Food Truck ‘Wandering Dago’ Wins at Free-Speech Case

MANHATTAN (CN) – A New York food truck whose name includes an old-fashioned slur for Italians won a First Amendment challenge Wednesday against state regulators.

Wandering Dago is the food truck business in question, and its menu is similarly themed, hawking sandwiches with names like Goombah and Polack.

A popular wedding caterer, the company sued in Albany after New York’s Office of General Services deemed its name too offensive in 2013 to let it participate in an outdoor lunch program the state organizes every summer in Albany’s Empire State Plaza.

Though a federal judge sided with the state, the Second Circuit reversed Wednesday. Wandering Dago’s rights are assured, the Manhattan-based panel found, by the recent holding in Matal v. Tam.

In that ruling this past June, the U.S. Supreme Court struck down a disparagement clause that had frustrated Asian-American rocker Simon Tam from trademarking the name of his band, The Slants.

George Carpinello, an attorney for Wandering Dago, noted in an interview Wednesday that his clients, like Tam, were being playful in their use of the ethnic slurs.

“But the court said it doesn’t really matter whether the intent is benign or offensive,” said Carpinello, an attorney at Boies Schiller Flexner.

Wandering Dago’s owners argued in a brief that their company’s name tells immigrant groups “that this food truck is for them.”

“We felt very strongly that the state was wrong when they censored our clients’ business simply on the basis of a name,” Carpinello added.

State officials countered with their interest in keeping events at the Empire State Plaza “family friendly.” Over the years, they noted in court filings, the state forced plaza vendors to remove “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.”

The Second Circuit determined Wednesday that New York’s treatment of Wandering Dago amounted to unconstitutional discrimination.

“Defendants engaged in viewpoint discrimination here even if the denial of WD’s application resulted from an across‐the‐board prohibition applicable to all speakers without regard to their intended messages,” U.S. Circuit Judge Susan Carney wrote for the three-person panel, abbreviating the food truck’s name.

A spokeswoman for General Services said that office is reviewing Wednesday’s decision.

Wandering Dago noted in its complaint that, not long after General Services denied it the plaza permit, its food truck was unexpectedly removed from its post at the Saratoga Race Course because “a state official had complained about [Wandering Dago’s] name.”

The Albany Times Union reported that the state official in question was a top adviser to Gov. Andrew Cuomo, who is outspoken about his Italian-American pride.

In 2015, the New York Racing Association settled with Wandering for $68,500, the Times Union reported.

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