeals for the Second Circuit concluded that a lower court wrongfully dismissed the case and that in fact, the couple that owns the truck should have instead won summary judgment against the State:
“It is undisputed that defendants denied WD’s applications solely because of its ethnic‐slur branding,” the court said in a 32-page decision that called the state’s action unconstitutional “viewpoint discrimination.”
The Second Circuit’s decision was based in large part on the U.S. Supreme Court’s June 2017 decision in Matal v. Tam, in which the leader of an Asian-American rock group called The Slants was initially denied the chance to register the band’s name with the U.S. Trademark Office due to its ironic use of an offensive epithet. The Supreme Court ruled that the Trademark Office could not ban the use of words it found “offensive” as that would violate the Free Speech rights of the trademark owner and amount to “viewpoint discrimination.” To bar “viewpoints,” a State must show a compelling State interest that overrides the rights of the speaker – the strictest scrutiny applied to actions by the State. In the context of speech, the Supreme Court and other courts have held that States have a compelling interest to stop speech that constitutes “true threats,” or causes a “hostile work environment” or amounts to “legally-prohibited harassment.” None of which were involved here, of course.
The owners of the Wandering Dago, Andrea Loguidice and Brendan Snooks, say the name is meant to convey that they cater to “blue-collar folks” and that it is a throwback to their heritage and ancestors when immigrant laborers from Italy were derisively called “Dago” because they were paid as the “day goes.” The NY Racing Association, which operates the Saratoga racetrack settled the claim against it early on for $68,500. But the NYS Office of General Services, which administers the Lunch Program decided to fight the suit arguing that because the program is held on State property; is tightly overseen by OGS; is heavily-regulated with a strict application process and numerous regulations; and that those regulations included a requirement that the vendors offer “a family-friendly environment,” that the truck’s name was not pure speech but either “Government speech” or “Government-contractor speech” which can be more easily regulated. This argument has been successfully applied to allow States to regulate the content of vanity license plates, since the plate is State property and the speech on it can at least be seen as being condoned by the State.
But the court here was not willing to expand that doctrine to cover this situation:
“[S]peech 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…. In its recent decision in Matal, the Supreme Court held that trademark registration, and the PTO’s refusal to register marks deemed offensive, was not a form of government speech. The Matal Court unanimously underscored that it exercises “great caution before extending [its] government-speech precedents,” citing the risk that “private speech could be passed off as government speech” and “silence[d]” by “simply affixing a government seal of approval.””
The court here wanted to set limits on the government’s intrusion in to a speaker’s viewpoint:
“We perceive no governmental interest of sufficient weight to justify defendants’ actions, regardless of how we might resolve the parties’ disagreement over the most appropriate categorization of WD’s speech (commercial speech, speech in a public forum, or speech in a nonpublic forum).”
As I predicted on this blog six months ago the Slants case was likely to result in States being unable to restrict use of racial or ethnic slurs in other scenarios. The Wandering Dago case is a potent reminder that Free Speech protections are broad and the government’s right to limit what you say, even in the commercial marketplace, is very limited. Ethnic slurs, racial epithets, and offensive language is still speech and the Government simply cannot limit speech based on its viewpoint. It will be interesting to see how the government treats a speaker who wants to use an ethnic slur but unlike the plaintiffs in the WD and Slants case, is not a member of that particular ethnic group. It will depend on the context of the speech, but under the reasoning in these two cases it should make no difference. I’m sure it will come up soon enough.
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