Knight First Amendment Institute at Columbia University et al v. Trump et al

Filing 60

LETTER addressed to Judge Naomi Reice Buchwald from Jameel Jaffer dated January 23, 2018 re: Notice of Supplemental Authority. Document filed by Rebecca Buckwalter, Philip Cohen, Holly Figueroa, Eugene Gu, Knight First Amendment Institute at Columbia University, Brandon Neely, Joseph Papp, Nicholas Pappas. (Attachments: #1 Exhibit A)(Jaffer, Jameel)

January 23, 2018
Via ECF and by Fax
The Honorable Naomi Reice Buchwald
United States District Court for the
Southern District of New York
500 Pearl Street, Room 2270
New York, NY 10007-1312
Re:

Knight First Amendment Institute, et al. v. Trump,
et al., Case No. 17-CV-5205 (NRB)
Notice of Supplemental Authority

Dear Judge Buchwald,
In further support of their Cross-Motion for Summary Judgment and
Opposition to Defendants’ Motion for Summary Judgment, Plaintiffs
respectfully submit the Second Circuit’s recent decision in Wandering
Dago, Inc. v. Destito, No. 16-622, 2018 WL 265383 (2d Cir. Jan. 3, 2018)
(attached as Exhibit A).
Wandering Dago concerned the decision of the New York State
Office of General Services (“OGS”) to deny the plaintiff food truck
operator’s applications to participate in the “Summer Outdoor Lunch
Program,” a state-sponsored program that allowed food truck vendors to sell
food on Albany’s Empire State Plaza. Id. at *1. It was undisputed that OGS
denied the plaintiff’s applications “solely because of” the ethnic slurs in its
name and in the names of its products. Id.
Reversing the district court’s grant of summary judgment in
defendants’ favor, the Second Circuit held that the denial of the plaintiff’s
applications violated the First Amendment because it was impermissible
viewpoint discrimination under the Supreme Court’s recent decision in
Matal v. Tam, 137 S. Ct. 1744 (2017). The Court held that OGS’s conduct
violated the First Amendment “irrespective of whether we categorize
[plaintiff’s] speech as commercial speech, speech in a public forum, or
speech in a nonpublic forum.” Wandering Dago, 2018 WL 265383, at *7.
The Court also rejected defendants’ argument that “any viewpoint
discrimination on their part is of no moment because OGS’s denial of
[plaintiff’s] application should be understood as a permissible manifestation
of OGS’s own government speech—a refusal to endorse ethnic slurs in a

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state-sponsored program.” Id. at *10. To the contrary, the Court
emphasized, “speech that is otherwise private does not become speech of
the government merely because the government provides a forum for the
speech or in some way allows or facilitates it.” Id. Because there was no
evidence “of a well-established history of OGS’s controlling the names of
Lunch Program vendors in order to tailor a government message,” and “no
basis for thinking that the Lunch Program vendors’ names, any more than
the names of other organizations that receive permits to use public lands for
special events, are closely identified with the government,” the Court held
that OGS’s denial of the plaintiff’s application was a government regulation
of private speech, and not a form of government speech. Id. at *11.
Wandering Dago further supports Plaintiffs’ position in this case
that Defendants’ blocking of the Individual Plaintiffs from the
@realDonaldTrump account violates the prohibition against viewpointbased exclusion of speakers from a designated public forum. In particular,
the Second Circuit effectively rejected the proposition, advanced by
Defendants here, that in blocking the Individual Plaintiffs from the
@realDonaldTrump account, the President is simply engaging in a form of
government speech concerning whom to interact with on Twitter. See Defs.’
Opp. Br. at 13-19.
Respectfully,

Jessica Ring Amunson (pro hac
vice)
Tassity S. Johnson (pro hac vice)
Jenner & Block LLP
1099 New York Avenue, NW,
Suite 900
Washington, DC 20001

/s/ Jameel Jaffer
Jameel Jaffer (JJ-4653)
Katherine Fallow (KF-2535)
Carrie DeCell (motion for
admission forthcoming)
Alex Abdo (AA-0527)
Knight First Amendment Institute
at Columbia University
314 Low Library
535 West 116th Street
New York, NY 10027
[phone]
[e-mail]
Counsel for Plaintiffs

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