There is a troubling case out of New York where U.S. District Judge Mae D’Agostino of Albany threw out a lawsuit alleging the denial of free speech after the government banned a food truck from a vendor program because its name was an Italian slur. The slur is “dago.” It appeared on the food truck “Wandering Dago” owned by Andrew Loguidice and Brandon Snooks. I am half Sicilian and I may share that heritage with Judge D’Agostino. However, while we may both view the slur in the same way, we may see free speech protections differently. Judge D’Agostino wrote a comprehensive and interesting opinion that carefully looked at the governing precedent over forums and free speech. Moreover, it is important to note that Judge D’agostina was applying cases that she felt compelled this result as a lower court judge. She ultimately found no protection for barring a truck based on the sensibilities of others. The case is Wandering Dago, Inc. v. Destito, 1:13-cv-1053 (MAD/DJS), UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF NEW YORK, 2016 U.S. Dist. LEXIS 26046.
The case centers around an area managed by the government for lunch vendors. The Court lays out the key factors after an application was submitted for a permit:
At some point after receiving Wandering Dago’s application, OGS employee Jason Rumpf provided OGS Director of Convention and Cultural Events Heather Flynn and OGS Associate Commissioner for Operations Jason Cavazos with a list of the applicants. See Dkt. No. 158-1 at ¶ 43. Mr. Cavazos and OGS Public Information Officer Heather Groll inquired of OGS Executive Deputy Commissioner Joseph Rabito what he thought about a vendor named “Wandering Dago” participating in the 2013 Summer Outdoor Lunch Program. See id. at ¶ 44. Defendants contend that Defendant Rabito recognized the term “dago” as “a highly offensive term [*16] for Italians and his initial reaction was that the application would not be approved.” Dkt. No. 155-1 at ¶ 45; Dkt. No. 158-1 at ¶ 45.4 Defendant Rabito decided to double-check his understanding of the term to make sure that he was not mistaken as to its offensive meaning. See id. at ¶ 46. Defendant Rabito conducted a computer search of the term “dago,” which not only confirmed that it is an offensive derogatory term, but also revealed that it has been used to refer to people of Spanish and Portuguese descent, as well as Italians. See id. at ¶ 47. Moreover, Defendant Rabito searched Wandering Dago’s website and learned that its menu items also had offensive names, such as “Polack” and “Mick and Cheese,” which “are slurs against people of Polish and Irish descent, respectively.” Id. at ¶ 48. According to Defendants, Mr. Rabito “denied Wandering Dago’s application on the grounds that its name contains an offensive ethnic slur and does not fit with OGS’ policy of providing family-friendly programming.” Dkt. No. 155-1 at ¶ 49. Plaintiff, however, contends that Defendant Rabito denied the application because he found the name to be offensive and argues that “he did not refer to any statute[,] regulation, policy, or other source of guidance in making his decision.” Dkt. No. 158-1 at ¶ 49. Further,
Judge D’Agostino explored “forum” analysis as well as cases governing government speech, employee (contractor) speech, and commercial speech. She ruled that the “forum” was not the Empire State Plaza but the the lunch program “which happens to take place within the grounds that comprise the Empire State Plaza.” The court however still would have to find that even with the nonpublic forum the restriction or action was “reasonable” and content/viewpoint neutral. That is hard to make out here. There was no written policy or prior notice of a policy found in the case. She also found that the regulation was content neutral but dismissing the notion that the name of the truck was meant to express anything particular. Why? It seems obvious that these names convey views of the ethnicity of the owners or the food as well as social commentary designed to attract customers. The government was clearly picking and choosing between names that it deemed acceptable and not acceptable. For example, could the government follow college campuses and start to ban culturally insensitive trucks like those showing sombreros (the subject of another story today).
What is particularly interesting is the treatment of the ruling by the federal circuit in In Re Simon Shiao Tam, where the en banc Federal Circuit ruled unconstitutional the disparagement provision in Section 2(a) of the Lanham Act, 15 U.S.C. § 1052(a). We discussed this ruling earlier. I have previously written about my disagreement with the U.S. Patent and Trademark Office decision to rescind federal trademark protections for the Redskins as a racially disparaging name as well as the underlying law used to strip the team of its trademark protection. The law allows for a small administrative office to effectively dictate the outcome of a long simmering societal debate over the team name. More importantly, the standard for determining what names or words are disparaging remains dangerously undefined with striking contradictions as we previously discussed in permitted and disallowed trademarks. The federal circuit cases involves an Asian-American rock band called The Slants, which was also barred by the office. The Court struck down the part of the law allowing the denial of the registration of offensive trademarks. The case, which is likely to appealed to the Supreme Court, will have a major impact on the Redskins controversy. However, it did not have an impact for the Wandering Dago. Th judge simply ruled that the case it did not involve a forum, but rather an application of strict scrutiny. Judge D’Agostino also noted that the band was denied the entire opportunity to sell the goods as opposed to be barred from a particular program. That struck me as a bit to dismissive of the free speech issues and analysis. This case shares the same free speech elements as Simon Shiao Tam in my view and the decision does not strike me as content neutral. My greatest concern is how the court leaves this governmental authority ill-defined and fluid in choosing between speech of vendors or citizens.
I would appeal this ruling and have the owners wander further to the United States Court of Appeals for the Second Circuit.
Here is the opinion: Wandering Dago Opinion
Yet there he filters me again…..at some point i should wonder if he’s my lawyer?
If you even tried to “0ff” everyone from the shop it wouldn’t work. Not only do the asians hve evidence the danes hit beliw the v elt….ask for balls. So there. Sure your als might kill us. But it wont kill america. I called trump. What ya gonna do about it? Take you smoke and mirrors and go f yourselves. Yesterday.
Great no more filter….are you still going to buy the line. The usaf is oblivious to als? Look how many they killed in tx exacting it. Then my mil…..now me just to shut us up. Snafu. Too many witnesses. None of which are marked classified.
I’ll try again because the filter banned me before…
My co worker told me about 911 three years out. They hoped their als will kill me…..like it killed 140 from tx afb….and coward turley filters instead of acting like an agent for justice.
Sorry i did just come out of a cabbage turnip truck…..still don’t know what “dago” means. And i am a natural born usa a citizen. Raised home grown. Funny thing america still has sheltered kids and adults. How? Same reason missouri has race issues and splc cant find any in montgomery. Same reason you can put pot under my nose and i wouldn’ t know what it is. Never known it if i ever saw it. And i say that truthfully. Just like you say you can’ t believe such n such…..ppl can’t believe such n such either. Only be made to be afraid of it. Im from fifteen percent fly over country….who supplies fifty percent of the troops. We’ve seen more classified than ” opioid”………
Appeal
Im ok with that. Yep.
OK. I get the freedom of speech thing. How about a BBQ truck owned by a black pitmaster called the Wandering Nigger? Are we all OK?
Two generations off the boat from Ellis Island and they wander into law school, become a judge and think that their itShay don’t stink. What is this country coming to?
A case called Citizens United comes to mind. I think that the Wandering Dago guy here should incorporate the business with that name and then sue under the First Amendment and cite Citizens United. He may have to amend the Complaint. The Dago on the bench needs to step aside. And perhaps drink some Dago Red.
When I was in a college frat at some school in Illinois which I will not name, our nicknames in the frat were such names as: Wop, Pollack, Dago, Spade, Mick, Chico, Taco, Jewboy, etc. We did this as a way to belly up to the bar. Vietnam was going on at the time. People were not just radical but were front and center. Taco got his name because he went out with a Mexican woman in town.
Joe DiMaggio was called “Dago” by his teammates. He was fine w/ it. I can tell when someone is being an a-hole or when it’s good nature, calling me Dago, Wop, etc. Most people can. We were actually more open, honest, and tolerant decades ago then in these pernicious PC times. I refuse to walk on egg shells talking w/ people.
Like i tell my kids reading laffy taffy wrappers,..,”i give up” …..what does “dago” mean? Next cps will knock for my kids….not only don’t i know “dago”…. i buy them laffy taffy. …
The “Irish Central” blog ran a poll the other say asking its readers if they find offense in the merchandise that is sold for St. Patrick’s Day. For example, the cards and t-shirts that portray the Irish as a bunch of drunks with ragged, patched, mismatched clothes. More than 76% of the respondents found the merchandise offensive, although they did not call for any boycotts or lawsuits. The blog also ran a story about an Irish-born American who was so appalled at the t-shirts sold at his local Walmart that he purchased $800 worth of the most offensive, and then returned them the day after St. P’s, much to the store manager’s distress. He did this for several years in a row, but now reports that the store has stopped selling the offensive t-shirts, stocking only those with an Irish flag or some other neutral emblem. Maybe the Irish are more easy going about offensive stereotypes. If I saw an establishment named the Drunken Irishman, I wouldn’t spend my money there, but nor would I seek to have it fined or closed.
Dago is one of those disparaging terms that Italians consider offensive when uttered by non-Italians. Italians may use the term strictly among themselves, however, and in that context “dago” isn’t necessarily offensive. Frank Sinatra and Dean Martin would often make jokes referring to “dagos,” and, in fact, Sinatra named his aircraft in the 1960s “El Dago.” Pretty much the same goes for the Italian slur terms “wop” and “greaseball” (the latter of which applies to other groups as well), though those terms are seldom used by Italians themselves, even when joking, in my experience. In this respect, “dago” bears some similarities to the term “nigger,” in that African Americans consider the term to be offensive, but it may nonetheless, be acceptable in certain contexts to other African Americans without offending.
In Australia you could be a Bruce or a Sheila.
Aren’t we sensitive now. Dago isn’t a slur, it’s a masculine identification amongst friends. I suppose you would label Johathon if said in a masculine sense as being a slur. Grow up.
William H Hefner – if Dago is the male identification among friends what is the female identification among friends?
The only thing wrong with the words “friggin Mexican” is the word “friggin”. If the guy does not name his business “Friggin Dago” then I think he is politically correct. Nothing wrong with “Wandering”. I have used it since birth. Or since hatchling.
I am not Italian, but I still reserve the right to use the word Dago.
Squeeky:
You are incorrect. The true intellectual elites (I, for example), find this decision absurd and easily reversible on appeal. We also object to campus speech codes and blasphemy laws of every kind and description. It may be necessary to revive the Free Speech movement of the ’60s.