Ruling: Wandering Dago lawsuit against OGS, NYRA may proceed

“What’s in a name?” So begins a legally chewy 54-page decision from U.S. District Court Judge Mae D’Agostino in the lawsuit brought by the owners of the Schenectady-based food truck called the Wandering Dago.

Andrea Loguidice and Brandon Snooks last August sued two entities controlled by Gov. Andrew Cuomo: the New York Racing Association, which bounced the truck from the grounds of the Saratoga Race Course on the first day of the summer meet after Cuomo’s gaming czar Ben Liebman brought its name to the attention of NYRA officials (calling it “a problem waiting to blow up”); and the state Office of General Services, which rejected the truck’s application to sell its fusion barbecue wares on the Empire State Plaza in part because of its name. Individual defendants include NYRA President Christopher Kay and OGS Commissioner RoAnn Destito.

While D’Agostino’s decision, issued Wednesday afternoon, dismissed several of the plaintiff’s claims at the defendants’ request, the core of the suit was allowed to proceed. George Carpinello, who represents the Wandering Dago’s owners, is seeking to move ahead with discovery, including the deposing of witnesses, as soon as possible.

“We’re very pleased that the case is going to go forward,” Carpinello said Thursday. ” … The state can’t act as a censor no matter how controversial the speech in question is.”

In early November, D’Agostino denied the plaintiffs’ request for a preliminary injunction. (Carpinello has appealed that dismissal to the Second Circuit Court of Appeals.)

The truck’s proprietors insist that their use of “dago” is a tribute to Loguidice’s Italian forbears, laborers who were paid “as the day goes.” Others, including Cuomo, see the word as an irredeemable ethnic slur on Italian-Americans.

“It takes neither complicated legal argument, nor complex research to determine that the word ‘dago’ is highly offensive to many. It simply takes common sense,” D’Agostino writes. “For certain, the term ‘dago’ is not a playful or accepted word for most Italians. To the contrary, it is hurtful and indeed painful to many. It conjures memories of a time not long ago when Italian Americans were the subject of widespread discrimination.”

Regardless of that acknowledgement of the word’s offensiveness, D’Agostino asserts early that its use is covered by the First Amendment, even in a commercial enterprise: “Defendants argue that Plaintiff has not engaged in speech protected by the First Amendment. The Court disagrees. Plaintiff’s corporate name, i.e. Wandering Dago, is a form of expressive speech protected under the First Amendment.”

Much of the decision is devoted to the question of whether the Empire State Plaza and the Race Course are “public fora,” sites in which courts have held that First Amendment protections are at their height. Both OGS and NYRA argue that the sites in question are “nonpublic” for the purposes of First Amendment analysis. (Indeed, OGS has argued the allowing the Wandering Dago to set up shop on the plaza could place the state at risk of suits alleging it allows a hostile workplace environment due to the appearance of the epithet.)

In regard to both sites, D’Agostino says the court requires more facts before determining whether either spot is public or nonpublic.

But in the case of the Empire State Plaza, D’Agostino makes the Solomonic observation that both plaintiffs and defendants are looking at the question through the wrong lens: The issue, she says, isn’t whether the plaza is a public forum, but whether the ESP Summer Lunch Program is such a forum. In other words: If you want to carry around a sign that reads “Wandering Dago,” that’s one thing; but if you want to seek OGS approval to sell sandwiches and shakes under that sign, it’s something else.

But that’s a question for future proceedings: “In the absence of a forum classification, the Court is unable to determine whether the policy at issue is constitutional,” the ruling states.

In an interesting footnote, the decision states that “Even if this Court were to conclude that the Empire State Plaza Summer Lunch Program is a nonpublic or limited public forum, the inquiry would not end there. Merely because a venue has been categorized as a nonpublic forum ‘does not mean that the government can restrict speech in whatever way it likes.’ … Indeed, the standard of review for a nonpublic forum is that the government’s regulation on expressive activity must be ‘reasonable in light of the purpose of the forum and all the surrounding circumstances.’”

D’Agostino upholds the plaintiffs’ pursuit of a selective enforcement claim against OGS, but denies their claim on those grounds against NYRA, citing a lack of evidence submitted. “Plaintiff, however, shall be afforded an opportunity to amend this claim,” the ruling states.

In another split decision, D’Agostino concluded that the vendors’ claims against New York State and OGS are precluded by the 11th Amendment, and that the individual OGS officials named in the suit — including Destito — can’t be pursued for damages in their official capacity, though they can be found liable for damage in an individual capacity. They can still be pursued for injunctive relief in their official capacity, however.

So as a result of the decision, the following claims remain:

(1) the state and federal First Amendment claims against the NYRA Defendants and the individual OGS Defendants;
(2) the state and federal Equal Protection claims against the individual OGS Defendants;
(3) the tortious interference with contract claims against the NYRA Defendants and the individual OGS Defendants; and
(4) the tortious interference with prospective economic advantage claims against the NYRA Defendants
and the individual OGS Defendants.

D’Agostino writes in conclusion:

This case involves an admittedly important question regarding freedom of speech. There will always be individuals and businesses in society that will attempt to push the envelope when it comes to free speech. While many may question just how offensive the use of the “D” word is on the truck in question, others should and will question whether Defendants’ conduct would be permissible under the First Amendment if the name of the food truck at issue was any of the following: Wandering “N,” in reference to African Americans; Wandering “K,” in reference to Jewish Americans; Wandering “S,” in reference to Hispanic Americans; or Wandering “C,” in reference to Chinese Americans. The Court has no doubt that if the truck at issue had been named any one of the above, the outcry from people in all walks of life, regardless of their own ethnicity, would have been so significant that the owners may have willingly changed the name posthaste without the need of Government intervention. This is not the case here.

Here’s the complete decision:

Wandering Dago Inc. vs. NYS et al

  1. Billy The Kidd says:

    Just another example of some silly Liberal attempting to control something they deem to be offensive. Political correctness run amuck.Silly Silly Liberals,always stomping on the constitution.

  2. JoeSchmoe says:

    I’m glad it’s moving forward and now maybe the Politically Correct will shut up. As even explained again the term was never presented as a slur but rather a tribute. Czar Ben Liebman brought its name to the attention of NYRA officials (calling it “a problem waiting to blow up”). The only one that blew this up Ben was you looking to get political favor from Andrew. Finally a judge who can see the forest from the trees. Ben and Andrew’s ideas if it offends one it offends all is just nuts. If that were true Andrew should have been removed from office months ago as he offends many.

  3. LucyInDaSky says:

    Great that it’s going forward… I still hope they lose.

  4. elmer says:

    Anyone heard from Lola Beedo, who was so certain the fix was in with the judge to kill the case? Anyone?

  5. tom baker says:

    This worrying about what an American chooses to call his business is beyond ridiculous. Give those babies a box of kleenex and a diaper change.

  6. Paul says:

    While I agree that the use of the “N, C, S, and K” words are certainly offensive, the term Dago is often embraced by people of Italian origin. Similar to WOP, it derived from the Italian Americans themselves (Albeit usually through the mispronunciation by others). The only real slur is “guinea” which most Southern Italians were once offended by because of it’s purpose to describe Southern Italians (such as my ancestors) as “non-white.”
    I agree that it is a slippery slope when it comes to these terms. My whole life, my friends and I used these words as terms of endearment. Like many African Americans who use the “N” word the same way or even my friends of Irish origin calling each other “Mick.” I am not saying it is right but it is common and widely accepted.
    It is important to remember that in America, Italians and Irish immigrants faced discrimination but not even close to the point of the Chinese, Jews, Hispanics and especially the African Americans, who were enslaved for hundreds of years.
    Those other terms described by the Judge were for groups of people who suffered for generations. Italian immigrants did not. (see “Fiorello Henry LaGuardia)-Italian Jewish origin
    I do not know Ben Liebman but I safely assume that he is not of Italian Origin (at least on his father’s side).
    What this comes down to is one man being cautious about possible lawsuits or just being a PC jerk. What angers me the most is that our Governor caves into the PC pressure of his political allies.
    I support Andrea Loguidice and Brandon Snooks. I hope that they win their suit and send the PC political hacks a message.
    Maybe I am wrong, but who am I?… Just a Dago from upstate.

  7. Paul says:

    Just for clarification Tom, who are the babies?

  8. dgc says:

    Just because the government can’t stop you from naming your business whatever you like, does not mean that they are obligated to provide you with a forum to promote it.

  9. OurNaturalRightsTrumpAllLaws says:

    The judge got part of this right: The word dago was not created, nor meant here, as an insult to anyone so proper use of it, as this case involves, cannot be stopped by our servant government/s.

    It is disappointing that the judge did suggest early on that she felt the word dago was offensive because that showed her ignorance. Our servant judges are not allowed to speak out of ignorance.

  10. CorkPop says:

    Well that’s funny, somehow they left out the sandwich names from their menu…the ones that insult just about everyone. I don’t feel bad for them,they wanted drama and that’s just what they got.

  11. OurNaturalRightsTrumpAllLaws says:

    why do u want them to lose?

  12. JustASec says:

    A Dago lunch wagon seems perfectly legit since it serves a working man.
    Are Italians trying to make the D word an N word?
    Give me a break.

  13. twopondsnorth says:

    So the State is worried about the appearance of allowing a hostile workplace? Perhaps they could start by looking into proven examples (like the Assembly or Senate). If a customer doesn’t like the name of an establishment the customer need not patronize the establishment. Maybe the TU could cost-out this suit so the tax payers can see how much the State pays to look good.
    Andy is a huge disappointment.

  14. Norman says:

    The notion that the “Wondering Dago” name and logo are meant as a tribute to hardworking and beloved ancestors of Italian heritage is pitifully weak as an explanation of the origins of this insulting trade name.

    Unfortunately, the level of ethnic self-hate represented by this trade name is all to evident. So sad.

  15. Rick T says:

    I guess “Redskins” is okay???

  16. Bob Brown says:

    Hey c’mon, their has been Columbus Day, officially since 1937, and back into the 1800s unofficially. And the President signs an order each year declaring National Italian American Month, in October. And let’s remember, our very Country is named after an Italian, Amerigo Vespucci. Us Micks get one day, and all the others get corno. Seriously, I think the TU should do a poll of the Capitol District. I think most would see a mountain out of a molehill, created by the State, and it’s minions.

  17. Lola Beedo says:

    hiya elmer. nice of you to think of me.
    if i didn’t mention that real possibility, who else would you argue with?
    hey, maybe the powers that be stepped back BECAUSE it was brought to light.
    just sayin’.

  18. ShakzBeer says:

    “Redskins” is a far less insulting reference, than is “Washington”!

  19. JG says:

    Love the Wandering Dago, good food, good people, don’t let dear leader Cuomo bully you.

  20. Prometheus says:

    If the owner of this business was a donor to Governor Cuomo’s re-election campaign, I’ll bet none of this would have happened…

  21. elmer says:

    Priceless! Mae D’Agostino would have sold her soul but for an anonymous loser on a blog! God I love America.

  22. Lola Beedo says:

    p.s. elmer -
    if you don’t think that every D who paved mae’s way to her post was capable of arm twisting, well then you’re in a sad way grasshopper. unless you’re new to nys and really think they’re all ABOVE that kind of stuff.
    ha ha ha ha ha ha.
    woe be unto anything that threatens to dirty up andy’s image. believe it brother. and it ain’t over yet.

  23. Fracnc says:

    Another case of the few(offended),having a say for the many. I hope D’Agostino wins. It may create a benchmark case, for what is sure to be future cases of overreaction to a name

  24. Dell says:

    They’ll probably win the battle, but lose the war. Throughout all this I keep wondering, why don’t they just change the spelling to “Day-Go” on the truck? Keep Dago as the incorporated name, and modify the spelling? Seems like a simple fix and they’d open up a ton more business opportunities for themselves. This just seems like an easily avoidable fight.

  25. JoeSchmoe says:

    @Dell.. Changing the name would be an expense.. I find it hard to believe that no one said anything when they filled out their tax forms, or any other documentation when they formed. Offending one does not offend all. And as others have stated, if they had contributed to Andrew’s campaign we would have never heard a peep about this. This is Ben Leibman trying to make himself look good to Andrew, nothing more. Andrew better get his checkbook out as he is going to be handing out a hefty sum for his lack of common sense and listening to one man.

  26. Lola Beedo says:

    so tell me, old wet behind the ears elmer.
    don’t you think slime like this, who was INSTRUMENTAL in mae’s appointment, could extract something in return, behind the scenes?
    go ahead, portray yourself as all-knowing.
    but you have SO much to learn…

  27. OurNaturalRightsTrumpAllLaws says:

    are you saying that you think the servant judge ruled in favor of freedom of speech as a returned favor to this American citizen for supporting her judgeship efforts?

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