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