The governor’s top racing adviser expressed concerns about the Wandering Dago food truck’s name just hours before it was ordered to leave Saratoga Race Course, a federal court judge was told Thursday.
Bennett Liebman, Gov. Andrew Cuomo’s deputy secretary for gaming and racing, sent an email to New York Racing Association President and CEO Christopher Kay the afternoon of July 19, opening day of the summer racing meet.
The email emerged at the initial hearing in the Wandering Dago’s First Amendment lawsuit against NYRA and New York state. The Schenectady food truck has been at the center of controversy much of the summer over its name.
Liebman's email is on the Around Saratoga blog.
The initial suit is on the Capital Region Scene blog.
The latest round of legal filings are on the Around Saratoga blog.
“I just believe that people will find the name of the truck both offensive and insensitive, and that fallout for authorizing this truck will inevitably land on NYRA,” Liebman wrote in the three-paragraph email. “I see this as a problem waiting to blow up.”
The email, sent at 2:59 p.m., does not instruct Kay to take a specific action, but at 10 that evening, a NYRA official called the truck’s owners and told them they had to leave.
The Wandering Dago’s attorney said the email is proof a high state official inappropriately intervened in a race course decision because he found the name offensive.
“This is exactly the kind of thing the courts say senior officials should not be doing,” Albany attorney George Carpinello said outside the federal courthouse after the initial hearing in the case.
The owners of the Wandering Dago last month sued NYRA and the state in federal court, alleging their First Amendment rights to free expression were violated when they were prevented from doing business at the track and the Empire State Plaza this summer. They are seeking $350,000 in damages for lost sales.
The sides were in front of U.S. District Court Judge Mae A. D’Agostino on Thursday for arguments in the Wandering Dago’s request for a preliminary injunction against the defendants.
Carpinello previously has said he believed a senior state official gave the order to NYRA to boot the Wandering Dago, but he did not know until Thursday who the official was. NYRA’s concession firm initially had approved Wandering Dago’s participation at the track and even featured it in advertising.
“This confirms everything we thought. It was a senior official in the governor’s office,” Carpinello said.
The Liebman email was submitted to the court by Henry M. Greenberg of Albany, an attorney representing NYRA.
A spokesman for Cuomo declined to discuss the matter, noting the office doesn’t comment on pending litigation.
At Empire State Plaza, the state Office of General Services denied the Wandering Dago a permit to be part of a summer outdoor vendor program, in part due to the name.
State and NYRA officials contend they were within their rights to prohibit offensive speech and have filed motions to dismiss the lawsuit.
“Racial epithets and slurs have no place at Saratoga Race Course,” Greenberg told the court.
He said controversy about the truck’s name is being orchestrated by the business to increase its sale of barbecue and other food items.
“They are taking a vile, deeply offensive word and epithet and making it into a household term so they can sell as much barbecue as possible,” Greenberg said in court.
Assistant Attorney General Laura Sprague said OGS had the right to deny the Wandering Dago space at the Empire State Plaza’s outdoor food court this summer because the name will offend some people.
“They’re saying not here, not in the middle of 11,000 state employees,” Sprague said. “It could be construed as government authorizing or approving this kind of language, and it doesn’t.”
D’Agostino said she found the term “dago” for Italian-Americans “very, very offensive,” but she also questioned whether NYRA and OGS should have had clear rules on what speech is allowed on their properties.
Carpinello said truck owners Andrea Loguidice and Brandon Snooks are operating within a broad tradition of ethnic groups appropriating and re-defining ethnic slurs.
“The dismissal of a racial epithet to re-appropriate it as a point of ethnic pride is a classic free speech issue,” Carpinello said.
Snooks, who was in court with Loguidice, said the name was intended for humor and played with the concept that the term “dago” derives from the time when Italian laborers were paid as the “day goes.”
“We wander around and get paid as the day goes,” he said outside the courtroom.
Snooks said the truck’s name didn’t cause controversy when it did business in Italian sections of Brooklyn.
D’Agostino reserved decision on the Wandering Dago’s request for a preliminary injunction, which would prohibit the state and NYRA from banning it in the future.