Wandering Dago, Inc. v. Destito

16-622 Wandering Dago, Inc. v. Destito 1 United States Court of Appeals 2 FOR THE SECOND CIRCUIT 3 ______________ 4 5 August Term, 2016 6 7 (Argued: January 31, 2017 Final submissions: June 26, 2017 8 Decided: January 3, 2018) 9 10 Docket No. 16‐622 11 ______________ 12 13 WANDERING DAGO, INC., 14 15 Plaintiff‐Appellant, 16 v. 17 18 ROANN M. DESTITO, JOSEPH J. RABITO, WILLIAM F. BRUSO, JR., AARON WALTERS, 19 20 Defendants‐Appellees, 21 22 JOHN DOES, 1‐5, NEW YORK STATE OFFICE OF GENERAL SERVICES, NEW YORK RACING 23 ASSOCIATION, INC., CHRISTOPHER K. KAY, STEPHEN TRAVERS, STATE OF NEW YORK, 24 25 Defendants. 26 ______________ 27 B e f o r e : 28 CALABRESI and CARNEY, Circuit Judges, AMON, District Judge.* 29 ______________ 30 31 Plaintiff‐appellant Wandering Dago, Inc., (“WD”) operates a food truck and 32 brands itself and the food it sells with language generally viewed as ethnic slurs. 33 Defendants‐appellees are officials within the New York State Office of General Services Judge Carol Bagley Amon, of the United States District Court for the Eastern District of * New York, sitting by designation. 1 (“OGS”) who played a part in repeatedly denying WD’s applications to participate as a 2 food truck vendor in the Summer Outdoor Lunch Program (“Lunch Program”) that is 3 organized by OGS and takes place in Albany’s Empire State Plaza during the summer 4 months. WD contends that defendants violated its rights under the First Amendment, 5 the Equal Protection Clause, and the New York State Constitution by denying WD’s 6 application because of its ethnic‐slur branding. 7 We conclude that the District Court erred in granting summary judgment in 8 defendants’ favor, and should instead have awarded judgment to WD. It is undisputed 9 that defendants denied WD’s applications solely because of its ethnic‐slur branding. As 10 the Supreme Court recently clarified in Matal v. Tam, 137 S. Ct. 1744 (2017), such an 11 action amounts to viewpoint discrimination and is prohibited by the First Amendment. 12 That these acts violated the First Amendment leads to the conclusion that defendants 13 further violated WD’s equal protection rights and rights under the New York State 14 Constitution. On the facts before us, we find unpersuasive defendants’ argument that 15 their actions were unobjectionable because they were either part of OGS’s government 16 speech or permissible regulation of a government contractor’s speech. 17 For these reasons, the District Court’s judgment is REVERSED and the cause is 18 REMANDED for the entry of a revised judgment consistent with this opinion. 19 20 REVERSED AND REMANDED. 21 ______________ 22 23 GEORGE F. CARPINELLO (John F. Dew, on the brief), Boies, 24 Schiller & Flexner LLP, Albany, NY, for Plaintiff‐ 25 Appellant Wandering Dago, Inc. 26 27 ZAINAB A. CHAUDHRY, Assistant Solicitor General (Barbara 28 D. Underwood, Solicitor General, Andrea Oser, 29 Deputy Solicitor General, on the brief), for Eric T. 30 Schneiderman, Attorney General of the State of New 31 York, Albany, NY, for Defendants‐Appellees RoAnn ...

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