Wandering Dago food truck sues over not being allowed to vend at the ESP and Saratoga Race Course
Wandering Dago at the food truck festival in Troy earlier this summer.
The Wandering Dago food truck has filed a lawsuit in federal court over the truck being denied the opportunity to vend at the Empire State Plaza and Saratoga Race Course this summer. In the suit, it contends the truck was bounced because of its name, an action it argues violated the owners' 1st Amendment rights.
The complaint is embedded after the jump. It lays out Wandering Dago's arguments and its view of the events that led up to its denial to vend at the ESP and Saratoga Race Course.
Here's the situation, as depicted in the lawsuit, in short:
WD says it believed it was on track to vend at the ESP after getting an extension on the deadline for its vendor application. But the application ended up being denied, and WD says it was told by a member of the Office of General Services' legal department it was bounced because it was late and incomplete (WD says it was returned by the extended deadline and not incomplete) -- and because the business name was offensive. The complaint also cites comments made by an OGS spokesperson to AOA about the situation -- "Among other reasons, it was determined that their application was not appropriate because the name of the business was found to be an offensive ethnic slur by any standard."
Regarding the Saratoga Race Course, WD says it had an agreement with the hospitality company that manages food vendors at the Track allowing it to vend there this summer. But shortly before the season started it was told by a NYRA official it would not be allowed to vend because an unnamed "high-ranking state official" had complained about the truck's name, and NYRA's "hands are tied" because of the official's complaint.
1st Amendment rights
Wandering Dago argues the actions of both OGS and NYRA were "blatantly unconstitutional." From a memo filed in support of WD's request for an injunction that would allow it to vend at both venues:
This [denial for a permit at the Empire State Plaza] is an unconstitutional violation of Wandering Dago's First Amendment rights for two distinct reasons. First, Wandering Dago's name is commercial speech. Such speech may be restricted only if the restriction directly advances a substantial government interest. Case law is clear that the government has no legitimate interest in banning speech merely because it is "offensive," much less a substantial one. In fact, the case law is so clear that Defendants have no good faith defense for their conduct. Moreover, even assuming the existence of a substantial government interest, the exclusion of vendors from the Summer Outdoor Lunch Program fails to directly advance that interest.
Second, the curtailment of Wandering Dago's speech was not undertaken pursuant to any narrow, objective, and definite standards as required by the Supreme Court's case law. The constitution does not permit vesting government officials with the unguided authority to restrict speech on vague bases like "offensiveness." OGS's action in denying Wandering Dago's permit is unconstitutional on this ground, independent of the scope of the state's authority to regulate commercial speech.
And for the situation at the Saratoga Race Course:
The action of NYRA officials and the conspiring state officials in expelling Wandering Dago from Saratoga Race Course on the basis of its name is a clear violation of the First Amendment, lacking even the thin veneer of a legitimate government regulation of commercial speech. Like the OGS officials' conduct, this conduct was willful and knowing and was not taken in good faith.
The memo is embedded below if you'd like to read about the previous cases cited in support of Wandering Dago's argument. One of cases involved a brewery that had its brand label rejected by the New York State Liquor Authority because it featured
In addition to OGS, NYRA and officials for both agencies, the complaint also names "John Does 1-5" as defendants -- "officials of the State of New York and/or NYRA who directly participated in the decision to exclude Plaintiff from both Saratoga Race Course and OGS's Summer Outdoor Lunch Program" -- presumably Wandering Dago's attorney will be seeking to find out who the unnamed state official (or officials) was who complained.
Wandering Dago is seeking an injunction that would allow it start vending at both the ESP and the Saratoga Race Course. It also seeking "lost profits and the diminution of the value of its business" as well as other expenses.
A spokesperson for OGS says the agency is reviewing the lawsuit and does not comment on pending litigation. And a NYRA spokesperson had no comment.
Wider issue
Pulling back on the specifics of this situation a bit, this lawsuit touches on the issue of how the state makes determinations of what is and isn't offensive. It's unclear what process the state uses to make those judgements for vendor names. Is there a panel? Is it one person? Can a single complaint from an official block a vendor?
It will be interesting to see if details about that decision-making process come out in the course of this lawsuit.
Sticking with the name
The owners of the Wandering Dago -- Andrea Loguidice and Brandon Snooks -- started the food truck last year in Schenectady. The term "dago" has been used as a slur against people of Italian descent, and sometimes people from Spain and Portugal as well. But Loguidice and Snooks have said they picked the name as a nod to their Italian heritage and an effort to reclaim the word.
Their choice of name has met a range of strong opinions, from strong support for keeping the name, to concern about the name's effect on business, to outright disagreement with use of the name. Earlier this month Loguidice and Snooks announced they were keeping the name.
Documents
The complaint filed by Wandering Dago:
Wandering Dago vs NYS OGS and NYRA Complaint 1-Main
Memo filed in support of Wandering Dago's request for a preliminary injunction:
Wandering Dago vs OGS and NYRA Injunction Motion Memo
Earlier on AOA
+ Wandering Dago food truck keeping its name
+ Wandering Dago food truck bounced from The Track because of name
+ The Wandering Dago food truck
The Saratoga Race Course advertises on AOA.
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Comments
1. I never heard the term dago until this controversy.
2. Bad Frog Beer was thoroughly disgusting.
... said Tim on Aug 28, 2013 at 9:25 AM | link
I hope they win because I think the authorities were wrong in how they handled banning this business. I personally object to their name, but I'm willing to let the free market decide if the name is offensive enough that they lose business because of it. (I won't be a customer.)
... said chrisck on Aug 28, 2013 at 9:44 AM | link
I hope they're just suing to be allowed into the ESP and hope they're not suing for damages.
... said Hock41 on Aug 28, 2013 at 10:10 AM | link
Never heard of this term before, and besides, if they're Italian, how can it be said that it's inappropriate, if they're the ones who picked the name??
... said Allie on Aug 28, 2013 at 10:16 AM | link
It does look like they have a case against their permits being denied because there was no policy in place for denying a permit based on "offensiveness." That makes sense.
The free speech issue is a bit of a stretch. They weren't told to change their name. They weren't denied the ability to register their business based on their name. They were not accepted into participatory programs because they have a name that organizers feared might be offensive to some.
I'm a big, huge free speech proponent (even when the speech in question pisses me off and makes me fear for the future of the human race), but the owners of the Wandering Dago chose a controversial name. It's a little naive of them to believe they'd be able to conduct their business without encountering push-back like this, and all of the other fights that have gone on recently around their name.
... said SGK on Aug 28, 2013 at 10:20 AM | link
I never knew that term to be an ethnic slur until I read this article about the controversy. It's sort of up to them what to name the truck, if people don't like it, they don't have to purchase food from them. It's not like they had any exclusivity to the areas in question. As for who gets to decide what's offensive, I always thought that was up to the discretion of the venue. For instance, the Race Track can deny whoever they want on whatever grounds they want. It's up to the people in charge. Regardless of what 'officials' might say. The plaza is a little harder to figure because it is government run, so it is sort of up to the government, opening a whole other can of worms because it's the government. But if I was running a festival and wanted to deny a truck's participation, I would think it would be up to me. No matter how petty the reason (I don't like onions for instance... so maybe I don't allow the deep fried onion truck.). It just seems to me to be an odd place for the government to step in. Are you really telling me that these 'officials' don't have anything else to do with their time? Don't they have real work to do?
... said Beth on Aug 28, 2013 at 10:46 AM | link
those of French descent do NOT like to be called FROGS! that's an ethnic slur too!
... said stella on Aug 28, 2013 at 10:50 AM | link
I was willing to forgive the idiocy of choosing a slur for a business name because the slur was an obscure one. But wasting taxpayer money with a frivolous suit is beyond the pale. They deserve exactly $0 in damages, and they'll be getting exactly $0 in future business from me.
... said Mike on Aug 28, 2013 at 11:08 AM | link
@Mike--do you really find the First Amendment to be frivolous?
... said colleen on Aug 28, 2013 at 12:19 PM | link
There is a ton of racism in advertising. How about aunt jemima or uncle ben? Price Chopper's logo used to have a face in the coin. They removed it due to some type of sexist / racist complaint. How about sports teams? Cleveland Indians or the Washington Redskins. It's so common place in the united states.
... said ponce on Aug 28, 2013 at 12:24 PM | link
@Colleen - Good point. In general I'm a strong proponent of first amendment rights. IANAL, but this doesn't really seem like a first amendment issue to me. Nobody is saying that they can't name their truck whatever they want to name it, just that if they insist that their name and menu are going to be offensive they won't be allowed to sell at those locations.
As a stronger example, imagine a food truck where the truck and all of the menu items were sex-themed, with sexually explicit names (I'll leave coming up with specific examples as an exercise for the reader). Would OGS or the track be obligated under the first amendment to allow that truck to set up shop at their family-friendly events? Of course not. The truck would be allowed to exist but that doesn't guarantee it a right to sell at government sponsored events.
... said Mike on Aug 28, 2013 at 12:37 PM | link
@ponce -- my recollection of the Price Chopper "coin" was an ax smashing into the female face or head (symbolizing cutting your grocery bill, I suppose) that troubled a lot of people. And PC dropped the image. Because they are not stupid and stubbornly insistent on holding on to a marketing idea that offended a segment of their customer base.
... said chrisck on Aug 28, 2013 at 12:42 PM | link
I'm not offended by their name. I'm offended, well rather, turned off by their defense and actions in keeping it that I've seen reported elsewhere.
If they’d rather lose business by not choosing another name, that’s on them.
... said Diana on Aug 28, 2013 at 12:58 PM | link
One issue on the legal side may be whether the racetrack is a "limited public forum," which would be relevant to scope of what the State is allowed to do to restrict speech. The ESP and the Racetrack might be treated differently under that analysis. It will be interesting to see what the result is if the parties decide to take it to a decision.
... said DEN on Aug 28, 2013 at 4:50 PM | link
It's the word "wandering" that I find offensive
... said Harold on Aug 28, 2013 at 6:14 PM | link
i love that everyone has earned their law degrees off of wikipedia in the last 24 hours and become cracker-jack first amendment experts.
... said colleen on Aug 28, 2013 at 7:42 PM | link
Im Italian and it don't offend me a bit. Actually I think its kinda clever.
... said Tone on Aug 28, 2013 at 9:20 PM | link
Remember the days of "All in the Family" when a lot more if us understood irony and sarcasm?
... said ChuckD on Aug 29, 2013 at 12:22 AM | link
I'm Italian and highly offended by their truck. Maybe I should sue them!
... said Tony on Aug 29, 2013 at 9:49 AM | link
@Tony--fortunately you do not have a cognizable cause of action because you are offended by a words that were not directed at you. you may however avert your eyes if you are offended, as the United States Supreme Court stated in Cohen v. California
... said colleen on Aug 29, 2013 at 10:16 AM | link
I was kidding.
... said Tony on Aug 29, 2013 at 11:03 AM | link
Their attorney is making this argument into something its not. The cases he cites relate to states denying businesses the right to use certain names, advertising, etc. at all. That isn't what is happening here. Two agencies made administrative denials preventing what they felt was an offensive business name from working at their locations. This would be better brought as an article 78 arguing the decision were arbitrary and capricious.
WD's case is more analogous to the Congressional decency test for federal funding for the arts. (http://www.nytimes.com/1998/06/26/us/supreme-court-supreme-court-roundup-justices-uphold-decency-test-awarding-arts.html?pagewanted=all&src=pm)
Reasonable minds can differ on whether WD's name is offensive, but we would not be having this conversation if the name was N*word McBallsackFart. 1st amendment cases are good for publicity's sake and for gaining public support to "stick it to the man" but I do not believe it's a winning argument here.
... said ktvorwald on Aug 29, 2013 at 11:23 AM | link
From now on, I'm calling the Wandering Dago either "the-food-truck-that-must-not-be-named," or the "you-know-what."
You just can't be too careful these days.
... said Bob on Aug 29, 2013 at 1:52 PM | link
I think if they are not succesful in court, they should just change their name to something creative/gets peoples attention like "the primo amendment" and continue with their business.
I recall back in the day that a coffee shop in Syracuse was sued for copyright infringement for the name "Federal Espresso". They then changed their name to "Freedom of Espresso" and have been pretty succesful ever since.
... said abc on Aug 29, 2013 at 3:22 PM | link
For politicians and "unnamed" sources to invest so much time on this small food truck business is beyond bizarre and makes you wonder what the real agenda is. I don't believe for one second that this couple ever wanted anything other than to feed people some great food. They never expected this, but are being targeted and doing what they feel is right to defend themselves and their business. Good for them.
Thinking they should start a franchise, maybe a hot dog cart called the Wandering Kraut, a chicken truck called the Wandering Chick, so many possibilities!
I'm German, by the way. And female. And the above is called HUMOR. Don't choose to see it that way? Cool. Just remember that you don't get to choose for the rest of the world, as least not until humor becomes illegal.
... said Chris on Aug 29, 2013 at 7:07 PM | link
Government and it's officials have absolutely no credibility to restrict a business from where it can vend due to it's name. This is very much a case of miss use of powers and a violation of the first amendment. NYRA and the knuckle heads that wanted the wandering Dago not to sell at the plaza absolutely has no leg to stand on in this case no matter how they try to obviscate the facts. No matter how many elected officials are of Italian decent. Obviously one too many in my opinion at least. The first amendment Supreme Court Case Law is very clearly defined in that no government authority can restrict speech or expression for any reason. In fact it is our criticism that regulates there abuse of power through the first amendment and 4th with freedom of the press, which are all commercial enterprize just like the gentlemen who operate the wandering Dago. I hope the officials responsible are personally fined as they have stepped outside of there legal role to attack a fellow Italian beyond the scope of their job, making it a miss use of powers.
... said Lawrence Eger on Aug 31, 2013 at 11:42 PM | link
@Lawrence Eger -- you are making a lot of assumptions here that it was Italian-American officials (or only Italian-American officials) who made the decisions to ban The Wandering Dago. I don't think there is any evidence of this as so far no names of any officials involved have been revealed in the media or the courts.
... said chrisck on Sep 2, 2013 at 11:29 PM | link
The state did not deny them the right to incorporate their business "Wandering Dago". That would have violated the First Amendment.
So, could someone please point out to me where in the First Amendment it says the government must provide you with a venue to promote your business whether people find your name offensive or not?
... said dgc on Sep 3, 2013 at 12:12 PM | link