U.S. Second Circuit - The FindLaw 2nd Circuit Court of Appeals Opinion Summaries Blog

Appealing First Amendment Food Truck Fiasco

The Second Circuit Court of Appeals reached a conclusion as surprising as the name of the food truck at the center of one of the more curious recent federal First Amendment appeals: Wandering Dago v. the State of New York.

The appellate court actually ruled in favor of the food truck with questionable (arguably offensive) branding, finding that the state's reason for excluding the food truck from a lunch program violated the First Amendment, despite the business's use of ethnic slurs in its branding and menu. The truck itself is a rolling ethnic slur, and uses other stereotypical pejorative terms for Italians for various menu items. However, the truck is seeking to reclaim these pejorative terms and believes using the words with a positive connotation is empowering rather than offensive.

Wait ... What?

The appellate court explains that the state violated the First Amendment because it denied the Wandering Dago food truck from access to its Lunch Program solely based on the content of the message conveyed by the branding and menu of the truck. In short, the state had a program where food trucks could pay them to come corral on government property and set up shop to sell lunch to the public.

The lower federal district court, considering cross motions for summary judgment, found that the state had a compelling enough reason to deny the offensively branded food truck. The lower court was convinced that the state's "family friendly only" policy for the Lunch Program was adequate and passed the constitutional mustard. The appellate court however noted a significant inconsistency since Wandering Dago was the only truck to ever be denied, and not even the food truck named "Slidin' Dirty" was denied, despite the name being an overt reference to the slang phrase riding dirty, which is certainly not family friendly.

In reversing the summary judgment issued by the district court, the Second Circuit heavily relied on the case of the Slants, and did a complete 180, actually directing the district court to issue judgment in favor of the Wandering Dago on their motion for summary judgment. Interestingly, the food truck had waived its claim for damages, and was only seeking declaratory and injunctive relief, as well as their attorney fees.

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