Wandering Dago, Inc. v. Destito
| Decision Date | 03 January 2018 |
| Docket Number | August Term, 2016,Docket No. 16-622 |
| Parties | 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. |
| Court | U.S. Court of Appeals — Second Circuit |
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.*
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")1 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 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 cause is REMANDED for the entry of a revised judgment consistent with this opinion.
WD is a New York corporation owned and operated by Andrea Loguidice and Brandon Snooks. WD operates a food truck using the "Wandering Dago" brand, serving food for a variety of functions, including catering events, fairs and festivals, and street-side lunch service. Loguidice and Snooks declare that they view their food truck as "the people’s truck" and as giving a "nod to [their] Italian heritage" and to their ancestors, who immigrated to the United States as day laborers. App. 73, 169. Using ethnic slurs in the names of their business and of the food that they sell reflects that philosophy, in their view. WD characterizes this practice as "signaling an irreverent, blue collar solidarity with its customers" and "signal[ing] to ... immigrant groups that this food truck is for them." Appellant’s Br. 3, 39. It notes that using slurs in this way can "weaken the derogatory force" of the slur or "convey affiliation with ... members of that minority group." Id. at 38 (internal quotation marks omitted).
OGS is a department of the New York State government. It is charged with managing and leasing real property, building and maintaining state facilities, contracting for goods and services on behalf of the State, and providing other administrative support services. Defendant-appellee RoAnn M. Destito is the Commissioner of OGS. Defendant-appellee Joseph J. Rabito was the Executive Deputy Commissioner of OGS. Defendant-appellee William F. Bruso, Jr., is an associate attorney working for OGS, and defendant-appellee Aaron Walters is employed by OGS as a promotions and public affairs agent.
Empire State Plaza, in Albany, is owned by the State of New York and operated by OGS. The Plaza incorporates multiple state buildings, including the Corning Tower, four agency buildings, the Swan Street Building, the Legislative Office Building, the Robert Abrams Justice Building, the Egg Center for Performing Arts (the "Egg"), the Cultural Education Center (which contains the State Museum and the State Library), and the New York State Capitol Building, all of which are connected by an underground public concourse. The "Plaza level" of the Empire State Plaza is an open outdoor space featuring a central reflecting pool. This outdoor area, on its own, is also sometimes referred to as the Empire State Plaza. For our purposes, we use the term "Empire State Plaza" or simply the "Plaza" to refer solely to the outdoor area that is at issue in this case.
The Plaza is the site of a farmer’s market on certain weekdays during the summer. Annually, several state-organized events are held in the space. These include the African American Family Day, the Hispanic Heritage Month celebration, the Food Festival, and the Fourth of July Festival. Subject to a permitting requirement, the Plaza is also occasionally used by various private groups as a site for political rallies, marches, and protests. OGS does not use the potential offensiveness of a political event as a basis for denying an application for the requisite event permit, and it does not review signs and speeches to be displayed as part of such an event in advance.
Although OGS issues permits to individuals and organizations that apply for permission to demonstrate on OGS-controlled property, including the Plaza, some demonstrations are allowed to occur without a permit, unless they present a disruption or a health or safety issue. According to OGS, the purpose of the permitting process "is to provide OGS with notice of the likely size and location of the demonstration so that OGS can provide adequate services and operational management." App. 1013. Demonstrations also occur on the concourse beneath the Plaza, some with permits and some without.
Defendants contend, but WD disputes, that OGS has a consistent policy of allowing only "family-friendly" events on the Plaza when OGS is operating the event. App. 1027. Deputy Commissioner Rabito says that during African American Family Day 2010, he directed an OGS employee not to hire one of the proposed dance troupes because its dress and type of dance were deemed not family-friendly. And OGS once removed a singer from the stage during a similar event for using the n-word. Rabito asserts that, "during the course of an OGS-sponsored event on the Plaza, OGS has directed vendors that are permitted to sell products at the Plaza as part of OGS-sponsored events or programs to remove items from their stalls that violated OGS’s family-friendly [policy], including replica ‘black face’ figurines, panties with ‘Kiss Me I’m Irish’ printed on them, fertility pendants with a phallus that becomes erect when a chain is pulled, and marijuana leaf belt buckles." App. 395.
In the spring of 2013, OGS began planning a program that would, daily, allow a limited number of vendors to sell food items from trucks parked at designated spots on the East Roadway, located on the east side of the Plaza, between the reflecting pool and the Egg. In prior years, a single private company under contract with the state, Sodexo, had provided food services for an outdoor lunch program, but Sodexo’s contract was not renewed for 2013.
Under the new Lunch Program, OGS grants permits to qualified food vendors to participate in providing food during lunchtime hours to state employees as well as to visitors who come to the Capitol and adjacent state buildings and parks in the summer and early fall months. The Lunch Program requires vendors seeking to participate to apply to OGS for a permit. OGS determines the applicant’s eligibility to participate.
The application for the 2013 Lunch Program informed vendors of several OGS policies. Because of their importance, we reproduce many of those policies here verbatim, notwithstanding their combined length. They included the following:
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