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Second Circuit Declares Business Named "Wandering Dago" Protected by Matal v. Tam

By Cynthia Arato

The Second Circuit yesterday applied Matal v. Tam to hold that a New York business entitled "Wandering Dago" could not be deprived of state benefits because of its name.

From the opening paragraphs:

Plaintiff‐appellant Wandering Dago, Inc., ("WD") operates a food truck and 3 brands itself and the food it sells with language generally viewed as ethnic slurs. Defendants‐appellees ("defendants") are officials within the New York State Office of General Services ("OGS") who played a part in twice denying WD's applications to participate as a food vendor in the Summer Outdoor Lunch Program ("Lunch Program"), an activity that is organized by OGS and takes place in Albany's Empire State Plaza annually in the summer months. WD contends that defendants violated its rights to free speech and equal protection under the United States Constitution and the New York State Constitution by denying WD's application because of its branding practices.

We conclude that the District Court erred in granting summary judgment in defendants' favor, and should instead have awarded judgment to WD. It is undisputed that defendants denied WD's applications solely because of its ethnic‐slur branding. The Supreme Court's recent decision in Matal v. Tam, 137 S. Ct. 1744 (2017), clarifies that this action amounts to viewpoint discrimination and, if not government speech or otherwise protected, is prohibited by the First Amendment. That the action violates the First Amendment leads directly to the conclusion that defendants also violated WD's equal protection rights and its rights under the New York State Constitution.

wandering dago.pdf

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