Wandering Dago Inc.

The Wandering Dago food truck wants to park and sell food at various events on New York State property. The state says no, because the name is offensive. Does that violate the First Amendment?

That’s the issue in Wandering Dago Inc. v. N.Y. State Office of General Services (Jan. 15, 2014), though it remains an unresolved issue. The court concluded that there weren’t enough facts on whether the government-owned properties where the truck wanted to park were “traditional public fora” or “nonpublic fora” (or perhaps the closely related “limited public fora”); it therefore largely denied the state defendants’ motion to dismiss.

What would likely happen in the case going forward? Well, if the places were found to be traditional public fora, a category that includes most parks, sidewalks, and streets, it seems pretty clear that First Amendment law would bar exclusion of the truck based on its message.

But if they were found to be nonpublic fora, a category that includes many other kinds of government property, including sidewalks and roadways that are closely attached to special-purpose buildings (such as post offices) and separate from ordinary sidewalks and streets, then the government could restrict speech on such property if the restriction were viewpoint-neutral and reasonable. And the precise terms of the restriction (which at this point seem unclear to me) would be important — if the government sought to exclude signs that it saw as bigoted, that would be viewpoint-based and thus unconstitutional even in a nonpublic forum; if the government sought to exclude signs that it saw as containing vulgarities or epithets of all kinds, that might be viewpoint-neutral.)

The court closed, by the way, with this paragraph (circumlocutions in original):

This case involves an admittedly important question regarding freedom of speech. There will always be individuals and businesses in society that will attempt to push the envelope when it comes to free speech. While many may question just how offensive the use of the “D” word is on the truck in question, others should and will question whether Defendants’ conduct would be permissible under the First Amendment if the name of the food truck at issue was any of the following: Wandering “N,” in reference to African Americans; Wandering “K,” in reference to Jewish Americans; Wandering “S,” in reference to Hispanic Americans; or Wandering “C,” in reference to Chinese Americans. The Court has no doubt that if the truck at issue had been named any one of the above, the outcry from people in all walks of life, regardless of their own ethnicity, would have been so significant that the owners may have willingly changed the name posthaste without the need of Government intervention. This is not the case here.

But it seems to me that this assumes the conclusion, at least if the judge is suggesting that “Wandering Dago” ought to be socially condemned (a separate matter, as the judge realizes, from whether it’s protected by the First Amendment). Is “Wandering Dago” more like, say, “Wandering Nigger” (which would indeed be pretty likely to lead to business pushback, or so I would think)? Or is it, to shift outside the food context — “Queer Eye for the Straight Guy,” or “Niggaz With Attitude” (though that indeed was generally abbreviated “N.W.A.”)? How about “Yid Vicious” (“A kick-ass klezmer band”)?

How about the Redskins, which are getting some market pushback but far less than you’d expect from “Wandering Spics”? Returning to food and drink, how about Biscuit Bitch or Raging Bitch Beer? It seems to me that, in fact, the use of different kinds of epithets are treated differently by the market — and by social reactions more broadly — depending on the context in which the epithet is used, the epithet’s recent history, the business’s history, and (rightly or wrongly) who is using them and why. That doesn’t mean that First Amendment law should treat them differently, but the public does and, often, probably rightly so.

UPDATE: Thanks to Dilan Esper for this photo, though I think it’s not quite the “Wandering Kike” that the judge had in mind:

kikestacos

I assume “Kike” is just the owner’s name, likely a nickname for Enrique.

Eugene Volokh teaches free speech law, religious freedom law, church-state relations law, a First Amendment Amicus Brief Clinic, and tort law, at UCLA School of Law, where he has also often taught copyright law, criminal law, and a seminar on firearms regulation policy.
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Eugene Volokh · January 22