The Wandering Dago: New York Judge Upholds Government Barring Of Food Truck With Italian Slur

578018_621127964570414_630724178_nThere 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

41 thoughts on “The Wandering Dago: New York Judge Upholds Government Barring Of Food Truck With Italian Slur”

  1. Our “politically correct” government is killing America. The food truck owner named the service himself, it is up to the people to use it or not. That is called Capitalism, if a competitor can do better then the food truck owner is out of business. What’s in a name?

  2. I’m half Ukrainian. My Mom’s Dad came from a little town called Redhead which, at the time, was part of the Austria Hungarian Empire. So, I get to tell this joke. Why do Ukrainians have hunched shoulders and flat foreheads? Because when you ask them a question they hunch their shoulders illustrating that they don’t know the answer, and when you tell them the answer, they slap their foreheads. So, sue me.

    My Dad’s Dad came from the third island Outer Hebrides. So, here’s a Scottish joke. An old lady came into a newspaper office in Glasgow and asked to put a notice in the obituaries. When asked what she would like to post she replied, “Angus died.” The clerk explained that there was a five word minimum and the price would be the same for two words as well as five, so she could add something to her post. She thought a while and added, “Angus died, Volvo for sale.”

    Please get these jokes to that ignorant judge.

  3. I hope and pray that Wandering Dago vs. Detestio wanders its way into the Supreme Court. We will see what Alito says on this issue. That Dago in the district court should be excluded from serving on an appellate court. The First Amendment should be posted on the walls at Ellis Island. We are all Dagos. DLM. Dago Lives Matter.

  4. I am half Italian like JT and I am with him completely. I learned the term in the 50s as a young boy from my Italian Uncle who had a car that was Dagoed (lowered in front).

  5. OGS Director of Convention and Cultural Events
    OGS Associate Commissioner for Operations
    OGS Public Information Officer
    OGS Executive Deputy Commissioner

    One important takeaway from this case is how grossly overinflated the government employment rolls continue to be with manure-laden titles of administrative self-importance. It’s amazing the state of New York hasn’t collapsed under the weight of the bureaucracy and burden of taxation its citizens have to support.

  6. I completely disagree with this decision. I, too, would, appeal.

  7. I agree with Nick. I am ging to vote for Trump. IF, I can get my voters ID. I need to get proof of citizenship, old drivers license, birth certificate, and/or other documents. The one’s I had were burned in a fire.

  8. I am a Dago, Wop, etc. and am secure enough that i don’t need someone to give up their freedom of speech to protect my feelings. Horse manure like this is why a demagogue like Trump is popular.

  9. All so very touchy these days…my 3rd generation Italian friend Rick runs an excavating business in Steamboat Springs called “The Diggin’ Dago.” People love it.

  10. “Dago Red” is the name put on home grown red wine back during Prohibition.

  11. Dago may refer to:

    Dago, the alleged baptismal name of Mieszko I of Poland
    Dago, an ethnic slur referring to Italians, Spaniards, or Portuguese
    Dago (comics), an Paraguayan comic book character
    Dagö, an Estonian band
    DAGO (U.S. Army), an acronym for Department of the Army General Officer
    Dago Red (racing aircraft)


    Dago, Indonesia, an area of the city of Bandung, Indonesia
    Dago Creek, a feeder stream on the northern shore of Ugashik Bay, Alaska
    The Hill (aka Dago Hill) in St. Louis, Missouri
    Dago Mena, a populated place in Nangarhar Province, Afghanistan
    Dago Nawer, a populated place in Kandahar Province, Afghanistan
    Dagö, the old Swedish name of Hiiumaa, second largest island in Estonia.

    –From Wikipedia

  12. What’s on the menu? I go to an Italian restaurant and order the “John Gotti” special. Sorry, I’m not snitching on restaurant name. Food is to good.

  13. at one time that word was a term of endearment – like comrade, pizon (paesan)
    now pizon is a bad word – language evolves I guess
    there was also a worse word for Italians back then too

    soon enough they ban the words geek, nerd and racist

  14. I’m surprised that they are still allowed to have the picture of a pig on a bike…..I hear that is “offensive” to some people just like adds for bacon. And politicians wonder why people are just fed up,

  15. this seems to open the door to all sorts of controversy

    where seldom is heard any discouraging words …

    Red Skins
    Fighting Irish
    Wandering jew
    anything with the word gypsy
    anything with the word black
    anything with the word blond
    anything with the word fat
    anything with the word homeless

    and eventually Trump

  16. There is a neighborhood in Saint Louis, Missouri which is referenced with some official sanction as “The Hill”. Others in the public call it “Dago Hill”. There are prejudices involved throughout this particular place and it’s name. To begin with it is a neighborhood formed many years back of so called “Northern Italians”. Sicilians were not allowed in. There are elderly Sicilians in Saint Louis who to this day have not gone in. The Sicilians were seen as of less stature to those who hailed from Milano. Some Sicilians in the old days, say forty years ago, were in the Mafia. But the word Dago just referred to Italians in general and a Sicilian in Saint Louis would certainly be included in that catagory. Italians of all stripe might be offended today by the logo on this truck. But mainly because of the pig emblem. They have nothing to do with Piggly Wiggly. That is a food store chain and employs that picture.

    All things considered the district court judge is wrong and should go back to Milano. The guy has a right to brand his business with any name. This is not the N word. The Tinkers need to go to that town and protest. Tinker v. Bd of Education of Des Moine, IA. U.S. Supreme Court. Google it. The Tinkers (plaintiffs) have a “tour” which they go on once in a while to promote free speech. They too hail from Saint Louis.

    The plaintiff in this case here should have moved to disqualify the district judge because she was an uppity north American now and not a true Dago. Unfortunately Scalia is no longer with us and we will not get to hear what he has to say about this case. He was a good man. I would not trust Uncle Clarence to uphold the free speech rights of our Dago in this case.

    For further insight, Moe is an Ital, Larry and Cheese are not. None of us lived on Dago Hill.

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