A food truck called “The Wandering Dago” wanted to sell some food at a public plaza in Albany, New York. However, New York’s Office of General Services denied the food truck’s application to set up shop. (A “dago” is slur, used disparagingly toward those of Italian descent, and sometimes Spanish and Portuguese.) The food truck sued, claiming that the State’s denial violated the First Amendment.
The Second Circuit ruled for Wandering Dago. The Court relied on the recent Supreme Court decision Matal v. Tam, which found that the U.S. Patent and Trademark Office’s rejection of a band name that used an ethnic slur—the all-Asian-American band The Slants—was impermissible viewpoint discrimination.
Applying Matal to this case, the Court found that New York officials had engaged in viewpoint discrimination. In Matal, the Supreme Court dismissed the government’s assertion that a registered trademark amounts to government speech and is therefore proscribable. The Second Circuit cited Matal in rejecting New York’s argument that a state-approved food truck name amounts to government speech.
In contrast to the Supreme Court’s ruling in Walker v. Texas Division, Sons of Confederate Veterans, where license plates were found to be government speech, the Second Circuit here echoed Matal‘s conclusion that “speech 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.”
We’ll continue to monitor the impact of Matal. But if early indications hold, it will be more difficult for the government to deny operating licences to organizations using potentially offensive names.
Case: Wandering Dago v. Destito, et al., No. 16-222 (2d Cir. Jan. 3, 2018) (opinion here)