Posted at: 09/19/2013 1:04 PM
| Updated at: 09/19/2013 9:12 PM
By: Steve Flamisch
ALBANY -- A federal judge heard oral arguments Thursday in the case of a food truck that was barred from Empire State Plaza and Saratoga Race Course for having a name deemed offensive by state officials.
Andrea Loguidice and Brandon Snooks, owners of the Schenectady-based Wandering Dago, are seeking a preliminary injunction enjoining the New York State Office of General Services (OGS) and the New York Racing Association (NYRA) from interfering with their business. They are also suing for attorney's fees and monetary damages arising from lost business.
"We're really hoping that we can just get back to work and let our food be what people judge us by," Snooks said outside the federal courthouse.
In May, OGS rejected Wandering Dago's application to participate in the Empire State Plaza's Summer Outdoor Lunch Program. In court papers, OGS Deputy Commissioner Joseph Rabito said he objected to the truck's name because "dago" is a derogatory term for Italian and Spanish people.
"We have a responsibility to State employees and the public to avoid association with a vendor whose food operation contains ethnic slurs," Rabito wrote, noting that the truck may also offend people of Polish and Irish descent with its "polack" sandwich and "mick and cheese" offerings.
Rabito specified that, as an Italian-American, he was personally offended by "dago."
JOHN DOE NAMED
In July, NYRA -- after having approved and even publicized Wandering Dago -- booted the truck from Saratoga Race Course on the first day of the summer meet because an unnamed state official had complained about the name.
That official, previously referred to in court papers as a John Doe, was revealed Thursday to be Bennett Liebman, the governor's deputy secretary for gaming and racing. The attorney representing NYRA handed the judge a copy of an email Liebman sent to Christopher Kay, NYRA's president and
"I just believe that people will find the name of the truck both offensive and insensitive, and that the fallout for authorizing this truck will inevitably land on NYRA," Liebman wrote in the email. "Is there some way to at least modify the name of this particular truck? I see this as a problem waiting to blow up."
A day later, the truck was gone.
George Carpinello, the attorney representing Wandering Dago, blasted NYRA's attorneys for failing to produce that email in the weeks leading up to the hearing. Regarding the content of the message, he said state officials do not have the constitutional right to limit commercial speech.
"If we were to rely on the Ben Liebmans of this world to say what's objectionable and what's not, we'd be no different than Iran," Carpinello told reporters.
The governor's office did not return a call seeking comment about Liebman's role in the case. OGS and NYRA declined to comment, deferring to the court papers.
For their part, Loguidice and Snooks, who are both of Italian descent, insisted they do not mean to denigrate or offend anyone with the name of their business. Snooks said they are using the term "dago" in a literal way.
"Our name is based on us getting paid as the day goes," he said. "That's not an attack on anyone, Italian or otherwise."
FIRST AMENDMENT BATTLE
At the show cause hearing Thursday before U.S. District Judge Mae D'Agostino, attorneys for both sides sparred over whether the constitutional right to free speech extends to the name of a business.
Assistant Attorney General Laura Sprague, who is representing OGS, argued that her client has the right to limit commercial speech in this case because Empire State Plaza is a "non-public forum."
"That is their right as the manager and operator of that property," Sprague told the judge. "It's not a park. It's not a public sidewalk."
Sprague referred to the plaza as "private property." She said it can be construed as part of the workplace for thousands of state employees, thus making it subject to a state law that protects workers from acts of bias, discrimination, and harrassment on the job.
Carpinello countered that the plaza is public property. He noted that the state allows numerous demonstrations on the plaza, without endorsing the viewpoints expressed by the demonstrators.
Henry Greenberg, who is representing NYRA, opened his argument by accusing Wandering Dago of filing the lawsuit to generate publicity and boost sales. He said NYRA has the right to limit commercial speech at Saratoga Race Course because the venue is a business, not a public forum.
"When you're acting as a business... you're not regulating, you're trying to make money," Greenberg told the judge, who had suggested NYRA was acting as a regulator. "What they did had nothing to do with being a regulator."
Carpinello insisted NYRA's actions were unconstitutional because they were not consistent with a stated code of conduct. He bristled at Greenberg's allegation that Wandering Dago was seeking name recognition by pursuing legal action.
"Of course we brought a lawsuit," Carpinello said. "They're interfering with our first amendment rights."
During oral arguments, Judge D'Agostino and the attorneys discussed the hypothetical situation of a food truck using the n-word, which is offensive to African-Americans, or the f-word, which is offensive to gay people.
Greenberg said if NYRA were to allow such a truck, thousands of people would boycott the track. Carpinello maintained the first amendment would protect that hypothetical truck, unless there existed a specific policy prohibiting the language.
Judge D'Agostino referred to free speech as "an important, basic right for all Americans," and noted court rulings that upheld the right of the Westboro Baptist Church to protest at military funerals. Greenberg then asked if the Ku Klux Klan should be allowed to sell hoods at little league games.
The judge adjourned the case, telling the attorneys she would render a decision on the injunction "as soon as possible." Carpinello said his clients would like to take part in the final days of the plaza's summer lunch program, and position themselves for inclusion there and at the track in 2014.