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UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK
WANDERING DAGO INC.
Plaintiff, v. NEW YORK STATE OFFICE OF GENERAL SERVICES, ROANN M. DESTITO, JOSEPH J. RABITO, WILLIAM F. BRUSO, JR., AARON WALTERS, NEW YORK RACING ASSOCIATION, INC., CHRISTOPHER K. KAY, STEPHEN TRAVERS, JOHN DOES 1–5, and THE STATE OF NEW YORK
Defendants.
Civil Action No. 1:13-cv-01053-MAD-RFT
MEMORANDUM OF LAW IN SUPPORT OF PLAINTIFF’S MOTION FOR A PRELIMINARY INJUNCTION
Dated: August 27, 2013 BOIES, SCHILLER & FLEXNER LLP George F. Carpinello (Bar No. 103750) Michael Hawrylchak 30 South Pearl Street Albany, NY 12207 Ph: (518) 434-0600
Attorneys for Plaintiff
Case 1:13-cv-01053-MAD-RFT Document 4-1 Filed 08/27/13 Page 1 of 27
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TABLE OF CONTENTS Table of Authorities ........................................................................................................................ ii Preliminary Statement ..................................................................................................................... 1 Statement of Facts ........................................................................................................................... 3 I. Wandering Dago Was Denied Access to the Empire State Plaza Outdoor Summer Food Program ............................................................................. 3 II. Wandering Dago Was Expelled From Saratoga Race Course ................................ 6 III. Wandering Dago Has Attempted to Find Alternate Locations and Events ............ 8 Argument ........................................................................................................................................ 8 I. Wandering Dago Will Be Irreparably Harmed Absent a Preliminary Injunction ................................................................................................................ 9 II. Wandering Dago Is Likely to Succeed on the Merits ............................................. 9 A. Wandering Dago’s Free Speech Rights Under the First Amendment and Article I, § 8 Have Been Violated ...................................................... 10 1. Plaintiff’s Speech Is Not Misleading or Unlawful ........................ 10 2. Defendants Cannot Assert a Legitimate Government Interest ..... 11 3. Defendants’ Ban Does Not Directly Advance Any Government Interests .................................................................... 14 4. Any Purported Regulatory Justification For Defendants’ Actions Is Unconstitutionally Vague ............................................ 15 B. Wandering Dago Has Been Denied the Equal Protection of the Laws
Guaranteed By the Fourteenth Amendment and Article I, § 11 ............... 17 III. Wandering Dago Has Demonstrated Serious Questions Going to the Merits of Its Claims and That the Balance of Hardships Tips Decidedly In Its Favor .... 18 IV. A Preliminary Injunction Allowing Wandering Dago to Operate at the ESP and Return to Saratoga Race Course As a Vendor Would Be In the Public Interest................................................................................................................... 19 V. The Court Should Not Require a Bond ................................................................. 20 Conclusion .................................................................................................................................... 22
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TABLE OF AUTHORITIES
Cases Alvarez v. Hayward,
2006 WL 2023002 (N.D.N.Y. July 18, 2006) .......................................................................... 11 Ashcroft v. American Civil Liberties Union,
535 U.S. 564 (2002) ............................................................................................................ 11, 16 Bad Frog Brewery, Inc. v. New York State Liquor Authority, 134 F.3d 87 (2d Cir. 1998)........................................................................................ 9, 10, 14, 15 Bery v. City of New York,
97 F.3d 689 (2d Cir. 1996).......................................................................................................... 9 Bolger v. Youngs Drug Prods. Corp.,
463 U.S. 60 (1983) .............................................................................................................. 11, 12 Bronx Household of Faith v. Bd. of Educ. of City of N.Y.,
331 F.3d 342 (2d Cir. 2003).................................................................................................. 9, 18 Central Hudson Gas & Electric Corp. v. Public Service Commission,
447 U.S. 557 (1980) .................................................................................................................. 10 City of Lakewood v. Plain Dealer Publ'g Co.,
486 U.S. 750 (1988) .................................................................................................................. 16 Cohen v. California,
403 U.S. 15 (1971) .............................................................................................................. 11, 14 Doctor's Assocs., Inc. v. Stuart,
85 F.3d 975 (2d Cir. 1996)........................................................................................................ 20 Edenfield v. Fane,
507 U.S. 761 (1993) .................................................................................................................. 14 Elrod v. Burns,
427 U.S. 347 (1976) .................................................................................................................... 9 Forsyth County v. Nationalist Movement,
505 U.S. 123 (1992) .................................................................................................................. 15 Garcia v. New York Racing Association, Inc.,
2011 WL 3841524 (N.D.N.Y. Aug. 29, 2011) ......................................................................... 11 Hornell Brewing Co., Inc. v. Brady,
819 F. Supp. 1227 (E.D.N.Y. 1993) ................................................................................... 12, 13
Case 1:13-cv-01053-MAD-RFT Document 4-1 Filed 08/27/13 Page 3 of 27
iii
Johnston v. Tampa Sports Auth., 2006 WL 2970431 (M.D. Fla. Oct. 16, 2006) .......................................................................... 21
LaTrieste Restaurant and Cabaret, Inc. v. Village of Port Chester,
40 F.3d 587 (2d Cir. 1994)........................................................................................................ 17 Million Youth March, Inc. v. Safir,
18 F. Supp. 2d 334 (S.D.N.Y. 1998) ................................................................................... 15, 17 Million Youth March, Inc. v. Safir,
63 F. Supp. 2d 381 (S.D.N.Y. 1999) ......................................................................................... 12 Oneida Nation of New York v. Cuomo,
645 F.3d 154 (2d Cir. 2011)........................................................................................................ 8 Pac. Gas and Elec. Co. v. Pub. Utils. Comm'n of Cal.,
475 U.S. 1 (1986) ...................................................................................................................... 19 People v. Dietze,
75 N.Y.2d 47, 549 N.E.2d 1166 (1989) .................................................................................... 12 Rivera v. Town of Huntington Hous. Auth.,
2012 WL 1933767 (E.D.N.Y. May 29, 2012) .......................................................................... 21 Sambo's of Ohio, Inc. v. City Council of Toledo,
466 F. Supp. 177 (N.D. Ohio 1979) .......................................................................................... 13 Sambo's Restaurants, Inc. v. City of Ann Arbor,
663 F.2d 686 (6th Cir. 1981) .................................................................................................... 13 Shuttlesworth v. City of Birmingham,
394 U.S. 147 (1969) .................................................................................................................. 16 Smith v. Bd. of Election Comm'rs,
591 F. Supp. 70 (N.D. Ill. 1984) ............................................................................................... 21 Stevens v. New York Racing Association, Inc.,
665 F. Supp. 164 (E.D.N.Y. 1987) ........................................................................................... 11 Terminiello v. Chicago,
337 U.S. 1, 69 S.Ct. 894 , 93 L.Ed. 1131 (1949) ................................................................ 13, 20 Texas v. Johnson,
491 U.S. 397 (1989) .................................................................................................................. 12 Transp. Alternatives, Inc. v. City of New York,
340 F.3d 72 (2d Cir. 2003)........................................................................................................ 15
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iv
Virginia State Bd. of Pharmacy v. Virginia Citizens Consumer Council, 425 U.S. 748 (1976) .................................................................................................................. 10
Westfield High School L.I.F.E. Club v. City of Westfield,
249 F. Supp. 2d 98 (D. Mass. 2003) ......................................................................................... 21
Statutes 42 U.S.C. § 1983 ........................................................................................................................... 11
United States Constitutional Provisions
First Amendment .................................................................................................................. passim Fourteenth Amendment, Equal Protection Clause .................................................................... 9, 17
New York State Constitutional Provisions Article I, § 8 .................................................................................................................................... 9 Article I, § 11 ............................................................................................................................ 9, 17
Rules Rule 65 of the Federal Rules of Civil Procedure .......................................................................... 20
�
Regulations Title 9 of the New York Codes, Rules and Regulations, Parts 300 and 301 ................................. 5
Case 1:13-cv-01053-MAD-RFT Document 4-1 Filed 08/27/13 Page 5 of 27
Plaintiff Wandering Dago Inc. (“Wandering Dago”) respectfully submits this
Memorandum of Law in support of its Motion for a Preliminary Injunction. Wandering Dago
seeks an injunction ordering Defendants, and all those in concert therewith, to allow Wandering
Dago to participate in the Empire State Plaza Summer Outdoor Lunch Program and to participate
as a vendor at the Saratoga Race Course.
PRELIMINARY STATEMENT
Wandering Dago has been unconstitutionally prevented from operating its business and
conveying its commercial message by two separate state agencies solely because certain
government officials have deemed its name to be inappropriate or offensive. The actions of the
officials are blatantly unconstitutional and are in bad faith. As a result, Wandering Dago
continues to suffer financial and constitutional injuries. The ongoing harm to Wandering Dago
and the merits of its constitutional claims are clear. This Court should therefore grant
preliminary injunctive relief allowing Wandering Dago to convey its commercial message and
sell its products pending the final resolution of this action.
After months of discussions with New York’s Office of General Services (“OGS”)
concerning participation as a food truck vendor in the Empire State Plaza (“ESP”) Outdoor
Summer Lunch Program, Wandering Dago’s application was unexpectedly denied only days
before the start of the program. In response to Wandering Dago’s request for an explanation,
OGS stated that the application had been denied because Wandering Dago’s name had been
determined to be offensive. Despite requests from Wandering Dago, OGS has refused to cite
any specific rule or regulation justifying the denial.
This denial is an unconstitutional violation of Wandering Dago’s First Amendment rights
for two distinct reasons. First, Wandering Dago’s name is commercial speech. Such speech may
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be restricted only if the restriction directly advances a substantial government interest. Case law
is clear that the government has no legitimate interest in banning speech merely because it is
“offensive,” much less a substantial one. In fact, the case law is so clear that Defendants have
no good faith defense for their conduct. Moreover, even assuming the existence of a substantial
government interest, the exclusion of vendors from the Summer Outdoor Lunch Program fails to
directly advance that interest.
Second, the curtailment of Wandering Dago’s speech was not undertaken pursuant to any
narrow, objective, and definite standards as required by the Supreme Court’s case law. The
constitution does not permit vesting government officials with the unguided authority to restrict
speech on vague bases like “offensiveness.” OGS’s action in denying Wandering Dago’s permit
is unconstitutional on this ground, independent of the scope of the state’s authority to regulate
commercial speech.
Two months after its exclusion from the ESP program, Wandering Dago was preparing to
begin a seven-week engagement as a food truck vendor at Saratoga Race Course. After several
months of extended contract negotiations and logistical arrangements with Centerplate, Inc.
(“Centerplate”), the private hospitality company managing vendors at Saratoga Race Course on
behalf of the New York Racing Association (“NYRA”), and three days of physical setup at the
race track, Wandering Dago was informed by a NYRA official on the evening of Opening Day
that it was being expelled from the track effective immediately and ordered to leave the premises
in a matter of hours. The NYRA official said that this dismissal had been directed by an
unnamed state official offended by Wandering Dago’s name.
The action of NYRA officials and the conspiring state officials in expelling Wandering
Dago from Saratoga Race Course on the basis of its name is a clear violation of the First
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Amendment, lacking even the thin veneer of a legitimate government regulation of commercial
speech. Like the OGS officials’ conduct, this conduct was willful and knowing and was not
taken in good faith.
STATEMENT OF FACTS
Wandering Dago is a New York corporation formed in January 2012 by Andrea
Loguidice and Brandon Snooks. Through Wandering Dago, Loguidice and Snooks operate a
food truck using the “Wandering Dago” brand from which they serve a variety of gourmet foods
cooked and prepared on-site in the truck’s mobile kitchen. Loguidice and Snooks are Italian-
Americans and chose the “Wandering Dago” name as a playful reference to their Italian heritage.
Loguidice and Snooks have invested a significant amount of money in the truck and equipment
and relocated to the Capital District to run this business. Wandering Dago is currently their only
source of income. (Affidavit of Andrea D. Loguidice (“Loguidice Aff.”) ¶¶ 1, 3, 7)
I. Wandering Dago Was Denied Access to the Empire State Plaza Outdoor Summer Food Program. In early 2013, Wandering Dago also became interested in participating in the ESP
Summer Outdoor Lunch Program, a program run by OGS which allows food vendors to operate
at the Empire State Plaza on weekdays from late May until early October. Wandering Dago was
in periodic contact by phone and email with multiple individuals at OGS, including Aaron
Walters, Madeline Rizzo, and Jason Rumpf, starting in February 2013. Wandering Dago
inquired on multiple occasions about participating as a summer vendor at ESP and requested an
application for the program at least as early as April 11, 2013. (Loguidice Aff. ¶¶ 8, 11)
On May 3, 2013, Aaron Walters sent Wandering Dago the application for the ESP
Summer Outdoor Lunch Program. The application deadline was May 10, 2013. The application
states that “[u]nless prior arrangements have been made with OGS, all vendors are expected to
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complete the entire season.” On or about May 6, 2013, Wandering Dago spoke with Walters by
phone to inquire whether its seven-week commitment at Saratoga Race Course would prevent it
from participating in the program. Walters said that he would speak with his supervisors to
determine whether Wandering Dago could participate. On or about May 8, 2013, Wandering
Dago spoke with Jason Rumpf to follow up and was informed that Walters was working on
getting an answer. Rumpf said that OGS would be flexible on the deadline because of the delay
from their management. (Loguidice Aff. ¶¶ 12–14)
On May 10, 2013, at approximately 3:00 p.m., Wandering Dago received a voicemail
from Walters indicating that OGS would approve Wandering Dago’s application despite the
expected seven-week absence. On or about May 13, 2013, Walters contacted Wandering Dago
by phone and advised that it would have until Friday, May 17, 2013 to submit its application.
Walters apologized for the delay caused by OGS. On May 17, 2013, at approximately 12:16
p.m., Wandering Dago faxed a complete application to OGS. It selected the option to participate
in the program on Wednesdays and Fridays only and provided credit card authorization for the
$1,000 participation fee. (Loguidice Aff. ¶¶ 15–17)
On May 20, 2013, Wandering Dago asked Walters by email whether the application had
been officially approved yet. It received an email reply from Walters denying the application,
stating that OGS “will be unable to accommodate your application for space in this year’s
program.” Wandering Dago immediately called Walters to ask for an explanation of the denial.
Walters informed Wandering Dago that its application was the only food vendor application for
the Summer 2013 program that was denied by OGS, but stated that he could not tell Wandering
Dago the reason for the denial and directed it to contact OGS’s legal department. (Loguidice
Aff. ¶¶ 18–19)
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Wandering Dago immediately contacted OGS’s legal department and spoke to William F.
Bruso, Jr., an OGS Associate Attorney. Bruso gave three reasons for the application’s denial:
(1) the application was late; (2) the application was incomplete; and (3) Wandering Dago’s
business name had been deemed offensive. The first two stated reasons were pretextual.
Wandering Dago was in frequent communication with OGS during the application process, was
assured that OGS would be flexible with regard to the deadline, and was eventually given a new
deadline of May 17, 2013. Wandering Dago submitted its application on May 17, 2013.
Further, Wandering Dago’s application was complete, and Bruso has never provided any
explanation of his claim of incompleteness. (Loguidice Aff. ¶¶ 20–22)
During the May 20, 2013 call with Bruso, Wandering Dago asked him to provide a
formal letter stating the reasons for the application’s denial. Bruso refused to provide a written
explanation without a formal request under New York’s Freedom of Information Law (“FOIL”).
On May 29, 2013, Wandering Dago sent a letter to Bruso requesting a written explanation for the
application’s denial, including a citation to the public rule that gives OGS the authority to deny
the application on the basis of Wandering Dago’s name. On June 25, 2013, Wandering Dago
submitted a FOIL request asking for all documents related to its Empire State Plaza Food Vendor
application. The following day, it received a confirmation from Heather R. Groll, the Director of
OGS’s Public Information Office, that the FOIL request had been received and that a
determination on the request would be made within 20 business days. (Loguidice Aff. ¶¶ 23–25)
On July 1, 2013, Wandering Dago received a letter from Bruso stating, “I conveyed to
you by telephone on May 20, 2013, OGS’ several reasons for its denial of your firm’s
application.” The letter stated that the denial was made pursuant to the terms of the Food Vendor
Application packet, as well as Parts 300 and 301 of Title 9 of the New York Codes, Rules and
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Regulations. The letter did not cite any specific provision of law justifying the denial.
Wandering Dago received no further response to its FOIL request. Heather Groll was quoted in
an update to a July 22, 2013 article on the website “All Over Albany” saying, “[a]mong other
reasons, it was determined that [Wandering Dago’s] application was not appropriate because the
name of the business was found to be an offensive ethnic slur by any standard.” (Loguidice Aff.
¶¶ 26–28)
II. Wandering Dago Was Expelled From Saratoga Race Course. On January 28, 2013, Wandering Dago began talks with Drew Revella of Centerplate to
discuss the possibility of Wandering Dago being a vendor for the 2013 track season. After
extensive negotiations, Wandering Dago eventually reached an agreement with Centerplate to
participate as a vendor at Saratoga Race Course during the seven-week track season, in exchange
for 25% of its gross food and beverage sales and a 5% donation to a racing-related charity.
Wandering Dago was listed prominently in promotional materials produced by NYRA and
Centerplate as a vendor for the 2013 race track season. On or about July 18, 2013, Centerplate
issued a press release listing Wandering Dago as “one of the country’s top barbecue fusion
trucks.” NYRA listed Wandering Dago as one of its vendors both on its website and in its
Saratoga Insider Fan Guide. Wandering Dago was offered and turned down numerous business
opportunities, including both private catering events and public festivals, because they conflicted
with its commitment at Saratoga Race Course. (Loguidice Aff. ¶¶ 29, 31–33)
In preparation for the volume of business anticipated during its seven-week engagement
at Saratoga Race Course, Wandering Dago purchased a substantial amount of new cooking
equipment, including a six-foot barbeque smoker, a stainless steel prep table, and a deep fryer.
Wandering Dago also hired five employees to work during the track season and obtained the
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necessary workers compensation insurance. On July 16, 2013, Wandering Dago brought its
truck, smoker, and supplies to Saratoga Race Course to begin setting up in advance of the start of
the track season on Friday, July 19, 2013. Loguidice and Snooks spent three days delivering and
setting up Wandering Dago’s equipment in preparation for opening day. Due to an unexpected
problem with propane delivery, Loguidice and Snooks were initially unable to cook, and
Wandering Dago was not open for business on opening day. They resolved the propane problem
and were prepared to begin serving food the next morning. Drew Revella apologized for the
delay and represented via text message that he would “get [Wandering Dago] another
opportunity for the missed day.” (Loguidice Aff. ¶¶ 34, 36–40)
At or about 10:00 p.m. on the evening of July 19, 2013, Wandering Dago received a call
from Stephen Travers, NYRA’s Vice President of Hospitality, Guest Services & Group Sales,
instructing it to remove its truck and equipment from Saratoga Race Course immediately.
Travers alleged that this decision had been made because a state official complained about
Wandering Dago’s name. Wandering Dago pleaded with Travers to be allowed to stay, offering
to cover up its business name everywhere it appears on the truck and equipment. Travers refused
and stated that his “hands are tied,” because NYRA had been contacted by a high ranking state
official. Travers said that the truck would be towed if it was not removed before 10:00 a.m. the
following morning. (Loguidice Aff. ¶¶ 41–43)
In order to quickly remove equipment that had been set up over a three-day period,
Wandering Dago was forced to rent a moving trailer, incurring additional expense. On the
morning of July 20, 2013, as Loguidice and Snooks were preparing to leave Saratoga Race
Course, they were met by Travers and Drew Revella. Revella presented them with a letter stating
the purported reason for termination: “[W]e have reached out to you with concern for your
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business name ‘Wandering Dago’. We have received numerous complaints about the Dago part
being offensive and think it is in our fans [sic] best interest to remove your truck from the track.”
(Loguidice Aff. ¶¶ 44–45)
III. Wandering Dago Has Attempted to Find Alternate Locations and Events. Empire State Plaza is the single most desirable and profitable lunchtime location for
mobile food vendors in the Capital District because of the high foot traffic and large number of
people working in close proximity. Since being denied access to the ESP Summer Outdoor
Lunch Program, Wandering Dago has operated during lunchtime at various locations in the
Capital District, but none has the volume of foot traffic and potential customers present at ESP.
These locations also have less visibility to the public which leads to fewer private catering jobs
and other business opportunities. (Loguidice Aff. ¶¶ 9, 47)
Moreover, after being expelled from Saratoga Race Course, Wandering Dago has
attempted to book as many public and private events as possible to fill its schedule, but most
events, including events that it previously turned down because of its commitment at the race
track, were no longer available. Wandering Dago has also attempted to fill its lunchtime
schedule, but due to the limited number of locations in the Capital District, it typically works no
more than three lunchtime shifts per week. The business Wandering Dago does during weekday
lunchtimes and occasional booked events does not come anywhere close to the amount of
business it would have done serving the Saratoga Race Course crowd six days a week for the
duration of the seven-week track season. (Loguidice Aff. ¶ 46)
ARGUMENT
“[A] party seeking a preliminary injunction must establish (1) irreparable harm and (2)
either (a) a likelihood of success on the merits, or (b) sufficiently serious questions going to the
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merits of its claims to make them fair ground for litigation, plus a balance of the hardships
tipping decidedly in favor of the moving party. Additionally, the moving party must show that a
preliminary injunction is in the public interest.” Oneida Nation of New York v. Cuomo, 645 F.3d
154, 164 (2d Cir. 2011) (internal quotations and citation omitted).
Wandering Dago has satisfied each of those factors.
I. Wandering Dago Will Be Irreparably Harmed Absent a Preliminary Injunction. Wandering Dago’s commercial speech has been censored solely on the basis of its
exercise of its First Amendment rights, which is a per se irreparable injury. Elrod v. Burns, 427
U.S. 347, 373 (1976) (“The loss of First Amendment freedoms, for even minimal periods of
time, unquestionably constitutes irreparable injury.”); Bronx Household of Faith v. Bd. of Educ.
of City of N.Y., 331 F.3d 342, 349 (2d Cir. 2003) (“Where a plaintiff alleges injury from a rule or
regulation that directly limits speech, the irreparable nature of the harm may be presumed.”);
Bery v. City of New York, 97 F.3d 689, 693-94 (2d Cir. 1996) (“Violations of First Amendment
rights are commonly considered irreparable injuries for the purposes of a preliminary
injunction. . . . By the very nature of their allegations, then, appellants have met the first prong of
the test.”).
II. Wandering Dago Is Likely to Succeed on the Merits.
Under existing case law, Defendants’ actions constitute clear violations of the First
Amendment and the Equal Protection Clause of the Fourteenth Amendment, as well as Article I,
§§ 8 and 11 of the New York State Constitution. Wandering Dago is thus very likely to succeed
on the merits.
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A. Wandering Dago’s Free Speech Rights Under the First Amendment and Article I, § 8 Have Been Violated.
Wandering Dago’s name, displayed prominently on its truck as a business brand name, is
commercial speech, entitled to the protection of the First Amendment. In Bad Frog Brewery,
Inc. v. New York State Liquor Authority the Second Circuit noted that “[a]dvertising, however
tasteless and excessive it sometimes may seem, is nonetheless dissemination of information as to
who is producing and selling what product, for what reason, and at what price.” 134 F.3d 87, 96
(2d Cir. 1998) (quoting Virginia State Bd. of Pharmacy v. Virginia Citizens Consumer Council,
425 U.S. 748, 765 (1976). In that case, the Second Circuit found a beer label depicting a frog
giving a “middle finger” gesture to be protected speech, holding that “[t]hough the label
communicates no information beyond the source of the product, we think that minimal
information, conveyed in the context of a proposal of a commercial transaction, suffices to
invoke the protections for commercial speech . . . .” Bad Frog, 134 F.3d at 96-97. The same
holds true for the brand name displayed on the side of a food truck.
The permissibility of government restrictions on commercial speech is governed by the
test established by the Supreme Court in Central Hudson Gas & Electric Corp. v. Public Service
Commission, 447 U.S. 557, 566 (1980):
At the outset, we must determine whether the expression is protected by the First Amendment. For commercial speech to come within that provision, it at least must concern lawful activity and not be misleading. Next, we ask whether the asserted government interest is substantial. If both inquiries yield positive answers, we must determine whether the regulation directly advances the government interest asserted, and whether it is not more extensive than is necessary to serve that interest.
1. Plaintiff’s Speech Is Not Misleading or Unlawful. Central Hudson’s first prong its easily satisfied. Regardless of whether it may be deemed
by some to be offensive, the Wandering Dago name is used to promote its entirely lawful
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business and is not in any way misleading or deceptive. See Bad Frog, 134 F.3d at 98.
2. Defendants Cannot Assert a Legitimate Government Interest.
The second prong of the Central Hudson test requires this Court to assess whether the
government seeks to further a substantial government interest by restricting Wandering Dago’s
expression. OGS has yet to provide Wandering Dago with any explanation of the government
interest ostensibly served by the application denial. The denial was justified by OGS on the basis
of the “offensive” character of Wandering Dago’s name. We must assume therefore that the
interest served by OGS’s action is protecting the public from being confronted with offensive
speech. The expulsion of Wandering Dago from Saratoga Race Course by NYRA was similarly
justified by the name’s alleged offensiveness and was presumably taken in service of the same
interest.1
But protecting speech that some find offensive is a core purpose of the First
Amendment’s free speech guarantee. Allowing the government to justify the suppression of
speech by citing the desire to avoid speech that gives offense would be to gut the First
Amendment. As the Supreme Court has clearly held, offensiveness is “classically not a
justification validating the suppression of expression protected by the First Amendment. At least
where obscenity is not involved,2 we have consistently held that the fact that protected speech
1 NYRA is a state actor for purposes of 42 U.S.C. § 1983. See, e.g., Garcia v. New York Racing Association, Inc., 2011 WL 3841524 (N.D.N.Y. Aug. 29, 2011); Alvarez v. Hayward, 2006 WL 2023002 (N.D.N.Y. July 18, 2006); Stevens v. New York Racing Association, Inc., 665 F. Supp. 164 (E.D.N.Y. 1987). NYRA is effectively an arm of the State: (1) NYRA “is merely a conduit through which money passes to the state’s coffers,” Stevens, 665 F. Supp. at 172; (2) the legislature has “placed the power, prestige, and good name of the state behind defendant in order to assure the betting public,” id.; (3) the State must approve and may remove NYRA’s trustees, and some are directly appointed by the Governor, id. at 173; (4) the state granted NYRA’s trustees the power to appoint special policemen, id.; (5) NYRA “is not only loaned state funds to conduct capital improvements, but the capital improvements are paid for with the state’s money,” id.; and (6) NYRA’s recent reorganization involved “the State’s imposition of an oversight board for NYRA, the transfer in responsibility for scheduling races to the State, and the grants of authority to the State both to borrow from itself on behalf of NYRA to fund capital improvements at any of the racetracks, and to audit NYRA’s books and accounts at its discretion.” Garcia, 2011 WL 3841524, at *9. 2 Wandering Dago’s speech does not come close to meeting the legal test for obscenity. See, e.g., Ashcroft v.
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may be offensive to some does not justify its suppression.” Bolger v. Youngs Drug Prods. Corp.,
463 U.S. 60, 71 (1983) (internal quotations and emendations omitted). See also Cohen v.
California, 403 U.S. 15, 25 (1971) (“Surely the State has no right to cleanse public debate to the
point where it is grammatically palatable to the most squeamish among us. . . . For, while the
particular four-letter word being litigated here is perhaps more distasteful than most others of its
genre, it is nevertheless often true that one man’s vulgarity is another’s lyric. Indeed, we think it
is largely because governmental officials cannot make principled distinctions in this area that the
Constitution leaves matters of taste and style so largely to the individual.”); Texas v. Johnson,
491 U.S. 397, 414 (1989) (“If there is a bedrock principle underlying the First Amendment, it is
that the government may not prohibit the expression of an idea simply because society finds the
idea itself offensive or disagreeable.”); Million Youth March, Inc. v. Safir, 63 F. Supp. 2d 381,
391 (S.D.N.Y. 1999) (“Even hateful, racist, and offensive speech, however, is entitled to First
Amendment protection.”); People v. Dietze, 75 N.Y.2d 47, 51, 549 N.E.2d 1166, 1168 (1989)
(“Speech is often ‘abusive’ — even vulgar, derisive, and provocative — and yet it is still
protected under the State and Federal constitutional guarantees of free expression unless it is
much more than that.”). Moreover, the Court has made clear that this principle applies just as
fully to commercial speech. Bolger, 463 U.S. at 70–71.
Hornell Brewing Co., Inc. v. Brady, 819 F. Supp. 1227 (E.D.N.Y. 1993) is directly on
point. In that case, Congress passed a statute specifically prohibiting the use of the name Crazy
Horse as related to distilled spirits wines or malt beverages. The statute was passed in response
to a public outcry because a brewer had distributed a product known as Crazy Horse Malt
Liquor. Numerous politicians and Native Americans found the name to be highly offensive to
Native Americans because Crazy Horse was an Indian chief who was known for urging his American Civil Liberties Union, 535 U.S. 564, 574 (2002).
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people not to drink alcohol. The court explained that “[i]f the only interest asserted by the
government were its desire to abate or avert the perceived offensiveness of the Crazy Horse
name, it would not constitute a substantial interest under the Central Hudson test. Indeed that is
precisely the type of objective that is prohibited by the First Amendment and was rejected by the
courts in both Sambo’s cases” [discussed below]. Id. at 1235.
In holding the statute unconstitutional, the court gave a civics lesson in First Amendment
law that the state officials here would do well to consider:
The Court can well appreciate that the use of the name of a revered Native American leader, who preached sobriety and resisted exploitation under the hand of the United States government, is offensive and may be viewed as an exploitation of Native Americans throughout this country. The choice may be particularly insensitive given the ample documentation of alcohol abuse and its destructive results among Native Americans. Nevertheless, a price we pay in this country for ordered liberty is that we are often exposed to that which is offensive to some, perhaps even to many. It is from our exposure to all that is different that we best learn to address it, change it, and sometimes tolerate and appreciate it. “Freedom of speech may best serve its high purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger.” Terminiello v. Chicago, 337 U.S. 1, 4, 69 S.Ct. 894, 896, 93 L.Ed. 1131 (1949) (Douglas, J.).
Id. at 1246.
The Sambo’s cases, cited by the Hornell case, are Sambo’s Restaurants, Inc. v. City of
Ann Arbor, 663 F.2d 686 (6th Cir. 1981) and Sambo’s of Ohio, Inc. v. City Council of Toledo,
466 F. Supp. 177 (N.D. Ohio 1979). In both cases, the courts held that cities could not ban the
use of the Sambo’s name despite the fact that it was considered demeaning and offensive to
African Americans and despite the fact that the cities believed that the name would impede racial
harmony and equality. Both courts held that the use of the name was fully protected by the First
Amendment. The Ohio District Court had this to say about the appropriateness of allowing the
use of the Sambo’s name:
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If they are offended by the word “Sambo’s” not only can they refuse to patronize the plaintiffs, but they, too, can erect signs, carry placards, or publish advertisements designed to persuade others to refuse to patronize the plaintiffs. That is what freedom of speech is all about. One cannot have freedom of speech for himself if it can be denied to others, nor is speech free if only innocuous utterances are permitted…. It would be selling our birthright for a mess of pottage to hold that because language is offensive and distasteful even to a majority of the public, a legislative body may forbid its use.
466 F. Supp. at 180.
3. Defendants’ Ban Does Not Directly Advance Any Government Interests.
Even supposing, contrary to firmly established case law, that shielding the public from
language that gives offense is not just a legitimate government interest, but a substantial one, the
restriction on Wandering Dago’s speech is still unconstitutional because it fails to directly
advance this interest. “To meet the ‘direct advancement’ requirement, a state must demonstrate
that ‘the harms it recites are real and that its restriction will in fact alleviate them to a material
degree.’” Bad Frog, 134 F.3d at 98 (quoting Edenfield v. Fane, 507 U.S. 761, 771 (1993))
(emphasis in Bad Frog). “[A] prohibition that makes only a minute contribution to the
advancement of a state interest can hardly be considered to have advanced the interest to a
material degree.” Id. at 99 (internal quotation omitted).
In Bad Frog, the Second Circuit rejected the state’s attempt to prohibit “vulgar” beer
labels, stating that “[i]n view of the wide currency of vulgar displays throughout contemporary
society, including comic books targeted directly at children, barring such displays from labels for
alcoholic beverages cannot realistically be expected to reduce children’s exposure to such
displays to any significant degree.” Id. at 99. Similarly, there is no shortage of available avenues
by which the public is routinely exposed to speech that some find offensive. In virtually any
outdoor space frequented by the general public, individuals can be seen wearing T-shirts or other
clothing bearing words and images that many would deem offensive. Not only has the state made
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no attempt to eliminate all such offensive speech, it is constitutionally barred from doing so. See
Cohen, 403 U.S. at 25 (holding that a statute penalizing “offensive conduct” could not be
constitutionally applied to a defendant who had worn a jacket bearing vulgar language). “[A]
state must demonstrate that its commercial speech limitation is part of a substantial effort to
advance a valid state interest, not merely the removal of a few grains of offensive sand from a
beach of vulgarity.” Bad Frog, 134 F.3d at 100.
4. Any Purported Regulatory Justification For Defendants’ Actions Is Unconstitutionally Vague. Moreover, even assuming counterfactually that the State’s effort to restrict offensive
speech directly advanced some substantial government interest, the denial of Wandering Dago’s
application and expulsion from Saratoga Race Course would nevertheless be unconstitutional
because they were exercises of “unbridled discretion” by government officials, which is
prohibited by the First Amendment. Forsyth County v. Nationalist Movement, 505 U.S. 123, 133
(1992) (holding an ordinance unconstitutional because there were “no articulated standards either
in the ordinance or . . . established practice.”); see also Transp. Alternatives, Inc. v. City of New
York, 340 F.3d 72, 78 (2d Cir. 2003) (“Regulations granting such broad and unchecked
discretion to a government official . . . cannot overcome the ‘heavy presumption’ of invalidity to
which prior restraints on speech are subject.”). Despite Wandering Dago’s requests, OGS has
refused to cite any specific statute, rule, or regulation justifying the denial of its application.
Restrictions on speech imposed in an ad hoc manner without the guidance of any statutory or
regulatory framework do not satisfy the constitution’s strict requirements for regulation of
expression. See Million Youth March, Inc. v. Safir, 18 F. Supp. 2d 334, 343 (S.D.N.Y. 1998)
(holding New York City’s denial of a permit for a rally unconstitutional because it was taken
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pursuant to the “private criteria of a City official,” rather than “pursuant to a properly drawn
ordinance”).
The closest Defendants have come to articulating the source of their authority to deny
Wandering Dago’s application for the ESP Summer Outdoor Lunch Program is a July 1, 2013
letter from Defendant William F. Bruso, Jr., in which he states that the “denial was made
pursuant to the terms of the Food Vendor Application packet, as well as OGS’ Facility Use and
Use of State Property regulations, which are located in Parts 300 and 301, respectively, of Title 9
of the New York Codes, Rules and Regulations.” Bruso’s authorities, however, provide no
support for OGS’s action. First, the only provision of the Food Vendor Application packet which
could be considered even remotely relevant is a provision stating that “[a]rguments, harassment,
sexual harassment, name-calling, profane language, or fighting are grounds for revocation of the
vendor permit.” Wandering Dago’s name does not reasonably fall within any of the proscribed
categories of conduct.3
Only two provisions of Title 9 of the New York Codes, Rules and Regulations are
remotely relevant: Section 300-3.1(d)(1), which defines disorderly conduct to include a person
who “engages in a course of conduct or commits acts that unreasonably alarm or seriously annoy
another person”; and § 301.7, which permits the commissioner to deny an application when “the
use or activity intended would unreasonably interfere with the enjoyment of the location by
others.” Each of these provisions is clearly unconstitutional when applied to prohibit activity on
the basis of speech. See City of Lakewood v. Plain Dealer Publ’g Co., 486 U.S. 750, 769-70
(1988) (“To allow these illusory ‘constraints’ to constitute the standards necessary to bound a
3 Furthermore, it is clear both from the nature of the prohibited conduct and the stated remedy, that this provision is not a condition on application, but rather is intended to govern the actions of vendors during their participation in the program. At most, it could justify a warning to Wandering Dago that use of its name while participating in the program would lead to revocation. It provides no basis ex ante for denying the application.
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licensor’s discretion renders the guarantee against censorship little more than a high-sounding
ideal.”); Shuttlesworth v. City of Birmingham, 394 U.S. 147, 153 (1969) (“[A] municipality may
not empower its licensing officials to roam essentially at will, dispensing or withholding
permission to speak, assemble, picket, or parade according to their own opinions regarding the
potential effect of the activity in question on the ‘welfare,’ ‘decency,’ ‘or ‘morals’ of the
community.”); Million Youth March, 18 F. Supp. 2d at 344 (holding that rule allowing permit
denial in the “best interest” of the community “is a virtual prescription for unconstitutional
decision making”). Similarly, the expulsion from Saratoga Race Course was an act of pure
discretion taken without reference to any statutory or regulatory authority.
The denial of Wandering Dago’s application and expulsion from Saratoga Race Track
were violations of its First Amendment rights, first, because they were unconstitutional
restrictions of commercial speech, and second, because they were unconstitutional exercises of
unfettered discretion in limiting speech. Thus, Wandering Dago is likely to prevail on the merits
of its claims.
B. Wandering Dago Has Been Denied the Equal Protection of the Laws Guaranteed By the Fourteenth Amendment and Article I, § 11.
By denying Wandering Dago’s application for the Summer Outdoor Lunch Program and
expelling Wandering Dago from Saratoga Race Course, the Defendants denied Wandering Dago
the equal protection of the laws. A violation of equal protection arises when “(1) the person,
compared with others similarly situated, was selectively treated; and (2) that such selective
treatment was based on impermissible considerations such as . . . intent to inhibit or punish the
exercise of constitutional rights, or malicious or bad faith intent to injure a person.” LaTrieste
Restaurant and Cabaret, Inc. v. Village of Port Chester, 40 F.3d 587, 590 (2d Cir. 1994)
(internal quotation omitted).
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Wandering Dago was the only applicant for the Empire State Plaza Summer Outdoor
Lunch Program whose application was denied by OGS. Out of the numerous vendors with whom
Centerplate contracted to sell food and beverages at Saratoga Race Course, NYRA singled out
Wandering Dago to be expelled from the grounds. Both actions were motivated by the
disapproval of Wandering Dago’s name by OGS and/or NYRA employees, and thus present
clear cases of punishment of the exercise of constitutional rights.
III. Wandering Dago Has Demonstrated Serious Questions Going to the Merits of Its Claims and That the Balance of Hardships Tips Decidedly In Its Favor.
Even if the Court finds that Wandering Dago has not shown a likelihood of success on
the merits, Wandering Dago has demonstrated serious questions going to the merits of its claims
and that the balance of hardships tips decidedly in its favor. The minimal justifications
Wandering Dago has received to date for the denial of its application suggest that it did not serve
any legitimate government interest, much less a substantial one. At the very least, whether the
denial serves any substantial government interest surely raises a serious question going to the
merits of Wandering Dago’s claim.
The balance of equities also tips decidedly in Wandering Dago’s favor. Wandering Dago
has been denied access to the highest visibility and most profitable lunchtime location for mobile
food vendors in the Capital District solely on the basis of its speech. Wandering Dago’s owners,
Loguidice and Snooks, have invested heavily in the Wandering Dago truck and equipment and
rely on the business as their only source of income. The denial of access to the Empire State
Plaza and Saratoga Race Course inflicts a very real and continuing financial harm. Moreover,
each day that Wandering Dago is prevented from participating, it suffers a continuing First
Amendment injury. See Bronx Household of Faith, 331 F.3d at 349 (“Where a plaintiff alleges
injury from a rule or regulation that directly limits speech, the irreparable nature of the harm may
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be presumed.”). A denial of preliminary injunctive relief would allow these harms, both
constitutional and economic, to continue.
Granting the injunction, on the other hand, would require only that the state allow
Wandering Dago access to the Empire State Plaza and Saratoga Race Course, on the same terms
as other food vendors, for the duration of the litigation. The injunction would impose no direct
financial cost on the state, and its terms and appropriateness can be fully revisited at final
judgment.
Because the balance of hardships tilts decidedly in Wandering Dago’s favor and there are
serious questions going to the merits of Wandering Dago’s claims, a preliminary injunction
should be granted.
IV. A Preliminary Injunction Allowing Wandering Dago to Operate at the ESP and Return to Saratoga Race Course As a Vendor Would Be In the Public Interest.
“The constitutional guarantee of free speech serves significant societal interests wholly
apart from the speaker’s interest in self-expression. By protecting those who wish to enter the
marketplace of ideas from government attack, the First Amendment protects the public’s interest
in receiving information. The identity of the speaker is not decisive in determining whether
speech is protected. Corporations and other associations, like individuals, contribute to the
discussion, debate, and the dissemination of information and ideas that the First Amendment
seeks to foster.” Pac. Gas and Elec. Co. v. Pub. Utils. Comm’n of Cal., 475 U.S. 1, 8 (1986)
(internal quotations and citations omitted).
It is always in the public interest to protect free speech rights. Wandering Dago’s name
serves as a distinctive brand for a food truck, but at the same time, it is part of an ongoing
conversation about the appropriate place of purportedly offensive ethnic descriptors in American
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society. On one side of this debate are those, like Defendants, who believe that certain words
should be forever banished from the public’s vocabulary. They seek to avoid offense by eternally
policing the language. On the other side are those, like Wandering Dago, who argue that there is
a role for re-appropriation, humor, and self-deprecation. They believe that when the ostensible
targets of a once-offensive word take “ownership” or employ it in gentle mockery, they deprive
the word of any power to hurt that it may once have had. Reasonable people of good faith can
disagree about the merits of these two positions, but it is not the place of the state officials to
declare one side of the debate off limits. See Terminiello v. City of Chicago, 337 U.S. 1, 4
(1949) (“[A] function of free speech under our system of government is to invite dispute. It may
indeed best serve its high purpose when it induces a condition of unrest, creates dissatisfaction
with conditions as they are, or even stirs people to anger. Speech is often provocative and
challenging. It may strike at prejudices and preconceptions and have profound unsettling effects
as it presses for acceptance of an idea.”)
The publicity and attention that has arisen in the wake of the actions by OGS and NYRA
is itself evidence of the relevance of Wandering Dago’s name to this ongoing debate. The public
interest will be well served by allowing the marketplace of ideas to function unimpeded pending
final resolution of this action.
V. The Court Should Not Require a Bond.
Although Rule 65 of the Federal Rules of Civil Procedure requires the Court to issue a
preliminary injunction only upon the movant “giv[ing] security in an amount that the court
considers proper to pay the costs and damages sustained by any party found to have been
wrongfully enjoined or restrained,” the Second Circuit has held that it is “proper for the court to
require no bond where there has been no proof of likelihood of harm.” Doctor’s Assocs., Inc. v.
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Stuart, 85 F.3d 975, 985 (2d Cir. 1996) (internal quotation omitted). No bond should be required
here because the Defendants will suffer no costs or damages by virtue of the issuance of the
preliminary injunction. Allowing Plaintiff to participate in the Summer Outdoor Lunch Program
or to set up their facility at the Saratoga Race Track would not cause any damage to Defendants.
They would simply be required to comply with their First Amendment obligations as public
officials.
Furthermore, the Plaintiff is a small business and its owner is of extremely limited means.
The owner has essentially invested all her available funds to purchase the necessary equipment to
operate this business. (Loguidice Aff. ¶ 7) Under similar circumstances, courts have waived the
requirement for a bond. See, e.g., Rivera v. Town of Huntington Hous. Auth., 2012 WL 1933767
(E.D.N.Y. May 29, 2012) (requiring no bond where there was no showing that defendants are
likely to suffer harm and plaintiff was of limited means).
Moreover, courts have held that a bond should not be required when a plaintiff seeks to
vindicate fundamental constitutional rights. See, e.g., Johnston v. Tampa Sports Auth., 2006 WL
2970431, at *1 (M.D. Fla. Oct. 16, 2006) (holding that “imposing a financial burden on a
plaintiff as a condition to protecting fundamental rights would create an unfair hardship on that
plaintiff”); Westfield High School L.I.F.E. Club v. City of Westfield, 249 F. Supp. 2d 98, 129 (D.
Mass. 2003) (holding that “requiring a security bond in this case might deter others from
exercising their constitutional rights,”); Smith v. Bd. of Election Comm’rs, 591 F. Supp. 70, 72
(N.D. Ill. 1984) (holding that requiring a bond “would condition the exercise of plaintiffs’
constitutional rights upon their financial status” and “create an unfair hardship for them and
impact negatively on the exercise of their constitutional rights”).
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22
CONCLUSION
For all the foregoing reasons, Plaintiff’s motion for a preliminary injunction should be
granted.
Dated: August 27, 2013 Albany, New York BOIES, SCHILLER & FLEXNER LLP
By: /s/ George F. Carpinello George F. Carpinello (Bar No. 103750) Michael Hawrylchak 30 South Pearl Street
Albany, NY 12207 Ph: (518) 434-0600 Attorneys for Plaintiff
Case 1:13-cv-01053-MAD-RFT Document 4-1 Filed 08/27/13 Page 27 of 27
Recommended