Tom Noonan

In a remarkable editorial by Albany’s Times Union, the prominent newspaper in New York’s capital pushed the administration of Governor Andrew Cuomo to allow a food truck with an offensive name onto the grounds of the Empire State Plaza.  The truck, named Wandering Dago, had been approved for a spot this summer at Saratoga Race Course by the New York Racing Association.  When NYRA informed the truck’s owners after the first day of racing that it had to be removed, litigation ensued.

The truck’s owners had also applied for a permit to operate on the Empire State Plaza earlier this year and were denied in part, according to the Times Union, because of the name.  The litigation raises a challenge based on the First Amendment’s protection against the government infringing on the right to freedom of speech.  According to the truck’s owners, who claim to be of Italian heritage, the name is derived from the phrase used for Italian immigrants a century ago who wished to be paid on a daily basis  –  or, as the “day goes.”

In a federal court hearing last week, it was revealed that Cuomo’s Deputy Secretary for Gaming and Racing had emailed NYRA CEO Chris Kay shortly after the fourth race had been run that the name was a “problem waiting to blow up.”  According to the suit by the truck’s owners, it was this email that prompted their eviction.

Here is the Times Union‘s take on NYRA’s action:

Indeed, NYRA might have found itself hearing complaints from Italian-Americans upset by what many view as an ethnic slur.  But the time to have a discussion about that was in the months that preceded the approval. Not on opening day, and not with an ultimatum to change the business’ name in less than 24 hours to save the state and NYRA any potential discomfort.

The Times Union got at least one thing right  –  NYRA should have rejected the application based on the name upon receipt.  Is there some doubt, however, that it is an ethnic slur?  A useful test for anyone thinking a particular term is acceptable is to go up to a friend and refer to him by that name.

Second, why is it only “Italian-Americans” who might be upset?  I would like to think that in a nation that thrives on diversity and inclusiveness, an insult to one is an insult to all.

And yes, removing the truck may have saved “the state and NYRA any potential discomfort,” but what about all the rest of us who find the name offensive and contrary to the ideals a state government should be promoting?

The interests of fairness may require a cash settlement to the truck owners because they relied upon NYRA’s approval to their financial detriment, but not because there is a First Amendment right for a commercial enterprise to say whatever they want while making money on state property.  That does not mean, however, that the state should allow the truck on the Empire State Plaza as recommended by the Times Union editorial.  While that particular ethnic slur may be one that is acceptable to the Times Union, it is not to many fair-minded people  –  and not just those with Italian heritage.  And let’s not forget what message is sent to all visitors to the Plaza who are not familiar with the litigation background and the sophistry of the Times Union.