[The following case centered on an ethnic slur and this post therefore includes two references to that slur.]

Reaffirming the First Amendment’s virtual prohibition on viewpoint discrimination, the Second Circuit recently held that New York state could not prohibit a vendor from participating in public lunch program simply because its name and menu featured ethnic slurs.

The case emerged from a dispute over access to the publicly owned Empire State Plaza in Albany, New York.  After years of contracting with a single vendor to supply food for a daily lunch program hosted in the plaza, New York’s Office of General Services (OGS) chose instead to feature a rotating line-up of food trucks—similar to Civic Center Eats program in Denver’s Civic Center Park—subject to a permitting regime.  Plaintiff Wandering Dago, Inc. (“WD”), which operates a food truck with the same name, applied to OGS for a vending permit.  Though the application proceeded normally at first, when OGS officials realized the term “dago” was an ethnic slur offensive to those of Italian, Spanish, and Portuguese origin, and also learned that WD’s menu contained other slurs, they denied the permit.

WD, whose owners named the truck as a nod to their Italian heritage and as a symbol of working-class solidarity, sued OGS, arguing primarily that its officials’ viewpoint-based permit denial violated the First Amendment.  The district court disagreed, granting summary judgment in the state’s favor.  WD appealed.

On appeal, the Second Circuit reversed, concluding that the denial constituted impermissible and unjustified viewpoint discrimination in violation of the First Amendment.  At the outset, the panel analyzed whether the state’s denial amounted to viewpoint discrimination or was instead a regulation on content.  Drawing from the Supreme Court’s recent decision in Matal v. Tam, 137 S. Ct. 1744 (2017), in which the Court held that the Patent Office could not refuse to trademark a band’s name simply because it contained an offensive word, the Second Circuit panel similarly concluded that because OGS denied WD’s application out of fear that WD’s name and menu would give offense, OGS had discriminated on the basis of viewpoint.  The panel further concluded that OGS could not justify that discrimination.

OGS raised two related theories in defense—that participating food trucks’ content was either government speech or government contractor speech, subject to regulation—but the Second Circuit rejected both.  In the panel’s view, no one could mistake the food trucks’ content as the government’s own, as might be the case with a monument, license plate, or contractor representing the government.  Because they lacked that essential connection, the court concluded, they did not fall with any component of the government speech doctrine.

Having found that OGS’s denial violated the First Amendment (as well as the Equal Protection Clause on a select-enforcement theory), the panel reversed and remanded the to the district court for entry of an order consistent with that conclusion.