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)
EXHIBIT A
Wandering Dago, Inc. v. Destito, --- F.3d ---- (2018)
2018 WL 265383
2018 WL 265383
United States Court of Appeals,
Second Circuit.
WANDERING DAGO, INC., Plaintiff–Appellant,
v.
RoAnn M. DESTITO, Joseph J. Rabito, William F.
Bruso, Jr., Aaron Walters, Defendants–Appellees,
John Does, 1–5, New York State Office of General
Services, New York Racing Association, Inc.,
Christopher K. Kay, Stephen Travers, State of New
York, Defendants.
Docket No. 16-622
|
August Term, 2016
|
(Argued: January 31, 2017
|
Final submissions: June 26, 2017
|
Decided: January 3, 2018)
of government message, and therefore government speech
doctrine did not shield denial from First Amendment’s
prohibition of viewpoint discrimination;
[3]
government contractor speech doctrine did not shield
denial of application from First Amendment’s prohibition
of viewpoint discrimination;
[4]
discrimination was subject to, and failed, heightened
scrutiny under First Amendment, irrespective of whether
owner’s speech was categorized as commercial speech,
speech in public forum, or speech in nonpublic forum;
and
[5]
denial of vendor’s application violated vendor’s equal
protection rights under selective-enforcement theory.
Reversed and remanded.
West Headnotes (22)
Synopsis
Background: Owner of food truck bearing name
“Wandering Dago” filed § 1983 action alleging that
decisions by New York State Office of General Services
(OGS) to deny its application to participate as food
vendor in Empire State Plaza Summer Outdoor Lunch
Program, and by New York State Racing Association
(NYRA) to terminate its status as vendor at Saratoga Race
Course violated its free speech and equal protection
rights, and that termination constituted tortious
interference with contract and business relationship. The
United States District Court for the Northern District of
New York, Mae A. D’Agostino, J., 2016 WL 843374,
granted summary judgment in defendants’ favor. Owner
appealed.
[1]
A district court’s ruling on cross-motions for
summary judgment is reviewed de novo, in each
case construing the evidence in the light most
favorable to the non-moving party. Fed. R. Civ.
P. 56(a).
Cases that cite this headnote
[2]
Holdings: The Court of Appeals, Susan L. Carney,
Circuit Judge, held that:
[1]
speech by vendors was not properly characterized as
government speech, and therefore OGS violated First
Amendment by preventing physical access to Plaza
through its denial of vendor’s application to participate in
Program;
[2]
denial of vendor’s application did not aid transmission
Federal Courts
Summary judgment
Federal Courts
Summary judgment
Constitutional Law
Viewpoint or idea discrimination
Government discrimination against speech
because of its message is presumed to be in
violation of the First Amendment. U.S. Const.
Amend. 1.
Cases that cite this headnote
© 2018 Thomson Reuters. No claim to original U.S. Government Works.
1
Wandering Dago, Inc. v. Destito, --- F.3d ---- (2018)
2018 WL 265383
Constitutional Law
True threats
[3]
The government has the ability to regulate
speech, including the use of slurs, that
constitutes a “true threat” of violence,
“harassment,” or “fighting words.” U.S. Const.
Amend. 1.
Constitutional Law
Viewpoint or idea discrimination
Constitutional Law
Content-Based Regulations or Restrictions
Viewpoint discrimination in violation of the
First Amendment is a subset or particular
instance of the more general phenomenon of
content discrimination, in which the government
targets not subject matter but particular views
taken by speakers on a subject. U.S. Const.
Amend. 1.
Cases that cite this headnote
[7]
Cases that cite this headnote
[4]
Constitutional Law
Commercial Speech in General
Although ethnic slurs are used to express a
variety of opinions and obtain a variety of
effects, the mere use of these potentially
offensive words in branding of a company and
its products reflects a viewpoint and cannot be
framed by the government as a larger
viewpoint-neutral category of speech content
available to advance multiple viewpoints and
therefore subject to less First Amendment
protection. U.S. Const. Amend. 1.
Constitutional Law
Viewpoint or idea discrimination
The
government
discriminates
against
viewpoints in violation of the First Amendment
when it disfavors certain speech because of the
specific motivating ideology or the opinion or
perspective of the speaker. U.S. Const. Amend.
1.
Cases that cite this headnote
Cases that cite this headnote
[8]
[5]
Constitutional Law
Government-sponsored speech
When government speaks, it is not barred by the
Free Speech Clause from determining the
content of what it says; when it acts as a
speaker, the government is entitled to favor
certain views over others. U.S. Const. Amend. 1.
Constitutional Law
Freedom of Association
Antidiscrimination laws can raise First
Amendment concerns relating to associational
rights. U.S. Const. Amend. 1.
Cases that cite this headnote
Cases that cite this headnote
[9]
[6]
Constitutional Law
‘Fighting words‘
Constitutional Law
Harassment
Constitutional Law
Public squares, plazas, and greens
States
Control and regulation of public buildings
and places
© 2018 Thomson Reuters. No claim to original U.S. Government Works.
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Wandering Dago, Inc. v. Destito, --- F.3d ---- (2018)
2018 WL 265383
Speech by vendors participating in Empire State
Plaza Summer Outdoor Lunch Program as
sponsored by New York State Office of General
Services (OGS), which was event involving both
government and private individuals, was not
properly characterized as government speech,
and therefore OGS violated First Amendment by
preventing physical access to Plaza through its
denial of application to participate by vendor
that branded its truck and products with ethnic
slurs, since OGS did not have well-established
history of controlling names of Lunch Program
vendors in order to tailor government message.
U.S. Const. Amend. 1.
were not closely identified with government in
mind of public, venders visibly were merely
temporary feature of landscape, and incidental
assistance that OGS provided to Lunch Program
vendors would not lead reasonable observer
think that OGS adopted vendor’s branding. U.S.
Const. Amend. 1.
Cases that cite this headnote
[12]
Constitutional Law
Government funding
Cases that cite this headnote
[10]
The government may set spending priorities and
selectively fund activities it believes to be in the
public interest without violating the First
Amendment free speech clause. U.S. Const.
Amend. 1.
Constitutional Law
Government-sponsored speech
Speech that otherwise is 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. U.S. Const. Amend. 1.
Cases that cite this headnote
[13]
Constitutional Law
Particular Issues and Applications
Cases that cite this headnote
[11]
In general, if a party objects to a condition on
the receipt of government funding, its recourse
is to decline the funds, but sometimes a funding
condition can result in an unconstitutional
burden on First Amendment rights. U.S. Const.
Amend. 1.
Constitutional Law
Public squares, plazas, and greens
States
Control and regulation of public buildings
and places
Speech by vendors participating in Empire State
Plaza Summer Outdoor Lunch Program as
sponsored by New York State Office of General
Services (OGS), which was event involving both
government and private individuals, was not
properly characterized as government speech,
and therefore OGS violated First Amendment by
preventing physical access to Plaza through its
denial of application to participate by vendor
that branded its truck and products with ethnic
slurs; even if OGS had history of screening
applications for various permits to use Empire
State Plaza, names of vendors in Lunch Program
Cases that cite this headnote
[14]
Constitutional Law
Public squares, plazas, and greens
States
Control and regulation of public buildings
and places
Denial by New York State Office of General
Services (OGS) of application by vendor that
branded its truck and products with ethnic slurs
to participate as food vendor in Empire State
Plaza Summer Outdoor Lunch Program did not
© 2018 Thomson Reuters. No claim to original U.S. Government Works.
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Wandering Dago, Inc. v. Destito, --- F.3d ---- (2018)
2018 WL 265383
aid transmission of government message, and
therefore government speech doctrine did not
shield denial from First Amendment’s
prohibition of viewpoint discrimination; even if
OGS had legitimate interest in promoting
family-friendly messages, speaking directly
itself or through selective subsidies, it did not
organize Lunch Program for purpose of
conveying message, structure of program
contemplated that participating vendors would
bring some of their own diverse personal
expression, and vendors were not accepted into
Lunch Program because of their ability to help
convey coherent government message. U.S.
Const. Amend. 1.
[17]
Acceptance of application by vendor that
branded its truck and products with ethnic slurs
to participate as food vendor in Empire State
Plaza Summer Outdoor Lunch Program
sponsored by New York State Office of General
Services (OGS) would not have effectively
rendered vendor prospective government
contractor, and therefore government contractor
speech doctrine did not shield denial of
application from First Amendment’s prohibition
of viewpoint discrimination; although Lunch
Program was economic arrangement involving
OGS and private vendors, vendors stood to
generate revenue for themselves as result of
arrangement, OGS indirectly benefited from
goods and services food vendors provided as
part of exchange, OGS only provided access to
forum and modest nonmonetary assistance that
facilitated use of that forum and OGS did not
pay food vendors for their goods and services or
directly benefit from them. U.S. Const. Amend.
1.
Cases that cite this headnote
[15]
Constitutional Law
Government funding
Viewpoint-based funding decisions can be
sustained under the First Amendment as
government speech when the government
disburses public funds to private entities to
convey a governmental message; however, this
principle does not apply when a government
program is not designed to promote a
governmental message. U.S. Const. Amend. 1.
Cases that cite this headnote
Cases that cite this headnote
[18]
[16]
Constitutional Law
Government funding
When a government program’s very concept
contemplates presenting a diversity of views
from participating private speakers, the
government may not then single out a particular
idea for suppression because it is dangerous or
disfavored, and the government cannot recast a
condition on funding as a mere definition of its
program. U.S. Const. Amend. 1.
Cases that cite this headnote
Constitutional Law
Government Contracts
Constitutional Law
Public squares, plazas, and greens
States
Control and regulation of public buildings
and places
Constitutional Law
Vendors in general
Constitutional Law
Public squares, plazas, and greens
States
Control and regulation of public buildings
and places
New York State Office of General Services
(OGS) and New York State Racing Association
(NYRA) engaged in viewpoint discrimination
when they denied owner’s application to
participate as food vendor in Empire State Plaza
Summer Outdoor Lunch Program and
terminated its status as vendor at Saratoga Race
Course because it branded its truck and products
© 2018 Thomson Reuters. No claim to original U.S. Government Works.
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Wandering Dago, Inc. v. Destito, --- F.3d ---- (2018)
2018 WL 265383
with ethnic slurs, use of which was “offensive”
and not “family friendly,” and therefore such
discrimination was subject to, and failed,
heightened scrutiny under First Amendment,
irrespective of whether owner’s speech was
categorized as commercial speech, speech in
public forum, or speech in nonpublic forum.
U.S. Const. Amend. 1.
Cases that cite this headnote
[21]
To prevail on a selective-enforcement theory
under the Equal Protection Clause, a claimant
must show (1) that it was treated differently
from other similarly situated businesses and (2)
that such differential treatment was based on
impermissible considerations such as race,
religion, intent to inhibit or punish the exercise
of constitutional rights, or malicious or bad faith
intent to injure a person.
Cases that cite this headnote
[19]
Constitutional Law
Viewpoint or idea discrimination
Constitutional Law
Government Property and Events
In general, government viewpoint discrimination
against private speech violates the First
Amendment unless it is narrowly tailored to
achieve a compelling government interest; this
rule applies to private speech delivered on
public property regardless of how the property is
categorized under forum doctrine. U.S. Const.
Amend. 1.
Constitutional Law
Enforcement, application, or administration in
general
Cases that cite this headnote
[22]
Constitutional Law
Relation between state and federal rights
Constitutional Law
Federal/state cognates
Cases that cite this headnote
The New York State Constitution’s free speech
and equal protection provisions are at least as
protective as their federal counterparts. U.S.
Const. Amends. 1, 14.
[20]
Constitutional Law
Freedom of speech and press
States
Control and regulation of public buildings
and places
Denial by New York State Office of General
Services (OGS) of application by vendor that
branded its truck and products with ethnic slurs
to participate as food vendor in Empire State
Plaza Summer Outdoor Lunch Program violated
vendor’s equal protection rights under
selective-enforcement theory, where OGS
denied application because of vendor’s use of
ethnic slurs; although OGS claimed that vendor
failed to submit complete application on time,
other Lunch Program applications were
approved despite being late or incomplete. U.S.
Const. Amend. 14.
Cases that cite this headnote
Attorneys and Law Firms
GEORGE F. CARPINELLO (John F. Dew, on the brief),
Boies, Schiller & Flexner LLP, Albany, NY, for
Plaintiff–Appellant Wandering Dago, Inc.
ZAINAB A. CHAUDHRY, Assistant Solicitor General
(Barbara D. Underwood, Solicitor General, Andrea Oser,
Deputy Solicitor General, on the brief), for Eric T.
Schneiderman, Attorney General of the State of New
York, Albany, NY, for Defendants–Appellees RoAnn M.
Destito, Joseph J. Rabito, William F. Bruso, Jr., and
Aaron Walters.
© 2018 Thomson Reuters. No claim to original U.S. Government Works.
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Wandering Dago, Inc. v. Destito, --- F.3d ---- (2018)
2018 WL 265383
Before: Calabresi and Carney, Circuit Judges, Amon,
District Judge.*
Opinion
Susan L. Carney, Circuit Judge:
*1 Plaintiff-appellant Wandering Dago, Inc., (“WD”)
operates a food truck and brands itself and the food it sells
with language generally viewed as ethnic slurs.
Defendants-appellees (“defendants”)1 are officials within
the New York State Office of General Services (“OGS”)
who played a part in twice denying WD’s applications to
participate as a food vendor in the Summer Outdoor
Lunch Program (“Lunch Program”), an activity that is
organized by OGS and takes place in Albany’s Empire
State Plaza annually in the summer months. WD contends
that defendants violated its rights to free speech and equal
protection under the United States Constitution and the
New York State Constitution by denying WD’s
application because of its branding practices.
We conclude that the District Court erred in granting
summary judgment in defendants’ favor, and should
instead have awarded judgment to WD. It is undisputed
that defendants denied WD’s applications solely because
of its ethnic-slur branding. The Supreme Court’s recent
decision in Matal v. Tam, ––– U.S. ––––, 137 S.Ct. 1744,
198 L.Ed.2d 366 (2017), clarifies that this action amounts
to viewpoint discrimination and, if not government speech
or otherwise protected, is prohibited by the First
Amendment. That the action violates the First
Amendment leads directly to the conclusion that
defendants also violated WD’s equal protection rights and
its rights under the New York State Constitution. We find
unpersuasive defendants’ argument that their actions were
unobjectionable because they were either part of OGS’s
government speech or permissible regulation of a
government contractor’s speech.
For these reasons, the District Court’s judgment is
REVERSED and the cause is REMANDED for the entry
of a revised judgment consistent with this opinion.
BACKGROUND2
WD is a New York corporation owned and operated by
Andrea Loguidice and Brandon Snooks. WD operates a
food truck using the “Wandering Dago” brand, serving
food for a variety of functions, including catering events,
fairs and festivals, and street-side lunch service.
Loguidice and Snooks declare that they view their food
truck as “the people’s truck” and as giving a “nod to
[their] Italian heritage” and to their ancestors, who
immigrated to the United States as day laborers. App. 73,
169. Using ethnic slurs in the names of their business and
of the food that they sell reflects that philosophy, in their
view. WD characterizes this practice as “signaling an
irreverent, blue collar solidarity with its customers” and
“signal[ing] to ... immigrant groups that this food truck is
for them.” Appellant’s Br. 3, 39. It notes that using slurs
in this way can “weaken the derogatory force” of the slur
or “convey affiliation with ... members of that minority
group.” Id. at 38 (internal quotation marks omitted).
*2 OGS is a department of the New York State
government. It is charged with managing and leasing real
property, building and maintaining state facilities,
contracting for goods and services on behalf of the State,
and providing other administrative support services.
Defendant-appellee RoAnn M. Destito is the
Commissioner of OGS. Defendant-appellee Joseph J.
Rabito was the Executive Deputy Commissioner of OGS.
Defendant-appellee William F. Bruso, Jr., is an associate
attorney working for OGS, and defendant-appellee Aaron
Walters is employed by OGS as a promotions and public
affairs agent.
Empire State Plaza, in Albany, is owned by the State of
New York and operated by OGS. The Plaza incorporates
multiple state buildings, including the Corning Tower,
four agency buildings, the Swan Street Building, the
Legislative Office Building, the Robert Abrams Justice
Building, the Egg Center for Performing Arts (the “Egg”),
the Cultural Education Center (which contains the State
Museum and the State Library), and the New York State
Capitol Building, all of which are connected by an
underground public concourse. The “Plaza level” of the
Empire State Plaza is an open outdoor space featuring a
central reflecting pool. This outdoor area, on its own, is
also sometimes referred to as the Empire State Plaza. For
our purposes, we use the term “Empire State Plaza” or
simply the “Plaza” to refer solely to the outdoor area that
is at issue in this case.
The Plaza is the site of a farmer’s market on certain
weekdays during the summer. Annually, several
state-organized events are held in the space. These
include the African American Family Day, the Hispanic
Heritage Month celebration, the Food Festival, and the
Fourth of July Festival. Subject to a permitting
requirement, the Plaza is also occasionally used by
various private groups as a site for political rallies,
marches, and protests. OGS does not use the potential
offensiveness of a political event as a basis for denying an
application for the requisite event permit, and it does not
review signs and speeches to be displayed as part of such
© 2018 Thomson Reuters. No claim to original U.S. Government Works.
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an event in advance.
Although OGS issues permits to individuals and
organizations that apply for permission to demonstrate on
OGS-controlled property, including the Plaza, some
demonstrations are allowed to occur without a permit,
unless they present a disruption or a health or safety issue.
According to OGS, the purpose of the permitting process
“is to provide OGS with notice of the likely size and
location of the demonstration so that OGS can provide
adequate services and operational management.” App.
1013. Demonstrations also occur on the concourse
beneath the Plaza, some with permits and some without.
Defendants contend, but WD disputes, that OGS has a
consistent policy of allowing only “family-friendly”
events on the Plaza when OGS is operating the event.
App. 1027. Deputy Commissioner Rabito says that during
African American Family Day 2010, he directed an OGS
employee not to hire one of the proposed dance troupes
because its dress and type of dance were deemed not
family-friendly. And OGS once removed a singer from
the stage during a similar event for using the n-word.
Rabito asserts that, “during the course of an
OGS-sponsored event on the Plaza, OGS has directed
vendors that are permitted to sell products at the Plaza as
part of OGS-sponsored events or programs to remove
items from their stalls that violated OGS’s family-friendly
[policy], including replica ‘black face’ figurines, panties
with ‘Kiss Me I’m Irish’ printed on them, fertility
pendants with a phallus that becomes erect when a chain
is pulled, and marijuana leaf belt buckles.” App. 395.
*3 In the spring of 2013, OGS began planning a program
that would, daily, allow a limited number of vendors to
sell food items from trucks parked at designated spots on
the East Roadway, located on the east side of the Plaza,
between the reflecting pool and the Egg. In prior years, a
single private company under contract with the state,
Sodexo, had provided food services for an outdoor lunch
program, but Sodexo’s contract was not renewed for
2013.
Under the new Lunch Program, OGS grants permits to
qualified food vendors to participate in providing food
during lunchtime hours to state employees as well as to
visitors who come to the Capitol and adjacent state
buildings and parks in the summer and early fall months.
The Lunch Program requires vendors seeking to
participate to apply to OGS for a permit. OGS determines
the applicant’s eligibility to participate.
The application for the 2013 Lunch Program informed
vendors of several OGS policies. Because of their
importance, we reproduce many of those policies here
verbatim, notwithstanding their combined length. They
included the following:
• The Office of General Services is soliciting food
vendors for the 2013 Empire State Plaza (ESP)
Summer Outdoor Lunch Program to be held daily on
the Plaza at the Empire State Plaza in Albany, New
York. The 20 week season will run from Monday,
May 20th through Friday, October 4th.
• The Summer Outdoor Lunch Program Package
includes: [among other things] 20 feet of vending
space which includes electrical hookup and access to
water ....
• The cost for full participation, 5 days a week for 20
weeks, is $1,500.00; participation on Wednesdays
and Fridays only, for 20 weeks, is $1,000.00. All
fees are due with your completed application no later
than May 10, 2013. Interested parties must apply for
a vending permit and meet all insurance and
financial requirements in order to participate in the
2013 ESP Outdoor Lunch Program.
• Vendors will not be allowed to provide vending
services at the Empire State Plaza until they are in
receipt of written approval of their application to
participate in the Outdoor Lunch Program.
• Unless prior arrangements have been made with
OGS, all vendors are expected to complete the entire
season.
• Vending hours are from 9:00 a.m.–2:00 p.m.
Vendors are not allowed to sell prior to or after these
hours.
• Each vendor will be assigned a specific vending
location; all space assignment will be at the
discretion of OGS.
• The sale or distribution of products other than food
or beverage items is prohibited.
• Vendors may only sell menu items approved by the
Albany County Department of Health and permitted
per the Vendor’s vending permit for the ESP
Outdoor Lunch Program. Vendors wishing to add
additional items to their menu must request approval
from the Albany County Department of Health and
provide OGS’ Bureau of Food Services with a copy
of the revised permit. OGS reserves the right to
prohibit the sale, display or distribution of certain
items if, in its sole opinion, these items may
reasonably cause concern such as public safety.
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• All vendors are expected to conduct themselves
with courtesy and in an orderly manner. Arguments,
harassment, sexual harassment, name-calling,
profane language, or fighting are grounds for
revocation of the vendor permit.
• OGS reserves the right to change the location,
dates, hours, or to terminate entirely the operation of
the program at any time and without prior notice to
the vendor.
*4 • Vendors will not refer to themselves as
“sponsor,” “co-sponsor” or other terms conferring
status other than of a participant.
App. 401–03 (underscoring in original).
Applicants to the 2013 Lunch Program also signed a
“Plaza Vendor Permit Agreement for Empire State Plaza
Vendors,” agreeing to abide by the rules set forth above
(among others). The permit agreement’s preamble
contained the following language:
WHEREAS, OGS has management supervision over
the general domain of the food service operations at the
Empire State Plaza (hereinafter referred to as “Plaza”),
WHEREAS, the State is interested in having food
vendors take part in a lunchtime food vending program
for the sale and distribution of food/beverage products
and services[,]
WHEREAS, OGS will be operating such a food
vending program, by subcontracting some or all of the
responsibilities therefor[ ] to various independent food
vendors, and
WHEREAS, the Vendor wishes to sell these products
in those areas and during those times OGS hereinafter
designates.
App. 407.
The Lunch Program was instituted to provide lunch
options to government employees and visitors.
Defendants contend more specifically, but WD disputes,
that the Lunch Program “was created as an extension of
the cafeteria services at the [Plaza] in order to meet the
practical need to provide summer outdoor lunch options,
to the approximately 11,000 State employees who work at
ESP, as well as visitors to the Capitol, State Museum,
performing arts center (The Egg), and the various
monuments and memorial[s] at [the Plaza].” App. 1026.
Defendants claim that OGS informed the public about the
Lunch Program in several different ways. For example, it
advertised the Lunch Program on a closed-circuit
television system located throughout Empire State Plaza’s
concourse, but without listing the names of the vendors. It
promoted the Lunch Program on its Facebook page and
other social media websites. And it publicized the
Program on a food critic’s blog.
On February 27, 2013, Loguidice contacted OGS to
inquire about WD’s possible participation in the 2013
Lunch Program. On May 10, 2013, Aaron Walters of
OGS left a voicemail message for Loguidice, advising her
that WD could apply. On May 17, 2013, Loguidice faxed
WD’s application to OGS. WD’s application included its
proposed menu, which featured sandwiches with the
following names: “Dago,” “Castro,” “American Idiot,”
“Goombah,” “Guido,” “Polack,” “El Guapo,” and
“KaSchloppas.” App. 1034. Loguidice neglected to
include the application’s Appendix B, which is designed
to contain the vendor’s contact information and tax
identification number, and a description of the type of
vending operation, the space required, the applicant’s
electrical needs, and other details. At least ten other
vendors applied to participate in the 2013 Program.
Soon after receiving WD’s application, OGS officials
approached Deputy Commissioner Rabito, seeking his
views on WD’s proposed participation in the 2013 Lunch
Program. According to Rabito, he recognized the term
“dago” as “a highly offensive term for Italians and his
initial reaction was that the application would not be
approved.” App. 1034–35. Rabito recounted that he then
conducted a computer search of the term “dago,” which
not only confirmed (he said) that it is an offensive
derogatory term, but also revealed that it has been used to
refer to people of Spanish and Portuguese descent, in
addition to Italians. In addition, Rabito declared that he
searched WD’s website and saw that other offensive
names appeared on its menu.
*5 It is undisputed that Rabito thereafter denied WD’s
application solely because of those offensive terms, and
not on other possible grounds such as the application’s
incompleteness. Defendants characterize Rabito’s act as a
denial “on the grounds that its name contains an offensive
ethnic slur and does not fit with OGS’ policy of providing
family-friendly programming.” App. 1035. WD
characterizes the act as a denial merely on the ground that
Rabito found its branding “offensive,” without reference
to “any statute[,] regulation, policy, or other source of
guidance in making his decision.” Id.
Later on the day of Rabito’s denial, OGS advised all
applicants other than WD that their applications to
participate in the 2013 Lunch Program had been accepted.
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Among the vendors accepted was a truck named “Slidin’
Dirty,” a slang reference, apparently, both to small
hamburgers and to the act of driving while in possession
of drugs or firearms. App. 1036–37.3 Although none
dispute that Rabito’s decision rested solely on WD’s
offensive branding, when OGS formally notified WD of
its permit denial on May 20, 2013, it cited as reasons both
WD’s offensive name and its failure to submit a complete
application before the stated deadline. OGS approved
other applications that were late and/or incomplete,
however.
In the fall of 2013, OGS adopted a new procedure to
assess the applications of outside vendors seeking to
participate in its events and programs. Under the new
procedure, each event or program would have a set of
explicit criteria by which applications would be scored,
and explicit scoring cutoffs to determine which applicants
would be accepted.
On May 5, 2014, WD submitted a timely and complete
application for the 2014 Lunch Program. The application
was reviewed by OGS employees designated as the
selection committee, was scored, and received a score
sufficient for acceptance into the program. Nevertheless,
the application was denied. WD received a letter dated
May 16, 2014, from Bruso, advising it that its application
had been denied “due to your firm’s name as previously
described.” App. 659, 1018. Among the eight complete
applications submitted that year, WD’s was the only one
not accepted.
WD filed this section 1983 lawsuit on August 27, 2013. In
its amended complaint, WD alleges that OGS officials
violated its rights to free speech and equal protection
under the United States Constitution and the New York
State Constitution by denying its application for a vendor
permit in the 2013 and 2014 Lunch Programs on the basis
of its branding. WD seeks injunctive and declaratory
relief, along with attorney’s fees. It has abandoned its
claim for money damages.
The parties filed cross-motions for summary judgment,
and in March 2016, the District Court denied WD’s
motion, granted the defense’s motion, and entered
judgment in favor of defendants Bruso, Destito, Rabito,
and Walters. Wandering Dago, Inc. v. Destito, No.
1:13-CV-1053, 2016 WL 843374 (N.D.N.Y. Mar. 1,
2016). The District Court rejected WD’s argument that its
speech—again, the name of its truck and food
offerings—was protected by the commercial speech
doctrine. Rather, it concluded that WD’s speech must be
considered either government speech, speech by a
government contractor, or private speech in a
government-owned forum, as to which the First
Amendment’s protections would not prevent OGS’s
denial. Unsure of which category applied, the court
concluded that WD’s claim failed under each. It also
rejected WD’s federal equal protection claim and the
parallel free speech and equal protection claims under the
New York State Constitution.
*6 WD timely appealed.
DISCUSSION
WD argues that branding its business with language
commonly viewed as ethnic slurs while participating in
the Lunch Program at the Empire State Plaza is a form of
commercial speech in a quintessential public forum, and
that therefore OGS’s actions must be subjected to close
judicial scrutiny. Further, WD contends that, regardless of
the forum’s nature, defendants violated its First
Amendment rights by discriminating against its
viewpoint, and necessarily also its equal protection rights
and rights under the New York State Constitution. It
challenges OGS’s contention that defendants’ actions
constituted government speech or regulation of a
government contractor’s speech, as well as the
permissibility of the District Court’s sua sponte
addressing those issues. In addition, WD argues that the
standard by which OGS decision-makers evaluated Lunch
Program
applications
allowed
defendants,
unconstitutionally, to impose prior restraints at their
discretion.
While not disputing that WD’s use of ethnic slurs in the
branding of its food truck is a form of speech, defendants
counter that the Lunch Program is a nonpublic forum; that
commercial speech doctrine does not apply to speech
made in this context; and that prohibiting the use of ethnic
slurs is a reasonable and viewpoint-neutral regulation.
Turning to the issue of discretion, defendants argue that
OGS’s asserted “family-friendly” policy, in both its
written and unwritten expressions, sufficiently
circumscribes its decision-makers’ discretion in
evaluating Lunch Program applications to survive
constitutional challenge. They also maintain that their
actions were part of OGS’s government speech, or at least
regulation of a government contractor’s speech, and are
therefore not subject to the same degree of First
Amendment scrutiny as restrictions on private speech.
Finally, on the same reasoning, they contend that WD’s
equal protection and New York State Constitution claims
fail.
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For the reasons set out below, we conclude that the
District Court should have granted summary judgment in
WD’s favor and not for defendants. By rejecting WD’s
application only on the ground of its branding, defendants
impermissibly discriminated against WD’s viewpoint and
therefore ran afoul of the First Amendment, whether
WD’s speech is categorized as commercial speech, speech
in a public forum, or speech in a nonpublic forum. See
Matal v. Tam, –––U.S. ––––, 137 S.Ct. 1744, 198 L.Ed.2d
366 (2017). Defendants’ actions are not shielded by
doctrines applicable to government speech and
government contractor speech. Although bearing some
similarities to regulation of these types of speech,
defendants’ actions are properly characterized as
viewpoint-based regulation of private speech. In light of
those conclusions, which entitle WD to the injunctive
relief it seeks, we need not reach WD’s facial First
Amendment challenge concerning discretionary prior
restraints. Finally, from our First Amendment analysis, it
follows that the District Court reached erroneous
conclusions regarding WD’s equal protection and New
York State Constitution claims.
*7 [1]We review de novo “a district court’s ruling on
cross-motions for summary judgment, in each case
construing the evidence in the light most favorable to the
non-moving party.” Novella v. Westchester Cty., 661 F.3d
128, 139 (2d Cir. 2011). Summary judgment may be
granted if there is “no genuine dispute as to any material
fact” and the moving party is “entitled to judgment as a
matter of law.” Fed. R. Civ. P. 56(a).
portion of the District Court’s judgment that concerns the
constitutionality of OGS’s decisions to deny WD’s Lunch
Program applications.
A. Viewpoint discrimination
As set out above, WD contends that defendants
discriminated against its viewpoint when, because the
WD truck and its products were branded with ethnic slurs,
they denied WD’s Lunch Program application.
Defendants agree that they denied WD’s application
because of its use of what they saw as ethnic slurs. They
argue, however, that WD’s use of this language did not
reflect any real “viewpoint”: when deposed, defendants
observe, Loguidice and Snooks described their use of the
language as nothing more than a “nod to [their] Italian
heritage” and as part of how they presented WD as “the
people’s truck.” App. 73, 169. According to defendants,
WD’s adoption of a coherent message of “irreverent,
blue-collar solidarity” has been “manufacture[d] ...
post-hoc.” Appellees’ Br. 38. Defendants also contend
that they rejected WD’s application not because of any
message that WD might have intended to convey, but
rather because WD’s use of ethnic slurs was “offensive”
and not “family friendly.” Id. at 39. For the reasons set
out below, and in light of the Supreme Court’s recent
decision in Matal v. Tam, ––– U.S. ––––, 137 S.Ct. 1744,
198 L.Ed.2d 366 (2017), we hold that OGS’s denials
amounted to viewpoint discrimination.
[2]
I. OGS’s decisions to deny WD’s Lunch Program
applications
As set out below, the constitutionality of defendants’
actions depends on what OGS was targeting—content or a
viewpoint—when it denied WD’s Lunch Program
applications and whether WD’s branding, if WD had been
included in the Lunch Program, would have been WD’s
own private speech or, instead, a form of government
speech. The answers to those questions, in turn, set the
level of constitutional scrutiny we must apply as we
evaluate WD’s challenges to defendants’ actions.
We conclude that defendants engaged in viewpoint
discrimination when they denied WD’s applications
because WD branded its truck and products with ethnic
slurs. We reject defendants’ arguments that WD’s speech
should be seen as government speech. As a result,
defendants’ actions are subject to, and fail, heightened
scrutiny, irrespective of whether we categorize WD’s
speech as commercial speech, speech in a public forum,
or speech in a nonpublic forum. We therefore reverse that
[3]
[4]
Government “[d]iscrimination against speech
because of its message is presumed to be
unconstitutional.” Rosenberger v. Rector & Visitors of
Univ. of Va., 515 U.S. 819, 828, 115 S.Ct. 2510, 132
L.Ed.2d 700 (1995). “Viewpoint discrimination is a
‘subset or particular instance of the more general
phenomenon of content discrimination,’ in which ‘the
government targets not subject matter but particular views
taken by speakers on a subject.’ ” Make the Rd. by
Walking, Inc. v. Turner, 378 F.3d 133, 150 (2d Cir. 2004)
(citation omitted) (quoting Rosenberger, 515 U.S. at 829,
831, 115 S.Ct. 2510). The government discriminates
against viewpoints when it disfavors certain speech
because of “the specific motivating ideology or the
opinion or perspective of the speaker.” Rosenberger, 515
U.S. at 829, 115 S.Ct. 2510.
*8 As we have noted, “the distinction between content
discrimination ... and viewpoint discrimination ... is
somewhat imprecise.” Make the Rd. by Walking, 378 F.3d
at 150; see also Rosenberger, 515 U.S. at 831, 115 S.Ct.
2510 (“[T]he distinction is not a precise one.”). But the
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Supreme Court’s recent decision in Matal v. Tam, –––
U.S. ––––, 137 S.Ct. 1744, 198 L.Ed.2d 366 (2017),
provides substantial guidance regarding viewpoint
discrimination in the context of speech labeled
“offensive”—in particular, language generally perceived
as ethnic slurs. In Matal, the Court addressed the
constitutionality of a statutory provision “prohibit[ing] the
registration of a trademark ‘which may disparage ...
persons, living or dead, institutions, beliefs, or national
symbols, or bring them into contempt, or disrepute.’ ” Id.
at 1753 (quoting 15 U.S.C. § 1052(a)). The U.S. Patent
and Trademark Office (“PTO”) applied the statute to
reject proposed marks, including that proposed in Matal,
if a “substantial composite ... of the referenced group
would find the proposed mark ... to be disparaging in the
context of contemporary attitudes,” whether or not the
applicant was a member of that group or “ha[d] good
intentions” in using the term. Id. at 1754. At issue in the
case was the PTO’s rejection of an application to register
the mark “The Slants,” the name of a musical band, which
the PTO judged to be an ethnic slur offensive or
derogatory to Asian–Americans. The band, whose
members were Asian–American, contended that their use
of the slur helped them “ ‘reclaim’ the term and drain its
denigrating force.” Id. at 1751.
Although split between two opinions, all eight Justices
participating in Matal concluded that the PTO’s rejection
of The Slants’ mark constituted unconstitutional
viewpoint discrimination. See id. at 1763 (Justice Alito’s
lead opinion joined by three other Justices), 1765 (Justice
Kennedy’s concurrence joined, in relevant part, by three
other Justices). Importantly, they reached that conclusion
even though the trademark application at issue “was
denied not because the Government thought [the
applicant’s] object was to demean or offend but because
the Government thought his trademark would have that
effect on at least some Asian–Americans.” Id. at 1766
(Kennedy, J., concurring) (emphasis added); see also id.
at 1763 (Alito, J.) (“[The statute] denies registration to
any mark that is offensive to a substantial percentage of
the members of any group.”).
Justice Kennedy’s concurrence explains further why the
PTO’s practice was not saved by either its “appli[cation]
in equal measure to any trademark that demeans or
offends” or by the PTO’s disregard of “the applicant’s
personal views or reasons for using the mark.” Id. at
1766. As to the first point, the concurrence stresses that
“mandating positivity ... might silence dissent and distort
the marketplace of ideas” even though the mandate is
applied evenhandedly to all participants. Id. As to the
second point, the concurrence rejects the notion that the
government can “insulate a law from charges of
viewpoint discrimination by tying censorship to the
[expected] reaction of the speaker’s audience,” rather than
to the speaker’s views or intentions. Id. at 1766–67. That
is because “a speech burden based on audience reactions
is simply government hostility and intervention in a
different guise”—“[t]he speech is targeted, after all, based
on the government’s disapproval of the speaker’s choice
of message.” Id. at 1767.
Applying Matal to the facts presented here leaves little
doubt that defendants’ actions in rejecting WD’s speech
are correctly seen as viewpoint, not merely content,
discrimination. Wherever one might draw the line
between expressions of “viewpoint” and other categories
of speech content in a different context, Matal is clear that
“[g]iving offense is a viewpoint” when it comes to ethnic
slurs, id. at 1763 (Alito, J. )—at least when giving
“offense” to an audience is the sole effect that the
government is targeting. See also id. at 1766 (Kennedy,
J., concurring) (“[T]he Government’s disapproval of a
subset of messages it finds offensive ... is the essence of
viewpoint discrimination.”).
[5]
In other contexts, however, ethnic slurs might cause
negative effects of a different sort—that is, not mere
“offense”—that the government could target without
engaging in viewpoint discrimination. A hostile work
environment claim under antidiscrimination law is one
example. Most antidiscrimination laws “regulate[ ]
membership and employment policies as conduct, not as
expression,” and “prohibit[ ] discriminatory membership
and employment policies not because of the viewpoints
such policies express, but because of the immediate harms
... such discrimination causes.” Boy Scouts of Am. v.
Wyman, 335 F.3d 80, 93 (2d Cir. 2003). These laws,
while perhaps causing “viewpoint disparity” in
workplaces, are generally not considered viewpoint
discriminatory.4 Id. Nothing in Matal or this opinion
changes that.
*9 [6]Nor does Matal call into question the government’s
ability to regulate speech, including the use of slurs, that
constitutes a “true threat” of violence, Virginia v. Black,
538 U.S. 343, 359–60, 123 S.Ct. 1536, 155 L.Ed.2d 535
(2003), “harassment,” Hill v. Colorado, 530 U.S. 703,
723–24, 120 S.Ct. 2480, 147 L.Ed.2d 597 (2000), or
“fighting words,” R.A.V. v. City of St. Paul, 505 U.S. 377,
386, 112 S.Ct. 2538, 120 L.Ed.2d 305 (1992) (observing
that fighting words have an “unprotected ... nonspeech
element” (internal quotation marks omitted)); NLRB v.
Pier Sixty, LLC, 855 F.3d 115, 124 n.46 (2d Cir. 2017)
(describing fighting words as “so insulting in both content
and delivery that they are likely to provoke the listener to
respond violently”). Defendants here, however, have not
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argued that WD’s speech falls within these unprotected
categories.
1. Government speech
[7]
Ultimately, we think Matal compels the conclusion that
defendants have unconstitutionally discriminated against
WD’s viewpoint by denying its Lunch Program
applications because WD branded itself and its products
with ethnic slurs. Although ethnic slurs are used to
express a variety of opinions and obtain a variety of
effects, under Matal the mere use of these potentially
offensive words in the factual setting presented here
reflects a viewpoint and cannot be framed by the
government as a larger viewpoint-neutral category of
speech content available to advance multiple viewpoints
and therefore subject to less First Amendment protection.
Thus, contrary to defendants’ suggestion, we need not
delineate the full extent of the message that Loguidice and
Snooks were trying to convey. Whatever the intended
message, WD’s use of ethnic slurs reflects a viewpoint
about when and how such language should be used.
Further, it matters not that defendants, like the PTO in
Matal, might well have targeted ethnic slurs solely
because of the audience’s expected reaction, rather than
because of WD’s intended message. Defendants engaged
in viewpoint discrimination here even if the denial of
WD’s application resulted from an across-the-board
prohibition applicable to all speakers without regard to
their intended messages.
In light of the clarification provided by Matal, therefore,
we conclude that the District Court erred in its
assessment: the undisputed facts show that defendants did
engage in viewpoint discrimination when they denied
WD’s Lunch Program applications solely because the
WD truck and its products were branded with ethnic slurs.
Given Matal’s clarity on this point, we think it
unnecessary to discuss at length earlier precedents that
could be interpreted as supporting a different conclusion.5
B. Government speech and government contractor
speech
*10 Defendants further contend, however, that any
viewpoint discrimination on their part is of no moment
because OGS’s denial of WD’s application should be
understood as a permissible manifestation of OGS’s own
government speech—a refusal to endorse ethnic slurs in a
state-sponsored program—or as lawful regulation of
speech made by a government contractor.6 We are not
persuaded by these arguments.
[8] [9]
“When government speaks, it is not barred by the
Free Speech Clause from determining the content of what
it says.” Walker v. Tex. Div., Sons of Confederate
Veterans, Inc., ––– U.S. ––––, 135 S.Ct. 2239, 2245, 192
L.Ed.2d 274 (2015). When it acts as a speaker, the
government is entitled to favor certain views over others.
See id. at 2251. The question is whether speech by the
vendors participating in the Lunch Program—an event
involving
both
the
government
and
private
individuals—is properly characterized by defendants as
government speech. For the reasons set out below, we
find the government speech characterization inapt here.
The Supreme Court has identified forms of speech
belonging to the government despite private individuals’
involvement. In Walker, the Court held that specialty
automobile license plates issued by Texas were
government speech over which the government could
exercise editorial control. The Court cited three factors
underlying its conclusion: (1) “the history of license
plates show[ed] that ... they long ha[d] communicated
messages from the States,” id. at 2248; (2) “license plate
designs [we]re often closely identified in the public mind
with the [State],” id. (internal quotation marks omitted);
and (3) “Texas maintain[ed] control over the messages
conveyed on its specialty plates,” id. at 2249. Applying a
similar framework, the Court has also found to be
government speech a city’s refusal to place a private
group’s permanent religious monument in the city’s park
alongside other religious and secular displays. Pleasant
Grove City v. Summum, 555 U.S. 460, 481, 129 S.Ct.
1125, 172 L.Ed.2d 853 (2009). Explaining its rationale, it
cited the history of government use of monuments to
speak to the public; the fact that observers generally
expected permanent monuments to convey a message on
the property owner’s behalf; and the city’s control over
the selection of monuments. Id. at 470–73, 129 S.Ct.
1125.
[10]
At the same time, however, 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. See, e.g., Cornelius
v. NAACP Legal Def. & Educ. Fund, Inc., 473 U.S. 788,
811–13, 105 S.Ct. 3439, 87 L.Ed.2d 567 (1985) (holding
that a charity drive organized by government was
nonpublic forum for private speakers to solicit donations,
and therefore that viewpoint discrimination was
prohibited); Latino Officers Ass’n, N.Y., Inc. v. City of
N.Y., 196 F.3d 458, 468–69 (2d Cir. 1999) (holding that a
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police department’s refusal to permit police affinity group
to march in parades was not a form of government
speech). In its recent decision in Matal, the Supreme
Court held that trademark registration, and the PTO’s
refusal to register marks deemed offensive, was not a
form of government speech. Matal, 137 S.Ct. at 1757–60.
The Matal Court unanimously underscored that it
exercises “great caution before extending [its]
government-speech precedents,” citing the risk that
“private speech could be passed off as government
speech” and “silence[d]” by “simply affixing a
government seal of approval.” Id. at 1758. It characterized
Walker ’s holding allowing state regulation of license
plate content as “mark[ing] the outer bounds of the
government-speech doctrine.” Id. at 1760.
Empire State Plaza, OGS provides additional assistance to
vendors by publicizing the program and by providing
vendors with access to electricity and water on the Plaza
through facilities installed there. We have little trouble
rejecting the argument that OGS was expressing its own
views when it refused to allow WD physical access to
Empire State Plaza—apart from this further
assistance—during the Lunch Program. But we think a
more difficult question is posed by OGS’s declining,
because of WD’s branding, to provide facilities and
promotional support for WD’s participation in the Lunch
Program. The First Amendment might conceivably bar
the former action (preventing physical access) but not the
latter (refusing additional support).7
[12] [13]
*11 Applying the Walker/Summum factors here, we find it
hard to accept the proposition that OGS’s denial of WD’s
application was a form of government speech, rather than
regulation of private speech. Unlike in both Walker and
Summum, defendants have not pointed to any record
evidence of a well-established history of OGS’s
controlling the names of Lunch Program vendors in order
to tailor a government message. They concede that the
Lunch Program has existed for only “a few years,” and
the history they cite is a general history of “sponsor[ing]”
assertedly “analogous programs” in the Plaza. Appellees’
Br. 58.
[11]
Further, to the extent that OGS does have a history of
screening applications for various permits to use Empire
State Plaza, we see little to distinguish OGS’s role from
the role filled by any state or local government entity that
decides whether to grant permits to use any public lands.
The record contains no basis for thinking that 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 “in the public mind.” Matal, 137 S.Ct. at
1760. In addition—drawing on the Court’s reasoning in
Summum, which also involved the use of public land—we
find it significant that the food vendors participating in
the Lunch Program are a merely temporary feature of the
landscape, and quite visibly so. In Summum, by contrast,
the Court rested its holding in part on the notion that
observers of a monument placed on government property
would, partly from its permanence, generally infer that the
monument expressed a message endorsed by the
government. See 555 U.S. at 470–73, 129 S.Ct. 1125.
Having said that, we acknowledge that the Lunch
Program is more than simply a grant of access to public
lands to which OGS has affixed a government seal and a
“program” designation. More than simply access to
The additional assistance provided to permitted
vendors by OGS lends support to defendants’ assertion
that WD’s participation would be perceived by the public
as government speech, and also implicates another line of
argument that is not clearly expressed in their brief: that
government may “set spending priorities” and “selectively
fund ... activities it believes to be in the public interest.”
Nat’l Endowment for Arts v. Finley, 524 U.S. 569, 588,
118 S.Ct. 2168, 141 L.Ed.2d 500 (1998). Arguably,
OGS’s modest additional assistance was a form of
selective funding. This argument, however, raises “a
notoriously tricky question of constitutional law.” Matal,
137 S.Ct. at 1760 (Alito, J.). In general, “if a party objects
to a condition on the receipt of [government] funding, its
recourse is to decline the funds,” but sometimes “a
funding condition can result in an unconstitutional burden
on First Amendment rights.” Agency for Int’l Dev. v. All.
for Open Soc’y Int’l, Inc., 570 U.S. 205, 133 S.Ct. 2321,
2328, 186 L.Ed.2d 398 (2013).
*12 Still, even taking account of the possible import of
OGS’s additional assistance, we conclude that the record
in this case cannot support concluding that OGS
expressed its own message by denying WD’s Lunch
Program applications. For all the reasons already
reviewed above, we find it implausible that OGS, by
permitting WD’s full participation in the Lunch Program,
would be viewed by the public as having adopted WD’s
speech as its own. In Matal, the PTO “d[id] not dream up
the[ ] marks”; it merely registered them, a service
provided to many trademark applicants. Matal, 137 S.Ct.
at 1758. Here, OGS did not “dream up” or adopt WD’s
branding, nor would a reasonable observer think it did so
simply because of the incidental assistance that OGS
provides to Lunch Program vendors.
[14]
We arrive at the same conclusion when the issue is
framed in terms of OGS’s entitlement to fund private
speech selectively. To begin with, we are not so sure that
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OGS’s incidental assistance to vendors constitutes a
significant government benefit separate and apart from
providing access to the forum itself. As we discuss below,
the government’s making available a forum for private
speech does not constitute a “subsidy,” and is
circumscribed by a specific set of constitutional
restrictions that includes a rule against viewpoint
discrimination. It is true that OGS’s local publicity efforts
and provision of on-site water and electricity sources are
not elements of the most basic definition of the “forum” at
issue here: Empire State Plaza as a physical space. But in
creating forums for private activity, the government
sometimes furnishes services or tangible goods, not
access to a physical space. In Cornelius, for example, the
private speech occurred in literature produced by the
government to promote a charity drive. See Cornelius,
473 U.S. at 791, 105 S.Ct. 3439.
As Justice Alito observed in a portion of his Matal
opinion joined by three other Justices, the government’s
provision of a speech-facilitating service (there,
trademark registration) in return for a fee—in the case of
the Lunch Program, a $1500 fee—hardly resembles a
typical government subsidy, see Matal, 137 S.Ct. at 1761
(Alito, J.), and perhaps in some instances looks more like
creating a forum, see id. at 1763 (suggesting that forum
doctrine, rather than precedents about “government
programs,” might be the proper framework for
understanding trademark registration). In addition,
treating as government “subsidies” not only “cash
subsidies or their equivalent,” but also “government
service[s] ... utilized by only some, e.g., the adjudication
of private lawsuits and the use of public parks and
highways,” id. at 1763 (Alito, J.), would empower
government to place speech-related conditions on
citizens’ access to numerous essential public services.
Adopting such a capacious view of government’s
prerogative to fund speech selectively would represent a
step far beyond Supreme Court precedent and likely
conflict with the fundamental purposes of the First
Amendment.
not designed to “promote a governmental message.” Id. at
542, 121 S.Ct. 1043. When a government program’s very
concept contemplates presenting a diversity of views from
participating private speakers, the government may not
then “single out a particular idea for suppression because
it [is] dangerous or disfavored.” Id. at 541, 121 S.Ct.
1043; see also Nat’l Endowment for the Arts, 524 U.S. at
587, 118 S.Ct. 2168 (“[E]ven in the provision of
subsidies, the Government may not ai[m] at the
suppression of dangerous ideas.” (internal quotation
marks omitted)). Further, the government “cannot recast a
condition on funding as a mere definition of its program
in every case, lest the First Amendment be reduced to a
simple semantic exercise.” Legal Servs. Corp., 531 U.S.
at 547, 121 S.Ct. 1043.
*13 The design of the Lunch Program conflicts with the
notion that OGS somehow employs the program—and the
language used by the vendors—to convey a government
message. Defendants stress that OGS aims to make the
Lunch Program “family-friendly,” and we do not doubt
that that is so. But the record does not document OGS’s
having organized the Lunch Program for the purpose of
conveying any message at all. The purpose was to provide
casual outdoor lunch options to state employees and
visitors to the capital. And the structure of the
program—inviting outside vendors to bring their own
food trucks—seems to contemplate that, through signs
and advertising décor to differentiate one from the other,
participating vendors will bring some of their own diverse
personal expression—not government messages—to
Empire State Plaza. Nor does the record reflect that the
vendors accepted into the Lunch Program are selected
because of their ability to help convey a coherent
government message. Instead, the reasonable inference to
be drawn from the record is that the Lunch Program
generally accepted all applicants during the relevant time
period, and WD’s rejection was exceptional: for both the
2013 Lunch Program and the 2014 Lunch Program, every
vendor who completed an application was accepted,
except for WD. OGS’s acceptance of the “Slidin’ Dirty”
truck in the Lunch Program further illustrates the point.
[15] [16]
But even were we to accept the theory that OGS
“subsidizes” Lunch Program vendors’ speech beyond
merely creating a forum, we do not think that defendants
have avoided the First Amendment’s prohibition of
government viewpoint discrimination. We acknowledge
that “viewpoint-based funding decisions can be sustained
[as government speech] ... [w]hen the government
disburses public funds to private entities to convey a
governmental message.” Legal Servs. Corp. v. Velazquez,
531 U.S. 533, 541, 121 S.Ct. 1043, 149 L.Ed.2d 63
(2001) (internal quotation marks omitted). This principle
does not apply, however, when a government program is
We do not doubt that the government has a legitimate
interest in promoting family-friendly messages, speaking
directly itself or through selective subsidies. But on the
undisputed facts in the record before us, we are unable to
conclude that OGS was aiding the transmission of a
government message by denying WD’s Lunch Program
applications.
For these reasons, we conclude that defendants’ actions
were not OGS’s “government speech.” The government
speech doctrine therefore offers defendants no refuge
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from the First Amendment’s prohibition of viewpoint
discrimination.
2. Government contractor speech
[17]
Defendants also argue that OGS’s actions should be
seen as conditions placed on a prospective government
contractor’s speech—that is, WD’s speech—and thus are
subject to, and satisfy, the balancing of interests described
by Board of County Commissioners, Wabaunsee County
v. Umbehr, 518 U.S. 668, 116 S.Ct. 2342, 135 L.Ed.2d
843 (1996) (holding that First Amendment requires
fact-intensive and deferential balancing of government’s
interests against government contractors’ speech interests,
in line with the standard applied to government
employees under Pickering v. Board of Education, 391
U.S. 563, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968)). We
reject this argument as well.
their goods and services and directly benefit from them.
The only monetary exchange between the food vendors
and OGS is a fee paid by the vendors to OGS.
*14 In light of those considerations, we see the food
vendors not as government contractors, but rather as
private entities that pay to access public benefits and, in
using those benefits to their economic advantage,
secondarily satisfy a government purpose. To categorize
WD as a prospective government contractor would
represent a considerable and, we think, unwarranted
expansion of Umbehr. We therefore reject defendants’
argument and decline to analyze WD’s speech under a
government contractor rubric.
C. Whether defendants’ viewpoint discrimination was
justified
[18]
Defendants point out that OGS conceived of the Lunch
Program as a substitute for the government’s prior
contract with Sodexo to provide lunch at the Plaza during
the summer months, and that the Lunch Program vendor
application materials advised that OGS planned to
“subcontract[ ]” food service operations to interested
vendors. App. 407. But defendants cite no authority for
the proposition that these facts alone effectively render
WD a prospective government contractor. Neither
Pickering nor its progeny, including Umbehr, relied on by
defendants, are on point. In those cases, the government
agreed to pay public moneys to private individuals for
services to be rendered, and therefore had a stronger
interest in restricting those individuals’ speech than in
restricting the speech of the public at large. See Umbehr,
518 U.S. at 675–78, 116 S.Ct. 2342; Pickering, 391 U.S.
at 568, 88 S.Ct. 1731.
Our factual setting differs significantly. It is true that the
Lunch Program is an economic arrangement involving
OGS and private vendors—an arrangement that OGS is
not compelled to enter into—and that the vendors stand to
generate revenue for themselves as a result of the
arrangement. It is also true that OGS indirectly benefits
from the goods and services the food vendors provide as
part of this exchange: through the program, it provides its
employees outdoor lunch options. But that is where the
resemblance to government contracting ends. What OGS
provides in this exchange is access to a forum—an issue
governed by forum doctrine, not Umbehr—and modest
nonmonetary assistance that facilitates the use of that
forum. And it is those employees and other private
citizens, not OGS, that actually pay the food vendors for
Defendants have not argued that their actions, if
correctly characterized as viewpoint discrimination
against WD’s private speech, were sufficiently justified
by OGS’s governmental interests to survive First
Amendment scrutiny. Nor do we think that that argument
could be successfully made here, but we address it briefly
to complete the analytical picture.
[19]
In general, government viewpoint discrimination
against private speech violates the First Amendment
unless it is narrowly tailored to achieve a compelling
government interest. Amidon v. Student Ass’n of State
Univ. of N.Y. at Albany, 508 F.3d 94, 105–06 (2d Cir.
2007); Husain v. Springer, 494 F.3d 108, 128 n.14 (2d
Cir. 2007). This rule applies to private speech delivered
on public property regardless of how the property is
categorized under forum doctrine. See Make the Rd. by
Walking, 378 F.3d at 142–43. It is therefore unnecessary
for us to identify the type of forum at issue here before
assessing whether OGS’s actions were justified: we
would apply the same level of scrutiny whether WD
sought to speak in a public forum (as WD contends) or a
nonpublic forum (as defendants contend).
As to the effect of classifying WD’s speech as
commercial, the Supreme Court’s decision in Matal is
again instructive. Joined by three other Justices, Justice
Alito refused to recognize the government’s “interest in
preventing speech expressing ideas that offend” as a
“substantial interest” that could support commercial
speech regulation under Central Hudson Gas & Electric
Corp. v. Public Service Commission of New York, 447
U.S. 557, 100 S.Ct. 2343, 65 L.Ed.2d 341 (1980). Matal,
137 S.Ct. at 1764–65. Similarly, Justice Kennedy
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concluded in his concurrence in Matal that the statutory
provision at issue there was unconstitutional whether or
not the speech was “commercial” and subject to Central
Hudson ’s relaxed standard. Id. at 1767. He explained that
“the viewpoint based discrimination at issue ... necessarily
invoke[d] heightened scrutiny” and would “remain[ ] of
serious concern in the commercial context.” Id. It is
possible that this “heightened scrutiny” of viewpoint
discrimination in the commercial speech context is less
exacting than the scrutiny applicable to viewpoint
discrimination outside that context. But Matal instructs
that viewpoint discrimination is scrutinized closely
whether or not it occurs in the commercial speech context.
Reviewing the record and the parties’ submissions, we
perceive no governmental interest of sufficient weight to
justify defendants’ actions, regardless of how we might
resolve the parties’ disagreement over the most
appropriate categorization of WD’s speech (commercial
speech, speech in a public forum, or speech in a nonpublic
forum).
***
For these reasons, we conclude that the District Court
erred in entering summary judgment in defendants’ favor
on the question whether they violated WD’s First
Amendment rights by denying WD’s Lunch Program
applications because its truck and products were branded
with language commonly seen as ethnic slurs. We further
conclude that WD is entitled to summary judgment in its
favor on that question. We therefore reverse that portion
of the District Court’s judgment and remand the case with
instructions for the District Court to enter an order
declaring that defendants’ conduct as to both the 2013 and
2014 applications violated WD’s First Amendment rights,
and enjoining defendants from denying WD’s future
Lunch Program applications because of WD’s use of
ethnic slurs in its branding.8
II. Selective-enforcement claim
*15 [20]Our determination under Matal that defendants
discriminated against WD’s viewpoint in violation of the
First Amendment leads us to conclude that the District
Court erred also in granting summary judgment in favor
of defendants as to WD’s selective-enforcement claim
under the Equal Protection Clause. We therefore reverse
this portion of the District Court’s judgment as well.
as race, religion, intent to inhibit or punish the exercise of
constitutional rights, or malicious or bad faith intent to
injure a person.” Cine SK8, Inc. v. Town of Henrietta, 507
F.3d 778, 790 (2d Cir. 2007) (internal quotation marks
omitted). WD argues that, while all other vendors
applying to participate in the Lunch Program—including
the “Slidin’ Dirty” truck—were granted permits, WD’s
application was denied because of the exercise of its
constitutional rights in branding itself and its products
with ethnic slurs.
We agree with WD that its selective-enforcement claim
has merit. Again, defendants do not dispute that they
denied WD’s Lunch Program applications because of
WD’s use of ethnic slurs. And although defendants have
cited WD’s failure to submit a complete application on
time as an additional basis for denying the application, it
is undisputed that other Lunch Program applications were
approved despite being late or incomplete. Defendants
point to nothing that distinguishes WD’s application from
the other applications that they approved—aside from
their judgment, in violation of the First Amendment, that
WD’s branding was too offensive to be permitted. This
demonstrates that defendants’ “differential treatment was
based on ... intent to inhibit or punish the exercise of
constitutional rights.” Id.
In light of these undisputed facts, the District Court
should have granted summary judgment in WD’s favor.
We therefore reverse the District Court’s judgment as to
WD’s selective-enforcement claim and instruct the
District Court, on remand, to include in its order of relief
a declaration that defendants violated WD’s equal
protection rights.
III. Claims under the New York State Constitution
The New York State Constitution’s free speech and
equal protection provisions are at least as protective as
their federal counterparts. ONY, Inc. v. Cornerstone
Therapeutics, Inc., 720 F.3d 490, 498 (2d Cir. 2013)
(citing Immuno AG. v. Moor–Jankowski, 77 N.Y.2d 235,
566 N.Y.S.2d 906, 567 N.E.2d 1270, 1278 (1991)) (free
speech); Brown v. State, 89 N.Y.2d 172, 652 N.Y.S.2d
223, 674 N.E.2d 1129, 1140 (1996) (equal protection).
We therefore also reverse the District Court’s judgment as
to WD’s claims under the New York State Constitution
and instruct the District Court to include a declaration of
WD’s rights to free speech and equal protection under the
New York State Constitution in the order of relief.
[22]
[21]
To prevail on its selective-enforcement theory, WD
must show “(1) that [it] was treated differently from other
similarly situated businesses and (2) that such differential
treatment was based on impermissible considerations such
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CONCLUSION
For the foregoing reasons, we conclude that the District
Court should have granted summary judgment in WD’s
favor and should not have granted summary judgment for
defendants. Under Matal, defendants discriminated
against WD’s viewpoint and therefore ran afoul of the
First Amendment, whether WD’s speech is categorized as
commercial speech, speech in a public forum, or speech
in a nonpublic forum. Defendants’ actions are not
rendered permissible by doctrines applicable to
government speech and government contractor speech.
Although bearing some similarities to government speech
and the regulation of government contractor speech,
defendants’ actions are properly characterized as
viewpoint-based regulation of private speech. It follows
from all of the above that the District Court also reached
erroneous conclusions regarding WD’s equal protection
and New York State Constitution claims.
*16 Accordingly, the District Court’s judgment is
REVERSED, and the cause is REMANDED with
instructions to the District Court to enter an order that: (1)
declares that defendants’ conduct violated WD’s First
Amendment rights and enjoins defendants from denying
WD’s future Lunch Program applications solely because
of WD’s use of ethnic slurs in its branding; (2) declares
that defendants violated WD’s equal protection rights;
and (3) declares that defendants violated WD’s rights to
free speech and equal protection under the New York
State Constitution.
All Citations
--- F.3d ----, 2018 WL 265383
Footnotes
*
Judge Carol Bagley Amon, of the United States District Court for the Eastern District of New York, sitting by
designation.
1
We refer to “defendants,” but note that not all of the original defendants are party to this appeal. The John Does named
in the complaint remain unidentified. WD’s claims against the New York State Office of General Services and the State
of New York were dismissed on sovereign immunity grounds; that dismissal is not challenged on appeal. Finally, WD
filed a stipulation of dismissal of its claims against the New York Racing Association, Inc., Christopher K. Kay, and
Stephen Travers.
2
Except where indicated, the facts described here are undisputed. They are drawn primarily from the statements of
material facts submitted by the parties in conjunction with their cross-motions for summary judgment in accordance
with Rule 7.1(a)(3) of the Local Rules of Practice of the United States District Court for the Northern District of New
York.
3
Defendants have not expressly admitted that an application for a food truck named “Slidin’ Dirty” was accepted, but
they have not challenged WD’s factual assertion that one was.
4
Antidiscrimination laws can, of course, raise First Amendment concerns of a different sort, relating to associational
rights. See, e.g., Boy Scouts of Am. v. Dale, 530 U.S. 640, 120 S.Ct. 2446, 147 L.Ed.2d 554 (2000); Bd. of Dirs. of
Rotary Int’l v. Rotary Club of Duarte, 481 U.S. 537, 107 S.Ct. 1940, 95 L.Ed.2d 474 (1987).
5
In Perry v. McDonald, for example, we concluded that a state did not engage in unlawful viewpoint discrimination when
it rejected a request for a “SHTHPNS” vanity plate, while at the same time allowing plates such as “COWPIES,”
“POOPER,” and “BM.” 280 F.3d 159, 170–71 (2d Cir. 2001). Although all the language on the plates was scatological,
“SHTHPNS” was the only “offensive” plate because it contained “easily recognizable profanities.” Id. We held that the
government was not targeting the worldview underlying the phrase “shit happens,” but rather the use of profanities to
express that philosophy, and that the latter objective did not amount to viewpoint discrimination. Of course, following
the Supreme Court’s decision in Walker v. Texas Division, Sons of Confederate Veterans, Inc., the state’s rejection of
the vanity plate might now be permitted on the alternative ground that the plate’s language constituted government
speech. ––– U.S. ––––, 135 S.Ct. 2239, 2246, 192 L.Ed.2d 274 (2015) (“[S]pecialty license plates issued pursuant to
Texas’s statutory scheme convey government speech.”).
6
We note that the District Court raised and addressed these issues sua sponte without affording WD an opportunity to
be heard on them. These issues, however, are legal in nature and, on appeal, have been fully briefed by both parties.
In the interest of judicial economy, we therefore reach them now.
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7
Of course, within the bounds of the First Amendment, OGS may place content-neutral restrictions on the time, place,
and manner of speech delivered on government property. But defendants have not argued that their denial of WD’s
application was motivated by legitimate concerns about the time, place, or manner of WD’s speech (e.g., crowding).
Rather, their denial was motivated by the speech’s viewpoint.
8
In light of this disposition, we need not reach WD’s argument that OGS’s process for reviewing Lunch Program
applications involved a facially unconstitutional exercise of discretion. See Amidon, 508 F.3d at 103 (discussing the
“constitutional proscription against granting unbridled discretion in the prior restraint context”). WD’s facial challenge
focuses on OGS’s decisions to reject otherwise eligible Lunch Program applicants who were, in OGS’s estimation,
insufficiently “family-friendly.” In terms of relief, WD requests neither monetary damages, nor an injunction terminating
the entire Lunch Program; WD seeks merely to have its application “considered on the same basis as all other
applicants [’] and not on the basis of its speech.” Appellant’s Reply Br. 22. We have already concluded that, on the
facts of this case, the First Amendment prohibits OGS from denying applicants a permit solely because their branding
contains language that some might find objectionable. WD does not identify any other impermissibly discretionary
facets of OGS’s process for reviewing Lunch Program applicants. We therefore see no need to assess WD’s theory of
facial unconstitutionality.
End of Document
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