Wandering Dago, Inc. wins free speech case in the 2d Circuit

The Supreme Court has been taking an absolutist view on free speech over the last decade, ruling that campaign donations are free speech (Citizens United) and that even the most offensive speech imaginable is protected under the First Amendment (military funeral protests by the anti-gay Westboro Church). Last year, the Court held that the federal government could not deny a trademark to an entity that used an ethnic slur to promote its product. That was the Matal case. Matal compels the Court of Appeals to now hold that New York State cannot deny a food vendor a license based on its name, an ethnic slur.

The case is Wandering Dago, Inc. v. Destito, decided on January 3. Wandering Dago is the name of a food vendor that wants to sell food in the Capitol complex in Albany, where a series of government buildings surrounding the State Capitol that empties out during lunchtime in a huge park-like concourse that is home to food vendors and tourists who admire the beautiful Empire State Plaza that Gov. Rockefeller built with his bare hands as a means to impress foreign dignitaries. The State of New York denied Wandering Dago permission to sell food at Summer Outdoor Lunch Program because the business name is a slur against Italians.

Nowadays, the public is increasingly aware of offensive speech and the need to be "politically correct." At the same time, when it comes to free speech, anything goes at the Supreme Court, including ethnic slurs. In 1995, the Court held in the Rosenberger case that the government discriminates against viewpoints when it disfavors certain speech because of the "specific motivating ideology or the opinion or perspective of the speaker." In 2007, the Court said the Patent Office could not issue a trademark for a rock band called The Slants, a slur against Asians. The Court reasoned that the trademark denial was unconstitutional viewpoint discrimination. Justice Kennedy said in concurrence that the government policy of "mandating positivity . . . might silence dissent and distort the marketplace of ideas" even if the policy is applied evenhandedly to all participants. In other words, it is not for the government to decide what is offensive. That case is Matal v. Tam, 137 S.Ct. 1744 (2017).

The reasoning in Matal strikes down New York's policy guiding the Summer Outdoor Lunch Program. The Court of Appeals (Carney, Calabresi and Amon [D.J.] says: 

Ultimately, we think Matal compels the conclusion that defendants have unconstitutionally discriminated against WD's viewpoint by denying its Lunch Program applications because WD branded itself and its products with ethnic slurs. Although ethnic slurs are used to express a variety of opinions and obtain a variety of effects, under Matal the mere use of these potentially offensive words in the factual setting presented here reflects a viewpoint and cannot be framed by the government as a larger viewpoint-neutral category of speech content available to advance multiple viewpoints and therefore subject to less First Amendment protection.

In addition, the viewpoint discrimination is not justified, the Second Circuit holds. This form of censorship is legal only if the government identifies a compelling reason for it. "Defendants have not argued that their actions, if correctly characterized as viewpoint discrimination against WD's private speech, were sufficiently justified by OGS's governmental interests to survive First Amendment scrutiny. Nor do we think that that argument could be successfully made here, but we address it briefly to complete the analytical picture."