Albany, NY: Could federal decision aid food truck’s suit?

By Casey Seiler  |  Times Union


The attorney for the Schenectady-based food truck called the Wandering Dago believes a new decision by a federal appeals court undermines several of the arguments made by state attorneys in their justification for banishing the controversially named business from the Empire State Plaza.

The owners of the truck, Andrea Loguidice and Brendan Snooks, filed suit in late August 2013 against top officials at the state Office of General Services and the New York Racing Association, claiming that the Wandering Dago had been rejected by OGS’s summer lunch program on the Empire State Plaza and ejected from the Saratoga Race Course due to state officials’ objections to its name.

While “dago” is generally understood to be a slur, Loguidice and Snooks insist it is nothing more than a tribute to her Italian ancestors, laborers who were paid “as the day goes.”

Loguidice filed a separate lawsuit last year, claiming that she was fired from her job as an attorney for the Department of Environmental Conservation due to her connection to the truck. DEC officials took action against her after it came to light that the truck had been hired by a General Electric contractor to cater an event on GE’s Niskayuna campus; agency officials said DEC’s work on GE’s PCB dredging project on the Hudson should have raised a red flag for Loguidice.

The DEC-Loguidice suit is currently bogged down in legal wrangling about the scope of the questions state attorneys are obligated to answer in depositions. In the initial suit, NYRA settled with the plaintiffs in January for $68,500.

The suit against OGS is currently being weighed by U.S. District Court JudgeMae D’Agostino after both sides in August moved for summary judgment. (Yes, it has been observed that the word at issue in this case is contained in the name of the judge who presides over it.)

OGS has defended its decision to bar the truck from the summer lunch program, arguing in part that the appearance of the Wandering Dago on the Empire State Plaza could create a potentially hostile work environment or suggest that state officials tacitly approve of the controversial word. The state argues that while the Plaza is a nominally public space where First Amendment rights are given a wide berth, the summer lunch program is not.

On Wednesday, the plaintiffs’ attorney George Carpinello filed a letter with the court drawing D’Agostino’s attention to a new decision from the U.S. Court of Appeals for the Federal Circuit in the matter of Simon Shiao Tam, the founder of the Portland, Ore.-based band The Slants, who self-identify as “the first and only all-Asian American dance rock band in the world.”

Similar to the Wandering Dago, the band’s name employs a term generally understood as a slur on those of Asian descent. Tam has described the name as cultural reappropriation — an attempt to steal the word away from racists.

Tam appealed the U.S. Patent & Trademark Office’s rejection of the band’s trademark request, a decision that cited a federal ban on marks that are “scandalous, immoral, or disparaging.”

The Court of Appeal’s 10-2 decision, issued Wednesday, concluded that the government “cannot refuse to register disparaging marks because it disapproves of the expressive messages conveyed by the marks. It cannot refuse to register marks because it concludes that such marks will be disparaging to others. The government regulation at issue amounts to viewpoint discrimination.”

In his letter to D’Agostino, Carpinello pointed to the court’s rejection of the idea that trademark could be denied because such a grant represents a “government subsidy,” and does not involve the First Amendment.

“Significantly … the court noted that even where the subsidy involved the use of government property, the government could not engage in viewpoint discrimination,” Carpinello wrote. ” … The court also expressly rejected the argument that disassociating the government from ‘speech it finds odious’ was not a legitimate interest justifying viewpoint discrimination where the speech is not government speech or can be ‘reasonably attributed to the government by the public.'”

Previous federal court decision cited by Carpinello have held that when the government moves to restrict commercial speech, it must show an overwhelmingly civic need to justify it.

The letter was copied to Assistant Attorney General Colleen Galligan, who is representing OGS in the lawsuit. A spokesman for the Attorney General’s office declined to comment on Thursday.

The Court of Appeals for the Federal Circuit, based in Washington, D.C., holds jurisdiction over trademark matters, among several other specialized areas.

Observers have noted the Tam decision could aid the owners of the Washington Redskins, which is fighting to overturn the revocation of its trademark based on a rule that bars names that “may disparage” persons or groups.