ps reply memo of law: wandering dago case

7/29/2019 Ps Reply Memo of Law: Wandering Dago case

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UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF NEW YORK

WANDERING DAGO INC.,

Plaintiff,

v.

NEW YORK STATE OFFICE OF GENERALSERVICES, ROANN M. DESTITO, JOSEPH J.RABITO, WILLIAM F. BRUSO, JR., AARONWALTERS, NEW YORK RACINGASSOCIATION, INC., CHRISTOPHER K. KAY,STEPHEN TRAVERS, JOHN DOES 1-5, and THESTATE OF NEW YORK,

Defendants.

Civil Action No. 1:13-cv-01053-MAD-RFT

REPLY MEMORANDUM OF LAW IN FURTHER SUPPORT

OF PLAINTIFFS MOTION FOR A PRELIMINARY INJUNCTION

Dated: September 16, 2013 BOIES, SCHILLER & FLEXNER LLP

George F. Carpinello (Bar No. 103750)30 South Pearl Street

Albany, NY 12207

Ph: (518) 434-0600

Attorneys for Plainti ff

Case 1:13-cv-01053-MAD-RFT Document 35 Filed 09/16/13 Page 1 of 32


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TABLE OF CONTENTS

Table of Authorities ........................................................................................................................ ii

Preliminary Statement .................................................................................................................... 1

I. Defendants Bear the Burden of Justifying Their Censorshipof Plaintiffs Speech ............................................................................................... 2

II. Plaintiff Has Established Irreparable Injury .......................................................... 3

III. The State Defendants Cannot Justify Their Conduct As Proprietary

and Occurring In a Non-Public Forum .................................................................. 8

A. The Plaza Is a Public Forum ...................................................................... 8

B. The State Defendants Have No Clearly Articulated PolicyFor Use of the Plaza ................................................................................. 13

C. The State Defendants Cannot Meet the CentralHudson Test ................. 14

IV. The Nature of the Saratoga Race Course Is Irrelevant Because the

Exclusion Was Done at the Direction of State Officials Without Regardto Any Policy Concerning Use of the Property ................................................... 16

V. DefendantsAd Hoc Exclusion of Plaintiff Was the

Result of Unconstitutional, Unbridled Discretion ............................................... 19

VI. Defendants Have Engaged In Viewpoint Discrimination .................................... 23

Conclusion ................................................................................................................................... 25



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ii

TABLE OF AUTHORITIES

Cases

Abish v. Nw. Natl Ins. Co. of Milwaukee,

924 F.2d 448 (2d Cir. 1991)........................................................................................................ 7

Abortion Rights and Against Sterilization Abuse v. Niagara Frontier Transp. Auth.,

584 F. Supp. 985 (W.D.N.Y. 1984) ................................................................................ 4, 14, 21

Am. Civil Liberties of Nev. v. City of Las Vegas,

333 F.3d 1092 (9th Cir. 2003) .................................................................................................. 11

American Postal Workers Union v. U.S. Postal Service,

766 F.2d 715 (2d Cir. 1985)........................................................................................................ 4

Ark. Educ. Television Commn v. Forbes,523 U.S. 666 (1998) .............................................................................................................. 8, 12

Aubrey v. City of Cincinnati,

815 F. Supp. 1100 (S.D.Oh. 1993) ........................................................................................... 21

Bad Frog Brewery Inc. v. New York State Liquor Authority,

134 F.3d 87 (2d Cir. 1998)........................................................................................................ 15

Bd. of Trs. of State Univ. of N.Y. v. Fox,

492 U.S. 469 (1989) .................................................................................................................... 3

Bolger v. Youngs Drug Prods. Corp.,

463 U.S. 60 (1983) ...................................................................................................................... 3

Borey v. Natl Union Fire Ins. Co. of Pittsburgh,

934 F.2d 30 (2d Cir. 1991).......................................................................................................... 7

Bronx Household of Faith v. Board of Education of New York,

331 F.3d 342 (2d Cir. 2003)........................................................................................................ 4

Central Hudson Gas & Elec. Corp. v. Pub. Serv. Commn of N.Y.,

447 U.S. 557 (1980) .............................................................................................................. 2, 15

Children First Foundation, Inc. v. Martinez,

829 F. Supp. 2d 47 (N.D.N.Y. 2011) ............................................................................ 21, 23, 24

Christs Bride Ministries, Inc. v. Se. Penn. Transp. Auth .,148 F.3d 242 (3d Cir. 1998)................................................................................................ 14, 24



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iii

Cinevision Corp. v. City of Burbank,

745 F.2d 560 (9th Cir. 1984) .................................................................................................... 20

Citibank, N.A. v. Citytrust,

756 F.2d 273 (2d Cir. 1985)........................................................................................................ 7

City of Los Angeles v. Lyons,

461 U.S. 95 (1983) ...................................................................................................................... 4

Coll. Entrance Exam. Bd. v. Cuomo,

788 F. Supp. 134 (N.D.N.Y. 1992) ............................................................................................. 7

Cornelius v. NAACP Legal Defense and Educ. Fund, Inc. ,

473 U.S. 788 (1985) ............................................................................................................ 18, 21

Daily v. N.Y. City Hous. Auth.,

221 F. Supp. 2d 390 (E.D.N.Y. 2002) ........................................................................................ 7

Davis v. Stratton,575 F. Supp. 2d 410 (N.D.N.Y. 2008) ...................................................................................... 20

Deegan v. City of Ithaca,444 F.3d 135 (2d Cir. 2006)...................................................................................................... 10

Desert Outdoor Adver., Inc. v. City of Moreno Valley,103 F.3d 814 (9th Cir. 1996) ............................................................................................ 2, 3, 20

E. Conn. Citizens Action Group v. Powers,

723 F.2d 1050 (2d Cir. 1983)................................................................................................ 9, 24

E. Meadow Cmty. Concerts Assn v. Bd. of Educ. of Union Free Sch. Dist. No. 3,18 N.Y.2d 129 (1966) ................................................................................................................. 6

E. Timor Action Network, Inc. v. City of N.Y.,71 F. Supp. 2d 334 (S.D.N.Y. 1999)......................................................................................... 21

Edwards v. South Carolina,372 U.S. 229 (1963) .................................................................................................................. 10

Elrod v. Burns,427 U.S. 347 (1976) .................................................................................................................... 4

Firemens Ins. Co. of Newark v. Keating,

753 F. Supp. 1146 (S.D.N.Y. 1990)............................................................................................ 7



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Freedman v. Maryland,

380 U.S. 51 (1965) ...................................................................................................................... 2

Grayned v. City of Rockford,

408 U.S. 104 (1972) .................................................................................................................... 9

Hasbro, Inc. v. Lanard Toys, Ltd.,

858 F.2d 70 (2d Cir. 1988).......................................................................................................... 7

Hohe v. Casey,

868 F.2d 69 (3d Cir. 1989).......................................................................................................... 5

Hotel Emps. & Rest. Emps. Union v. City of N.Y. Dept of Parks and Recreation,

311 F.3d 534 (2d Cir. 2002)...................................................................................................... 11

In re Search of Kittys E.,

905 F.2d 1367 (10th Cir. 1990) .................................................................................................. 2

Intl Socy For Krishna Consciousness, Inc. v. Lee,

505 U.S. 672 (1992) .............................................................................................................. 9, 24

Kadant, Inc. v. Seeley Machine, Inc.,244 F. Supp. 2d 19 (N.D.N.Y. 2003) .......................................................................................... 7

Lark v. Lacy,43 F. Supp. 2d 449 (S.D.N.Y. 1999)........................................................................................... 4

Lederman v. United States,

291 F.3d 36 (D.C. Cir. 2002) .................................................................................................... 11

Lehman v. City of Shaker Heights,418 U.S. 298 (1974) .................................................................................................................. 22

Lewis v. Wilson,253 F.3d 1077 (8th Cir. 2001) ............................................................................................ 20, 23

Libin v. Town of Greenwich,625 F. Supp. 393 (D. Conn. 1985) .............................................................................................. 5

Majorica, S.A. v. R.H. Macy & Co., Inc.,762 F.2d 7 (2d Cir. 1985) ........................................................................................................... 7

Make the Road By Walking, Inc. v. Turner,

378 F.3d 133 (2d Cir. 2004)...................................................................................................... 21



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v

Marcavage v. City of Syracuse,

2012 U.S. Dist. LEXIS 187137 (N.D.N.Y. June 6, 2012) .......................................................... 5

Marilyn Manson, Inc. v. N.J. Sports and Exposition Auth.,

971 F. Supp. 875 (D.N.J. 1997) .................................................................................... 21, 22, 23

N.Y. Magazine v. Metro. Transp. Auth.,

136 F.3d 123 (2d Cir. 1998) ............................................................................................. 2, 9, 13

Paulsen v. Cnty of Nassau,

925 F.2d 65 (2d Cir. 1991).............................................................................................. 4, 10, 16

Perry v. McDonald,

280 F.3d 159 (2d Cir. 2001)...................................................................................................... 22

Pinckney v. Board of Education,

920 F. Supp. 393 (E.D.N.Y. 1996) ............................................................................................. 5

Planned Parenthood Assn / Chi. Area v. Chi. Transit Auth. ,767 F.2d 1225 (7th Cir. 1985) ........................................................................................... 14, 20

Pleasant Grove City, Utah v. Summum,555 U.S. 460 (2009) .................................................................................................................... 9

Sammartano v. First Judicial Dist. Ct.,303 F.3d 959 (9th Cir. 2002) .................................................................................................... 23

Sanchez v. Turner,

2002 WL 1343754 (S.D.N.Y. June 19, 2002) .......................................................................... 21

Shuttlesworth v. City of Birmingham,394 U.S. 147 (1969) .................................................................................................................. 19

Smith v. Fredrico,2013 WL 122954 (E.D.N.Y. Jan. 8, 2013) ................................................................................. 5

Sons of Confederate Veterans, Inc. v. Commissioner,288 F.3d 610 (4th Cir. 2002) .................................................................................................... 23

Southeastern Promotions, Ltd. v. Conrad,420 U.S. 546 (1975) ........................................................................................................ 2, 19, 24

Tough Traveler, Ltd. v. Outbound Prods.,

60 F.3d 964 (2d Cir. 1995).......................................................................................................... 7



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vi

Union v. City of N.Y. Dept of Parks and Recreation,

311 F.3d 534 (2d Cir. 2002)...................................................................................................... 11

United Food & Commercial Workers Union v. Sw. Ohio Regl Transit Auth.,

163 F.3d 341 (6th Cir. 1998) .............................................................................................. 14, 20

United States v. Grace,

461 U.S. 171 (1983) .................................................................................................................. 10

United States v. Playboy Entmt Group, Inc.,

529 U.S. 803 (2000) .................................................................................................................... 2

Wallikas v. Harder,

78 F. Supp. 2d 36 (N.D.N.Y. 1999) ............................................................................................ 4

Warren v. Fairfax County,

196 F.3d 186 (4th Cir. 1999) .............................................................................................. 11, 13

Treatises

2 Smolla & Nimmer, Freedom of Speech 20:46 (2013) .............................................................. 3



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Plaintiff Wandering Dago Inc. (Wandering Dago) respectfully submits this Reply

Memorandum of Law in further support of its Motion for a Preliminary Injunction herein.1

PRELIMINARY STATEMENT

Recognizing that they fail the Central Hudson test, both the State and the NYRA

Defendants strive to avoid that test by arguing that neither the Empire State Plaza nor the

Saratoga Race Course is a public forum. Both arguments are without merit.

First, the Empire State Plaza is the quintessential public forum and the States power to

regulate and control the sale of food on the Plaza does not give it the power to censor speech

there.

Second, whether or not the Saratoga Race Course is a public forum is a fact question on

which NYRA provides no information, even though it has the burden. In any event, the nature of

the Race Course is irrelevant to the analysis because Plaintiff was not ejected by NYRA as a part

of any reasonable regulation of a non-public forum, but as a result of viewpoint censorship by

unnamedState officials.

Third, both the State Defendants and the State officials who excluded Plaintiff from the

Race Course acted pursuant to ad hoc, unguided discretion without reference to any

constitutionally-acceptable guidelines.

Finally, Plaintiff has clearly suffered and continues to suffer irreparable injury.

Defendants censorship continues to this day and Defendants will continue to censor Plaintiffs

speech when they exclude Plaintiff from the 2014 season applications for which will be

submitted in a matter of months, long before this action is resolved.

1To the extent that the State Defendants Brief discusses issues not relevant to Plaintiffs motion

for a preliminary injunction, these will be addressed in Plaintiffs response in opposition to the

State Defendants motion to dismiss.



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I. DEFENDANTS BEAR THE BURDEN OF JUSTIFYING THEIR

CENSORSHIP OF PLAINTIFFS SPEECH.

The State Defendants argue that Plaintiff bears a heightened burden because it seeks

relief that would alter the status quo. They are wrong for three reasons.

First, as the Supreme Court has held in Southeastern Promotions, Ltd. v. Conrad, 420

U.S. 546, 562 (1975), in First Amendment cases, the status quo is the speakers expected

exercise of his or her First Amendment rights before the government interferes with those rights.

Here, Plaintiff was about to participate in both the Summer Outdoor Lunch Program and the

2013 Saratoga Summer Season when it was suddenly denied access to both. Thus, the status

quo is not the continuing ban, but Plaintiffs expected exercise of its rights.

Second, the denial of Wandering Dagos application on the basis of its name is a textbook

example of prior restraint. In such cases, the burden of justification shifts to the government.

[A] system of prior restraint avoids constitutional infirmity only if it takes place under

procedural safeguards designed to obviate the dangers of a censorship system. Southeastern

Promotions, 420 U.S. 546, 559 (1975) (quoting Freedman v. Maryland, 380 U.S. 51, 58 (1965).

Such procedural safeguards must assure prompt judicial determination and the burden of both

instituting judicial proceedings, and of proving that the material is unprotected, must rest on the

censor. Id. at 560.2 See also United States v. Playboy Entmt Group, Inc ., 529 U.S. 803, 816

2Although the Supreme Court has never decided whether the prior restraint doctrine applies to

commercial speech (seeCentral Hudson Gas & Elec. Corp. v. Pub. Serv. Commn of N.Y. , 447

U.S. 557, 571 n.13 (1980)), the Second Circuit and other courts have held that commercialspeech is entitled to constitutional protection against prior restraint. See N.Y. Magazine v. Metro.

Transp. Auth., 136 F.3d 123, 131 (2d Cir. 1998) ([T]he requirement of procedural safeguards in

a system of prior restraints should not be loosened even in the context of commercial speech.).See alsoDesert Outdoor Adver., Inc. v. City of Moreno Valley, 103 F.3d 814, 818-19 (9th Cir.1996) (holding a licensing scheme to be an unconstitutional prior restraint before independently

considering its constitutionality as a restriction on commercial and non-commercial speech); In



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(2000) (When the Government restricts speech, the Government bears the burden of proving the

constitutionality of its actions . Content-based regulations are presumptively invalid and the

Government bears the burden to rebut that presumption) (internal citations omitted) (citing

cases).

Third, whatever burden Plaintiff nominally bears, it easily meets that burden because

irreparable injury is legally presumed when First Amendment rights are interfered with (see

Point II below) and, under the Central Hudson test, all Plaintiff need show is that the commercial

speech concerns lawful activities and is not misleading. Once a plaintiff demonstrates those

facts (which are clearly undisputed here), the burden shifts to the government to show that its

interest is substantial, that the regulation directly advances the government interests asserted, and

that the restriction is not more extensive than necessary to serve that purpose. Bd. of Trs. of State

Univ. of N.Y. v. Fox, 492 U.S. 469, 480 (1989); Bolger v. Youngs Drug Prods. Corp., 463 U.S.

60, 71 n.20 (1983);Desert Outdoor Adver., 103 F.3d at 819. Thus, the burden of justifying their

censorship rests with Defendants. Significantly, none of the Defendants even attempts to meet

that test.

II. PLAINTIFF HAS ESTABLISHED IRREPARABLE INJURY.

Defendants argue that Plaintiff cannot establish irreparable injury because (1) it has

framed its damages solely in economic terms (State Defs. Br. 5), and it can be fully

compensated for monetary damages; (2) Plaintiff suffered only a discrete act of deprivation of

re Search of Kittys E., 905 F.2d 1367, 1371 n.4 (10th Cir. 1990) (stating that the Supreme

Court has not distinguished between political and commercial speech when it has held that any

prior restraint must be followed by prompt judicial review); 2 Smolla & Nimmer, Freedom of

Speech 20:46 (2013) (The decision in New York Magazine [is] consistent with recentdecisions in other federal circuits indicating that the procedural safeguards normally required for

prior restraints do indeed apply to commercial speech.).



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rights (id.); (3) the OGSs Summer Outdoor Lunch Program is about to end, and NYRAs

summer meet at the Saratoga Race Course has already ended; and (4) Plaintiff exercised undue

delay in the bringing of this action. None of these arguments have merit.

First, it is well established that the loss of First Amendment freedoms, even for a minimal

period of time, unquestionably constitutes irreparable injury. Elrod v. Burns, 427 U.S. 347, 373

(1976); Paulsen v. Cnty of Nassau, 925 F.2d 65, 68 (2d Cir. 1991) (plaintiffs have met the

requirement for showing irreparable injury because they have been prevented from exercising

their First Amendment rights.);Lark v. Lacy, 43 F. Supp. 2d 449, 476-77 (S.D.N.Y. 1999) (even

an alleged violation of constitutional rights triggers a finding of irreparable injury); Coal. for

Abortion Rights and Against Sterilization Abuse v. Niagara Frontier Transp. Auth., 584 F. Supp.

985, 989 (W.D.N.Y. 1984) (Where constitutionally protected speech is thwarted, irreparable

injury results.). Thus, although Plaintiff also claims monetary damages, it has not framed its

damages solely in economic terms, and Defendants attempt to so characterize Plaintiffs claims

does not make them so.3

Plaintiff continues to suffer irreparable injury as a direct result of its

3Moreover, the cases cited by Defendants in support of their argument that there has been no

irreparable injury show no such thing. In Bronx Household of Faith v. Board of Education of

New York, 331 F.3d 342, 349-50 (2d Cir. 2003), the Second Circuit drew a distinction between

cases [w]here a plaintiff alleges injury from a rule or regulation that directly limits speech, andthose where a plaintiff alleges injury from a rule or regulation that may only potentially affect

speech. Finding that the alleged deprivation of plaintiffs First Amendment rights results

directly from a policy of the defendant, the court concluded that irreparable harm may bepresumed. Id. at 350. Here, as inBronx Household, both the NYRA and the State Defendants

admit that their actions were taken on the basis of Wandering Dagos speech, and allegedly

pursuant to a policy. Both Wallikas v. Harder, 78 F. Supp. 2d 36, 38 (N.D.N.Y. 1999), andAmerican Postal Workers Union v. U.S. Postal Service, 766 F.2d 715, 722 (2d Cir. 1985),

involved allegedly retaliatory employment actions on the basis of protected speech. In both

cases, the challenged actions involved solely past speech, and the court found no irreparable

injury due to the failure to show a chilling effect on future speech. In City of Los Angeles v.Lyons, 461 U.S. 95, 111 (1983), the Court held that a plaintiff alleging past police brutality could

not show irreparable injury without demonstrating a likelihood that he would be subject to



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First Amendment rights being infringed upon.

Second, Plaintiff alleges more than a discrete act of censorship: it is banned

indefinitely from both the Plaza and the Race Course. The censorship is ongoing. Although it is

true that the 2013 Saratoga season has ended and the OGS Outdoor Program is soon to end,

arrangements for space in both programs for next summer will begin in early 2014. As is more

fully set forth in the Declaration of Andrea Loguidice, Plaintiff originally began discussing

inclusion in the 2013 season with Centerplate, Inc., NYRAs designated management company

for the Saratoga Race Course, in early January 2013 and reached agreement in April.

Declaration of Andrea D. Loguidice, dated September 16, 2013 (Loguidice Reply Decl.) at

23-29. OGS will begin accepting applications for its program sometime in early 2013.

Plaintiff seeks a preliminary injunction that would last during the pendency of this action.

Unquestionably, the action will extend into 2014 during the period when NYRA or its designated

management company will be negotiating with vendors for space for the 2014 track season and

OGS will be accepting applications for the Summer 2014 program in which [s]pace is limited.

In order to avoid the subterfuge by both OGS and NYRA that Plaintiff will be barred because it

similar future brutality. In Marcavage v. City of Syracuse, 2012 U.S. Dist. LEXIS 187137, at

*8-10 (N.D.N.Y. June 6, 2012), the plaintiff alleged an unconstitutional policy concerning soundamplification, but the court found no irreparable injury because the policy had since been

changed by the city, and the new policy did not suffer from the same constitutional defects. InHohe v. Casey, 868 F.2d 69, 73 (3d Cir. 1989), the court found that non-union employeeschallenging Union pay deductions had suffered only a monetary injury because any connection

between pay deductions and their own speech was too remote. In both Pinckney v. Board of

Education, 920 F. Supp. 393, 400 (E.D.N.Y. 1996) andSmith v. Fredrico, 2013 WL 122954, at*1 (E.D.N.Y. Jan. 8, 2013), the requested injunctive relief (in Pinckney, restored salary and

benefits; in Smith, return of seized property) was equivalent to money damages. Finally,Libin v.

Town of Greenwich, 625 F. Supp. 393 (D. Conn. 1985), fully supports Wandering Dagos

position. InLibin, plaintiffs alleged a continuing violation of establishment clause rights, and thecourt held that [t]here is no question that a violation of the plaintiffs First Amendment rights

cannot be remedied by an award of monetary damages. Id. at 395.



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applied too late, it needs a preliminary injunction now to prevent Defendants from continuing

with their unconstitutional acts in 2014. See E. Meadow Cmty. Concerts Assn v. Bd. of Educ. of

Union Free Sch. Dist. No. 3, 18 N.Y.2d 129, 135 (1966) (claim for violation of First Amendment

rights not moot just because scheduled date for concert has passed; plaintiff expressed interest in

doing concerts in the future).

Third, even with regard to the damages, there is a very practical reason why Plaintiff

should be accorded the opportunity to participate in the OGS program during the remaining two

weeks. OGS will undoubtedly argue that Plaintiff cannot establish lost profits from being

excluded from the program because damages are speculative. Allowing Plaintiff to participate,

even for short period of time, will allow Plaintiff to establish at least some yardstick to

demonstrate damages.

Finally, Defendants claim that irreparable injury should not be presumed because

Plaintiff unduly delayed bringing this action. But there was no undue delay.

With regard to the State Defendants, any delay was the result of their dissembling and

refusal to provide accurate and complete information to Plaintiff. As is more fully set forth in

the Loguidice Reply Decl., Wandering Dago learned it had been excluded in an email which

was, at best, misleading as to the reasons for the denial. Plaintiff consistently sought an

explanation as to why it had been denied and was provided with clearly pretextual reasons.

When Wandering Dago asked for a written explanation for its denial, it was told that it would

have to file a FOIL request. Despite having sent several written requests for explanations,

Wandering Dago has, to this date, never received a response to its FOIL request. Until it filed

this action, Wandering Dago could not even get a written statement of the reasons for the denial

or the specific rules or regulations providing OGSs legal authority for denying the application.



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Under these circumstances, any delay in bringing an action against the State is certainly

understandable. Loguidice Reply Decl. at 8-22.

With regard to NYRA, Plaintiff was removed from the Race Course on July 19, 2013.

Plaintiff immediately began searching for counsel, having had discussions concerning

representation with a not-for-profit legal group and other attorneys. Ultimately, Plaintiff retained

the undersigned on August 12, 2013. On August 13, 2013, counsel wrote to OGS and NYRA

and urged them to resolve the matter without litigation. OGS counsel, to their credit, contacted

the undersigned and at least engaged in some discussions which, unfortunately, could not resolve

the matter. NYRA never provided any response. Having failed to resolve the matter with OGS

counsel and having received no response from NYRA, Plaintiff commenced this action and

moved for a preliminary injunction on August 27, 2013. Loguidice Reply Decl. at 30-44;

Declaration of George F. Carpinello, dated September 16, 2013 (Carpinello Decl.) at 2-11.

Thus, this action was timely.4

4 Each of the cases cited by Defendants in support of their undue delay argument (none of which

involves a First Amendment injury) involves a significantly longer delay between injury and a

motion for preliminary injunction. SeeMajorica, S.A. v. R.H. Macy & Co., Inc., 762 F.2d 7, 8(2d Cir. 1985) (several years); Citibank, N.A. v. Citytrust, 756 F.2d 273, 276 (2d Cir. 1985)

(more than nine months); Coll. Entrance Exam. Bd. v. Cuomo, 788 F. Supp. 134, 145

(N.D.N.Y. 1992) (twelve years); Firemens Ins. Co. of Newark v. Keating, 753 F. Supp. 1146,1158 (S.D.N.Y. 1990) (almost eleven months (emphasis omitted)); see alsoTough Traveler,

Ltd. v. Outbound Prods., 60 F.3d 964, 968 (2d Cir. 1995) (more than a year); Borey v. Natl

Union Fire Ins. Co. of Pittsburgh, 934 F.2d 30, 35 (2d Cir. 1991) (three years); Abish v. Nw.Natl Ins. Co. of Milwaukee, 924 F.2d 448, 454 (2d Cir. 1991) (nearly four years). Moreover,

courts have found irreparable harm despite greater delay. See, e.g.,Hasbro, Inc. v. Lanard Toys,

Ltd., 858 F.2d 70, 72 (2d Cir. 1988) (six months); Kadant, Inc. v. Seeley Machine, Inc., 244 F.Supp. 2d 19, 34 (N.D.N.Y. 2003) (approximately four months). Finally, courts have held that

the reasoning in Citibankhas less force when dealing with ongoing or future First Amendment

violations. See, e.g., Daily v. N.Y. City Hous. Auth., 221 F. Supp. 2d 390, 396 (E.D.N.Y. 2002)

(plaintiff alleging First Amendment violation was sufficiently diligent despite two to threemonth unexcused delay, and delay does not undermine the fact that she still cannot use the

[community center] for her proposed sessions).



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III. THE STATE DEFENDANTS CANNOT JUSTIFY THEIR CONDUCT AS

PROPRIETARY AND OCCURRING IN A NON-PUBLIC FORUM.

The State Defendants claim that they are entitled to censor Plaintiffs speech because the

State is acting in a proprietary capacity and in a non-public forum. Thus, they argue, the rules

ofCentral Hudson do not apply. Their contention is not supported by either the facts or the law.

The Empire State Plaza is a quintessential public forum; the proposed activities of Plaintiff and

all food vendors are open to the public; and the States power to exercise reasonable regulation

over State property and to license vendors does not give the State authority to censor speech.

A. The Plaza Is a Public Forum.

In a series of cases, the Supreme Court and the lower courts have delineated the various

types of fora that are applicable to First Amendment analysis. At one end are classic public fora:

such as parks, streets, and public squares, which are quintessential places of First Amendment

activity and over which the state has very circumscribed power to limit speech. At the other end

are government properties that are not, by design or purpose, intended to be places for the

dissemination of speech by members of the public. The government can fully ban speech in

those locations so long as the government acts reasonably and its decisions are not viewpoint

related. Some government properties, such as buses and train stations are not, by tradition or

design, public fora, but may become public fora by government action that allows expressive

activity to occur. These designated public fora are, like traditional public fora, places where

government control of speech is strictly circumscribed. Finally, where the government allows

limited types of speech, but not all speech, it creates a so-called limited public forum. In such

limited public fora, the government can proscribe other forms of speech so long as its decisions

are reasonable and are viewpoint neutral. But for the limited kinds of speech that are allowed,

the limited public forum is treated like a classic public forum and government control of such



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speech is strictly circumscribed. See generallyArk. Educ. Television Commn v. Forbes, 523

U.S. 666, 677-78 (1998);Intl Socy For Krishna Consciousness, Inc. v. Lee, 505 U.S. 672, 678-

80 (1992); Perry Educ. Assn v. Perry Local Educators Assn, 460 U.S. 37, 45-46 (1983);N.Y.

Magazine, 136 F.3d at 128-30.

Much ink has been spilled by the courts in attempting to delineate the different public

fora, but this Court need not spend any significant time on the issue because it is clear, beyond a

doubt, that the Empire State Plaza, where Wandering Dago sought to sell its food, is the

quintessential public forum. As the Supreme Court recently said in Pleasant Grove City, Utah v.

Summum, 555 U.S. 460, 469 (2009), courts

long ago recognized that members of the public retain strong free speechrights when they venture into public streets and parks, which have

immemorially been held in trust for the use of the public and, time out of

mind, have been used for purposes of assembly, communicating thoughtsbetween citizens, and discussing public questions. In order to preserve

this freedom, government entities are strictly limited in their ability to

regulate private speech in such traditional public fora.

(internal quotation marks and citations omitted). See also Grayned v. City of Rockford, 408 U.S.

104, 115 (1972) (The right to use a public place for expressive activity may be restricted only

for weighty reasons);E. Conn. Citizens Action Group v. Powers, 723 F.2d 1050, 1054 (2d Cir.

1983) ([C]ourts have opened to specific forms of expressive activity public property that serves

a function akin to streets and parks as an arena for discussion.).

The Empire State Plaza is a quarter-mile stretch of open space surrounded on four sides

by government buildings. It is bounded on the north by the New York State Capitol, on the

south by the New York State Cultural Education Building, on the East by Corning Tower, and on

the west by four agency towers (buildings 1 through 4). The space has sidewalks, trees and grass

areas and large reflecting pools. See Carpinello Decl. at 13-14 and Exs. C, D thereto. Behind



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the four agency towers is a quarter-mile-long state office building. The Plaza is open on all sides

and can be and is traversed by pedestrians. The State holds or allows numerous functions on the

Empire State Plaza, including political rallies, concerts, festivals, cultural events, fireworks and a

myriad of other events. Carpinello Decl. at 12.5

The State Defendants concede that the Empire

State Plaza is an outdoor space, populated primarily by State employees and visitors to the

Capital [sic], flanked by [State] offices, and reserved for the peaceful use and enjoyment by

State employees and the visiting public. State Defs. Br. 8-9, 11, 16. Moreover, the Plaza is an

extension of the classic public fora that surround it: the concourse below, the Egg, the

Convention Center, the Capitol, and the public streets that bound it.

Thus, by its very nature, the Plaza is a public forum, and the government cannot restrict

speech by declaring or acting as if it were something other than a public forum. See United

States v. Grace, 461 U.S. 171, 180 (1983) (holding that a federal statute prohibiting the display

of banners, flags, or devices on the sidewalks surrounding the Supreme Court was

unconstitutional because the sidewalk was a public forum and could not be declared to be

anything other than a public forum by government ipse dixit); Edwards v. South Carolina, 372

U.S. 229, 235-38 (1963) (criminal convictions of African-American demonstrators who

peaceably demonstrated on the sidewalk and driveway in front of the South Carolina State

Capitol were unconstitutional); Deegan v. City of Ithaca, 444 F.3d 135, 141 (2d Cir. 2006)

(pedestrian mall in downtown Ithaca was the prototypical and quintessential public forum

because it was available for public expression and the free exchange of ideas and had been used

5The State Defendants attempt to argue that the Plaza is not open because the OGS website

specifically limits access to the Plaza by visitors, citing an OGS webpage. State Defs. Br. 13

n.7. The webpage purports merely to impose time restrictions on the Plaza, which is not in anyway inconsistent with its nature as a public forum. See Ex. 15 to Carpinello Decl. Moreover, as

any resident or visitor to Albany knows, those time restrictions are never enforced.



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11

for that purpose); Paulsen, 925 F.2d at 69-71 (Nassau Coliseum and surrounding sidewalks and

mall are a public forum because County intended the site to be used for a wide variety of

expressive activity and it was so used);Am. Civil Liberties of Nev. v. City of Las Vegas, 333 F.3d

1092, 1101-02 (9th Cir. 2003) (publicly-owned pedestrian mall located in the middle of

downtown was a public forum because it was open for public access as a public thoroughfare,

and it was entirely compatible with expressive activity such as leafleting and other First

Amendment conduct); Lederman v. United States, 291 F.3d 36, 41-44 (D.C. Cir. 2002) (U.S.

Capitol grounds including sidewalk in front of Capitol are a public forum); cf. Hotel Emps. &

Rest. Emps. Union v. City of N.Y. Dept of Parks and Recreation, 311 F.3d 534, 552 (2d Cir.

2002) (distinguishing the plaza at Lincoln Center from a quintessential public forum: [B]ecause

the Plaza is not surrounded by government buildings, it is easily distinguished from those plazas

and squares in which political speech has historically been protected.).

The Fourth Circuits decision in Warren v. Fairfax County, 196 F.3d 186 (4th Cir. 1999)

(en banc) is directly on point. In that case, the court held that a long, grassy mall that abutted the

county government center complex was the quintessential public forum because its objective

use is as a place of open public access, which is eminently compatible with expressive activity;

because it is part of the outdoor grounds of a seat of legislative and/or executive power; and

because it is a combination of the three prototypical examples of traditional public fora

streets, sidewalks, and parks. 196 F.3d at 189-90. The same, of course, is true here. The Plaza

is a place of open public access; it is completely compatible with expressive activity and has

been used for such; it is the outdoor grounds of the seat of every branch of the State government;

and it is a combination of prototypical public fora, that is, it is a combination of streets,

sidewalks, and parks. Thus, the Plaza is a public forum.



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The State Defendants suggest, however, that the Plaza is a place of employment, and as

an employer, the State has a compelling interest in preventing objectionable speech and

discrimination in the workplace. But the Plaza is not a place of employment; it is a plaza, which,

as Defendants must concede, is freely open to the public (State Defs. Br. 8-9, 12).

The State Defendants also argue that the State, through its regulations, has indicated an

intent to preserve its property for particularized intended uses (State Defs. Br. 12) and that the

State has not abandoned any claim that it has special interests in regulating the speech permitted

in the forum (id. at 11 (internal quotation marks omitted)). This argument is also wrong on the

facts and the law. It is wrong on the facts because the State has allowed all kinds of expressive

activity on the Plaza. See Carpinello Decl. 12 and Ex. B thereto. The State Defendants have

conceded as much. Affidavit of William F. Bruso, Jr., dated Sept. 10, 2013, at 9

(acknowledging that Plaza has been used for political events, protests and/or political speech

in a few limited instances).6

It is wrong on the law because the governments intent is relevant

only when considering limited or designated public fora. Classic public fora are considered such

because of their fundamental nature, and the State cannot convert them into something else by

engaging in the very censorship that is challenged. Ark. Educ. Television Commn, 523 U.S. at

677 ([T]raditional public fora are open for expressive activity regardless of the governments

intent. The objective characteristics of these properties require the government to accommodate

private speakers.).

The State Defendants further argue that they can freely ban Plaintiffs speech because the

6Indeed, there was a political demonstration on the Plaza on August 14, 2013, the day OGS

received Plaintiffs counsels letter demanding that Plaintiff be given access. See Ex. B toCarpinello Decl.



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Summer Outdoor Lunch Program is a limited program which admits only the vendors OGS

approves of and that allowing Plaintiff to participate in that program would imply State

ownership of Plaintiffs language. But this argument is entirely circular: because the State

chooses to regulate speech on the Plaza, it may regulate speech on the Plaza.7

Certainly, the

State can impose reasonable non-speech regulations that, for example, control the number and

type of vendors, ensure wholesome food or prevent obstruction of pedestrians, but the power to

impose that kind of regulation and the power to call it OGSs Summer Outdoor Lunch

Program does not convert the Plaza into a non-public forum. Otherwise, the government could

unilaterally close off all public fora by merely stating that those who wish to use it must be part

of a government-sponsored program.

As the Second Circuit explained inNew York Magazine, 136 F.3d at 129-30:

[I]t cannot be true that if the government excludes any category of

speech from a forum through a rule or standard, that forum becomes ipso

facto a non-public forum, such that we would examine the exclusion ofthe category only for reasonableness. This reasoning would allow every

designated public forum to be converted into a non-public forum themoment the government did what is supposed to be impermissible in a

designated public forum, which is to exclude speech based upon content.

B. The State Defendants Have No Clearly Articulated Policy

For Use of the Plaza.

Even if this Court were to hold that the Plaza were not a classic public forum, Defendants

still could not restrict Plaintiffs access to that forum because it has no clearly articulated policy

limiting the kind of speech that can be spoken there. As noted above, the State allows all kinds

of speech on the Plaza. Where a government allows for speech to occur at a forum, but enforces

no clearly delineated guidelines limiting the type of speech, it has created a designated public

7The restriction on speech cannot be used to justify itself, but must be justified by reference to

some non-speech-restrictive aspect of the forum. Warren, 196 F.3d at 191 n.4.



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forum and must meet the strict traditional criteria for limiting speech. See N.Y. Magazine, 136

F.3d at 130 (generally allowing political and commercial speech without limitation indicates

government intent to open the space for discourse thereby creating a designated public forum);

United Food & Commercial Workers Union v. Sw. Ohio Regl Transit Auth. , 163 F.3d 341, 350-

52 (6th Cir. 1998) (court will find a limited public forum only when the governments standards

for inclusion and exclusion are clear and are designed to prevent interference with forums

designated purpose); Christs Bride Ministries, Inc. v. Se. Penn. Transp. Auth., 148 F.3d 242,

250-52 (3d Cir. 1998) (because transportation authority accepted a wide variety of advertising

and because it had no clearly delineated standards for determining what advertising it would

accept, its buses became a designated public forum, subject to First Amendment restraints);

Planned Parenthood Assn / Chi. Area v. Chi. Transit Auth. , 767 F.2d 1225, 1232-33 (7th Cir.

1985) (finding that transit authoritys advertising system created a public forum because there

were no written standards to guide application of any policy to reject certain types of speech);8

Coal. for Abortion Rights, 584 F. Supp. at 989 (transportation agencys practice of accepting ads

without a clearly delineated policy demonstrated that the transportation authority had created a

public forum subject to full First Amendment restraints).

C. The State Defendants Cannot Meet the CentralHudson Test.

Because the Plaza is a public forum, the States ability to restrict speech is strictly

circumscribed. In the context of commercial speech, Defendants have the burden of establishing

(1) the State interest in suppressing speech is substantial; (2) that the speech ban directly

8In a finding that is particularly relevant here, the District Court in Planned Parenthoodfound

that Chicago Transit Authoritys purported long-standing, consistently enforced policy to becontrived solely for purposes of responding to the plaintiffs complaint. 767 F.2d at 1228. The

court so found after taking testimony at a bench trial.



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advances that State interest; and (3) that the ban is no more extensive than necessary to meet that

interest. Central Hudson, 447 U.S. at 564. The State Defendants, sub silentio, concede that they

cannot meet this test because they make no effort to do so in their brief. Indeed, their only

reference to Central Hudson is in a footnote. See State Defs. Br. 10 n.6. In any event, they

clearly cannot meet that test because the only State interest they cite is the States desire to ban

objectionable speech, which is not a legitimate state interest (see Pl. Br. 11-14). Moreover, the

State undertakes no effort to prevent such racial or ethnic objectionable speech in other

contexts. See Carpinello Decl. at 16-19 and Exs. G-I thereto.

What the Second Circuit said in Bad Frog Brewery Inc. v. New York State Liquor

Authority is directly relevant here. In Bad Frog, the court said that the States interest in

preventing exposure of children to vulgar displays merely by limiting displays on alcoholic

beverages did not substantially advance that state interest:

In view of the wide currency of vulgar displays throughout contemporarysociety, including comic books targeted directly at children, barring such

displays from labels for alcoholic beverages cannot realistically beexpected to reduce childrens exposure to such displays any significant

degree .

. . .

A state may not avoid the criterion of materially advancing its interest by

authorizing only one component of its regulatory machinery to attack a

narrow manifestation of a perceived problem .

. . .

Our point is that 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 ofvulgarity.

Bad Frog Brewery Inc. v. New York State Liquor Authority, 134 F.3d 87, 99-100 (2d Cir. 1998).

Thus, the State Defendants cannot (and therefore do not try to), argue to this Court that



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banning Wandering Dago from the Plaza advances any serious state interest when, at the same

time, the state allows the performance of music at the Saratoga Performing Arts Center that

blatantly and liberally uses patently offensive racial slurs and such performances occur all over

the State. Carpinello Decl. at 16-21 and Exhibit G-M thereto.

IV. THE NATURE OF THE SARATOGA RACE COURSE IS IRRELEVANT

BECAUSE THE EXCLUSION WAS DONE AT THE DIRECTION OF

STATE OFFICIALS WITHOUT REGARD TO ANY POLICY

CONCERNING USE OF THE PROPERTY.

Like the State Defendants, NYRA seeks to avoid the Central Hudson test by arguing that

the Saratoga Race Course is not a public forum and that, therefore, it is free to exclude Plaintiff

based upon its speech. Significantly, however, even though the NYRA Defendants have the

burden, their papers are peculiarly devoid of any explanation of what NYRAs policy is with

regard to the kind of speech allowed at the Race Course.9

As is more fully set forth above (in

Point III(B)), where a state actor allows some speech but has no clearly-delineated policy as to

the kind of speech it will allow, the designated or limited forum becomes a full public forum.

NYRA cites a series of cases holding that certain sports venues are not public fora10

but,

in each of those cases dealing with limitations on speech, the governing body had clearly-

articulated guidelines as to the kind of speech it would allow. NYRA presents no such policy

with regard to the Saratoga Race Course other than to cite a statute that says that NYRA can

exclude obnoxious people from its properties. NYRA Defs. Br. 2, 17-18. Having no clearly-

articulated policy limiting the kind of speech that can occur at the Race Course, NYRA has

opened the Course as a public forum.

9Plaintiff sought limited discovery of this issue but its request was denied. See Note 12, infra.

10Noticeably, it fails to even reference Paulsen v. County of Nassau, 925 F.2d 65 (2d Cir. 1991),

in which the Second Circuit found that the Nassau Coliseum was a public forum.



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But the Court need not reach this issue because it is irrelevant to the question before the

Court. The nature of the Saratoga Race Course is irrelevant to Plaintiffs motion because it is

clear on the facts before the Court that Plaintiff was not excluded because of any clearly-

articulated policy preserving the Race Course for particular uses, but because unnamed State

officials told NYRA to get Plaintiff off the premises.

Both Andrea Loguidices original affidavit and Brandon Snookss reply declaration

recount Mr. Traverss admission that his hands [were] tied because NYRA was directed to

remove Plaintiff by State officials. Affdiavit of Andrea D. Loguidice, dated August 26, 2013, at

43; Declaration of Brandon T. Snooks, dated September 16, 2013 at 17. Significantly,

neither NYRAs brief nor Mr. Traverss 54-paragraph declaration mentions, let alone rebuts, Ms.

Loguidices statements about this admission. Indeed, Mr. Traverss carefully-worded

declaration avoids any reference to the ultimate decision-makers, merely stating that [d]uring

the evening of July 19, NYRA decided to remove Plaintiffs truck from the Race Course.

Declaration of Stephen Travers, dated Sept. 11, 2013 (Travers Decl.) at 43. Peculiarly absent

is any attempt to rebut Ms. Loguidices statement that the removal was at the instigation of State

officials.11

NYRA, of course, cannot hide the true facts forever, and when Plaintiff finally gets

discovery,12

we will all learn who made the decision to ban Plaintiff. But for purposes of this

11 The absence of any such rebuttal is particularly strange since Mr. Travers makes a point ofnoting, in the context of the set-up of Plaintiffs propane tank, that the property was subject to

New York Office of General Services regulations. (Travers Decl. 39).

12As this Court is aware, Plaintiff sought very limited discovery in anticipation of exactly these

types of factual issues (Docket No. 13). NYRA and the State Defendants adamantly opposed

any such discovery (Docket Nos. 20, 22). Judge Treece denied Plaintiffs request unless Plaintiff



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motion, where NYRA bears the burden justifying its conduct (see Point I, supra), Plaintiffs

evidence that it was State censorship stands unrebutted.

Nor could NYRAs conduct be explained in any other way. Plaintiff had negotiated with

NYRAs designated catering company for months and NYRA proudly announced in a press

release that Wandering Dago and its Italian fusion cuisine would be a main attraction at the Race

Course for the 2013 season. The notion that this all slipped through the cracks because Mr.

Travers had no idea of the historical use of the word dago strains credibility. Like State

Defendants argument that Plaintiff was denied access to the Plaza in part because of an

incomplete application,

13

it is an affront to the intelligence of the Court.

Because Plaintiff was removed from the Race Course as a result of the single, completely

discretionary decision of one or more public officials, acting outside any guidelines or standards,

and based upon their personal views of Plaintiffs speech, all of NYRAs 11-page argument

about non-public forum and proprietary judgment is completely irrelevant. The censorship that

occurred was not the result of the neutral and reasonable enforcement of an established policy

(the nature and extent of which has been kept from the Court), but the result of clear viewpoint

discrimination by certain unnamed State officials who did not like Plaintiffs message. See

Cornelius v. NAACP Legal Defense and Educ. Fund, Inc., 473 U.S. 788, 806 (1985) (even in a

non-public forum, the government violates the First Amendment when it denies access to a

speaker solely to suppress the point of view he espouses on an otherwise includible subject.).14

agreed to a 30-day delay for the preliminary injunction hearing and, even then, held that all such

discovery would be narrowly tailored and limited (Docket No 25).

13There was no incomplete application. See Loguidice Reply Decl. at 6-7.

14None of the cases cited under heading Fourth in the NYRA Defendants Brief on page 19 is



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V. DEFENDANTSAD HOCEXCLUSION OF PLAINTIFF WAS THERESULT OF UNCONSTITUTIONAL, UNBRIDLED DISCRETION.

All Defendants cite to the Court post hoc rationalization of their conduct, citing

regulations or statutes that obviously have no relevance to Plaintiffs speech. The State cites

regulations that allow OGS to limit use that is inconsistent with the designated purpose of the

specific location requested or use that would unreasonably interfere with the enjoyment of the

location by others. State Defs. Br. 13. The NYRA Defendants cite a state regulation that gives

NYRA authority to reject any person whose conduct at a race track in New York is or has

been improper, obnoxious, unbecoming or detrimental to the best interests of racing . NYRA

Defs. Br. 2. Unlike the standards set forth in the many of the cases cited by Defendants, these

regulations obviously have nothing to do with the regulation of speech. Nonetheless, even if

such regulations were relevant to the issue at hand, they clearly vest unacceptable discretion in

state officials to exclude speech they personally do not like.

The absence of a clearly-articulated, consistently-enforced policy violates the First

Amendment because it vests undue discretion in a public official, whereby that official can

abridge free speech using his or her unbridled discretion. As the Supreme Court explained in

Southeastern Promotions, 420 U.S. at 553, the Court has felt obliged to condemn systems in

which the exercise of such authority was not bounded by precise and clear standards. The

reasoning has been, simply, that the danger of censorship and of abridgement of our precious

First Amendment freedoms is too great where officials have unbridled discretion over a forums

use. See also Shuttlesworth v. City of Birmingham, 394 U.S. 147, 149-50 (1969) (ordinance

relevant to the issue here. Each of these cases deals with government contractors that claim that

they were denied a contract (unrelated to speech) because they criticized the government. Thestandard used in such cases has never been applied in cases such as this that involove direct

censorship of speech.



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20

which gave a city commission the discretion to ban a parade where, in its judgment, the public

welfare, peace, safety, health, decency, good order, morals or convenience require that it be

refused was patently unconstitutional because it gave the commission virtually unbridled and

absolute power to prohibit any parade, procession, or demonstration on the citys streets or

public ways.); Lewis v. Wilson, 253 F.3d 1077, 1079-81 (8th Cir. 2001) (Missouri statute that

banned personalized license plates that were inflammatory or contrary to public policy was

unconstitutionally vague and overbroad and vested nearly unfettered discretion in public

officials); United Food & Commercial Workers Union, 163 F.3d at 357-61 ([A] statute or

ordinance offends the First Amendment when it grants a public official unbridled discretion

such that the officials decision to limit free speech is not constrained by objective criteria, but

may rest on ambiguous and subjective reasons; giving officials the power to ban

controversial speech unconstitutional);Desert Outdoor Adver., 103 F.3d at 818-19 (noting that

laws cannot condition the free exercise of First Amendment rights on the unbridled discretion

of government officials, the court finds that a sign ordinance giving officials discretion to ban

signs that are harmful to the communitys health, welfare, or aesthetic quality, is

unconstitutionally vague); Planned Parenthood Assn, 767 F.2d at 1230 (We question whether a

regulation of speech that has as its touchstone a government officials subjective review that the

speech is controversial could ever pass constitutional muster.); Cinevision Corp. v. City of

Burbank, 745 F.2d 560, 571 (9th Cir. 1984) (standard for approval of concert in municipally-

owned concert hall which allowed municipality to disapprove a concert if it has the potential of

creating a public nuisance is unconstitutionally vague.); Children First Foundation, Inc. v.

Martinez, 829 F. Supp. 2d 47, 64-65 (N.D.N.Y. 2011) (McCurn, J.) (New York regulation that

allows commission to ban license plates that are obscene, lewd, lascivious, derogatory to



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particular ethnic or other group, or patently offensive is unconstitutional) (emphasis added);

Davis v. Stratton, 575 F. Supp. 2d 410, 420 (N.D.N.Y. 2008) (Kahn, J.) (colleges unwritten

policy banning videotaping vested virtually complete discretion in the hands of campus

administrator and therefore was unconstitutional.), revd on other grounds, 360 F.Appx 182

(2d Cir. 2010);E. Timor Action Network, Inc. v. City of N.Y., 71 F. Supp. 2d 334, 346 (S.D.N.Y.

1999) (policy of New York City allowing temporary street signs, except for signs which were

controversial, is unconstitutional: Keeping politically sensitive speech out of the designated

forum is not a compelling reason. The avoidance of controversy is not a valid ground for

restricting speech in a public forum (quoting Cornelius, 473 U.S. at 811)); Coal. for

Abortion Rights, 584 F. Supp. at 989 (the banning of abortion ad made in the absence of any set

policy to determine the propriety of commercial or noncommercial ad content was a violation of

free speech rights); Sanchez v. Turner, 2002 WL 1343754, at *4 (S.D.N.Y. June 19, 2002) affd

on other groundssub. nom. Make the Road By Walking, Inc. v. Turner, 378 F.3d 133 (2d Cir.

2004) (human resources departments policy of reserving the right to exclude people from its

premises without any guidelines or regulations that specify what kinds of activities the

commissioner may or may authorize is a policy based on presumptively private criteria

[which] is invalid on its face.).

Even in the context of a baseball stadium, it has been held that a policy banning banners

that are not in good taste was unconstitutionally vague because it vested too much discretion in

the stadiums security force to ban speech that such personnel found to be offensive. Aubrey v.

City of Cincinnati, 815 F. Supp. 1100, 1104 (S.D.Oh. 1993). The court so held, even without

making a determination as to whether the stadium was a public forum or not. Id.

Similarly, inMarilyn Manson, Inc. v. N.J. Sports and Exposition Auth., 971 F. Supp. 875,



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22

886 (D.N.J. 1997), the court assumed for purposes of the preliminary injunction hearing that the

Meadowlands Sports Complex was not a public forum. Nonetheless, the court held that

defendants policy of retaining authority to reject a performer on the ground that the performance

was offensive to public morals constituted inadequately defined guidelines and that it was

likely that plaintiff would succeed on his claim that such guidelines created an unconstitional

prior restraint on speech.Id. at 886-87.

The NYRA Defendants seek solace in Lehman v. City of Shaker Heights, 418 U.S. 298

(1974), but the NYRA Defendants misrepresent the holding in Lehman. The advertisement at

issue was not barred because it was offensive to the moral standards of the community, but

because it was political advertising and the transportation authority had a very specific written

rule prohibiting political speech. Id. at 300-01. Significantly, the NYRA Defendants can point

to no such specific rule here. If the issue before the Court in Lehman were the banning of

commercial advertising because it was considered to be offensive to the moral standards of the

community, the result might have been very different.

The NYRA Defendants also rely heavily on Perry v. McDonald, 280 F.3d 159 (2d Cir.

2001) where the Second Circuit upheld Vermonts policy of refusing to issue vanity plates that

failed to comply with its regulations. Perry does not help the NYRA Defendants at all because

in Perry, Vermont, unlike NYRA, had a written policy that specifically prohibited scatological

terms on license plates, and plaintiff claimed a First Amendment right to use the letters

SHTHPNS. Unlike here, plaintiffs proposed license plate was specifically prohibited by

clearly-delineated regulation, 280 F.3d at 172 n.9, and the Second Circuit specifically upheld

Vermonts position because the regulation limits [the States] discretion by specifying content,

280 F.3d at 172.



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VI. DEFENDANTS HAVE ENGAGED IN VIEWPOINT DISCRIMINATION.

Even if the Plaza or the Race Course were a nonpublic forum, Defendants actions would

still be unconstitutional because State officials have engaged in viewpoint discrimination and

their actions are patently unreasonable.

First, it is clear that Wandering Dago has been excluded because of the message it

conveys and for no other reason. [W]here the government is plainly motivated by the nature of

the message rather than the limitations of the forum or a specific risk within that forum, it is

regulating a viewpoint rather than a subject matter. Children First Foundation, Inc., 829 F.

Supp. 2d at 61 (collecting cases on viewpoint discrimination and quoting Sammartano v. First

Judicial Dist. Ct., 303 F.3d 959, 971 (9th Cir. 2002)). Sammartano makes clear that, in

determining whether the government decision is viewpoint based, the motive of the actors is

key. Id. at 972. See, e.g., Sons of Confederate Veterans, Inc. v. Commissioner, 288 F.3d 610,

623-27 (4th Cir. 2002) (seemingly neutral ban on logos in Virginia regulation on license plates

was in fact viewpoint discrimination motivated by a desire to ban the Confederate flag). We do

not have discovery in this case yet, but the evidence before the Court can lead to no other

conclusion: some unnamed State officials found the name to be personally offensive. See

Marilyn Manson, 971 F. Supp. at 886 (the exclusion of Manson on the ground that his character

[was] offensive to public morals appears to be the quintessential essence of content based

regulation.);Lewis, 253 F.3d at 1080 (Missouri officials banning of a personalized license plate

reading ARYAN-1 because it was contrary to public policy was if not blatant viewpoint

discrimination, certainly could reasonably appear to have been based on the viewpoint of the

speaker.).



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Second, Defendants actions in banning Wandering Dago were clearly not reasonable. In

determining whether a government acts reasonably in excluding certain speech from a limited

forum, the court must determine whether that exclusion is dictated by the characteristics of the

forum. See Southeastern Promotions, 420 U.S. at 555 (defendants could make no showing that

the production of Hair at the public auditorium was in any way inconsistent with the

auditoriums use.); E. Conn. Citizens Action Group, 723 F.2d at 1055 (The state may not

infringe First Amendment rights on generalized and unsupported assertions that speech would

clash with other governmental interests; real and substantial conflict must be demonstrated

before constitutional rights may be abridged.). Sammartano, 303 F.3d at 967-71 (court officials

made no showing in the record that banning clothing with gang or organizational symbols was

necessary to maintain order in courthouse and specifically rejected any argument based on

concern about anything degrading or offensive to any ethnic, racial, social or political group.).

In this case, Defendants have made no showing that Plaintiffs presence is inconsistent

with the forum. There is nothing inconsistent between a food truck using the name Wandering

Dago and the providing of a limited forum of food trucks to provide food services to state

employees and the visiting public on the Plaza. Unlike leafleting in an airport (see Intl Socy

for Krishna Consciousness, 505 U.S. at 683-85), accommodating Plaintiffs truck does nothing

to interfere with the purpose of either the Plaza or the Outdoor Lunch Program. Indeed, OGS

expressly authorized and licensed the use of the Plaza for food vendors using portable equipment

and trucks. Without an adequate explanation of why OGS found such inconsistency, the Court

must conclude that Plaintiff was excluded because of the viewpoint it expressed in its speech.

See Children First Foundation, Inc., 829 F. Supp. 2d at 63 (proposed license plate was

compatible with state program; exclusion was therefore unreasonable); Christs Bride Ministries,



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148 F.3d at 255-57 (finding transportation authoritys exclusion of anti-abortion ads to be

unreasonable because authority failed to demonstrate how such an ad was incompatible with the

purposes of the forum).

Similarly, the NYRA Defendants actions were clearly unreasonable and based on

viewpoint. The person or persons in charge of determining what food vendors would be

appropriate for inclusion in the Race Courses summer program had not only decided that

Wandering Dago was appropriate, but had touted Wandering Dagos participation the program in

a press release. Thus, there was nothing incompatible between including Wandering Dago at

the Race Course and the underlying purposes of the Race Course. The exclusion of Plaintiff was

not the result of NYRA acting in a proprietary capacity so as to preserve the Race Course for

the use to which it was lawfully dedicated (NYRA Defs. Br. 18 (internal quotation marks

omitted)), but the result of State officials overriding of that proprietary decision because it

offended those officials.

Thus, Plaintiffs exclusion from both the Plaza and the Race Course was unreasonable

and viewpoint discriminatory.

CONCLUSION

For all the foregoing reasons, Plaintiffs motion for a preliminary injunction should be

granted.

Dated: September 16, 2013Albany, New York BOIES, SCHILLER & FLEXNER LLP

By: /s/ George F. CarpinelloGeorge F. Carpinello (Bar No. 103750)

30 South Pearl Street

Albany, NY 12207

Ph: (518) 434-0600

Attorneys for Plaintif f


ps reply memo of law: wandering dago case

Documents