By Casey Seiler | Times Union
“What’s in a name?” So begins a legally chewy 54-page decision from U.S. District Court JudgeMae D’Agostino in the lawsuit brought by the owners of the Schenectady-based food truck called the Wandering Dago.
In May, the state Office of General Services rejected the truck’s application to sell food on the Empire State Plaza. Two months later, the New York Racing Association bounced the truck from the grounds of 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” in an email.
While D’Agostino’s decision, issued Wednesday afternoon, dismissed in whole or part 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, is seeking to move ahead with discovery, including the deposing of witnesses.
“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.”
The state attorney general’s office, representing OGS, and NYRA attorney Henry Greenbergdid not respond to requests for comment.
The truck’s proprietors insist that their use of “dago” is a tribute to Loguidice’s Italian forebears, 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 wrote.
Regardless, she asserted its use 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 First Amendment protections are at their height. Both OGS and NYRA argue that the sites in question are “non-public” 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.)
D’Agostino said 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 concluded that both sides are looking at the question with the wrong lens: The issue, she wrote, isn’t whether the Plaza is a public forum, but whether the OGS Summer Lunch Program is such a forum. But that’s a question for future proceedings.