Wandering Dagoi Plaintiffs

Case 1:13-cv-01053-MAD-RFT Document 158 Filed 08/31/15 Page 1 of 31
UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF NEW YORK
WANDERING DAGO INC.,

Plaintiff,
v.
NEW YORK STATE OFFICE OF GENERAL
SERVICES, ROANN M. DESTITO, JOSEPH J.
RABITO, WILLIAM F. BRUSO, JR., AARON
WALTERS, NEW YORK RACING
ASSOCIATION, INC., CHRISTOPHER K. KAY,
STEPHEN TRAVERS, JOHN DOES 15, and
THE STATE OF NEW YORK
Civil Action No. 13-cv-1053

(MAD)(RFT)
Defendants.
PLAINTIFFS RESPONSE IN OPPOSITION TO DEFENDANTS

MOTION FOR SUMMARY JUDGMENT
Dated: August 31, 2015
BOIES, SCHILLER & FLEXNER LLP

George F. Carpinello (Bar No. 103750)
John F. Dew (Bar No. 603035)
30 South Pearl Street, 11th Floor
Albany, NY 12207
Ph: (518) 434-0600
Attorneys for Plaintiff Wandering Dago, Inc.
TABLE OF CONTENTS
TABLE OF AUTHORITIES .......................................................................................................... ii

PRELIMINARY STATEMENT .................................................................................................... 1
STATEMENT OF FACTS ............................................................................................................. 2
ARGUMENT .................................................................................................................................. 6
I.
The Empire State Plaza is a Public Forum and the State Cannot Restrict Speech in a
Public Forum Merely By Declaring Something a State-Sponsored Program. ................ 6
A.
Because the Empire State Plaza is the Forum to which the Plaintiff sought access, the
Plazaand not the Lunch Programis the relevant forum. ........................................ 8
B.
Regardless of whether the forum is the Plaza or the Lunch Program, the State cannot
deny Wandering Dago access based upon its speech. ................................................ 12
II.
The State Is Not Acting in a Proprietary Capacity. .......................................................... 19
III.
Wandering Dagos Right to Equal Protection was Violated. ........................................... 20
IV. Defendant Destito is an Appropriate Defendant for Injunctive Relief. ............................ 23

V.
Qualified Immunity is Irrelevant. ..................................................................................... 24
Conclusion .................................................................................................................................... 25
TABLE OF AUTHORITIES
Cases
Adler v. Pataki,
185 F.3d 35 (2d Cir. 1999)....................................................................................................... 24
Am. Civil Liberties of Nev. v. City of Las Vegas,
333 F.3d 1092 (9th Cir. 2003) ................................................................................................... 8
Calvary Chapel Church, Inc. v. Broward County, Fla.,
299 F. Supp. 2d 1295 (S.D. Fla. 2003) ........................................................................ 10, 12, 14
Children First Found., Inc. v. Fiala,
2015 WL 2444501 (2d Cir. May 22, 2015) .............................................................................. 14
City of Riverside v. Rivera,
477 U.S. 561 (1986) ................................................................................................................. 24
Cohen v. California,
403 U.S. 15 (1971) ............................................................................................................. 13, 15
Cornelius v. NAACP Legal Defense & Educational Fund,
473 U.S. 788 (1985) ..................................................................................................... 11, 12, 14
Cuffley v. Mickes,
203 F.3d 702 (8th Cir. 2000) .......................................................................................... 2, 21, 22
Deegan v. City of Ithaca,
444 F.3d 135 (2d Cir. 2006)....................................................................................................... 7
DAguanno v. Gallagher,
50 F.3d 877 (11th Cir. 1995) ................................................................................................... 24
Edwards v. South Carolina,
372 U.S. 229 (1963) ................................................................................................................... 7
Gay Veterans Assn, Inc. v. American Legion-New York County Organization,
621 F. Supp. 1510 (S.D.N.Y. 1985)......................................................................................... 10
Helbrans v. Coombe,
890 F. Supp. 227 (S.D.N.Y. 1995) .......................................................................................... 25
Hotel Emps. & Rest. Emps. Union v. City of N.Y. Dept of Parks and Recreation,
311 F.3d 534 (2d Cir. 2002)....................................................................................................... 7
Huminski v. Corsones,
386 F.3d 116 (2d Cir. 2004)............................................................................................... 13, 15
Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston,
515 U.S. 557 (1995) ............................................................................................................. 9, 20
Irish-Am. Gay, Lesbian & Bisexual Grp. of Boston, by Daley v. City of Boston,
No. 921518, 1993 WL 818674 (Mass. Super. Dec. 15, 1993)................................................. 10
LaTrieste Rest. and Cabaret, Inc. v. Village of Port Chester,
40 F.3d 587 (2d Cir. 1994)....................................................................................................... 21
ii
Lederman v. United States,

291 F.3d 36 (D.C. Cir. 2002) ..................................................................................................... 8
Lefemine v. Wideman,
758 F.3d 551 (4th Cir. 2014) ................................................................................................... 25
Lorillard Tobacco Co. v. Reilly,
533 U.S. 525 (2001) ................................................................................................................. 14
Maraschiello v. City of Buffalo Police Dep't,
709 F.3d 87 (2d Cir. 2013)......................................................................................................... 8
Paulsen v. Cnty. of Nassau,
925 F.2d 65 (2d Cir. 1991)......................................................................................................... 8
Perry v. Sindermann,
408 U.S. 593 (1972) ............................................................................................................. 2, 22
Pulliam v. Allen,
466 U.S. 522 (1984) ................................................................................................................. 25
Reed v. Town of Gilbert, Ariz.,
-- U.S. --, 135 S. Ct 2218 (2015) ....................................................................................... 12, 13
Rodriguez-Garcia v. Miranda-Marin,
610 F.3d 756 (1st Cir. 2010) .................................................................................................... 24
Sorrell v. IMS Health Inc.,
-- U.S. --, 131 S. Ct. 2653 (2011) ............................................................................................ 12
State of Mo. ex rel. Missouri Highway and Transp. Comn v. Cuffley,
927 F. Supp. 1248 (E.D. Missouri 1996) ................................................................................. 11
U.S. v. Nathan,
No. CR-88-102E, 1988 WL 91519 (W.D.N.Y. Aug. 31, 1988) .............................................. 18
United States v. Grace,
461 U.S. 171 (1983) ................................................................................................................. 14
Wandering Dago, Inc. v. New York State Office of Gen. Servs.,
992 F. Supp. 2d 102 (N.D.N.Y. 2014) ................................................................................. 6, 14
Warren v. Fairfax County,
196 F.3d 186 (4th Cir. 1999) ..................................................................................................... 7
Wright v. Smith,
21 F.3d 496 (2d Cir. 1994)....................................................................................................... 23
Statutes
42 U.S.C. 1988 ..................................................................................................................... 24, 25
Rules
Fed. R. Civ. P. 54(b) ....................................................................................................................... 8
iii
Other Authorities
Adam M. Croom, Slurs and Stereotypes for Italian Americans: A Context-Sensitive Account of
Derogation and Appropriation, 81 J. OF PRAGMATICS 36, 47 (2015) ..................................17, 18
18B Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure 4478 and
4478.1 (3d ed.) ............................................................................................................................ 9
iv
Plaintiff Wandering Dago Inc. (Wandering Dago) respectfully submits this

memorandum of law in opposition to Defendants Motion for Summary Judgment.
PRELIMINARY STATEMENT
The Defendants are attempting to do by license what they cannot do under the
constitutionregulate speech in a quintessential public forum. By creating a licensing regime
that it dubbed a lunch program, the State argues that it converted a public forum into a
workplace cafeteria. But the law is clear: a public forum by any other name is still a public
forum. The State concedes that the Plaza is open to state employees and public citizens alike,
that it is traversed by thousands of people every single day, and that it has been used repeatedly
by protesters seeking to exercise their First Amendment rights and to be heard by the
government and by the public. The Empire State Plaza is the modern day equivalent of the town
square, and a licensing regime cannot make it a cafeteria.
The Defendants denied Wandering Dago a license to vend food on the Empire State
Plaza based only upon the content of Wandering Dagos name. The rejection of Plaintiffs
application was determined by a single state official, Executive Deputy Commissioner Joseph
Rabito, who found that name personally offensive. Rabito admits that he was applying no
written policy or guidelines to the Plaintiffs application and admits that he was otherwise wholly
uninvolved in reviewing applications for the lunch program. While Defendants, in the course of
this litigation, have concocted a family-friendly policy that they now say governs the Plaza,
they can point to no such policy in any State document. Regardless, Rabito admits that he
rejected Wandering Dagos application only because he personally found the name offensive.
The First Amendment will not tolerate such conduct in any forum.
Nor will the Fourteenth Amendment. From the moment that Wandering Dago submitted
its application to the Office of General Services, it was treated differently based only upon the
content of its name.
Two state employees singled out the application as offensive and
interrupted Rabitos lunch to get his take on the application. Rabito found the term to be
personally offensive and conducted a quick internet search to confirm his opinion. Then he
denied the application. [S]uch a denial is unconstitutional . . . [f]or if the government could
deny a benefit to a person because of his constitutionally protected speech or associations, his
exercise of those freedoms would in effect be penalized and inhibited. . . . Such interference with
constitutional rights is impermissible and violates the Equal Protection Clause of the Fourteenth
Amendment.
Cuffley v. Mickes, 203 F.3d 702, 707 (8th Cir. 2000) (quoting Perry v.
Sindermann, 408 U.S. 593, 597 (1972)).

After months of discovery, the facts of this case are clear: the Empire State Plaza is the
public forum that is at issue in this case, and the Defendants, based on personal animus toward
Plaintiffs name, denied Plaintiff access to the Plaza. This denial violated Plaintiffs First and
Fourteenth amendment rights.
STATEMENT OF FACTS
Plaintiff Wandering Dago Inc. is a New York corporation that operates a food truck for
mobile vending and catering. SOMF1 1. It is owned and operated by Andrea Loguidice and
Brandon Snooks. SOMF 2. Wandering Dago serves food for a variety of types of functions,
including catered events, fairs and festivals, and streetside lunch service. SOMF 3.
SOMF refers to Plaintiff Wandering Dago Inc.s Statement of Material Facts Pursuant to
Local Rule 7.1(a)(3) filed on July 31, 2015, Dkt. No. 156-2.)
2
At the relevant times, Defendants were employees of the New York State Office of
General Services (OGS). Defendant RoAnn Destito is the Commissioner of OGS. SOMF 4.
Defendant Joseph Rabito was the Executive Deputy Commissioner of OGS.
SOMF 5.
Defendant William Bruso is an associate attorney for OGS. SOMF 6. Defendant Aaron
Walters is a promotions and public affairs agent for OGS. SOMF 7.
The Empire State Plaza is a facility owned by the State of New York and operated by the
Office of General Services. SOMF 8. A complex of government buildings that is visited each
day by thousands of state employees and citizens, the Plaza2 is always open to the public and has
repeatedly been used by various groups as a site for political rallies, marches, and protests.
SOMF 10-13; 17. Although some of these protests are approved and granted permits by OGS,
OGS has a policy of allowing unpermitted protests and demonstrations to occur as long as they
are not causing a health or safety concern. SOMF 15. Indeed, Rabito testified that if protesters
show up without a permit, as long as theres not a public safety issue, and that will be a state
police decision, you know. They make it they just we dont infringe upon their First
Amendment rights.
The Summer Lunch Program3 is a program begun in 2013 under which mobile food
vendors are permitted to operate on the Plaza during the lunch hours from May through October.
SOMF 19. The lunch program was created for the purpose of providing food options to the
public and to State employees on the Empire State Plaza. SOMF 21. Food vendors are not
2
The phrase Empire State Plaza is ambiguously used to refer to the both the entire complex of
buildings and public spaces, and to the outdoor space sometime known as the Plaza Level. This
brief will use the term Plaza throughout to refer only to the outdoor space.
3
OGS refers to this program by various names. For example, promotional materials for the 2013
program referred to it as the Summer Food Vending Program. The 2013 Application was
entitled Empire State Plaza 2013 Summer Lunch Program. The 2014 Application was entitled
2014 Summer at the Plaza Lunchtime Food Vending Program. For simplicity this brief will
refer to the program throughout as the Summer Lunch Program.
3
allowed to sell food on the Plaza outside of state-sponsored special events or the summer lunch
program. COMF 2. 4
On May 17, 2013, Wandering Dago faxed an application to participate in the Summer
Lunch Program to the Office of General Services. SOMF 24. On Monday, May 20, 2013,
Wandering Dago received an email from Defendant Aaron Walters informing it that its
application had been denied. SOMF 39. Loguidice spoke by phone to Defendant William
Bruso, who informed her that the application had been denied for multiple reasons, including that
Wandering Dagos business name had been deemed offensive. SOMF 40.
From the moment that Wandering Dagos application arrived at OGS, it was singled out
for special treatment.
Defendants SOMF 44-49.
Two OGS employees brought the
application to Rabito, OGSs executive deputy commissioner, while he was eating lunch and told
him they had an issue with an application and wanted his take on it. July31 SOMF 44; Ex.
16 Rabito Dep. 14:4-11.
The employees told Rabito that the issue was the name of the
business. Id. Rabito testified that he was shocked by the use of the word dago, and he
hastily conducted internet research that concurred with his opinion that the word was
offensive. SOMF Ex. 16 24:7-8. Rabito admitted that he just went right back to the [lunch]
table and I said Denied. No. 5 SOMF 30; Ex. 16 Rabito Dep. 25:15-16.
COMF refers to Plaintiff Wandering Dago Inc.s Counterstatement of Material Facts

Pursuant to Local Rule 7.1(a)(3).
5
Although Defendants do not deny that Rabitos decision was motivated by Wandering Dagos
name, Defendants have also claimed that certain defects in Wandering Dagos 2013 application
would have justified its denial regardless of its name. Wandering Dago contends that the record
demonstrates that Defendants reliance on these defects was purely pretextual. In any event,
there is no dispute that Defendants denial of Wandering Dagos 2014 application was based
solely on the name.
4
Mr. Rabito was not asked to, and did not, review or consider the applications of any other
applicants to the Summer Lunch Program. SOMF 36. Other than Wandering Dago, every
applicant to the 2013 Summer Lunch Program was accepted. SOMF 38.
A letter sent by Defendant Bruso to Wandering Dago cited generally State regulations
concerning OGSs governance of the Empire State Plaza, but did not refer to any specific
provision that justified the denial of the application. SOMF 43.
In the fall of 2013, the Special Events Office adopted new criteria for outside vendors for
events and programs, including the Summer Lunch Program. SOMF 60. Under the new
policy, each event or program would have explicit criteria by which vendor applications would
be scored, and explicit cutoffs to determine which vendors are accepted. SOMF 61.
On May 5, 2014, Wandering Dago hand delivered an application for the 2014 Summer
Lunch Program to the OGS Special Events Office. SOMF 62. Wandering Dagos 2014
application was complete and timely. SOMF 63. Wandering Dagos application was reviewed
by OGS employees who had been designated the selection committee for the 2014 Summer
Lunch Program, and the application was graded and received a passing score sufficient for
acceptance into the program. SOMF 64. Defendants nevertheless denied the application.
SOMF 65. In a letter from Defendant Bruso dated May 16, 2014, Wandering Dago was
informed that its application had been denied again due to your firms name as previously
described. SOMF 66. Aside from Wandering Dago, every other complete application was
accepted into the 2014 Summer Lunch Program. SOMF 67.
ARGUMENT
I.
THE EMPIRE STATE PLAZA IS A PUBLIC FORUM AND THE STATE CANNOT RESTRICT
SPEECH IN A PUBLIC FORUM MERELY BY DECLARING SOMETHING A STATESPONSORED PROGRAM.
Months of discovery have established that the Empire State Plaza is a quintessential
public forum. As the Court has recognized,

the right to free speech in such areas is so fundamental to the very foundation of
this nation that the government's right to silence it is subject to the most rigorous
of standards. In such traditional public fora, we must accept language that
offends our sensibilities, chills our common core, and shocks our conscience.
With rare exception, the right to free speech in such traditional public fora,
whether commercial or private, is considered a birth right in the United States a
birth right that has been forged by our Constitution and by the lives and deaths of
all men and women who fought to protect this freedom.
Wandering Dago, Inc. v. New York State Office of Gen. Servs., 992 F. Supp. 2d 102, 108
(N.D.N.Y. 2014) (DAgostino, J.).
The Empire State Plaza is the contemporary equivalent of the classic village square.
Located in the center of Albany, it is always open to the public and, as the Defendants admit, is
constantly visited and traversed by state employees and non-employees alike. SOMF at 17.
More importantly, it has been repeatedly used as a forum for the exercise of First Amendment
rights. As the Defendants concede, the Empire State Plaza has hosted political protests, rallies,
and marches. SOMF 13. While some of these protesters sought and obtained permits from the
State, others did not. SOMF 15. Even those protests that do not obtain a permit are allowed to
continue so long as they do not present a public safety issue[.] SOMF 15 (quoting Rabito as
saying If they [protesters] show up, as long as theres not a public safety issue, and that will be
a state police decision, you know. They make it they justwe dont infringe on their First
Amendment rights.).
6
The Plazas proximity to state offices and its constant use by the public makes it
particularly important as a location for political speecha place where one can be heard by the
government and citizens alike. 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 Plaza, then, is undeniably a public forum. Warren v. Fairfax County, 196 F.3d 186,
18990 (4th Cir. 1999) (en banc) (holding 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.); 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)6; 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)
6
Grace makes clear that this analysis is not affected by whether the State has declared the Plaza
a public park. In U.S. v. Grace, 461 U.S. 171 (1983), the Supreme Court held that the sidewalks
around the Supreme Court, though they were part of the Supreme Court property and were not
public sidewalks, must nonetheless be treated as a public forum because they were otherwise
indistinguishable from public sidewalks. Id. at 179-80. Here, the Plaza is indistinguishable from
any other public park that is open to visitors and therefore must be treated as a public forum.
7
(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
for that purpose); Paulsen v. Cnty. of Nassau, 925 F.2d 65, 69-71 (2d Cir. 1991) (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).
A. Because the Empire State Plaza is the Forum to which the Plaintiff sought
access, the Plazaand not the Lunch Programis the relevant forum.
Wandering Dago sought access to the thousands of people who visit the Empire State
Plaza every day, not the Summer Lunch Program. The Lunch Program is nothing more than a
means by which the State regulates and limits food vendors on the Plaza. The Plaza, therefore, is
the relevant forum for First Amendment analysis.
While Defendants argue that the Courts ruling that the Summer Lunch Program is the
relevant forum is law of the case, (Defendants Memo dated July 31, 2015 (Dkt. No. 115-9)),
this argument is meaningless. FRCP 54(b) makes clear that any order or other decision . . . that
adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties . . .
may be revised at any time before the entry of a judgment adjudicating all the claims and all the
parties rights and liabilities. See also Maraschiello v. City of Buffalo Police Dep't, 709 F.3d
87, 91 (2d Cir. 2013) cert. denied, 134 S. Ct. 119, 187 L. Ed. 2d 36 (2013) (The doctrine [of
8
law of the case] would not preclude a district court from granting summary judgment based on
evidence that was not available when the court denied a motion to dismiss.); 18B Charles Alan
Wright & Arthur R. Miller, Federal Practice and Procedure 4478 and 4478.1 (3d ed.). The
law of the case argument is particularly misplaced whereas herediscovery had not been
conducted and neither Defendant nor Plaintiff briefed the issue. See 18B Wright & Miller,
4478.1 (3d ed.) (A major factor[] influenc[ing] a trial courts decision whether to reconsider an
earlier ruling is whether a ruling made early in the proceedings may rest on poorly developed
facts that have been better developed by continuing proceedings.)
Simply put, the Summer Lunch Program is nothing more than a limited license to sell
food on the Plaza. The State admits that no other applicants were turned away, and that the
primary criteria were that the trucks meet various health, safety, and food selection criteria.
SOMF 37. Nor does it matter that the Summer Lunch Program does not operate year round.
Other than at state-sponsored events, the State has limited the sale of food to this four-month
program. COMF 2. The State cannot bootstrap itself into a program by claiming that,
because it has limited the timeframe, the program is, ipso facto, an event. It is not an event,
but instead a limited license to sell on the Plaza, and it is irrelevant whether that license restricts
the number of days, weeks or months per year that participants are allowed to sell their wares.
By analogy, the fact that the State requires people to obtain a permit in order to parade
along a street does not convert the street into a nonpublic forum and does not convert the parade
into state action. See Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, 515
U.S. 557, 673-74 (1995) (despite the need for a parade permit, parade organization retains First
Amendment rights and cannot be compelled to express views with which it disagrees). Indeed,
while streets are a quintessential public forum, speakers still need a permit to use them, but the
9
issuance of that permit does not convert a parade into state speech. See id. at 566 (discussing
Massachusetts trial courts decision, Irish-Am. Gay, Lesbian & Bisexual Grp. of Boston, by
Daley v. City of Boston, No. 921518, 1993 WL 818674, at *7 (Mass. Super. Dec. 15, 1993), and
its conclusion that issuing a permit does not render a parade a state action, and noting that
[t]he most that can be said of the Citys conduct is that it allowed the Veterans to hold a parade,
for without a permit, a parade is not lawful. But issuing a parade permit is a neutral act.); Gay
Veterans Assn, Inc. v. American Legion-New York County Organization, 621 F. Supp. 1510,
1517 (S.D.N.Y. 1985) (stating the mere issuance of a permit does not constitute state action).
Having created a licensing program to allow food trucks to sell food on the Plaza, the State
cannot then regulate those vendors First Amendment rights any more than it could grant a
permit to an organization to hold a parade on the Plaza and then dictate who may participate in
the parade.
For the purpose of determining the relevant forum, the instant case is distinct from
Calvary Chapel Church, Inc. v. Broward County, Fla., 299 F. Supp. 2d 1295 (S.D. Fla. 2003),
which dealt with a state-sponsored holiday light show to which the speaker sought access. The
light show occurred in a designated area of the park that was open at night, when the rest of the
park was closed. Id. at 1298. In order for the speakers speech to be heard, it required access to
the light show and not the park.
Similarly, any OGS-sponsored concert on the Plaza would be a forum separate from the
Plaza itself, and the State could prohibit political protesers from demonstrating at the OGSsponsored concert. Here, the Lunch Program is not a state-sponsored event like a holiday light
show, concert, or fair; it is a regulatory regime that governs the sale of food on the Plaza.
Wandering Dago sought access to the Plaza and its 15,000 daily visitors, thus the Plaza, and not
10
the Lunch Program, is the appropriate forum.
Cornelius v. NAACP Legal Defense &
Educational Fund, 473 U.S. 788, 801 (1985) (to determine the relevant forum, the Supreme
Court has focused on the access sought by the speaker); State of Mo. ex rel. Missouri Highway
and Transp. Comn v. Cuffley, 927 F. Supp. 1248, 1258 (E.D. Missouri 1996) (vacated on other
grounds by 112 F.3d 1332 (8th Cir. 1997) (holding that entity that sought to participate in the
states Adopt-A-Highway program was seeking access to the highway and not the program, and
therefore the highway was the relevant forum).
Even if the Summer Lunch Program is the relevant forum, the Court must still take into
account that the Program is operating in the Plazas public forum. Cornelius v. NAACP Legal
Def. & Educ. Fund, Inc., 473 U.S. 788, 801-02 (1985). In Cornelius, the Court determined that
the forum was a charity drive aimed at federal employees that occurred within the federal
workplace. Id. at 801-02. The Court said that it could not ignore the special nature and
functions of the federal workplace in evaluating the limits that may be imposed on an
organizations right to participate in the charity drive. Id. at 802. Because the expressive
activity proposed in Cornelius was in conflict with the principal function of the property i.e.,
an office that the parties agreed was not a traditional public forum the Supreme Court was
particularly reluctant to hold that the government intended to designate a public forum when it
created the charity program. Id. at 804.
The facts learned after months of discovery demonstrate that Cornelius compels a
different outcome here. The Plaza is not the States workplace, but a public forum where the
State has repeatedly allowed the exercise of free expression and keeps open to the public yearround. Unlike Cornelius, where the purpose of implementing the charity program was an
attempt to lessen[] the amount of expressive activity occurring on federal property[,]
11
Cornelius 473 U.S. at 806 (emphasis in the original), the State concedes that the sole purpose of
the Summer Lunch Program was to provide lunch options for State workers and visitors to the
Plaza. (Defendants Memorandum of Law dated July 31, 2015 at 14-15). While the State thus
may exclude businesses that wish to sell goods or services that are inconsistent with provid[ing]
lunch options for State workers and visitors to the Plaza, it may not discriminate among food
trucks that are capable of meeting the goal of the program based on a food trucks speech.
Calvary Chapel Church, Inc., 299 F. Supp. at 1303-04.
B. Regardless of whether the forum is the Plaza or the Lunch Program, the State
cannot deny Wandering Dago access based upon its speech.
Regardless of the nature of the forum, the State cannot exclude Wandering Dago based
on its viewpoint or the content of its speech. Because there can be no dispute that OGS excluded
Wandering Dago from the Summer Lunch Program based only upon the inclusion of the word
dago in its name, there can be no doubt that the State violated Wandering Dagos First
Amendment rights.
The Supreme Court recently made clear that any discrimination based upon the content of
a signs message is subject to strict scrutiny. Reed v. Town of Gilbert, Ariz., -- U.S. --, 135 S. Ct
2218 (2015); see also Sorrell v. IMS Health Inc., -- U.S. --, 131 S. Ct. 2653, 2667-68 (2011)
(heightened standard applies to content-based restrictions on commercial speech such that
government must show that the restriction directly advances a substantial government interest
and that the measure is drawn to achieve that interest). 7 In Reed, a towns Sign Code treated
directional signs, ideological signs, and political signs differently, and applied to signs in
both public and nonpublic forums. Reed, 135 S. Ct. at 2224-25 (noting that the regulations
As Plaintiff has argued elsewhere, Defendants cannot meet this standard. Plaintiffs
Memorandum of Law in Support of Its Motion for Summary Judgment at 5-15, Dkt. # 156.
12
applied to signs placed on public property and on private property) and 2236 (Breyer, J., noting
in concurrence that the signs at issue were not in a traditional public forum).
The Court
concluded that the Sign Code is a paradigmatic example of content-based discrimination

because it singles out specific subject matter for differential treatment, even if it does not target
viewpoints within that subject matter. Id. at 2230.
The States decision to deny Wandering Dago access to the Plaza was undeniably based
upon the content of Wandering Dagos speech. (E.g., Defendants Memorandum of Law dated
July 31, 2015 at 17-18 (stating that the State excluded Wandering Dago because of its use of
insulting and hurtful words as part of its name and menu); SOMF at 29-31 (Rabitos decision
to reject Wandering Dagos application was based only upon his conclusion that the meaning of
the term dago was offensive).)
In fact, the States denial was based on Wandering Dagos viewpoint, a more blatant and
egregious form of content discrimination. Reed, 135 S. Ct. at 2230. As Plaintiff argues in its
Motion for Summary Judgment, (Defendants Memorandum of Law dated July 31, 2015 at 1215), the State prohibited Wandering Dagos language that it deemed to be derogatory toward an
ethnicity or nationality, while allowing speech that references ethnicity in a neutral or positive
way, which is classic viewpoint discrimination.
Even before Reed, the law was clear that content-based or viewpoint-based restrictions,
even in a nonpublic forum, violate the First Amendment. See Cohen v. California, 403 U.S. 15,
25 (1971); (noting that the states restriction on the word fuck in a courthouse seems
inherently boundless. How is one to distinguish this from any other offensive word?); cf.
Huminski v. Corsones, 386 F.3d 116, 154-56 (2d Cir. 2004) (defendants violated plaintiffs First
Amendment rights when they issued trespass notice barring him from engaging in expressive
13
activity in and around nonpublic courthouses and noting that the defendants may also have
punished plaintiff based upon his viewpoint); Lorillard Tobacco Co. v. Reilly, 533 U.S. 525
(2001) (holding a state restriction on tobacco advertisements in retail stores violated plaintiffs
First Amendment rights because it failed to satisfy the Central Hudson test).
In a nonpublic forum, any speech restriction must be made in accordance with wellestablished standards in order to eliminate the exercise of unbridled discretion by state officials.
Children First Found., Inc. v. Fiala, __ F.3d __, 2015 WL 2444501, at *10 (2d Cir. May 22,
2015). Second, restriction of speech in a nonpublic forum must be neutral with respect to the
viewpoints being excluded. Cornelius, 473 U.S. at 806. Third, restrictions must be reasonable
in light of the purpose of the forum in question. Id. Defendants actions here fail on all three
grounds.
OGS rejected Wandering Dagos application because one manRabitowas personally
offended by its use of the word dago. SOMF Ex. 16, Rabito Dep. 71:14-19 (stating if
someone would refer to me as a Dago, I would punch them in the mouth). Rabito was not
guided by any policy, rule, or regulation explaining what sorts of speech qualify as offensive, nor
even any policy, rule or regulation stating that offensive speech is prohibited. SOMF 34. The
decision was thus based both on the content of the speech and the viewpoint of the speaker and
therefore violated Wandering Dagos First Amendment rights.
In Calvary Chapel, which the Court relied upon in determining that the Lunch Program
and not the Plaza was the relevant forum, Wandering Dago, Inc., 992 F. Supp. 2d at 120, a
church sought access to a holiday lights festival in order to broadcast its religious message about
Christmas. Calvary Chapel, 229 F. Supp. at 1303. The government created a nonpublic forum,
or at most a limited public forum, in which sponsors may exclude other subject matter. But,
14
whatever the term used to describe this forum, the [government] may not exclude alternative
viewpoints with respect to the holidays included in the light show. Id. at 1303-04.
The restriction on Wandering Dagos speech is unrelated to the goal of the Summer
Lunch Program to provide dining options to State employees and visitors to the Plaza, there is no
risk of disruption to the State workplace because the Plaza is a public forum, not a state office,
and the fact that the Summer Lunch Program is taking place in a quintessential public forum
must be taken into consideration. Against that backdrop, the States admission that it denied
Wandering Dago based only on one government officials reaction to the content of its name is
fatal to the State. See Cohen v. California, 403 U.S. 15, 25 (1971) (holding that in a courthouse,
a classic nonpublic forum,8 [s]urely the State has no right to cleanse public debate to the point
where it is grammatically palatable to the most squeamish among us).
The Second Circuit has continued to apply Cohens logic to nonpublic forums.
In
Huminski v. Corsones, 386 F.3d 116, 154 (2d Cir. 2004), a demonstrator repeatedly appeared on
courthouse grounds and in courthouse parking lots to display signs criticizing the conduct of the
court system. Id. at 122-26. The protester also wrote threatening letters to public officials and a
judge, and frequently attended court proceedings. Id. When the state issued Notices Against
Trespass to the protester, he sued, arguing that his First and Fourteenth amendment rights had
been violated. Id. The Second Circuit found that the courthouse, its parking lot, and grounds
were nonpublic forums. Id. at 153-55. But Court held that the state had improperly created a
First-Amendment-Free Zone for the protester, and that such a ban cannot be justified even
[in] a nonpublic forum because no conceivable government interest would justify such an
Huminski v. Corsones, 386 F.3d 116, 154 (2d Cir. 2004) (collecting cases and stating that a
courthouse is not a public forum).
15
absolute prohibition on speech. Id. at 155 (quoting Bd. Of Airport Commrs v. Jews for Jesus,
Inc., 482 U.S. 569, 575 (1987).
Defendants cannot justify their actions on the basis of their alleged family friendly
policy. First, this policy has appeared in this case only as a litigation position. Defendants have
never identified any written policy or regulation defining the contours of family-friendliness,
or providing any constraints on Defendants ability to prohibit any speech it chooses in the name
of this so-called policy. Second, Defendants reliance on this policy is entirely circular. They
are entitled to prohibit speech they dont like because they have a policy instructing them to
prohibit speech they dont like. Allowing such a rationale to justify speech restrictions makes a
mockery of the First Amendments protections.
The evanescence of the so-called family friendly policy is demonstrated by the fact that
Wandering Dago was denied access to the Plaza but the truck Slidin Dirty was granted access.
(Dkt. #142-14 Loguidice Dep. 136:12-137:24) Slidin Dirty is an obvious riff using the word
slider, which means a small hamburger or sandwich, and the phrase ridin dirty, defined by
the Urban Dictionary as driving in an automobile while having at least a felony charge worth of
illegal drugs and or unregistered firearms with you. URBANDICTIONARY.COM, Definition of
ridin dirty, available at http://www.urbandictionary.com/define.php?term=ridin+dirty (last
visited August 31, 2015). Likewise, Slidin Dirty evokes the song Ridin, which repeats the
phrase ridin dirty more than 40 times in its chorus while describing a person driving under the
influence of alcohol while using drugs and carrying a handgun.9 METROLYRICS.COM, Lyrics to
There is no doubt that a large segment of the population visiting the Plaza would understand
Slidin Dirtys reference and would be familiar with the song Ridin, which spent two weeks at
number one on the Billboard Hot 100. BILLBOARD.COM, Chamillionaire Rides to Top of Hot
100, available at http://www.billboard.com/articles/news/58313/chamillionaire-rides-to-top-ofhot-100 (last visited August 31, 2015). The song was sufficiently familiar to audiences that the
16
Ridin by Chamillionaire featuring Krayzie Bone, http://www.metrolyrics.com/ridin-lyricschamillionaire.html (last visited August 31, 2015).
The different treatment accorded Slidin Dirty and Wandering Dago highlights the
impossibility of determining what speech is offensive and what is not. The meaning of words is
inevitably contextual: someone familiar with the phrase ridin dirty understands the pun being
made by Slidin Dirty and may or may not find it an offensive reference to the problems of urban
crime, gun violence, and drug trafficking; someone not familiar with the phrase or the song
misses the meaning entirely. Just so with ethnic slurs, which can be offensive when used in
many contexts, but are often . . . [used] non-derogatorily to convey affiliation with other
members of that minority group, or to weaken the derogatory force that the slur had originally
carried. Adam M. Croom, Slurs and Stereotypes for Italian Americans: A Context-Sensitive
Account of Derogation and Appropriation, 81 J.
OF
PRAGMATICS 36, 47 (2015) (attached as
Exhibit 1 to the Declaration of George F. Carpinello (Carpinello Decl.)).

The speech here is an appropriative use meant to convey a blue-collar, immigrant
solidarity. Loguidice testified about the choice of name: Well, the wandering part is pretty
obvious. I mean it is a food truck and we wander around from place to place. Dago essentially
was a nod to our Italian heritage. Both of us are Italian. And when our forefathers came here
and they were day laborers, they asked to get paid as the day goes. COMF 29, Loguidice
Dep. 11:20-12:1. We chose a name that represented who we were. . . . because when you have
a small business and you put your blood, sweat and tears into it, it should represent who you
are. COMF 29, Loguidice Dep. 13:6-14. This appropriative use grew to include additional
satirical musician Weird Al Yankovic recorded a parody of it entitled White and Nerdy, which
itself became a top ten hit on the Billboard Hot 100. BILLBOARD.COM, Weird Al Yankovic
Chart History, available at http://www.billboard.com/artist/431263/weird-al-yankovic/chart
(last visited August 31, 2015).
17
menu items that were named with ethnic slurs at the request of various members of those
ethnicities, again signaling a blue-collar, immigrant solidarity. COMF 29; Loguidice Dep.
56:6-16; 61:25-62:14. The use of these words signals to members of other immigrant groups that
this food truck is for them: [W]eve always created everything on this truck around the people
for better or for worse, including as you pointed out earlier the sandwich names. Weve always
felt like we wanted to be the peoples truck. COMF 29 Loguidice Dep. 107:11-14. See
Croom, 81 J. OF PRAGMATICS at 47 (Carpinello Decl. Ex. 1) (the use of ethnic slurs can be used
non-derogatorily to convey affiliation with in-group members).10
Wandering Dago is thus engaging in a practice that has become increasingly common,
appropriating a term once considered offensive in order to remove its sting:
Targeted members or groups may appropriate their own slurs for non-derogatory
purposes, in order to demarcate the group and show a sense of intimacy and
solidarity. . . . [M]any teens and entertainers, among others, are doing what
linguists call melioration reclaiming a word meant to sting by removing its
barb. . . . So another basic fact about slurs is that they are often flexibly employed
and of potential use, not only derogatorily to convey offense toward out-group
members, but also non-derogatorily to convey affiliation with in-group members,
or to diminish the derogatory force that the slur had originally carried.
Croom, 81 J. OF PRAGMATICS at 37 (quotations and citations omitted) (Carpinello Decl. Ex. 1).
Finally, Defendants actions must be reasonable in light of the purpose of the forum. As
Defendants themselves have argued however, the program was created for the sole purpose of
providing lunch options to State employees and visitors to the ESP. Defendants Statement of
Material Facts 8. Other than the Summer Lunch Program and various state-sponsored events,
food vendors are not permitted to sell food on the Plaza. COMF 2. Moreover, Defendants
10
Additionally, Defendants claim that the Courts statement that the term dago is offensive is
law of the case is wrong. Not only is the Court free to reconsider its opinion (Supra at 8-9) but
the determination of whether a word is offensive is a finding of fact, not of law. See U.S. v.
Nathan, No. CR-88-102E, 1988 WL 91519, at *1 (W.D.N.Y. Aug. 31, 1988) (noting that in
order to determine whether material is offensive [t]here must be a finding of fact).
18
argue that the sole speech contemplated by the program is the display of vendors business
names and menu items. Defendants Br. 15. Wandering Dago was prohibited from engaging in
precisely this type of speech. Wandering Dagos name and menu items were consistent with the
sole purpose of the program as identified by Defendants.
II.
THE STATE IS NOT ACTING IN A PROPRIETARY CAPACITY.

The state argues that when it excludes Wandering Dago from the Plaza, it is operating in
a proprietary capacity rather than as a legislator or regulator. It likens the program to a cafeteria
for state employees.
However, the State cannot escape the reality that the Plaza is not a
workplace cafeteria but a public forum that has repeatedly been used for First Amendment
expression and is always open to the public.
Likewise, the State admits thatunlike a
workplace cafeteriait anticipated that the Summer Lunch Program would serve employees and
public citizens alike. Defendants Memorandum of Law dated July 31, 2015 at 14-15.
Defendants argue that this is irrelevant, because the real issue in this case is not access to
the Plaza, but rather access to the Summer Lunch Program a government program sponsored
by OGS. This, however, is no more than a label applied by the state to obscure the actual nature
of the Summer Lunch Program.
In fact, the Summer Lunch Program is effectively no more than a permitting process for
access to the Plaza. COMF 2. The Summer Lunch Program application process is open to the
general public. COMF 10. Applicants who meet the application criteria are accepted into the
program and allowed to vend on the Plaza. The selection criteria are not stringent or highly
selective.
See SOMF 17, Ex. 17 2013 Summer Outdoor Lunch Program Food Vendor
Application. In the years at issue in this case, only a single qualified applicant Wandering
19
Dago was denied. SOMF 38. In effect, any vendor who wishes to operate on the Plaza
simply submits an application, agrees to pay a fee of $1,000 or $1,500, and is granted a permit.
Defendants claim that the Summer Lunch Program is sponsored by OGS, but in reality
there is no sponsorship. OGS does not pay for or subsidize the vendors rather the vendors
pay a fee to OGS to participate in the program. There is no signage around the vendors
identifying them as part of the Summer Lunch Program. SOMF Ex. 16, Rabito Dep. 99:13-16.
In fact, from the perspective of the general public, there is nothing distinguishing the Summer
Lunch Program vendors from the nearby vendors operating on the street under permits issued by
the City of Albany, other than their location on the Plaza.
And as Defendants have
acknowledged, simply issuing a permit does not constitute sponsorship. SOMF 18.
If Defendants had issued permits for vendors to operate on the Plaza and then issued a
regulation prohibiting vendors with disfavored names, the unconstitutionality would be obvious.
Defendants cannot evade the constitutions protections by lumping the two actions together and
calling it a government-sponsored program.
Just as the State cannot regulate a parade
organizers speech by requiring that all parades obtain permits, the State cannot achieve greater
regulation of speech on the Plaza by requiring that food trucks apply to the Summer Lunch
Program in order to vend there. Hurley v. Irish-American Gay, Lesbian and Bisexual Group of
Boston, 515 U.S. 557, 673-74 (1995)
III.
WANDERING DAGOS RIGHT TO EQUAL PROTECTION WAS VIOLATED.

The denial of Wandering Dagos access to the Plaza was based on Wandering Dagos
exercise of its constitutional rights and thereby violated its right to equal protection.
Selective enforcement can be shown when a party has been treated differently from
similarly situated individuals, because of, inter alia, the exercise of constitutional rights.
20
LaTrieste Rest. and Cabaret, Inc. v. Village of Port Chester, 40 F.3d 587, 590 (2d Cir. 1994).
Wandering Dago easily meets this standard. Wandering Dago was similarly situated to the class
of vendor applicants for the Summer Lunch Program. Wandering Dago alone was singled out
for differential treatment application denial explicitly on account of its name, which is
commercial speech protected by the constitution. See Cuffley v. Mickes, 208 F.3d 702 (8th Cir.
2000) (holding that state violated the Equal Protection Clause when it prevented an organization
from participating in the states Adopt-A-Highway program based upon that organizations
views). In Cuffley, the Ku Klux Klan sought to participate in the states Adopt-A-Highway
program, which would have allowed the Klan to put its name on a sign along a state highway.
Id. at 705. When the state received the Klans application, the state treated [the application]
differently from the vast majority of applicants based upon who [the application] was from and
what they wanted on the sign. Id. at 706. Because the government may not deny a benefit to a
person because of his constitutionally protected speech or associations, the Court concluded, the
state had violated the Klans right to equal protection. Id. at 707.
The facts here are remarkably similar. Wandering Dago submitted its application to the
State, and the State immediately treated the application differently than the other applicants:
Employees who were not responsible for reviewing the applications for the 2013 Summer Lunch
Program singled out the application as containing potentially offensive language and brought it
to Rabitos attention. SOMF 26-28. Rabito thought the name was offensive and conducted a
short internet search around the word dago, and then concluded that Wandering Dago should
be excluded from the Plaza based solely upon its name.
SOMF 36-38.
As a result,
Wandering Dago was completely barred from selling food on the Plaza. COMF 2. [S]uch a
denial is unconstitutional . . . [f]or if the government could deny a benefit to a person because of
21
his constitutionally protected speech or associations, his exercise of those freedoms would in
effect be penalized and inhibited. . . . Such interference with constitutional rights is
impermissible. Cuffley, 203 F.3d at 707 (quoting Perry v. Sindermann, 408 U.S. 593, 597
(1972)).
Defendants contend that no other vendors were similarly situated to Wandering Dago
because no other vendors engaged in the same type of derogatory or offensive speech. 11
This is pure sophistry. Defendants argue that a party complaining of differential treatment on the
basis of its disfavored speech cannot prevail because it is not similarly situated to parties who did
not engage in disfavored speech. Defendants argument completely excises the exercise of
constitutional rights from the coverage of Equal Protection law.
Defendants
contend
Plaintiff cannot show an intent to inhibit the exercise of constitutional rights.
that
But it is
undisputed that Wandering Dagos application was denied for the express purpose of preventing
it from exercising its constitutional rights in the context of the Summer Lunch Program. What
more is needed?
Moreover, Defendants argue that the pretextual reasons given for denial of the
application do not demonstrate bad faith because Plaintiff was advised that its name was the
primary reason for the denial. This is wrong for two reasons. First, it is simply incorrect. In her
phone call with Defendant Bruso, Plaintiffs co-owner Loguidice was informed only that the
application was denied for multiple reasons. SOMF 40. Bruso never identified the name as the
motivating reason, and confirmation from Defendants that the name was the driving factor came
only after the initiation of this litigation. SOMF 40-43.
11
As discussed supra, the veracity of this statement depends on how one feels about the name
Slidin Dirty.
22
Second, it is entirely disingenuous. Defendants continued to rely on the pretextual

reasons as alternate grounds for the denial of the permit during the course of this litigation.12 See
Defendants Memorandum in Support of Summary Judgment dated July 31, 2015 at 7. Discovery
later revealed that nearly every single vendor accepted into the program suffered from at least
one of the deficiencies alleged of Plaintiffs application (i.e., late application, incomplete
application, unable to attend all dates). SOMF 48-59. If this is not bad faith, it is not clear
what is.
IV.
DEFENDANT DESTITO IS AN APPROPRIATE DEFENDANT FOR INJUNCTIVE RELIEF.

Defendants argue that Commissioner Destito must be dismissed because she had no
direct involvement in the denial of Wandering Dagos application, citing Second Circuit
precedent that personal involvement is a prerequisite to an award of damages under 1983.
Wright v. Smith, 21 F.3d 496, 501 (2d Cir. 1994). But this is not an action for damages. As
Defendants have acknowledged, this is an action for injunctive relief to end the continued
exclusion of Wandering Dago from participation in the Summer Lunch Program. Destito is a
perfectly appropriate defendant for purposes of injunctive relief.
As Defendant Rabito testified, Commissioner Destito has ultimate authority over the
policies and programs of OGS, including the Summer Lunch Program and access to the Plaza.
COMF 67. Rabito further testified that although he was directly responsible for the decision to
deny Wandering Dagos application for the 2013 Summer Lunch Program, he did so on the basis
of authority delegated to him by Commissioner Destito, and Commissioner Destito has the
authority to overrule his decisions. COMF 66-67, 70. Further, this action was commenced in
August 2013, so there can be no doubt that Commissioner Destito was aware of Plaintiffs
12
The pretextual reasons became moot after Defendants denied the 2014 application and
Plaintiffs dropped their money damages claims.
23
constitutional injury and yet she took no action to prevent a recurrence of that injury in 2014,
when the State again rejected Plaintiffs application. Destito can thus be held liable for the
actions of her subordinates because Plaintiffs constitutional injury results from the direct acts
or omission of [Destito] and from Destitos condonation or tacit authorization of the 2014
rejection. Rodriguez-Garcia v. Miranda-Marin, 610 F.3d 756, 768 (1st Cir. 2010).
Wandering Dago seeks an order enjoining Defendants from taking further actions to
exclude it from the Plaza on the basis of its exercise of its constitutional right to free speech.
Defendant Destito has the power to grant such relief in her capacity as Commissioner.
V.
QUALIFIED IMMUNITY IS IRRELEVANT.

Qualified immunity protects state officials from personal liability for money damages; it
has no application in an action for injunctive relief. Adler v. Pataki, 185 F.3d 35, 48 (2d Cir.
1999). Wandering Dago has dropped its claim for compensatory damages and now only seeks
injunctive relief and attorneys fees pursuant to 42 U.S.C. 1988, thus qualified immunity is not
relevant.
Defendants, however, suggest in a footnote (p. 23 n.7) that qualified immunity might
shield them from attorneys fees, relying on an Eleventh Circuit case, DAguanno v. Gallagher,
50 F.3d 877 (11th Cir. 1995), holding that attorneys fees qualify as damages for purposes of
qualified immunity.
However, it is impossible to square DAguanno with the Supreme Courts analysis of
1988. The Supreme Court has noted that Congress enacted 1988 specifically to enable
plaintiffs to enforce the civil rights laws even where the amount of damages at stake would not
otherwise make it feasible to do so. City of Riverside v. Rivera, 477 U.S. 561, 577 (1986).
Indeed, the very fact that in some cases, immunity doctrines and special defenses, available
24
only to public officials, preclude or severely limit the damage remedy . . . awarding counsel fees
to prevailing plaintiffs in such litigation is particularly important and necessary if Federal civil
and constitutional rights are to be adequately protected. Id. at 577 (quoting H.R.Rep. No. 941558, p. 9 (1976)); see also Pulliam v. Allen, 466 U.S. 522, 541 (1984) (Congress has made
clear in 1988 its intent that attorneys fees be available in any action to enforce a provision of
1983. . . . Congress intent could hardly be more plain. Judicial immunity is no bar to the award
of attorneys fees under 42 U.S.C. 1988.)
Applying Riverside, the Fourth Circuit held that qualified immunity cannot support the
denial of attorneys fees to . . . a prevailing civil rights plaintiff, even where the defendants
could show that there was no policy or custom of discrimination and where the only relief
awarded was injunctive and declaratory relief. Lefemine v. Wideman, 758 F.3d 551, 555 (4th
Cir. 2014). This is the same approach taken by the Southern District of New York, where it held
that [a]ttorneys fees are available in any action to enforce a provision of 1983 even when
damages would be barred or limited by immunity doctrines and special defenses, available only
to public officials. Helbrans v. Coombe, 890 F. Supp. 227, 232 (S.D.N.Y. 1995) (internal
quotations and alterations omitted).
CONCLUSION
For all the foregoing reasons, Defendants motion for summary judgment should be denied.
25
By:
/s/ George F. Carpinello

Albany, NY 12207
Telephone: 518-434-0600
Facsimile: 518-434-0665
E-mail: gcarpinello@bsfllp.com
jdew@bsfllp.com
26
Case 1:13-cv-01053-MAD-RFT Document 158-1 Filed 08/31/15 Page 1 of 20

WANDERING DAGO INC.
Plaintiff,
v.
Civil Action No. 13-cv-1053(MAD)(RFT)
Defendants.
PLAINTIFF WANDERING DAGO INC.S COUNTER-STATEMENT OF MATERIAL

FACTS PURSUANT TO LOCAL RULE 7.1(a)(3)
Albany, New York 12207
(518) 434-0600
Attorneys for Plaintiff Wandering Dago Inc.
Plaintiff Wandering Dago, Inc., respectfully submits this counterstatement in response to

Defendants Rule 56.1 Statement of Undisputed Material Facts. No acknowledgement about the
lack of a genuine dispute concerning a particular fact asserted by Plaintiffs should be deemed an
acknowledgement that such fact is legally material, unless otherwise noted.
COUNTER-STATEMENT OF FACTS
1.
In the spring of 2013, the New York State Office of General Services (OGS)
began planning a program that would allow a limited number of vendors to sell food items at
designated spots on the East Roadway, located on the east side of the Empire State Plaza
(ESP), between the reflecting pool and the Egg. (Rabito Dec. 4.)
Response 1: Undisputed.
2.
Although an outdoor lunch program had been operated in prior years by Sodexo, a
private company which had a contract to provide food services for the ESP, Sodexos contract
had not been renewed for 2013, and OGS decided to sponsor and run its own summer outdoor
lunch program. (Rabito Dec. 4.)
Response 2: Plaintiff disputes that OGS sponsored the Summer Lunch Program. OGS
charged vendors $1,000-$1,500 to participate in the program.
(SOMF Ex. 17, 2013
Summer Outdoor Lunch Program Food Vendor Application.) There was no signage
identifying the vendors as belonging to the Summer Lunch Program. (SOMF Ex. 16,
Rabito Dep. 99:13-16.) Food vendors were not allowed to sell food on the Plaza unless they
received a permit from the Summer Lunch Program to do so. (Carpinello Decl. Ex. 2,
Rabito Dep. 95:23-96:2.)
3.
OGS operates the ESP Summer Outdoor Lunch Program (Program) and permits
only qualified food vendors to participate in providing food during lunchtime hours to the State
employees and visitors who work or come to the Capitol and adjacent State buildings and parks
during the summer and early fall months. (Rabito Dec. 5.)
4.
Vendors who seek to participate in the Program must apply to OGS for a permit,
and OGS determines the applicants eligibility for such participation. (Rabito Dec. 6.)
5.
The Program was developed and administered by OGS Special Events Office.
(Dkt # 152-2 pp. 16-17; Dkt # 152-1 p. 9; Dkt # 152-4 p. 11.)

6. The 2013 Program Application states, in pertinent part:
Vendor participation must be confirmed by the New York State Office of

General Services.
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: [inter alia] 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.
3
7. Appendix A of the application form, Rules for the Empire State Plaza Vendor
Participation, includes, inter alia:
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 will not be allowed to
sell prior to or after these hours.
Each vendor will be assigned a specific vending location; all space assigned
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 Vendors 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.
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.
Vendors will not refer to themselves as sponsor, co-sponsor or other

terms conferring status other than of a participant.
(Rabito Dec. 7 and 9, and Ex. A.)

8.
The Program was created by OGS in 2013 for the sole purpose of providing lunch
options to State employees and visitors to the ESP. (Dkt # 152-4 pp.11-12.)
4
9.
The Program was created as an extension of the cafeteria services at the ESP 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 at ESP. (Dkt # 1524 p. 27.)
Response 9: Plaintiff disputes that the Summer Lunch Program was an extension of the
cafeteria services at the ESP. This statement is utterly unsupported by Defendants
record citation.
10.
The Program is not open to the public. (Rabito Dec. 6.)
Response 10: Aside from Wandering Dago, every other complete application was accepted
into the Summer Outdoor Lunch Program. Ex. 11, Rumpf Dep. 102:618, 108:925.
11.
Vendors must apply for a permit to sell food as part of the Program during limited
hours (9:00 am to 2:00 pm); on certain days (Monday through Friday, or Wednesdays and
Fridays); at a specific location on the ESP, assigned by OGS; for a limited period of time (20
weeks, May 20, 2013 through October 4, 2013). (Rabito Dec. 6 and Ex. A.)
12.
Vendors must pay a fee of $1,000 or $1,500 for the privilege of participating in
the ESP Summer Outdoor Lunch Program. (Rabito Dec. Ex. A.)
13.
OGS retains the right to be the sole sponsor of the Program, to review and
approve what menu items may be offered for sale, and to terminate the Program at any time.
(Rabito Dec. 7 and Ex. A.)
Response 13: Plaintiff disputes that OGS sponsored the Summer Lunch Program. OGS
charged vendors $1,000-$1,500 to participate in the program.
(SOMF Ex. 17, 2013
Summer Outdoor Lunch Program Food Vendor Application.) There was no signage
identifying the vendors as belonging to the Summer Lunch Program. (SOMF Ex. 16,
Rabito Dep. 99:13-16.) Food vendors were not allowed to sell food on the Plaza unless they
received a permit from the Summer Lunch Program to do so. (Carpinello Decl. Ex. 2,
Rabito Dep. 95:23-96:2.).
14.
OGSs overall policy that events at the ESP sponsored by OGS be family-
friendly and free from sexually explicit, insulting, or profane language or visual representations,
such that they can be enjoyed by member of the public, regardless of age and sensitivity. (Rabito
Dec. 10.)
Response 14: Plaintiff disputes Defendants claim that there was a family-friendly policy
governing the ESP. There is no evidence in the record to support Defendants claim that
OGS had an overall policy that events at the ESP be family-friendly. Defendants never
cited this alleged family-friendly policy when rejecting Plaintiffs application, and
Defendants can point to no documents in the record or elsewhere demonstrating that such
a policy existed prior to the commencement of this litigation.
15.
The purpose of this policy is to create a workplace environment free from
harassment based upon race, ethnicity, or sex, and to foster an environment of respect where all
State employees and visitors to the ESP can be free to enjoy the programing sponsored by the
State through OGS. (Rabito Dec. 10.)
Response 15: Plaintiff disputes Defendants claim that there was a family-friendly policy
governing the ESP. There is no evidence in the record to support Defendants claim that
6
OGS had an overall policy that events at the ESP be family-friendly. Defendants never
cited this alleged family-friendly policy when rejecting Plaintiffs application, and
Defendants can point to no documents in the record or elsewhere demonstrating that such
a policy existed prior to the commencement of this litigation.
16.
OGS staff routinely reviews musical acts and movies proposed for public viewing
for vulgar, profane or sexually explicit language, nudity, sexual innuendo, or disparaging ethnic
or cultural references. (Rabito Dec. 12.)
Response 16: Plaintiff lacks sufficient information to either admit or deny this statement.
17.
Performances that contain this type of language or material are not presented by
OGS. (Rabito Dec. 13.)

18.
Performers are advised by OGS that such language or representations may not be
used. (Rabito Dec. 13.)

19.
Movies that contain sexual or other inappropriate content are not shown at OGS
sponsored events, regardless of the movies rating. (Rabito Dec. 12.)

20.
In instances when artists have violated this rule, OGS has gone so far as to end
the performance, by shutting off the sound and asking the artist to leave the stage. (Rabito Dec.
13.)
21.
During African-American Day in 2010, OGS stopped a hip-hop artists act when
the performer used the N-word. (Rabito Dec. 16.)

7
22.
In, 2008, a singer, appearing as an opening act, was asked to leave the stage when
she appeared wearing only a mans shirt, without pants, and used profanity. (Rabito Dec. 17.)
23.
OGS has directed vendors permitted to sell products at the Plaza to remove items
from their stalls which violated OGSs family-friendly policy, including: replica black-face
figurines; panties that had Kiss Me Im Irish printed on them; fertility pendants with a phallus
that became erect when a chain was pulled; and marijuana leaf belt buckles. (Rabito Dec. 18.)
Response 23: Plaintiff lacks sufficient information to either admit or deny that Defendants
have asked vendors permitted to sell products at the Plaza to remove items from their
stalls. To the extent that this occurred, Plaintiff disputes that it was done in conformance
with a so-called family-friendly policy. There is no evidence in the record to support
Defendants claim that OGS had an overall policy that events at the ESP be familyfriendly. Defendants never cited this alleged family-friendly policy when rejecting
Plaintiffs application, and Defendants can point to no documents in the record or
elsewhere demonstrating that such a policy existed prior to the commencement of this
litigation.
24.
OGS does not limit speech on the Plaza for events that are not sponsored by
OGS. (Rabito Dec. 19-20.)

25.
Demonstrators may obtain a permit to demonstrate through the OGS Real
Property Management and Development Office. The purpose of such a permit is to give OGS
notice of the likely size and location of the protest so that OGS can provide adequate services,
8
such as crowd control measures, security, restroom facilities, road closures or parking assistance,
and other logistics. (Rabito Dec. 19.)
26.
OGS does not review or limit speech made by protestors in connection with a
permit to demonstrate. OGS does not review or limit speech by individuals or organizations at
ESP which is not part of an OGS sponsored event, or a permit to demonstrate. (Rabito Dec.
19-20.)
27.
Andrea Loguidice (Loguidice) is president and owner of 51 percent of the
shares of Wandering Dago, Inc. (Wandering Dago). (Dkt # 152-14 pp. 5 and 10.)
28.
Brandon Snooks (Snooks) owns the remaining 49 percent of the shares of
Wandering Dago. (Dkt # 152-14 p. 10.)

29.
Neither Loguidice nor Snooks intend the name Wandering Dago to express a
point of view. (Dkt # 152-14 p. 114; Dkt # 152-15 pp. 98-100.)

Response 29: Plaintiff disputes this statement because it mischaracterizes the testimony of
both Loguidice and Snooks. Loguidice testified that name reflects the identity of the truck:
Well, the wandering part is pretty obvious. I mean it is a food truck and we wander
around from place to place. Dago essentially was a nod to our Italian heritage. Both of us
are Italian. And when our forefathers came here and they were day laborers, they asked to
get paid as the day goes.
(Dkt # 152-14 at 11:20-12:1.)
We chose a name that
represented who we were. . . . because when you have a small business and you put your
9
blood, sweat and tears into it, it should represent who you are. (Dkt # 152-14 at 13:6-14.)
This identity grew to include additional menu items that were named with ethnic slurs at
the request of various members of those ethnicities, again signaling a blue-collar,
immigrant solidarity. (Dkt # 152-14 at 56:6-16; 61:25-62:14.) Loguidice testified that the
name and menu items were meant to convey that this was a truck for the people: weve
always created everything on this truck around the people for better or for worse,
including as you pointed out earlier the sandwich names. Weve always felt like we wanted
to be the peoples truck. (Dkt # 152-14 at 107:11-14.) Snooks testified that the name
Wandering Dago describes the identity of the food truck: We wander around and we get
paid as the day goes. Its a playful take on what our ancestors did. We just made it less
formal. (Dkt. #152-15 at 65:6-8.) Wandering Dago was just a name that we felt fit what
we do and who we are. (Dkt. #152-15 at 98:25-99:4.)
The name of the food truck also
describes him: My belief was that the name was about me. It was a self-reference to me.
(Dkt. #152-15 at 29:6-7.)
30.
It was Snooks expectation that anyone offended by the name of the business
would choose not to do business with it. (Dkt # 152-15 p. 29.)

Response 30:
Plaintiff disputes this statement because it mischaracterizes Snooks
testimony. Snooks testified that he believed the name Wandering Dago would help in the
trucks marketing.
(Dkt. #152-15 at 27:13-15.)
The name impacted our business
immensely. Everyone loved the name. We had people come do business with us that
wanted to take pictures with me by the truck. The name people loved it. Thats how it
impacted our business. ((Dkt. #152-15 at 26:4-8.) Snooks only became aware that some
people would be offended by the name when members of the Sons of Italy posted comments
10
to that effect on Wandering Dagos Facebook page. (Dkt. #152-15 at 24:12-16.) Those
comments were posted shortly after Wandering Dago was forced to leave the Saratoga race
track. (Dkt. #152-14 at 103:6-104:23.) Thus it was only Snooks expectation that someone
offended by the name might not do business with Wandering Dago because Wandering
Dago had been denied access to the Empire State Plaza and the Saratoga race track. He
testified that at this point that was my expectation. Not my business plan. (Dkt # 152-15
at 29:17.)
31.
In the spring of 2013, Loguidice contacted OGS on behalf of Wandering Dago
and inquired about participation in the 2013 Program. (Walters Dec. 7.)
Response 31: The evidence reflects that Loguidice first contacted OGS on February 27,
2013. (Dkt. #14 at 39:17-40:12.)
32.
Wandering Dago planned to be a food vendor at Saratoga Race Track for the
2013 race season which ran from mid-July through Labor Day. (Walters Dec. 8.)
33.
Loguidice inquired as to whether Wandering Dago could apply for a permit to
participate in the Program even though it would not be able to participate for approximately 6
weeks due to its commitment at Saratoga Race Track. (Walters Dec. 8.)
34.
On Friday May 10, 2013, Aaron Walters of OGSs Special Events Office left a
voicemail message for Loguidice advising her that Wandering Dago could apply for the
Program, even though it would not be present during track season. (Walters Dec. 9.)
11
35.
On Monday, May 13, 2013, Loguidice called Walters and asked whether
Wandering Dago could receive a discount on the permit fee because it would not be attending the
entire Program. (Walters Dec. 10.)
36.
Walters advised that there would be no discount, and Loguidice said she would
have to speak to her investor before making a determination as to whether Wandering Dago
would apply for the Program. (Walters Dec. 11.)
37.
Walters advised Loguidice that Wandering Dago had until May 17, 2013 to
apply. (Walters Dec. 12.)

38.
On May 15, 2013, Loguidice emailed Walters and stated that Wandering Dago
would submit an application to participate in the Program on Wednesdays and Fridays. (Dkt #
152-1 p. 68.)
39.
On Friday May 17, 2013, Loguidice faxed Wandering Dagos application to
OGS; Appendix B of the application was not included in the fax. (Walters Dec. 13 and Ex. A.)
40.
Appendix B includes, inter alia, the vendors contact information and tax
identification number, vending details such as whether the vendor will participate five days a
week or on Wednesdays and Fridays, the type of vending (truck, cart, or tables), the space
required, and electrical needs. (Walters Dec. 14 and Ex. B.)
12
41.
Loguidice signed the Plaza Vendor Permit Agreement for Empire State Plaza
Vendors as president of Wandering Dago, Inc. The Plaza Vendor Permit Agreement sets forth
the parameters of the Program. (Walters Dec. 13 and Ex. A.)
42.
Wandering Dagos application included its proposed menu, entitled Wandering
Dago Food Truck Spring Menu. The menu includes sandwiches named, inter alia: Dago,
Castro, American Idiot, Goombah, Guido, Polack, El Guapo, and KaSchloppas.
(Walters Dec. 13 and Ex. A.)
43.
On Friday May 17, 2013, after receipt of Wandering Dagos application, OGS
employee Jason Rumpf provided OGS Director of Convention and Cultural Events Heather
Flynn and OGS Associate Commissioner for Operations Joe Cavazos with a list of the
applicants. (Dkt # 152-2 p. 38.)
Response 43: Plaintiff disputes this statement.
Rumpf testified that he was asked to
provide the applications to Flynn and Cavazos but could not recall the date on which that
occurred. (Dkt. #152-2 at 35:15-23.)
44.
Cavazos and OGS Public Information Officer Heather Groll inquired of OGS
Executive Deputy Commissioner Joseph Rabito what he thought about a vendor named
Wandering Dago participating in the program. (Rabito Dec. 24.)
45.
Rabito recognized the term dago as a highly offensive term for Italians and his
initial reaction was that the application would not be approved. (Rabito Dec. 25-26.)
13
Response 45: Undisputed to the extent that the statement reflects Rabitos opinion and his
personal reasons for denying Plaintiffs application.
46.
Rabito decided to double-check his understanding of the term to make sure he
was not mistaken as to its highly offensive meaning. (Rabito Dec. 26.)
47.
Rabito conducted a quick computer search of the term dago which not only
confirmed that it is a highly offensive derogatory term, but also revealed that it refers to people
of Spanish and Portuguese descent, as well as Italians. (Rabito Dec. 27-28.)
48.
Rabito searched Wandering Dagos website and learned that its menu items also
had offensive names, such as Polack and Mick and Cheese, which are slurs against people of
Polish and Irish descent, respectively. (Rabito Dec. 29-30.)
49.
Rabito denied Wandering Dagos application on the grounds that its name
contains an offensive ethnic slur and does not fit with OGS policy of providing family-friendly
programing. (Rabito Dec. 23 & 32.)
Response 49: Plaintiff disputes this statement. Rabito testified that he denied Wandering
Dagos application because he found the name to be offensive, and he did not refer to any
statute regulation, policy, or other source of guidance in making his decision. (Plaintiffs
July 31 SOMF at 34, Ex. 16, Rabito Dep. 44:1015, 71:412; Ex. 13, Cavazos 2d Dep.
14
50:1224.) There is no evidence in the record to support Defendants claim that OGS had
an overall policy that events at the ESP be family-friendly. Defendants never cited this
alleged family-friendly policy when rejecting Plaintiffs application, and Defendants can
point to no documents in the record or elsewhere demonstrating that such a policy existed
prior to the commencement of this litigation.
50.
Rabito did not consider any other grounds upon which Wandering Dagos
application may have been denied, such as lateness or lack of completeness, as the offensive
nature of its name alone was sufficient reason to not issue a permit, even if the application were
acceptable in all other respects. (Rabito Dec. 32.)
51.
Later that day, Walters advised those applicants who were granted permits, that
they had been accepted into the Program. (Walters Dec. 17.)
52.
Wandering Dago was the only applicant that was not granted a permit in 2013.
(Bruso Dec. 19.)

53.
Wandering Dago was the only applicant to the 2013 Summer Outdoor Lunch
Program that had a name which contained a derogatory ethnic term or offensive term as part of
its name. (Walters Dec. Ex. F; Bruso Dec. 19.)
Response 53: Plaintiff disputes this statement. The truck Slidin Dirty was granted access
to the 2013 Summer Outdoor Lunch Program. (Dkt. #142-14 Loguidice Dep. 136:12137:24) Slidin Dirty is an obvious riff using the word slider, which means a small
15
hamburger or sandwich, and the phrase ridin dirty, defined by the Urban Dictionary as
driving in an automobile while having at least a felony charge worth of illegal drugs and
or unregistered firearms with you. URBANDICTIONARY.COM, Definition of ridin dirty,
available at http://www.urbandictionary.com/define.php?term=ridin+dirty, last visited
August 31, 2015. Likewise, Slidin Dirty evokes the song Ridin, which repeats the
phrase ridin dirty more than 40 times in its chorus while describing a person driving
under the influence of alcohol while using drugs and carrying a handgun.
METROLYRICS.COM, Lyrics to Ridin by Chamillionaire featuring Krayzie Bone,
http://www.metrolyrics.com/ridin-lyrics-chamillionaire.html (last visited August 31, 2015).
54.
Wandering Dago was the only applicant to the 2013 Summer Outdoor Lunch
Program that had menu which contained derogatory or offensive names. (Walters Dec. Ex. F;
Bruso Dec. 19.)
Response 54: Plaintiff disputes this statement. The truck Slidin Dirty was granted access
to the 2013 Summer Outdoor Lunch Program. (Dkt. #142-14 Loguidice Dep. 136:12137:24) Slidin Dirty is an obvious riff using the word slider, which means a small
hamburger or sandwich, and the phrase ridin dirty, defined by the Urban Dictionary as
driving in an automobile while having at least a felony charge worth of illegal drugs and
or unregistered firearms with you. URBANDICTIONARY.COM, Definition of ridin dirty,
available at http://www.urbandictionary.com/define.php?term=ridin+dirty, last visited
August 31, 2015. Likewise, Slidin Dirty evokes the song Ridin, which repeats the
phrase ridin dirty more than 40 times in its chorus while describing a person driving
under the influence of alcohol while using drugs and carrying a handgun.
METROLYRICS.COM, Lyrics to Ridin by Chamillionaire featuring Krayzie Bone,
16
http://www.metrolyrics.com/ridin-lyrics-chamillionaire.html (last visited August 31, 2015).

Plaintiff also disputes the menu contained derogatory or offensive names.
55.
William Bruso, Jr., an attorney in OGS Counsels Office, was asked to draft or
review language advising Wandering Dago that its application had been denied. (Bruso Dec.
14.)
56.
Bruso obtained a copy of the application and reviewed it for additional grounds
upon which it may have been denied. (Bruso Dec. 7-8.)

57.
Bruso determined that, in addition to the reason Rabito denied the application (the
offensive nature of its name), Wandering Dagos application was also late and incomplete.
(Bruso Dec. 8-9.)
58.
On Monday May 20, 2013, Loguidice emailed Walters and inquired as to the
status of Wandering Dagos application. (Walters Dec. 20 and Ex. C.)

59.
Walters responded to Loguidices email by stating that OGS is unable to
accommodate your application for space in the Program. (Walters Dec. 21 and Ex. D; Bruso
Dec. 15-17.)
60.
Loguidice contacted Walters for additional information regarding the denial.
(Walters Dec. 22-25 and Ex. C.)

17
61.
Walters advised Loguidice to contact Bruso in OGS Counsels Office for further
information. (Walters Dec. 22-25.)

62.
On May 20, 2013, during a telephone conversation, Bruso advised Loguidice that
there were several reasons why the application as denied: it was late, it was incomplete, and its
name was offensive. (Bruso Dec. 20-21.)
63.
Loguidice asked Bruso to send her a letter regarding the denial of Wandering
Dagos application. (Bruso Dec. 22.)

64.
Bruso declined to do so at that time. (Bruso Dec. 23.)

65.
As of May 20, 2013, Loguidice and Snooks both understood that Wandering
Dagos application for a vendor permit had been denied because of the offensive nature of its
name. (Dkt # 152-14 p. 71; Dkt # 152-15 p. 98.)
Response 65: Plaintiff disputes this statement. As 62 states, Bruso provided Loguidice
with multiple explanations as to why the application was denied and refused to provide the
reasons in writing. The cited testimony reflects that they were told three reasons that the
application was rejected: 1) it was late; 2) it was incomplete, and 3) that the name of the
business was offensive. (Dkt. # 152-14 at 71:17-72:4.)
66.
On or about May 21, 2015, during a regularly scheduled morning meeting, Rabito
advised OGS Commissioner RoAnn Destito of his decision to deny Wandering Dagos application to
the ESP Summer Outdoor Lunch Program. (Rabito 36.)
18
Response 66: Plaintiff disputes this statement. Upon information and belief, Statement 66
contains a typographical error and should state that on May 21, 2013 (not 2015), Rabito
informed Destito of his decision. The record is clear that Commissioner Destito learned of the
decision to reject Wandering Dagos application in 2013. (E.g., Rabito Dep. at 53:3-8.)
67.
Commissioner Destito was not involved in making the decision. (Rabito 37;
Destito Dec. 6.)

Response 67: Plaintiff disputes this statement. Destito was informed of the decision, and as
OGS Commissioner had the authority to overrule the decision, and declined to exercise her
authority, and ratified Rabitos decision. (Rabito 38.)
68.
On or about May 31, 2013, Loguidice, acting as legal counsel to Wandering
Dago, sent Bruso a letter requesting an explanation of the denial in writing. (Bruso Dec. 26-27
and Ex. C.)
69.
On July 1, 2013, Bruso responded, stating that the grounds for the denial had been
explained on May 20, 2013. (Bruso Dec. 28 and Ex. D.)

70.
The decision to deny Wandering Dagos application for the 2013 Program was
made by Rabito without any input from Commissioner Destito. (Rabito 23 and 37; Destito
Dec. 6.)
Response 70: Plaintiff disputes this statement. Destito was informed of the decision on May
21, 2013, and as OGS Commissioner had the authority to overrule the decision, and
declined to exercise her authority, and ratified Rabitos decision. (Rabito 38.)
19
71.
Wandering Dago submitted an application to participate in the Program in 2014.
(Bruso Dec. 30.)

72.
By that time, the parties were actively litigating the instant action. (See Docket
generally.)
73.
OGS Legal Services determined that the application should be denied based upon
the offensive nature of its name, consistent with the decision made by Rabito in 2013. (Bruso
Dec. 31-32.)
74.
Bruso sent a letter to Wandering Dago advising that its application to participate
in the 2014 Program was denied based upon the offensive nature of its name. (Bruso Dec. 3233.)
By:

20

Albany, NY 12207
Telephone: 518-434-0600
Facsimile: 518-434-0665
E-mail: gcarpinello@bsfllp.com
jdew@bsfllp.com

WANDERING DAGO INC.
Plaintiff,
v.
Civil Action No. 1:13-cv-01053-MAD-RFT
Defendants.
DECLARATION OF GEORGE F. CARPINELLO IN SUPPORT OF PLAINTIFFS

OPPOSITION TO DEFENDANTS MOTION FOR SUMMARY JUDGMENT
George F. Carpinello, pursuant to 28 U.S.C. 1746, declares the following:

1.
I am a partner with the law firm of Boies, Schiller & Flexner LLP, attorneys for
Plaintiff Wandering Dago Inc. (Wandering Dago) in the above-captioned matter. As such, I
am fully familiar with the facts and circumstances in this matter. I submit this Declaration based
on my personal knowledge and in support of Plaintiffs Opposition to Defendants Motion for
Summary Judgment.
2.
Attached hereto as Exhibit 1 is a true and correct copy of Adam M. Croom, Slurs
and Stereotypes for Italian Americans: A Context-Sensitive Account of Derogation and

Appropriation, 81 J. OF PRAGMATICS 36 (2015).
3.
Attached hereto as Exhibit 2 is a true and correct copy of excerpts of the
deposition of Joseph Rabito, dated February 13, 2015.
-1-
I declare under penalty of perjury that the foregoing is true and correct.
Executed this 31st day of August, 2015.

George F. Carpinello
-2-
Exhibit 1

Available online at www.sciencedirect.com
ScienceDirect
Journal of Pragmatics 81 (2015) 36--51
www.elsevier.com/locate/pragma
Slurs and stereotypes for Italian Americans:

A context-sensitive account of derogation and appropriation
Adam M. Croom a,b,*
a
University of Pennsylvania, Department of Linguistics, 619 Williams Hall, Philadelphia, PA 19104, United States
University of Pennsylvania, Department of Philosophy, 433 Cohen Hall, Philadelphia, PA 19104, United States
Received 13 May 2014; received in revised form 21 February 2015; accepted 25 March 2015
Abstract
Recent research on the semantics and pragmatics of slurs has offered insight into several important facts concerning their meaning
and use. However, prior work has unfortunately been restricted primarily to considerations of slurs that typically target females,
homosexuals, and African Americans. This is problematic because such a narrowly focused attention to slurs in prior work has left
theorizing of how slurs generally function relatively uninformed by facts of actual language use. As a result, theoretical accounts of slurs
that have so far been proposed have largely failed to accurately reflect actual usage, account for the empirical findings about slurs and
general pejoratives from the social sciences, and offer any informative predictions to help guide future research. At this time more
empirically oriented homework on the variety of ways that different slurs have been used in different cases would be helpful for theorists to
consider so that they can proceed to develop more nuanced and empirically informed theories about slurs, their usage, and their effects.
Accordingly, since no account of slurs for Italian Americans has so far been offered, this article provides a systematic and empirically
informed analysis of slurs for Italian Americans that accounts for both their derogatory and appropriative use. Further, this article
demonstrates that the family resemblance account of slurs maintained here has major advantages over previous accounts insofar as it is
flexible yet robust enough to accommodate both the derogatory and appropriative use of slurs, can explain many of the psychological
effects that slurs actually have on both their users and targets, and is more in accord with the real rather than ideal nature of our organic
human psychology.
2015 Elsevier B.V. All rights reserved.
Keywords: Slurs; Semantics; Pragmatics; Appropriation; Stereotypes; Italian
1. Introduction
Slurs such as guido, gook, wop, and whore are linguistic expressions that are primarily used and understood to
derogate certain group members on the basis of their descriptive features (such as their race-based or sex-based
description) and expressions of this kind have been considered by many to pack some of the nastiest punches natural
language has to offer. In Expressivism and the Offensiveness of Slurs, for example, Jeshion (2013b) asks, What
explains slurs deep offensiveness, their capacity to derogate, to dehumanize? (p. 308) and so prior work on slurs has
unsurprisingly focused largely on the projection behavior of their derogatory force across various linguistic contexts,
including those involving questions, negations, disjunctions, conditionals, modal operators, event quantifications,
* Correspondence to: University of Pennsylvania, Department of Linguistics, 619 Williams Hall, Philadelphia, PA 19104, United States.
Tel.: +1 215 898 6046/8563.
E-mail address: croom@sas.upenn.edu.
http://dx.doi.org/10.1016/j.pragma.2015.03.014
0378-2166/ 2015 Elsevier B.V. All rights reserved.

A.M. Croom / Journal of Pragmatics 81 (2015) 36--51
37
presuppositions, and indirect reports (Croom, 2008, 2011, 2013, 2014a; Hom, 2008, 2010, 2012; Potts et al., 2009;
McCready, 2010; Hedger, 2013; Hom and May, 2013; Whiting, 2013; Cepollaro, 2015). Yet the potential offensiveness of
slurs is not only evidenced from considerations of their projection behavior across various linguistic contexts, but is further
demonstrated by the fact that their use has often been implicated in derogatory acts, verbal threats, physical violence, and
hate-motivated homicide (Fitten, 1993; Hoover, 2007; Shattuck, 2009; Nappi, 2010; Guerriero, 2013; Beswick, 2014;
Jackson, 2014). So one basic fact about slurs is that they are among the most potentially offensive linguistic expressions
afforded by natural language.1
Even if all slurs may be offensive due to their being commonly used and understood as slurs, it is nonetheless clear that
not all slurs felicitously apply to all targets indiscriminately. Instead, as Croom (2014a) points out, the application of a
particular slur in context does not occur at random, but instead based on considerations of their systematic differential
application-conditions, which concern descriptive features of targets such as their racial or sexual identity (p. 228; see
also Croom, 2015b,c). Evidently then, it is because slurs are commonly used and understood to felicitously apply toward
some targets yet not others that language users are able to systematically distinguish between relatively broader
categories of slurs (such as the racial slur guido from the sexual slur whore) and how speakers are able to systematically
distinguish between relatively narrower categories of slurs (such as the racial slur guido from the racial slur gook) within
those broader categories (p. 228). In fact, Anderson and Lepore (2013a) have pointed out that there are actually a wide
variety of slurs in natural language that target groups on the basis of race (nigger), nationality (kraut), religion (kike),
gender (bitch), sexual orientation (fag), immigrant status (wetback) and sundry other demographics (p. 25). So
another basic fact about slurs is that they are commonly used and understood to felicitously apply toward some targets yet
not others.
Although some writers such as Arthur Piccolo have expressed the view that the very term Guido is so offensive that it
ought never to be uttered, much less studied and discussed, by an Italian American, not even a scholar trained to analyze
social facts (quoted in Viscusi, 2010; see also Hedger, 2013, p. 229),2 other first-person reports from in-group speakers,
along with recent empirical studies from the social sciences, have now demonstrated that slurs are often flexibly employed
such that they may also (at least in some restricted contexts) be used non-derogatorily to convey affiliation among ingroup members, or to diminish the derogatory force that the slur had originally carried (Hom, 2008; Richard, 2008;
Johnson, 2009; Croom, 2010, 2011, 2013, 2014a; Bianchi, 2014). For instance, Bianchi (2014) writes in Slurs and
Appropriation that targeted members or groups may appropriate their own slurs for non-derogatory purposes, in order to
demarcate the group, and show a sense of intimacy and solidarity (p. 37). Johnson (2009) also explains in Educators
Find that Teens Use Ethnic Slurs Affectionately, that many teens and entertainers, among others, are doing what
linguists call melioration -- reclaiming a word meant to sting by removing its barb. As Conley (2010) further points out in
Toward a Rhetoric of Insult, most of these [slur] terms can be used ironically or even as terms not of abuse but of
endearment -- depending, of course, on the situation or scenario (p. 21). So another basic fact about slurs is that they are
often flexibly employed and of potential use, not only derogatorily to convey offense toward out-group members, but also
non-derogatorily to convey affiliation with in-group members, or to diminish the derogatory force that the slur had originally
carried.
Although recent work on the semantics and pragmatics of slurs has offered insight into several important facts
concerning their meaning and use -- including that slurs are commonly used and understood to felicitously apply toward
some targets yet not others, that slurs are among the most potentially offensive linguistic expressions afforded by natural
language, and that slurs are often flexibly employed and of potential use, not only derogatorily to convey offense toward
out-group members, but also non-derogatorily to convey affiliation with in-group members, or to diminish the derogatory
force that the slur had originally carried -- previous research has unfortunately been restricted primarily to considerations
of slurs that typically target females, homosexuals, and African Americans. One reason why this is problematic is because
such a narrowly focused attention to slurs in prior research has left prior theorizing of how they generally function relatively
uninformed by facts of actual language use. Consequently, theoretical accounts of slurs that have so far been proposed
have largely failed to accurately reflect actual usage, account for the empirical findings about slurs and general pejoratives
from the social sciences, and offer any informative predictions to help guide future research. At this time more empirically
oriented homework on the variety of ways that different slurs have been used in different cases would be helpful for
theorists so that they can proceed to develop more nuanced and empirically informed theories about slurs, their usage,
and their effects. Accordingly, since no account of slurs for Italian Americans has so far been offered, the purpose of this
article is therefore to provide a systematic and empirically informed analysis of slurs for Italian Americans that accounts for
both their derogatory and appropriative use.
1
For other recent empirical work exploring the offensiveness of slurs and general pejoratives see also Jay and Jay (2015), ODea et al. (2014),
and Saucier et al. (2014).
2
Hedger (2013) has for instance argued that Slurs express contempt regardless of the attitude or particular use of the speaker (p. 229).

38
But before we carefully consider face threatening acts and the paradigmatic derogatory use of slurs in Section 3,
stereotypes and stereotypical features in Section 4, family resemblance concepts and category membership in Section 5,
and the appropriation of slurs in Section 6, let us first turn to briefly review common slurs for Italian Americans.
2. Italian slurs
Although no general account of slurs for Italian Americans has so far been proposed, there are in fact a wide variety of
such slurs that would be useful for us to consider. For example, common slurs that have been used to target Italian
Americans include (a) dago,3 (b) eyetie,4 (c) greaser or greaseball,4 (d) guido,5 (e) guinea, ginnie, or ghinney,6 (f) hunkie or
hunky,7 and (g) wop or whap.8 Concerning the slur guinea in particular, John Marino from the National Italian American
Foundation claimed that it is a pejorative term, which reinforces a negative image and harmful stereotype of an entire
ethnic group, Rosanna Imbriano from the Center for Italian and Italian American Culture claimed that it portrays Italians
in a negative light, and Lewis (2011) from the Department of History at Stanford University claimed that it is the most vile
racial slur that can be used against an Italian-American (McKay, 2011). The perceived offensiveness of the slur guinea is
demonstrated, for instance, by the fact that Italian Americans have campaigned to have it removed from place-names in
New York since as late as the 1960s (Roediger, 2005, p. 40) and the fact that Alfred Catalanotto, an Italian American
owner of the Central Market Grill and the Central Market Chill in New York City, was targeted with the slur guinea bastard
and further discriminated against by being unfairly denied a renewal lease for his restaurants by MTA executive Nancy
Marshall (Cohen, 2009).
Another popular slur for Italian Americans is guido, which de Stefano (2008) has characterized as a pejorative slang
term for a young, lower class or working class, Italian-American, with Conley (2010) further explaining that the primary
intent behind use of such terms is to belittle some (Italian American) group member and maintain the presumed
superiority of the one using them to the one against whom they are used, who are implicitly identified as belonging to an
inferior class of beings (p. 21). Arthur Piccolo has even suggested that the very term Guido is so offensive that it ought
never to be uttered, much less studied and discussed, by an Italian American, not even a scholar trained to analyze social
facts (quoted in Viscusi, 2010). The expression greaser is another popular slur that CUNY professor of sociology
Tricarico (2010) described as applying to Italian Americans with stereotypically dark and oily complexions, and which
Roediger (2005) has colorfully identified as a bar-room brawl word or a racialized fighting word (p. 42). Concerning
the slur dago, The American Heritage Dictionary of the English Language (2000) explains that it is commonly understood
and used as a disparaging term for an Italian, Spaniard, or Portuguese person, and the Random House Dictionary
(2010) further notes that This term is a slur and should be avoided. It is used with disparaging intent and is perceived as
highly insulting. Dinnerstein and Reimers (2013) for example have explained in Ethnic Americans how Italian Americans
targeted with the slur dago by old-stock Americans were often considered the Chinese of Europe who are just as bad
as the Negroes (p. 62; see also Barone, 2001, p. 143). Seiler (2014) also proposed that the slur dago is an irredeemable
ethnic slur on Italian-Americans, Shattuck (2009) proposed that the slur dago can be hurtful regardless of the context,
and Jones (2013) further proposed that language users should remove the slur dago from their vocabularies, effectively
toss[ing] it in the trash heap along with other now offensive -- but once widely used -- monikers (Shattuck, 2009).9
The perceived offensiveness of slurs for Italian Americans is demonstrated, for instance, by the fact that the New York
Racing Association forced the Wandering Dago food truck to remove itself from the grounds of the Saratoga Race Course
because of its potentially offensive name (Seiler, 2014) as well as the fact that the state Office of General Services
rejected an application from the Wandering Dago food truck to sell barbecue supplies on the Empire State Plaza because
of its potentially offensive name (Seiler, 2014). The Office of General Services argued that allowing the Wandering Dago
to set up shop on the plaza could place the state at risk of suits alleging that it allows a hostile workplace environment due
to the appearance of the slur dago (Seiler, 2014). Indeed, uses of slurs have often been implicated in verbal threats,
See also p. 40 in Roediger (2005), p. 19 in Conley (2010), Monteiro (2014), and Seiler (2014).
See also p. 20 in Conley (2010).
5
See also de Stefano (2008) and Monteiro (2014).
6
See also p. 29 in Alba (2009), p. 39 in Roediger (2005), p. 121 in Adler (2008), p. 19 in Conley (2010), and Monteiro (2014).
7
See also p. 29 in Alba (2009), p. 39 and 43 in Roediger (2005).
8
See also p. 42 in Roediger (2005), p. 121 in Adler (2008), p. 19 in Conley (2010), and Monteiro (2014).
9
Shattuck (2009) claims that There are, however, certain words which can be hurtful regardless of the context. These are words which many of
us say on a regular basis. To paraphrase Jeff Foxworthy, if youve ever said any of the following words [. . .] beaner, brownie, chinaman, cheeseeating surrender monkey, chink, cholo, coon, cracker, cripple, cunt-eyed, dago, darkie, dyke, faggot, fairy, flip, frenchie, ginger, gin jockey, gook,
greaser, homo, honky, hymie, injun, jap, jewish american princess, jungle bunny, jigaboo, kike, mammy, nigger, oreo, pancake face, pikey,
polack, porch monkey, queer, raghead, redneck, redskin, retard, ruskie, sasquatch, slanteyed, sodomite, spearchucker, spic, tar baby, towel
head, tranny, wetback, whitey, or white trash [. . .] then you might be offending someone (see also Croom, 2008, pp. 44--45).
4

39
physical violence, and hate-motivated homicide (Fitten, 1993; Hoover, 2007; Shattuck, 2009; Nappi, 2010; Guerriero,
2013; Beswick, 2014). For instance, Sheldon Canova, an Italian miner from Dominion Coal Company, reports that fights
were often initiated at work through the use of slurs, mentioning one example where he fought someone for calling him a
chicken-head eatin dago (Beswick, 2014). Henry Garofano, a member of the national Order Sons of Italy in America,
also reported that From 15 years of age, I was in fights, because of the discrimination and being called wops (Nappi,
2010). In describing his boxing experiences at Gramercy Gym in Manhattan in the 1950s, Louis LaMorte likewise reports
that I also had Italian American boxing friends who did get into fistfights if someone they did not know real well, called
them wop, dago or guinea -- it all depended on the relationship and how it was being used (Guerriero, 2013).
Consequently, Ronald Fitten (1993) has argued that slurs like guido and wop should be considered fighting words since
they have often been used to initiate violence and carry out hate crimes, and Jeshion (2013b) likewise proposes that
Slurring terms are used as weapons in those contexts in which they are used to derogate an individual or group of
individuals to whom the slur is applied or the socially relevant group that the slur references (p. 237; see also Hall, 2006,
p. 136; Davis, 2001; Enger, 2014; Gratereaux, 2012; LaGumina, 1973; Luconi, 2001).
After considering in this section the various ways that the use of slurs has often been implicated in verbal threats,
physical violence, and hate-motivated homicide, it should be clearer now why slurs more generally, as well as for Italian
Americans more particularly, have been considered by many to pack some of the nastiest punches natural language has
to offer. The next section will now turn to address how it is that slurs are able to do the kind of dirty work that they do.
3. Face threating acts and the paradigmatic derogatory use of slurs
Ones knowledge of the application-conditions for the expressions common among their fellow language users is of
paramount importance for their successful communication and interaction with others, and speakers typically learn the
norms governing the differential use of various expressions during their socialization into a linguistic community (Ochs and
Schieffelin, 1984; Garrett and Baquedano-Lopez, 2002). Prior work in the linguistics literature has suggested, for
instance, that paradigmatic descriptive expressions such as male and Italian American are primarily used and understood
to be most apt for neutrally picking out public items of the shared (inter-subjective or objective) world, that paradigmatic
expressive expressions such as fuck and ouch are primarily used and understood to be most apt for expressing ones own
heightened emotional state, and that paradigmatic slur expressions such as guido and wop are primarily used and
understood to be most apt for targeting certain members on the basis of descriptive features (such as their race or sex) in
order to deprecate or disassociate (or in cases of appropriation, affiliate) with them on this basis (Croom 2011, pp. 345-349; 2013, p. 183).10 Concerning the application-conditions of slurs more specifically, Croom (2013) proposed in How to
Do Things with Slurs that:
As speakers we have strong expectations that uses of slurring terms such as nigger will correlate with the speakers
being in a heightened derogatory state with respect to some features of their target (or wishing to create that
impression). In turn, we use it only when we are in such a state (or wish to create that impression). The total effect of
these assumptions is that a slurring term such as nigger is a prima facie reliable signal of derogation on the basis of
target features. Knowing its use conditions largely involves being attuned to this information. (p. 183)
So in referring to a person with an expression like guido, and thereby ascribing the category G to that person, one may
presumably be taken to accept and allow into the communicative background certain obligations, expectations, and
feelings that are commonly considered apt or fitting for typical members of the category G (Samra-Fredericks, 2010;
Croom, 2011). Importantly, Brown and Levinson (1978) proposed that a speaker S that conveys through their use of
language that they are of higher social status or more powerful than their hearer H is thereby engaging in talk that is risky,
but if he [S] gets away with it ([and] H doesnt retaliate, for whatever reason), S succeeds in actually altering the public
definition of his relationship to H: that is, his successful exploitation becomes part of the history of interaction, and thereby
alters the agreed values of D [social distance between S and H] or P [relative power between S and H] (p. 228; see also
Croom, 2001, 2013, 2014c, fn. 18).11 In accord with this proposal, Anderson (1999) has suggested that shows of
deference from others can make one feel more self-confident and secure (p. 75) so this might serve as one reason for why
a speaker S might choose to strategically indicate through their use of derogatory language more generally, and slurs
such as guido or wop more specifically, that they are more powerful or of a higher social status than their target H. Further
substantiating this point, Croom (2014c) conducted a critical review of recent empirical evidence from linguistics,
sociology, and psychology on racial slurs and stereotypes, arguing from these findings that:
10
Jay (2009) has further pointed out that prohibitions on taboo words are often reinforced during child-rearing practices.
It is important to note that Brown and Levinson (1987) maintain that, situational factors enter into the values for P, D, and R, so that the values
assessed hold only for S and H in a particular context, and for a particular FTA (p. 79; Sifianou, 2012, p. 1557).
11

40
insofar as through the application of a slur towards a target an associated negative stereotype can threaten that
target by (a) increasing how much they are worrying, (b) reducing their working memory, (c) decreasing their
motivation to learn, or (d) degrading their ability to encode novel information necessary for skillful action, and insofar
as (a)--(d) can negatively affect ones life chances, then it follows that the application of a slur towards a target can
resultantly affect their life chances. (Section 3 in Croom, 2014c)
There is therefore good reason to believe that since our social identities are in part determined by the way members of
society perceive us and consequently interact with us (Goffman, 1967; Brown and Levinson, 1978) the derogatory use of
slurs like guido or wop can actually harm the individuals that they attack and constrain the range of action-possibilities that
they can exercise in society. So a speaker S that derogates an Italian American target H on the basis of their presumed
possession of negative features stereotypically attributed to Italian Americans through Ss ascription of the slur guido
toward H, might thereby effectively work to support and contribute to a history of derogatory acts that actually harm the
social identity of Italian Americans, increase the difference in asymmetrical power relations among S and H more
specifically, and even increase the difference in asymmetrical power relations among their respective groups more
generally (Croom, 2011).
Now that we have considered how the derogatory use of slurs like guido and wop can actually harm the individuals that
they attack and constrain the range of action-possibilities that they can exercise in society, the next section will further
clarify the role that stereotypes and stereotypical features contribute to Ss predication of certain content in the application
of a slur toward a target H in context.
4. Slurs, typical targets, and stereotypical features
Traditionally, semantics concerns the meaning of linguistic expressions (lexical or sentence meaning) whereas
pragmatics concerns what speakers mean in using those expressions (speakers meaning) (Camp, 2012, 2013;
Hedger, 2013). So in discussing the semantics of slurs I am discussing the conventional meaning-potential of these
linguistic expressions without the further specification of contextual details whereas when I am discussing the pragmatics
of slurs I am discussing what different speakers mean in using those expressions in various contexts (for further
discussion of the relationship between semantics and pragmatics, and how these influence each other, see Croom,
2015a). In previous empirical as well as theoretical work, several scholars have appealed to stereotypes and stereotypical
features to explain facts pertaining to the meaning and use of slurs (Embrick and Henricks, 2013, 2015; Jeshion, 2013a).
For example, Jeshion (2013a) has explored at least four reasons for why stereotypes are important to consider for
understanding the semantics and pragmatics of slurs (p. 314). First, occasions of slur-use toward those that they target
often and almost effortlessly bring to mind stereotypes of the target qua their membership in the relevant group. Second,
occasions of slur-use toward those that they target are often extraordinarily harmful to their self-conception and sense of
self-worth in ways that pertain to them qua their group membership, and one could plausibly explain this by appealing to
stereotypes of the target qua their membership in the relevant group. Third, slur expressions are more strongly offensive
than other more generally pejorative expressions (such as jerk and asshole) and one could plausibly explain this by
pointing out that since slur expressions presumably appeal to stereotypes of the target qua their membership in the
relevant group, whereas other more generally pejorative expressions do not, the class of slur expressions are usually
capable of offending targets on a much more specific or personal level than other more generally pejorative expressions
(Croom, 2014a, p. 235).12 And fourth, slur expressions are more strongly prohibited than other more generally pejorative
expressions, and one could plausibly explain this by pointing out that since slur expressions are presumably capable of
offending targets on a much more specific or personal level than other more generally pejorative expressions (on the basis
of the third point just considered), it might accordingly seem reasonable to impose relatively stronger prohibitions on slur
expressions than other more generally pejorative expressions (Anderson and Lepore, 2013a,b; for further discussion of
the distinction between slurs and other more generally pejorative expressions see also Blakemore, 2014; Croom,
2014a).13 Consequently, it has been proposed in the literature that the derogatory content of slur expressions may be
accounted for by drawing upon stereotypical features of the group members that those slurs are typically used to target
(Croom, 2011, 2014b; Miscevic, 2011; Cupkovic, 2014).
Concerning stereotypes applied to Italian Americans more specifically, Serafini (2010) reports that they have been
popularly portrayed on television as being amusing, entertaining, fun to be with, unique and very charismatic,
resourceful, dramatic, and that their music and fashion culture [. . .] is popular everywhere. In Guidos on MTV,
Tricarico (2010) also discusses how guidos have been popularly stereotyped on television and mentions the following as
12
13
For further discussion of the target aptness and lexical aptness of slurs see also p. 235 in Croom (2014a).
For further discussion of slurs and prohibition see also Anderson and Lepore (2013a,b).

41
common: (i) that they are upstart Italian Americans that struggle for recognition and respect with a collective ethnic
memory of poverty, stunted formal education, dirty labor and worse, (ii) that they come from the working-class, where
beauty is all on the surface, (iii) that they exude a tough-guy sex appeal or Stylized masculinity with their
characteristic slicked-backed hair and sleeveless undershirts and themes like masculine aggression, (iv) that they are
immersed in The intense sensuality of club culture and sensitive to fashion trends like sculpted eyebrows and even
dancing, often being associated with fist-pumping and house music, (v) that they are cool and preserve [a] privileged
insider status as in Hip Hop due to a style that has street culture roots -- the element of urban authenticity that sells Black
youth culture in the suburbs, (vi) that their social lives usually consist in coping with their traditional family morality in
awkward juxtaposition to the hook-up culture, (vii) that they are often involved in brawling and licentious sex,
conspicuous vulgar consumption, and moral and criminal deviance, and (viii) that a guidette is often stereotyped as
the club hottie, or loud and proud Italian embodying youth, beauty, and flash (Tricarico, 2010).14
Certainly some of the most popular stereotypes of guidos currently come from the characters of Jersey Shore, who
have been collectively described by Serafini (2010) as a bunch of tattooed, chain-smoking, unsophisticated ItalianAmericans with heavy hold necklaces visible from their open shirts. In Guido: An Italian-American Youth Style, Viscusi
(2010) further characterizes the main figures from Jersey Shore in the following way: JWoww is a 23-year-old club
promoter whose 21st birthday present to herself was a breast augmentation, whose effects she dresses to emphasize -Mike The Situation Sorrentino is a muscular assistant manager of a fitness center in Staten Island that also works in a
t-shirt shop where he sells thongs that bear, across the crotch, the legend I Love the Situation, -- Pauly D is a club DJ
that owns a tanning bed and spends 25 minutes a day applying gel to his hair to produce an effect that girls will want to
touch, -- Snooki is a 21-year-old from Marlboro, New York, [that] has her own tanning bed and Wears her hair in a pouf
reminiscent of the hairdresser styles of the late fifties and early sixties (quoted in Viscusi, 2010).15 Troyani (2013)
similarly studied the characters of Jersey Shore and reports on how the characters themselves understood their social
identities as guidos and guidettes: Mike The Situation Sorrentino maintains that a guido is a good-looking, smooth,
well-dressed Italian, -- Pauly D maintains that a guido is a lifestyle that revolves primarily around family, friends,
tanning, [and] gel, -- Ronnie Ortiz-Magro maintains that a guido is a guy that always looks prettier than his girlfriend, -Sammi Sweetheart Giancola maintains that a guidette is somebody who knows how to club it up, takes really good care
of themselves, has pretty hair, cakes on makeup, tan skin, wears the hottest heels -- pretty much, they know how to own it
and rock it (Troyani, 2013, p. 3; Jersey, 2009).
In considering the racial slur nigger as an example in his analysis of slur expressions, Croom (2013) previously proposed
that by choosing to use the slur nigger instead of a neutrally descriptive term such as African American, the speaker prima
facie intends to express (i) their endorsement of a (typically but not necessarily negative) attitude (ii) toward the descriptive
properties possessed by the target of their utterance and that the properties that the speaker endorses the expression of a
negative attitude toward are properties that have been associated with members of a particular racial group (p. 353; see also
Croom, 2011, p. 195). Similarly then for slurs that target Italian Americans, a speaker Ss choice to use the slur guido toward
their target H instead of the neutrally descriptive term Italian American can be understood as S expressing their prima facie
endorsement of a (primarily but not necessarily negative) attitude toward the descriptive properties or attributes that have
typically become associated with Italian Americans and that are now being ascribed to their target H.
Now that we have considered the role that stereotypes and stereotypical features contribute to Ss predication of
certain content in the application of a slur toward a target H in context, the next section will show how empirical findings
concerning slurs and stereotypes for Italian Americans can be integrated with a family-resemblance conception of
category membership to account for basic facts concerning the derogatory use of slurs for Italian Americans.
5. Family resemblance concepts, category membership, and the pragmatics of slur ascription
A distinction is commonly drawn in the literature on concepts or categories between classical accounts and family
resemblance accounts (Rosch and Mervis, 1975). Classical accounts maintain that categories are defined by formal rules
and allow us to make inferences within idealized law governed systems (Pinker and Prince, 1996, p. 332, my emphasis) and
membership in a category is determined by the possession of some common, essential, and criterial attribute. However, a
significant problem for maintaining a classical account for all categories is that scholars have been unable to articulate
necessary and sufficient conditions for most that are actually found from natural language (Fodor et al., 1980; Pinker and
14
As Bozzone (2004) explains in Embodying the Italian-American, the definition of a filmic Guido is as follows: he is a pre-marriage male; he is
from a blue collar socio-economic family, or a gangster family; he is vain and often very good looking; he is street smart; his dress is meticulously
coordinated; he is over-sexualized -- both in his objectified beauty and predatory aggression; he is Catholic; he is urban; and, of course, he is
Italian-American [. . .] The result is a stereotypic portrayal that is at times negative and at other times beautifully romanticized (p. 25).
15
Snooki once appeared on the Wendy Williams Show and mentioned that guidos and guidettes are good-looking people that, you know, like
to make a scene and be center of attention and just take care of themselves (quoted in Viscusi, 2010).

42
Prince, 1996; Rosch and Mervis, 1975). It is further clear from the extant literature on expressive expressions that this point
applies a fortiori to slurs (see for instance Potts et al., 2009; Weissbrod, 2014).
In contrast with the classical account, the family resemblance account of categories maintains that category
membership consists of a relationship in which case each item has at least one, and probably several, elements in
common with one or more other items, but no, or few, elements are common to all items (Rosch and Mervis, 1975, p. 575;
Wittgenstein, 1953). In Philosophical Investigations, Wittgenstein (1953) wrote that a family resemblance relationship
was one in which there was a complicated network of similarities overlapping and criss-crossing; sometimes overall
similarities, sometimes similarities of detail (66) and Wennerberg (1967) further argued in The Concept of Family
Resemblance in Wittgensteins Later Philosophy that Wittgenstein introduced this concept [of family resemblance] in
order to attack the traditional doctrine that all the entities which fall under a given term must have some set of properties or
features in common, the presence of which makes it correct to subsume an entity under this term (p. 107). In accord with
these insights, Pinker and Prince (1996) have usefully distinguished family resemblance from classical categories by
pointing out several salient ways in which they differ. First, family resemblance categories differ from classical categories
in that the former lack necessary and sufficient conditions for category membership whereas the latter do not. Second,
family resemblance categories differ from classical categories in that the former can be summarized by an ideal category
member or prototype whereas the latter cannot. Third, family resemblance categories differ from classical categories in
that the former have category members that tend to have characteristic non-defining attributes whereas the latter do not.
Fourth, family resemblance categories differ from classical categories in that the former have graded degrees of category
membership whereas the latter do not. Importantly, the family resemblance account avoids a major problem with the
classical account in that the former does not maintain as the latter does that concepts or categories are strictly definable in
terms of necessary and sufficient conditions. Rather, the family resemblance account maintains that most concepts of
natural language are characterizable in terms of their family resemblance relationship. Indeed, Pinker and Prince (1996)
explain that family resemblance concepts are characterizable in terms of correlations among features in sets of similar
memorized exemplars, and allow us to make inferences about the observable products of history (p. 353) and Rosch and
Mervis (1975) additionally explain that family resemblance prototypes appear to be just those members of the category
that most reflect the redundancy structure of the category as a whole. That is, categories form to maximize the information
rich clusters of attributes in the environment (Rosch and Mervis, 1975, p. 602, my emphasis; see also Rosch et al., 1976).
A major advantage to adopting a family resemblance account then is that it offers an account of concepts that is actually in
accord with the real rather than ideal nature of human psychology.
According to the family resemblance account, what makes x a member of the category GAMES is not some essentially
criterial attribute that each and every x must have in order to be categorized as a game (Wittgenstein, 1953, 66). For a
paradigmatic or prototypical game may typically or for the most part involve competition and multiple players, but could still
be felicitously and informatively categorized as a game even if it did not involve competition or multiple players, provided
that the category GAMES is that which is still most apt among other options (for example, PANDAS, TIMBRE, and so on)
available to that speaker for their cognitive or communicative purpose. Croom (2011) accordingly proposed in Slurs that
the slur expression nigger (identified as N below) could be usefully understood as a family resemblance (rather than
classical) category consisting in a structured constellation or network of stereotypical attributes (identified as a1-a10 below)
such as the following:
N
a1
a2
a3
a4
a5
a6
a7
a8
a9
a10
16
17
18
19
20
(Nigger)
x is African American.16
x is prone to laziness.17
x is subservient.16
x is commonly the recipient of poor treatment.16
x is athletic or musical.18
x is sexually liberal or licentious.17
x is simple-minded.17
x is emotionally shallow.17
x is a survivor, tough, or prone to violence.19
x is loud or excessively noisy.20
See
See
See
See
See
also
also
also
also
also
p.
p.
p.
p.
p.
41 from Fredrickson (1971) and p. 12 from Asim (2007).

27 from Asim (2007).
128 from Alim et al. (2010).
50 from Anderson (1999) and Rahman (2012).
50 from Anderson (1999).

43
It is important to point out here that attributes a1--a10 should not be understood as fixed in a precise rank-order, such as
the one offered as an example above, or that all of a1--a10 are always involved in a context-independent manner. Indeed,
that suggestion falls more in line with the classical account to concepts and contrary to the very family resemblance
account I maintain here. Further, a growing body of recent empirical work on human memory, family resemblance
concepts, and sensorimotor cognition has increasingly supported a family resemblance over classical account of natural
language concepts (Barsalou, 1999, 2008, 2009; Barsalou et al., 2003, 2007; Borghi, 2004; Borghi and Riggio, 2009;
Borghi et al., 2013; Dove, 2010, 2014). The account maintained here then is that attributes a1--a10 should be considered
as rank-ordered based on the relative degree in which their attribution to x is taken as a salient indicator of category
membership, and importantly, that this rank-order is re-organizable in a context-dependent manner. It is also important to
note that in practice more attributes (for example, a1--a15) or less attributes (for example, a1--a2, or even a1 alone) could be
involved in a given communicative context. The reason that I offer a list of 10 attributes in the examples here is to be as
optimally informative (for listing a1 alone would fall short of this) yet economical (for listing a1--a20 would go beyond this)
as possible in the present discussion.
My account maintains that a1 (African American) would be ranked relatively higher than a6 (sexually liberal or
licentious) and accordingly a1 would be considered a more salient indicator than a6 that the x it is being ascribed to is a
member of N (nigger). Note also that although speakers may typically ascribe the slur expression nigger to targets
attributed the highest-ranking (a1) as well as the greatest quantity (a1--a10) of attributes in N, my family resemblance
account argues (contrary to classical accounts) that speakers may still informatively or effectively ascribe that slur to x
even if that x fails to possess the highest-ranking (a1) or even the most (a1--a10) attributes in N insofar as that is the most
relevant and apt lexical option for their communicative purpose. Importantly, however, in order for the choice to refer to x
as a nigger to be considered a linguistically apt one for that speaker, it must be assumed (at least for the purpose of that
particular communicative context) that x possesses a practically sufficient set of attributes such that N is the most apt or
serviceable category for the speaker to subsume x for their particular communicative purpose. So for example, in the case
that a speaker intends to communicate that some x that they dislike and consider inferior possesses some subset of a1-a10
from N, that speaker may choose to use N in communication as that which most efficiently and economically predicates
the intended attributes of x and most forcefully expresses a negative attitude toward x, at least to the extent that N is better
for this than other categories that are within that language-users lexical inventory.
So in contrast with other classical accounts of slurs that incorrectly assume that the possession of some criterial
attribute is essential for x to be considered a member of N, the alternative account of slurs outlined here maintains that, e.
g., although different individuals that are referred to by the slur expression nigger are very likely to share different subsets
of attributes (for example, a1--a10) with other individuals also referred to by this slur (due to common knowledge of how this
expression is typically used) it need not necessarily be the case (for the sake of the felicitous application of that slur) that
each and every slurred x must share some criterial or essential attribute with every other slurred x (for further discussion of
interesting cases see also Sweetland, 2002, p. 514; Croom, 2011, p. 356; 2015a). Rather, what is of importance on my
account is that the use of a slur by a speaker may be considered an apt enough or optimally relevant lexical option -- one
that is better than others -- for their purposes in a particular communicative context.21
My account of slurs is a general one so that it not only applies to targets that are typically African-American but also
applies equally well to slurs of other kinds that typically target others, including Italian-Americans. One of the virtues of the
present account of slurs is that it is consistent with recent research on popular stereotypes for Italian Americans provided
by Troyani (2013) as well as her rejection of essentialist assumptions of Guido culture, or more specifically, the idea
that an essential Italian-American culture exists prior to its representation (pp. 2--5). As Troyani (2013) has suggested,
Guidos and Guidettes are not necessarily Italian American, but instead many seemingly Italian-American Guido and
Guidette characteristics and behaviors may also be achieved rather than inherited by Italian Americans (p. 4, my
emphasis).22 So here my suggestion is that the slur expression guido (identified as G below) can be understood as a
family resemblance (rather than classical) category that consists in a structured network of stereotypical attributes
(identified as an below) such as the following:
G
a1
a2
21
(Guido)
x is Italian American.23
x is poor or uneducated.24
For further discussion of relevance in communication and cognition see also Wilson and Sperber (2004) and Sperber and Wilson (1986).
Troyani (2013) argued, for instance, that a circumstantialist approach [to studying slurs and stereotypes] is necessary to illustrate ways in
which the program debunks essentialist assumptions of Guido culture (p. 2) and that the putting on of Italian-American identities on Jersey
Shore subverts the idea that an essential Italian-American culture exists prior to its representation (p. 5).
23
See also Bozzone (2004), Brooks (2009), Gardaphe (2010a,b), Serafini (2010), Tamburri (2010), Tricarico (2010), and Troyani (2013).
24
See also Bozzone (2004), Brooks (2009), De Seno (2010), and Tricarico (2010).
22

44
a3
a4
a5
a6
a7
a8
a9
a10
x
x
x
x
x
x
x
x
is
is
is
is
is
is
is
is
a foreigner that may not have the proper legal paperwork required.25
commonly the recipient of poor treatment.26
fashionable, sexually suave, promiscuous, or into club culture.27
masculine, resourceful, aggressive,or authentic.28
loud or out of control.29
manipulative or involved in illegal activities.30
from a big or traditional family.31
a manual laborer that typically works on automobiles or other machinery.32
Notice that another advantage of my methodology here is that rather than simply speculating a priori about
possible attributes of Gs, the attributes a1--a10 that I have included above are derived from the common stereotypes of
Italian Americans that were reviewed in section 4 of this article (Bozzone, 2004; Brooks, 2009; Jersey, 2009;
Shattuck, 2009; De Seno, 2010; Gardaphe, 2010a,b; Johnson, 2010; Montalto and Montalto, 2010; Nappi, 2010;
Serafini, 2010; Tamburri, 2010; Tricarico, 2010; Viscusi, 2010; Curti, 2013; Guerriero, 2013; Troyani, 2013; Beswick,
2014). The attributes a1--a10 are not all necessary and their rank-order is not fixed on my account, but is instead based
on the relative degree in which their possession by an individual x is taken as a salient indicator of category
membership, with the relative rankings of these being re-adjustable or renegotiated in accord with relevant changes in
context. For example a1 would be ranked relatively higher than a6 and accordingly a1 would be considered a more
salient indicator than a6 that the individual it is being ascribed to is a member of the category G. Note also that
although speakers may typically ascribe the slur expression guido to targets possessing the highest-ranking attribute
(a1) as well as the most attributes (a1--a10) in G, speakers may still informatively or effectively ascribe that slur to
someone that fails to possess the highest-ranking attribute (a1) or even the most attributes (a1--a10) in G given the
appropriate context and communicative purpose (Croom, 2011, p. 356; 2013, pp. 196--199). However, it is important
to note that insofar as the choice to refer to a target individual as a guido is to be considered an apt one for
that speaker, it must be assumed (at least for the purpose of that particular communicative context) that the
target individual possesses a practically sufficient set of attributes from a1--a10 such that G is the most appropriate
or serviceable category under which to subsume that target for their particular communicative purpose. If, for
instance, a speaker intends to communicate that some target that they dislike and consider inferior possesses some
subset of the attributes a1--a10 from G, then that speaker may chose to use G as the category that most efficiently and
economically predicates the intended attributes of their target and most forcefully expresses a negative attitude
toward them, at least to the extent that G is better for this than other categories that are of epistemic access to that
language-user.
Now that we have observed how empirical findings concerning slurs and stereotypes for Italian Americans can be
integrated with a family-resemblance conception of category membership to account for basic facts concerning the
derogatory use of slurs for Italian Americans, the next section will show how the present account of slurs can further clarify
the process of their appropriation and non-derogatory use.
6. Appropriation and the non-derogatory use of Italian slurs
Although it is important to acknowledge the popular view expressed by authors such as Arthur Piccolo that the very
term Guido is so offensive that it ought never to be uttered, much less studied and discussed, by an Italian American, not
even a scholar trained to analyze social facts (quoted in Viscusi, 2010) it is also important to acknowledge the less
popular view expressed by other first-person reports from in-group speakers, along with recent empirical studies from
the social sciences, that have now demonstrated that slurs are often flexibly employed such that they may also (at least in
some restricted contexts) be used non-derogatorily to convey affiliation with in-group members, or to weaken the
derogatory force that the slur had originally carried (Hom, 2008; Croom, 2011, 2013, 2014a, 2015a; Bianchi, 2014;
25
26
27
28
29
30
31
32
See
See
See
See
See
See
See
See
also
also
also
also
also
also
also
also
Brooks (2009) and Tricarico (2010).

Brooks (2009), Shattuck (2009), Nappi (2010), Tricarico (2010), Guerriero (2013), and Beswick (2014).
Bozzone (2004), Brooks (2009), Serafini (2010), and Tricarico (2010).
Bozzone (2004), Johnson (2010), Montalto and Montalto (2010) and Tricarico (2010).
Bozzone (2004), De Seno (2010) and Tricarico (2010).
Bozzone (2004), De Seno (2010), Tricarico (2010), and Curti (2013).
Bozzone (2004), Tricarico (2010), Viscusi (2010), and Troyani (2013).
Bozzone (2004) and Tricarico (2010).

45
Beaton and Washington, 2014).33 The act of re-appropriating or re-contextualizing, the process by which a group
reclaims a term or artifact that disparages that group and then uses it in a different context, is not something new,
Thompson (2013) explains, and The key for the transformation of an undermining, racist term is for it to be handled as a
tool of empowerment, voided of any previous connotations, and utilized by the offended party. As a matter of fact, Teetor
(2013) further reports that, not only has the slur guido been appropriated by Italian Americans for non-derogatory
purposes, but that in addition to this, the slur chink has been appropriated by Chinese Americans, the slur heeb has been
appropriated by Jewish Americans, the slur mick has been appropriated by Irish Americans, the slur nigger has been
appropriated by African Americans, the slur paki has been appropriated by Pakistani Americans, the slur redneck has
been appropriated by political conservatives and rural Southerners, the slur white trash has been appropriated by lowerclass Caucasians, the slur mutt has been appropriated by people of mixed race, the slur dyke has been appropriated by
female homosexuals, and the slur faggot has been appropriated by male homosexuals.
This reclaimed or appropriated Use of derogatory words by the defamed group is not unusual, Aldridge (2001)
explains in Slurs Often Adopted by Those They Insult, and although Racial slurs such as spic, dago and mick still
are considered offensive by many people of Hispanic, Italian and Irish descent [. . .] the words also are acceptable slang to
many within those ethnic groups (my emphasis; see also Croom, 2011, 2013, 2014a). Troyani (2013) for one has pointed
out that While the term Guido has long been considered an ethnic slur against urban working-class Italian Americans in
the Northeastern United States, the generationally pejorative word has been embraced by many younger Americans of
Italian heritage (p. 1). Cohen (2010) has also pointed out that although Some Italian-Americans consider guido to be a
slur and have vehemently protested [. . .] the use of the term [. . .] others, mostly younger Italian-Americans, use it
affectionately to refer to a particular life style, and in such cases, as Tamburri (2010) has suggested, some Italian
Americans have taken on what is widely considered negative nomenclature and adopted it as their moniker. In fact, the
playwright Mario Fratti has even expressed the view that the name Guido is a symbol of sophistication. It is a badge of
honor in Italy (my emphasis; see also Cohen, 2010).
In considering other slurs for Italian Americans, Roediger (2005) has noted of the slur guinea that New York City
Italian American youths influenced by hip-hop have attempted a fascinating rehabilitation of guinea, using it proudly,
mimicking the attempt in rap music and African American slang to rehabilitate nigger (p. 40) and Tricarico (2010) has
further discussed how the slurs guinea, wop, and guido were often appropriated by in-group Italian Americans through
Rhetorical strategies [that] manipulated symbols of inferior status and outsiderness into badges of ethnic
authenticity, and that in this way, a slur that is primarily for Italian Americans and used between Italian Americans like
Guido becomes a symbolic reversal like nigga that distils a quintessential ethnicity and [its] usage warrants a careful
determination of insider status (my emphasis, see also Croom, 2013, pp. 191--194; 2014a, p. 237).34 In agreement with
this point regarding the non-derogatory use of slurs, amateur boxer Louis LaMorte from the Gramercy Gym in Manhattan
reports that I always heard boxers in the gym refer to each other by their racial or ethnic nicknames, and we had no
problem identifying with these names unless it was someone we did not like or used the word to disrespect us
(Guerriero, 2013).35
In addition to the aforementioned first-person reports from in-group speakers, recent empirical studies from the social
sciences have also demonstrated that slurs are often flexibly employed such that they may (at least in some restricted
contexts) be used non-derogatorily to convey affiliation with in-group members, or to weaken the derogatory force that the
slur had originally carried. For instance, in The Reappropriation of Stigmatizing Labels, Galinsky and colleagues (2013)
conducted ten empirical studies on re-appropriation to test its potential effects on speakers and listeners empirically and
found that self-identifying with slur expressions -- rather than being identified by others with these expressions -- can
actually weaken their stigmatizing force (p. 2020; see also Galinsky et al., 2003). More specifically, Galinsky et al. (2013)
33
In As Times are Changing so are Appropriate Ethnic Terms, Duey (2014) also argues that Over the past 100 years the terms used to
describe various ethnicities have changed multiple times. As new generations are born there are changes in how our society describes its
minorities [. . .] In the 1960s, Hispanic and Latino Americans popularized the term Chicano during their push for civil rights. The linguist Robin
Lakoff has explained that this process is a generational thing such that Younger people dont feel or experience the same barriers between
people that older people have been brought up to assume. And that, of course, would be reflected in language (quoted in Johnson, 2009).
Roediger (2005) similarly points out how some lexicographers have argued that with time the term [guinea] became less derogatory and less
bitter (p. 39).
34
Croom (2013) suggests that speakers may be capable of subverting derogation through linguistic appropriation such that between in-group
speakers the slur is used as a norm reversed variant of the original derogatory use, and thus understood between in-group speakers as intended
non-derogatorily (p. 191).
35
Fred Gardaphe, a professor of Italian American Studies at Queens College, suggests that people unfamiliar with (or alternatively, simply
unwilling to acknowledge) factual cases concerning the appropriation of slur expressions often misunderstand this non-derogatory use of guido
due to their irony deficiency (Brooks, 2009). Brooks (2009) for instance explains that there is a long history of exaggerated characterizations in
Italian culture.

46
found the following results from their experiments 1 through 10 (E1)--(E10) that may be useful to consider here: (E1) found
that participants in the high-power condition [. . .] were more likely to label themselves with the derogatory term [such as
spic or slut] than were participants in the low-power condition (p. 2022), (E2) found that participants in the group-power
condition were more willing to label themselves with a derogatory group label [. . .] compared with participants in the
individual-power condition (pp. 2022--2023), (E3) found that Participants in the self-label condition recalled feeling more
powerful [. . .] than did those in the other-label condition (p. 2023), (E4) found that Self-labeling led observers to view the
labeled person as more powerful (p. 2024), (E5) found that a stigmatized minority, was seen as more powerful in the
self-labeling condition [. . .] than in the other-label condition (p. 2024), (E6) found that self-labeling increased perceptions
of the stigmatized groups power (p. 2024), (E7) found that self-labeled participants viewed their own power as
equivalent to the out-group members power, or in other words, that Self-labeling equalized the perceived power
difference between the stigmatized self-labelers and the out-group individuals in the minds of the self-labelers (p. 2025-2026), (E8) found that Self-labeling increased perceptions of the stigmatized groups power over the label, which
attenuated the negativity of the label (p. 2027), (E9) found that Self-labeling improved the evaluation of a derogatory
label relative to other-labeling (p. 2027), and (E10) found that Both men and women saw the stigmatizing label bitch as
less negative and supported female empowerment more after witnessing a woman label herself with this term than after
witnessing another person label her with it (or after no labeling) (p. 2027).
Moreover, Bartlett and colleagues (2014) analyzed the language use of social media users from a dataset of collected
tweets involving slur expressions (n = 126,975) and investigated the volume as well as the ways that slurs were used on
Twitter (pp. 5--6). Bartlett et al. (2014) found that there are approximately 10,000 uses per day of racist and ethnic slur
terms in English (about 1 in every 15,000 tweets), that Slurs are used in a very wide variety of ways -- both offensive and
non-offensive, that There were very few cases that presented an imminent threat of violence, or where individuals
directly or indirectly incited offline violent action, and that Slurs are most commonly used [on Twitter] in a non-offensive,
non-abusive manner: to express in-group solidarity or non-derogatory description (p. 6--7).
Goffman (1967) had also previously proposed in Interaction Ritual that conversational participants that are on familiar
terms with one another and need stand on little ceremony are thereby freed to exchange mock insults in a nonthreatening way as a means of poking fun at social circles where the ritual [insult] is seriously employed (p. 86). So for
example, if two Italian American interlocutors both feel that they share a common history or culture and both understand
that neither of them have any intention of offending the other (e.g., they both presume to be on good terms with each
other), one of the interlocutors may strategically choose to produce an utterance involving the relevant slur in order to
foster intimacy and in-group solidarity, knowing that the bond between interlocutors in this case is strong enough to
neutralize or overturn what derogatory force the slur had originally carried (Croom, 2013). Pfister (2010) likewise writes
that what may seem to be impolite at a (superficial) level of what is said, may nevertheless be polite at a (deeper) level of
what is implicated (p. 1278). So at least in such in-group contexts, a slur such as guido or wop can be used as a form of
mock impoliteness since it is understood as intentionally non-offensive (Culpeper, 1996). This is presumably made
possible by the fact that in-group racial members typically share in many of the same discriminatory problems and face
many of the same discriminatory prejudices, which might serve as a means for like speakers to foster a sense of solidarity,
namely, by being in on this in-group use of the slur. In creating a sense of solidarity through in-group uses of slurs -- the use
of which is typically restricted to only in-group members -- speakers are thereby afforded an additional linguistic technique
for signaling to each other that they are not alone and that others like them share in their pains, perspectives, and history of
prejudices. As Sally (2003) has suggested, speakers may engage in this kind of risky speech in order to reinforce their
solidarity and rapport [by] us[ing] common ground not so much for translation as for security and assurance (p. 1237) and
Brown and Levinson (1978) have further proposed that this is how we get conventionalized (ritualized) insults as a
mechanism for stressing solidarity (p. 229). As it turns out, 54% of respondents in an Associated Press-MTV study
involving 1,355 participants think its OK to use them [slurs] within their own circle of friends, because [as one respondent
reports] I know we dont mean it (Cass and Agiesta, 2011; Greene, 2011).
Evidently then, in close relationships or in relationships between those that are closely alike, conversational
participants may assume that they will encounter minimal danger from face threats during their conversational interaction
(presumably this assumption is often earned through trust and repeated interaction between friends or in-group
members). Importantly, it is by virtue of this mutual understanding that the employment of mock insults or slurs are
rendered a safe way for building rapport or facilitating social intimacy between interlocutors. It should also be noted that if
one interlocutor is too polite to another, the former may actually insult the latter by implying that the social distance or
relative power between them is greater than the latter believes or wishes for it to be (Brown and Levinson, 1978; Croom,
2011). If someone you would like to consider a close friend is hard-pressed on calling you Sir or Maam, then they may
be strategically doing this in an attempt to signal their perception of the larger social distance that divides you two. Thus by
working in the opposite direction and instead speaking loosely or in accord with counter-culture norms, an in-group
speakers use of the relevant slur may be understood to operate as a positively polite stressing of in-group knowledge
and commonality of attitudes (Brown and Levinson, 1978, p. 28; Croom, 2011, 2013).

47
With this in mind let us again turn to consider how the slur expression guido (identified as G below) can be understood
as a family resemblance (rather than classical) category that consists in a structured network of stereotypical attributes
(identified as an below) such as the following:
G
a1
a2
a3
a4
a5
a6
a7
a8
a9
a10
(Guido)
x is Italian American.23
x is poor or uneducated.24
x is a foreigner that may not have the proper legal paperwork required.25
x is commonly the recipient of poor treatment.26
x is fashionable, sexually suave, promiscuous, or into club culture.27
x is masculine, resourceful, aggressive,or authentic.28
x is loud or out of control.29
x is manipulative or involved in illegal activities.30
x is from a big or traditional family.31
x is a manual laborer that typically works on automobiles or other machinery.32
What I submit here is that if, for instance, an in-group Italian American speaker S is intending to communicate that they
are sufficiently similar to some hearer H insofar as S and H both possess attributes (a1), (a4), and possibly others (such as
(a5) and (a6), or (a9)), and if S and H know each other well-enough or have established enough common ground to
understand that S does not dislike H and does not intend to communicate that H possesses most of the other (typically
negative) attributes belonging to G, then S as an in-group speaker might strategically choose to employ G as the category
that most efficiently and economically predicates the intended (shared) attributes of H, such as (a1) Italian American, (a4)
commonly the recipient of poor treatment, and possibly others (such as (a5) fashionable, sexually suave, or into club
culture, (a6) masculine, aggressive, or authentic, or (a9) from a big or traditional family), at least to the extent that G is better
for this than other categories available in that language-users lexical inventory.
Importantly, notice that although speakers can often use slurs in various and somewhat flexible ways, there do seem to
be strategies and constraints involved in guiding both the apt use and interpretation of slurs. Croom (2013) for one has
suggested that several salient markers that aid in the interpretation of slurs as being used non-derogatorily rather than
derogatorily include sameness of target features (e.g., members of the same racial in-group using the relevant racial slur
between each other, such as Italian Americans using the racial slur guido or wop between each other, etc.) as well as
sameness of communicative medium and style (e.g., members both communicate in the same language and speech
style, such as Italian, etc.). However, further discussion of other strategies and constraints involved in guiding both the use
and interpretation of slurs must be reserved for some other time.
7. Conclusion
Recent research on the semantics and pragmatics of slurs has offered insight into several important facts concerning their
meaning and use -- including that slurs are commonly used and understood to felicitously apply toward some targets yet not
others, that slurs are among the most potentially offensive linguistic expressions afforded by natural language, and that slurs
are often flexibly employed and of potential use, not only derogatorily to convey offense toward out-group members, but also
non-derogatorily to convey affiliation with in-group members, or to weaken the derogatory force that the slur had originally
carried. However, prior research has unfortunately been restricted primarily to considerations of slurs that typically target
females, homosexuals, and African Americans. This is problematic because such a narrowly focused attention to slurs in
prior work has left prior theorizing of how slurs generally function relatively uninformed by facts of actual language use. As a
result, theoretical accounts of slurs that have so far been proposed have largely failed to accurately reflect actual usage,
account for the empirical findings about slurs and general pejoratives from the social sciences, and offer any informative
predictions to help guide future research. At this time more empirically oriented homework on the variety of ways that different
slurs have been used in different cases would be helpful for theorists to consider so that they can proceed to develop more
nuanced and empirically informed theories about slurs, their usage, and their effects. Accordingly, since no account of slurs
for Italian Americans had so far been offered, this article provided a systematic and empirically informed analysis of slurs for
Italian Americans that accounts for both their derogatory and appropriative use.
Toward this end, this article first reviewed common slurs for Italian Americans in Section 2 and then considered face
threatening acts and the paradigmatic derogatory use of slurs in Section 3, stereotypes and stereotypical features in
Section 4, family resemblance concepts and category membership in Section 5, and finally, the appropriation of slurs in
Section 6. It was shown that the family resemblance account of slurs maintained here has major advantages over
classical accounts insofar as it is flexible yet robust enough to accommodate both the derogatory and appropriative use of
slurs, and is more in accord with the real rather than ideal nature of our organic human psychology. It was further shown

48
that an appeal to stereotypes helps explain many of the psychological effects that slurs actually have on both their users
and targets. Since these features of slurs are among the most recognizable and have been primarily responsible for
drawing so much attention to slurs in the first place, being able to account for these features is a major advantage of my
work on slurs that remains missing from others. For at least these reasons it should be clear that the account of slurs
outlined here is an explanatorily powerful one for how slurs in general function.
Acknowledgements
I would like to thank the editors and reviewers of Journal of Pragmatics for their helpful feedback and support.
References
Adler, Steven H., 2008. Justice Defeated: Victims: OJ Simpson and the American Legal System. AuthorHouse, Bloomington.
Alba, Richard D., 2009. Blurring the Color Line: The New Chance for a More Integrated America. Harvard University Press, Cambridge.
Aldridge, Kevin, 2001. Slurs often adopted by those they insult. The Cincinnati Enquirer, 5 August. http://enquirer.com/editions/2001/08/05/
loc_2slurs_often_adopted.html
Alim, H. Samy, Lee, Jooyoung, Carris, Lauren, 2010. Short fried-rice-eating Chinese MCs and good hair-havin uncle Tom niggas: performing
race and ethnicity in freestyle rap battles. J. Linguist. Anthropol. 20, 116--133. http://dx.doi.org/10.1111/j.1548-1395.2010.01052.x
Anderson, Elijah, 1999. Code of the Street: Decency, Violence, and the Moral Life of the Inner City. W.W. Norton & Co., New York.
Anderson, Luvell, Lepore, Ernie, 2013a. Slurring words. Nous 47, 25--48. http://dx.doi.org/10.1111/j.1468-0068.2010.00820.x
Anderson, Luvell, Lepore, Ernie, 2013b. What did you call me? Slurs as prohibited words. Anal. Philos. 54, 350--363. http://dx.doi.org/10.1111/
phib.12023
Asim, Jabari, 2007. The N Word. Houghton Mifflin Company, New York.
Barone, Michael, 2001. The New Americas: How the Melting Pot Can Work Again. Regnery Publishing, Washington.
Barsalou, Lawrence W., 1999. Perceptual symbol systems. Behav. Brain Sci. 22, 577--660.
Barsalou, Lawrence W., 2008. Grounded cognition. Annu. Rev. Psychol. 59, 617--645. http://dx.doi.org/10.1146/annurev.psych.59.103006.093639
Barsalou, Lawrence W., 2009. Simulation, situated conceptualization, and prediction. Philos. Trans. R. Soc. Lond. B 364, 1281--1289. http://dx.
doi.org/10.1098/rstb.2008.0319
Barsalou, Lawrence W., Simmons, W. Kyle, Barbey, Aron K., Wilson, Christine D., 2003. Grounding conceptual knowledge in modality-specific
systems. Trends Cogn. Sci. 7, 84--91.
Barsalou, Lawrence W., Breazeal, Cynthia, Smith, Linda B., 2007. Cognition as coordinated non-cognition. Cogn. Process. 8, 79--91. http://dx.doi.
org/10.1007/s10339-007-0163-1
Bartlett, Jamie, Reffin, Jeremy, Rumball, Noelle, Williamson, Sarah, 2014. Anti-social media. Demos 1--51. http://www.demos.co.uk/publications/
antisocialmedia.
Beaton, Mary E., Washington, Hannah B., 2014. Slurs and the indexical field: the pejoration and reclaiming of favelado slum-dweller. Lang. Sci.
http://dx.doi.org/10.1016/j.langsci.2014.06.021
Beswick, Aaron, 2014. Forgiveness in dominion. The Chronicle Herald, http://thechronicleherald.ca/novascotia/1200352-forgivenessin-dominion.
Bianchi, Claudia, 2014. Slurs and appropriation: an echoic account. J. Pragmat. 66, 35--44. http://dx.doi.org/10.1016/j.pragma.2014.02.009
Blakemore, Diana, 2014. Slurs and expletives: a case against a general account of expressive meaning. Lang. Sci. http://dx.doi.org/10.1016/j.
langsci.2014.06.018
Borghi, Anna M., 2004. Object concepts and action: extracting affordances from objects parts. Acta Psychol. 115, 69--96. http://dx.doi.org/
10.1016/j.actpsy.2003.11.004
Borghi, Anna M., Riggio, Lucia, 2009. Sentence comprehension and simulation of object temporary, canonical and stable affordances. Brain Res.
1253, 117--128. http://dx.doi.org/10.1016/j.brainres.2008.11.064
Borghi, Anna M., Scorolli, Claudia, Caligiore, Daniele, Baldassarre, Gianluca, Tummolini, Luca, 2013. The embodied mind extended: using words
as social tools. Front. Psychol. 4, 214. http://dx.doi.org/10.3389/fpsyg.2013.00214
Bozzone, Daniella N., 2004. Embodying the Italian-American: an analytical look at bodily performances of Italian-Americans in film. Electron.
Theses Treat. Dissert. 3425. http://diginole.lib.fsu.edu/cgi/viewcontent.cgi?article=2666&context=etd
Brooks, Caryn, 2009. Italian Americans and the G word: embrace or reject? Time, 12 December. http://content.time.com/time/nation/article/
0,8599,1947338,00.html
Brown, Penelope, Levinson, Stephen, 1978. Universals in language usage: politeness phenomena. In: Goody, E. (Ed.), Questions and
Politeness: Strategies in Social Interaction. Cambridge University Press, Cambridge, pp. 56--310.
Brown, Penelope, Levinson, Stephen C., 1987. Politeness: Some Universals in Language Usage. Cambridge University Press, Cambridge.
Camp, Elisabeth, 2012. Sarcasm, pretense, and the semantics/pragmatics distinction. Nous 46, 587--634. http://dx.doi.org/10.1111/j.14680068.2010.00822.x
Camp, Elisabeth, 2013. Slurring perspectives. Anal. Philos. 54, 330--349. http://dx.doi.org/10.1111/phib.12022
Cass, Connie, Agiesta, Jennifer, 2011. Young people see online slurs as just joking, poll shows. The Huffington Post, 20 September. http://www.
huffingtonpost.com/2011/09/20/young-people-see-online-s_n_971803.html
Cepollaro, Bianca, 2015. In defence of a presuppositional account of slurs. Lang. Sci. 1--10. http://dx.doi.org/10.1016/j.langsci.2014.11.004
Cohen, Stephanie, 2009. Sour taste over slur. New York Post, 27 September. http://nypost.com/2009/09/27/sour-taste-over-slur/
Cohen, Patricia, 2010. Discussing that word that prompts either a fist pump or a scowl. Time, New York, 22 January. http://www.nytimes.com/
2010/01/23/arts/television/23shore.html?pagewanted=all
Conley, Thomas, 2010. Toward a Rhetoric of Insult. University of Chicago Press, Chicago.

49
Croom, Adam M., 2008. Racial epithets: what we say and mean by them. Dialogue 51, 34--45.
Croom, Adam M., 2010. A game theoretical analysis of slurs and appropriative use. In: Fourth North American Summer School in Logic,
Language, and Information. Indiana University, 26 June.
Croom, Adam M., 2011. Slurs. Lang. Sci. 33, 343--358. http://dx.doi.org/10.1016/j.langsci.2010.11.005
Croom, Adam M., 2013. How to do things with slurs: studies in the way of derogatory words. Lang. Commun. 33, 177--204. http://dx.doi.org/
10.1016/j.langcom.2013.03.008
Croom, Adam M., 2014a. The semantics of slurs: a refutation of pure expressivism. Lang. Sci. 41, 227--242. http://dx.doi.org/10.1016/j.
langsci.2013.07.003
Croom, A.M., 2014b. Spanish slurs and stereotypes for Mexican-Americans in the USA: a context-sensitive account of derogation and
appropriation. Sociocult. Pragmat. 2, 145--179. http://dx.doi.org/10.1515/soprag-2014-0007
Croom, Adam M., 2014c. Slurs, stereotypes, and in-equality: a critical review of How Epithets and Stereotypes are Racially Unequal. Lang. Sci.
Croom, Adam M., 2015a. The semantics of slurs: a refutation of coreferentialism. Ampersand 2, 1--21. http://dx.doi.org/10.1016/j.
amper.2015.01.001
Croom, Adam M., 2015b. An assessment of the negative and positive aspects of stereotypes and the derogatory and non-derogatory uses of
slurs. In: Mey, J.L., Capone, A. (Eds.), Interdisciplinary Studies in Pragmatics, Culture and Society. Springer, Dordrecht. http://dx.doi.org/
10.1007/978-3-319-12616-6_31 (Chapter 31).
Croom, Adam M., 2015c. Asian slurs and stereotypes in the USA: a context-sensitive account of derogation and appropriation. Pragmat. Soc. 6,
1--20.
Culpeper, Jonathan, 1996. Towards an anatomy of impoliteness. J. Pragmat. 25, 349--367. http://dx.doi.org/10.1016/0378-2166(95)00014-3
Cupkovic, Gordana, 2014. Diachronic variations of slurs and levels of derogation: on some regional, ethnic and racial slurs in Croatian. Lang. Sci.
Curti, Roberto, 2013. Italian Crime Filmography, 1968--1980. McFarland and Company, Jefferson.
Davis, Simon, 2001. Sopranos sued for TV slur on Italians. The Telegraph, 7 April. http://www.telegraph.co.uk/news/worldnews/europe/italy/
1310758/Sopranos-sued-for-TV-slur-on-Italians.html
De Seno, Tommy, 2010. Should Jersey Shore define Italians? No way! Fox News, 16 July. http://www.foxnews.com/opinion/2010/07/16/
tommy-seno-jersey-shore-cast-mtv-italian-community-negative-stereotypes
de Stefano, George, 2008. Guidos! I-Italy: Italian-American Digital Project, http://www.i-italy.org/bloggers/3672/guidos.
Dinnerstein, Leonard, Reimers, David, 2013. Ethnic Americans: Immigration and American Society. Columbia University Press, New York.
Dove, Guy, 2010. On the need for embodied and dis-embodied cognition. Front. Psychol. 1, 242. http://dx.doi.org/10.3389/fpsyg.2010.00242
Dove, Guy, 2014. Thinking in words: language as an embodied medium of thought. Top. Cogn. Sci. 1--19. http://dx.doi.org/10.1111/tops.12102
Duey, Stevon, 2014. As times are changing so are appropriate ethnic terms. The BG News, 9 April. http://www.bgnews.com/world/
as-times-are-changing-so-are-appropriate-ethnic-terms/article_9baae1b4-c05a-11e3-ab76-001a4bcf887a.html.
Embrick, David G., Henricks, Kasey, 2013. Discursive colorlines at work: how epithets and stereotypes are racially unequal. Symb. Interact. 36,
197--215. http://dx.doi.org/10.1002/symb.51
Embrick, David G., Henricks, Kasey, 2015. Two-faced -isms: Racism at work and how race discourse shapes classtalk and gendertalk. Lang. Sci.,
special issue on slurs. http://dx.doi.org/10.1016/j.langsci.2015.03.004.
Enger, John, 2014. Local people of polish descent give opinions on slur. Daily Gazette, 25 March. http://www.dailygazette.com/news/2014/mar/
25/0325_slur/
Fitten, Ronald K., 1993. Fighting words: no matter who uses them, racial slurs ultimately serve to denigrate and divide. The Seattle Times, 19
March. http://community.seattletimes.nwsource.com/archive/?date=19930319&slug=1691293
Fodor, Jerry, Garrett, Merrill F., Walker, Edward C.T., Parkes, C.H., 1980. Against definitions. Cognition 8, 263--367. http://dx.doi.org/10.1016/
0010-0277(80)90008-6
Fredrickson, George M., 1971. The Black Image in the White Mind. Wesleyan University Press, Middletown.
Galinsky, Adam D., Hugenberg, Kurt, Groom, Carla, Bodenhausen, Galen, 2003. The reappropriation of stigmatizing labels: implications for social
identity. In: Polzer, J. (Ed.), Identity Issues in Groups. Emerald Group Publishing Limited, Bingley, pp. 221--256. http://dx.doi.org/10.1016/
S1534-0856(02)05009-0
Galinsky, Adam D., Wang, Cynthia S., Whitson, Jennifer A., Anicich, Eric M., Hugenberg, Kurt, Bodenhausen, Galen V., 2013. The
reappropriation of stigmatizing labels: the reciprocal relationship between power and self-labeling. Psychol. Sci. 24, 2020--2029. http://
dx.doi.org/10.1177/0956797613482943
Gardaphe, Fred, 2010a. Organized culture. Guido: An Italian-American Youth Style, 12 February. http://www.i-italy.org/13160/organized-culture
Gardaphe, Fred, 2010b. Dialogue and debate: not denigration and dismissal. Guido: An Italian-American Youth Style, 26 January. http://www.
i-italy.org/12682/dialogue-and-debate-not-denigration-and-dismissal
Garrett, Paul B., Baquedano-Lopez, Patricia, 2002. Language socialization: reproduction and continuity, transformation and change. Annu. Rev.
Anthropol. 31, 339--361. http://dx.doi.org/10.1146/annurev.anthro.31.040402.085352
Goffman, Erving, 1967. Interaction Ritual: Essays on Face-to-Face Behaviour. Penguin Books, Harmondsworth.
Gratereaux, Alexandra, 2012. Dayana Mendoza fires back at Lisa Lampanellis ethnic slur. Fox News Latino, 23 January. http://latino.foxnews.
com/latino/entertainment/2012/04/10/dayana-mendoza-fires-back-at-lisa-lampanelli-racial-slur/
Greene, R.L., 2011. Are the kids all right? The Economist, 20 September. http://www.economist.com/blogs/johnson/2011/09/slurs.
Guerriero, Alfonso, 2013. Locker-room culture, offensive behavior in sports and the Italian-American experience. LItalo-Americano, 2 December.
http://www.italoamericano.com/story/2013-12-2/Italian-In-Sports
Hall, Dianne, 2006. Words as weapons: speech, violence, and gender in late medieval Ireland. Eire-Ireland 41, 122--141. http://dx.doi.org/
10.1353/eir.2006.0005
Hedger, Joseph A., 2013. Meaning and racial slurs: derogatory epithets and the semantics/pragmatics interface. Lang. Commun. 33, 205--213.
http://dx.doi.org/10.1016/j.langcom.2013.04.004
Hom, Christopher, 2008. The semantics of racial epithets. J. Philos. 105, 416--440.

50
Hom, Christopher, 2010. Pejoratives. Philos. Compass 5, 164--185. http://dx.doi.org/10.1111/j.1747-9991.2009.00274.x

Hom, Christopher, 2012. A puzzle about pejoratives. Philos. Stud. 159, 383--405. http://dx.doi.org/10.1007/s11098-011-9749-7
Hom, Christopher, May, Robert, 2013. Moral and semantic innocence. Anal. Philos. 54, 293--313. http://dx.doi.org/10.1111/phib.12020
Hoover, Eric, 2007. Fighting words. The Chronicle of Higher Education, http://chronicle.com/article/fighting-words/32405/
Jackson, Jennifer, 2014. Structural differentiation and the poetics of violence shaping Barack Obamas presidency: a study in personhood,
literacy, and the improvisation of African-American publics. Lang. Sci. http://dx.doi.org/10.1016/j.langsci.2014.08.001
Jay, Timothy, 2009. The utility and ubiquity of taboo words. Perspect. Psychol. Sci. 4, 153--161. http://dx.doi.org/10.1111/j.17456924.2009.01115.x
Jay, Kristin L., Jay, Timothy B., 2015. Taboo word fluency and knowledge of slurs and general pejoratives: deconstructing the poverty-ofvocabulary myth. Lang. Sci. 1--9. http://dx.doi.org/10.1016/j.langsci.2014.12.003
Jersey, Shore, 2009. A New Family. MTV Networks, 3 December.
Jeshion, Robin, 2013a. Slurs and stereotypes. Anal. Philos. 54, 314--329. http://dx.doi.org/10.1111/phib.1202
Jeshion, Robin, 2013b. Expressivism and the offensiveness of slurs. Philos. Perspect. 27, 231--259. http://dx.doi.org/10.1111/phpe.12027
Johnson, Akilah, 2009. Educators find that teens use ethnic slurs affectionately. Sun Sentinel, 4 July. http://articles.sun-sentinel.com/2009-07-04/
news/0907040019_1_white-teens-profanity-linguists
Jones, Roxanne, 2013. Obama is right about redskins. CNN, 8 October. http://www.cnn.com/2013/10/08/opinion/jones-washington-redskins/
LaGumina, Salvatore J., 1973. Wop! A Documentary History of Anti-Italian DiscriminationStraight Arrow Books, New York.
Lewis, Martin W., 2011. The many meanings of guinea. Geo Currents, 7 December. http://www.geocurrents.info/historical-geography/
the-many-meanings-of-%E2%80%9Cguinea%E2%80%9D
Luconi, Stefano, 2001. From Paesani to White Ethnics: The Italian Experience in Philadelphia. State University of New York, New York.
McCready, Eric S., 2010. Varieties of conventional implicature. Semant. Pragmat. 3, 8. http://dx.doi.org/10.3765/sp.3.8
McKay, Hollie, 2011. Slip of the tongue? Danielle Staub calls Italian-Americans offensive g-word. http://www.foxnews.com/entertainment/2011/
05/25/slip-tongue-danielle-staub-calls-italian-americans-offensive-g-word/
Miscevic, Nenad, 2011. Slurs & thick concepts -- is the new expressivism tenable? Croat. J. Philos. 11, 159--182.
Monteiro, George, 2014. From Portingale to Portugee. Port. Am. J., http://portuguese-american-journal.com/essay-from-portingale-toportugee-by-george-monteiro/
Nappi, Rebecca, 2010. Italian-Americans say Jersey Shore stereotypes are a chance to raise awareness. The Spokesman Review, 21 February.
ODea, Conor J., Miller, Stuart S., Andres, Emma B., Ray, Madelyn H., Till, Derrick F., Saucier, Donald A., 2014. Out of bounds: factors affecting
the perceived offensiveness of racial slurs. Lang. Sci. 1--10. http://dx.doi.org/10.1016/j.langsci.2014.09.005
Ochs, Elinor, Schieffelin, Bambi, 1984. Language acquisition and socialization: three developmental stories and their implications. In: Shweder,
R., LeVine, R. (Eds.), Culture Theory: Essays in Mind, Self and Emotion. Cambridge University Press, New York, pp. 276--320.
Pfister, Jonas, 2010. Is there a need for a maxim of politeness? J. Pragmat. 42, 1266--1282. http://dx.doi.org/10.1016/j.pragma.2009.09.001
Pinker, Steven, Prince, Alan, 1996. The nature of human concepts/evidence from an unusual source. Commun. Cogn. 29, 307--362.
Potts, Christopher, Asudeh, Ash, Cable, Seth, Hara, Yurie, McCready, Eric, Alonso-Ovalle, Luis, Bhatt, Rajesh, Davis, Christopher, Kratzer,
Angelika, Roeper, Tom, Walkow, Martin, 2009. Expressives and identity conditions. Linguist. Inquiry 40, 356--366. http://muse.jhu.edu/
journals/lin/summary/v040/40.2.potts.html
Rahman, Jacquelyn, 2012. The N word: its history and use in the African American community. J. English Linguist. 40, 137--171. http://dx.doi.org/
10.1177/0075424211414807
Richard, Mark, 2008. When Truth Gives Out. Oxford University Press, Oxford.
Roediger, David R., 2005. Working Toward Whiteness: How Americas Immigrants Became White. Basic Books, New York.
Rosch, Eleanor, Mervis, Carolyn B., 1975. Family resemblances: studies in the internal structure of categories. Cogn. Psychol. 7, 573--605. http://
dx.doi.org/10.1016/0010-0285(75)90024-9
Rosch, Eleanor, Mervis, Carolyn B., Gray, Wayne D., Johnson, David M., Boyes-Braem, Penny, 1976. Basic objects in natural categories. Cogn.
Psychol. 8, 382--439. http://dx.doi.org/10.1016/0010-0285(76)90013-X
Sally, David, 2003. Risky speech: behavioral game theory and pragmatics. J. Pragmat. 35, 1223--1245. http://dx.doi.org/10.1016/S0378-2166(02)
00170-4
Samra-Fredericks, Dalvir, 2010. Ethnomethodology and the moral accountability of interaction: navigating the conceptual terrain of face and
face-work. J. Pragmat. 42, 2147--2157. http://dx.doi.org/10.1016/j.pragma.2009.12.019
Saucier, Donald A., Till, Derrick F., Miller, Stuart S., ODea, Conor J., Andres, Emma, 2014. Slurs against masculinity: masculine honor beliefs and
mens reactions to slurs. Lang. Sci. 1--13. http://dx.doi.org/10.1016/j.langsci.2014.09.006
Seiler, Casey, 2014. Ruling: Wandering Dago lawsuit against OGS, NYRA may proceed. Times Union, 16 January. http://blog.timesunion.com/
capitol/archives/203662/ruling-wandering-dago-lawsuit-against-ogs-nyra-may-proceed/
Serafini, Dom, 2010. Im Italian-American: being a guido doesnt bother me because Im not. i-Italy: Italian-American Digital Project, 29 March.
http://www.i-italy.org/bloggers/13738/i-m-italian-american-being-guido-doesn-t-bother-me-because-i-m-not
Shattuck, Ryan, 2009. Thems fightin words. Edge, 30 September. http://www.edgeboston.com/columnists/joshaterovis///97029/_them%E2%
80%99s_fightin%E2%80%99_words
Sifianou, Maria, 2012. Disagreements, face and politeness. J. Pragmat. 44, 1554--1564. http://dx.doi.org/10.1016/j.pragma.2012.03.009
Sperber, Dan, Wilson, Deirdre, 1986. Relevance: Communication and Cognition. Blackwell, Oxford.
Sweetland, Julie, 2002. Unexpected but authentic use of an ethnically-marked dialect. J. Sociolinguist. 6, 514--536. http://dx.doi.org/10.1111/
1467-9481.00199
Tamburri, Julian, 2010. Guido: An Italian American Youth Style. 25 January. http://www.i-italy.org/12694/guido-italian-american-youth-style.
Teetor, Paul, 2013. Clippers controversy: Matt Barnes inappropriate tweet. LA Weekly, 26 November. http://www.laweekly.com/informer/2013/
11/26/clippers-controversy-matt-barnes-inappropriate-tweet.
The American Heritage Dictionary of the English Language, 2000. Guinea, n. (Definition). In: The American Heritage Dictionary of the English
Language.Houghton Mifflin Company, New York, http://www.thefreedictionary.com/Guinea

51
Thompson, Nicole A., 2013. John Leguizamo & Kanye West use re-appropriation to change perceptions. Latin Post, 11 November. http://www.
latinpost.com/articles/3547/20131111/kayne-west-john-leguizamo-celebrities-reappropriate-term-object.htm.
Tricarico, Donald, 2010. Guidos on MTV: tangled up in the feedback loop. Guido: An Italian-American Youth Style, 12 February. http://www.i-italy.
org/13158/guidos-mtv-tangled-feedback-loop
Troyani, Sara, 2013. Guido culture: the destabilization of Italian-American identity on jersey shore. Calif. Ital. Stud. 4, 2.
Viscusi, Robert, 2010. The situation. Guido: An Italian-American Youth Style, 25 January. http://www.i-italy.org/12693/situation
Weissbrod, Rachel, 2014. Celebrity anti-Semitism: A translation studies perspective. Lang. Sci., special issue on slurs. http://dx.doi.org/10.1016/j.
langsci.2014.10.002.
Wennerberg, Hjalma, 1967. The concept of family resemblance in Wittgensteins later philosophy. Theoria 33, 107--132. http://dx.doi.org/10.1111/
j.1755-2567.1967.tb00614.x
Whiting, Daniel, 2013. Its not what you said, its the way you said it: slurs and conventional implicatures. Anal. Philos. 54, 364--377. http://dx.doi.
org/10.1111/phib.12024
Wilson, Dan, Sperber, Deirdre, 2004. Relevance theory. In: Horn, L., Ward, G. (Eds.), Handbook of Pragmatics. Blackwell, Oxford, pp. 607--632.
Wittgenstein, Ludwig, 1953. Philosophical Investigations. Blackwell, Oxford.
Adam M. Croom studied at the University of Pennsylvania and Harvard University and is Guest Associate Editor of Language Sciences (special
issue on slurs) and Frontiers in Psychology (special issue on music and the embodied mind). He has published over two dozen articles in scholarly
journals including Ampersand, Analysis and Metaphysics, Archives of Budo Science of Martial Arts and Extreme Sports, Dialogue, Frontiers in
Psychology, Integrative Psychological and Behavioral Science, Journal of Poetry Therapy, Journal of Pragmatics, Language and Communication, Language Sciences, Linguistic and Philosophical Investigations, Musicae Scientiae, Polish Psychological Bulletin, Pragmatics and Society,
Sociocultural Pragmatics, and South African Journal of Philosophy. Adam also regularly reviews submissions for scholarly publications including
Academic Press/Elsevier, Diametros, Erkenntnis, Frontiers in Psychology, Group Processes and Intergroup Relations, Intercultural Pragmatics,
International Journal of Wellbeing, Journal of Music and Meaning, Journal of the American Philosophical Association, Language Sciences,
Linguistic and Philosophical Investigations, Musicae Scientiae, Neuropsychiatric Disease and Treatment, Pragmatics and Society, Psychology of
Music, South African Journal of Philosophy, and Synthese. For more about Adams work visit http://adamcroom.me.
Exhibit 2
Page 1
- - - - - - - - - - - - - - - - - - - - - - - - - WANDERING DAGO, INC.,
Civil Action No.
1:13-CV-01053-MAD-RFT
Plaintiff,
V.
SERVICES, ROANN M. DESTITO, JOSEPH
J. RABITO, WILLIAM F. BRUSO, JR.,
AARON WALTERS, NEW YORK RACING
ASSOCIATION, INC., CHRISTOPHER K.
KAY, STEPHEN TRAVERS, JOHN DOES 1-5
and THE STATE OF NEW YORK,
Defendants.
- - - - - - - - - - - - - - - - - - - - - - - - - Deposition of Defendant, JOSEPH J. RABITO,
taken by attorneys for the Plaintiff in the
above-entitled matter, held at the law offices of
Boies, Schiller & Flexner, LLP, 30 South Pearl
Street, Albany, New York, before Katherine D.
Nichols, Registered Professional Reporter and
Notary Public, on February 13, 2015 at 9:35 a.m.
Page 2
1
2
3
4
5
6
7
8
9
APPEARANCES:
FOR THE PLAINTIFF:
BOIES, SCHILLER & FLEXNER, LLP
30 South Pearl Street
Eleventh Floor
BY: GEORGE CARPINELLO, ESQ.
and
MICHAEL HAWRYLCHAK, ESQ.
FOR THE DEFENDANT NEW YORK STATE OFFICE OF
GENERAL SERVICES:
10
11
12
13
14
15
STATE OF NEW YORK

Office of General Services
41st Floor, Corning Tower
Empire State Plaza
BY: NOREEN J. VAN DOREN, ESQ.
FOR THE DEFENDANTS THE STATE OF NEW YORK and
JOSEPH J. RABITO:
16
17
18
19
20
STATE OF NEW YORK

OFFICE OF THE ATTORNEY GENERAL
ERIC T. SCHNEIDERMAN
The Capital
BY: COLLEEN D. GALLIGAN, ESQ.
ALSO PRESENT:
21
22
23
24
25
ANDREA LOGUIDICE
Page 3
1
2
S T I P U L A T I O N S
3
4
IT IS HEREBY STIPULATED AND AGREED by
and between the attorneys for the respective
parties hereto, that filing, sealing, and
certifications are hereby waived;
IT IS FURTHER STIPULATED AND AGREED
that all objections, except as to the form of
10
the question, shall be reserved to the time of
11
the trial;
12
IT IS FURTHER STIPULATED AND AGREED
13
that the within Deposition may be signed before
14
any Notary Public with the same force and effect
15
as though subscribed and sworn to before this
16
Court.
17
18
19
20
21
22
23
24
25
*** *** ***
Page 95
1
2
(Joseph J. Rabito)
A.
I don't believe so, no.
I may be wrong,
but I don't recollect.
much attention to it until it became an issue.
don't deal with the good news, Counselor, I deal
with the bad news at the agency.
7
8
Q.
I can't believe I paid that

I
And when you say "became an issue," you
mean when the Wandering Dago issue came up?
A.
Yes.
10
Q.
But just to get your answer clear, your
11
belief is that 2013 was or was not the first year
12
the program was initiated?
13
A.
I don't believe it was.
14
Q.
You believe that there was also a summer
15
lunch program in 2012?
16
A.
I believe there was.
17
Q.
You don't know when the program was
18
initiated?
19
A.
No.
20
Q.
Did you ever review the applications at
21
anytime?
22
A.
No, sir.
23
Q.
Other than the festivals you referenced
24
and the summer lunch program, are vendors ever
25
allowed on the Empire State Plaza?
Page 96
1
(Joseph J. Rabito)
A.
Unpermitted, no.
Q.
Well, permitted or unpermitted.
A.
Ask the question again.
Q.
Are vendors allowed on the Empire State
Plaza at any time other than at the special events,
the state-sponsored special events that you
referred to or the summer lunch program?
A.
No.
10
Q.
Is the Empire State Plaza ever rented out
11
to private groups?
12
A.
No.
13
Q.
Are there any written standards for
14
15
16
granting permits for demonstrations on the plaza?

A.
I believe in the application, the
standards are identified.
17
Q.
In the application?
18
A.
I believe so.
19
Q.
Now, have any private-sponsored events,
20
other than these political demonstrations that we
21
talked about, ever occurred on the Empire State
22
Plaza?
23
A.
To my knowledge, no.
24
Q.
In other words, you're not aware of any
25
group coming to OGS and saying -- like the Sons of

Wandering Dagoi Plaintiffs

Uploaded by

Document Information

Original Title

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

Wandering Dagoi Plaintiffs

Uploaded by

Copyright:

Available Formats

Case 1:13-cv-01053-MAD-RFT Document 158 Filed 08/31/15 Page 1 of 31

UNITED STATES DISTRICT COURT

WANDERING DAGO INC.,

Civil Action No. 13-cv-1053

PLAINTIFFS RESPONSE IN OPPOSITION TO DEFENDANTS

Dated: August 31, 2015

BOIES, SCHILLER & FLEXNER LLP

Case 1:13-cv-01053-MAD-RFT Document 158 Filed 08/31/15 Page 2 of 31

TABLE OF AUTHORITIES .......................................................................................................... ii

The State Is Not Acting in a Proprietary Capacity. .......................................................... 19

Wandering Dagos Right to Equal Protection was Violated. ........................................... 20

IV. Defendant Destito is an Appropriate Defendant for Injunctive Relief. ............................ 23

Qualified Immunity is Irrelevant. ..................................................................................... 24

Case 1:13-cv-01053-MAD-RFT Document 158 Filed 08/31/15 Page 3 of 31

Case 1:13-cv-01053-MAD-RFT Document 158 Filed 08/31/15 Page 4 of 31

Lederman v. United States,

Case 1:13-cv-01053-MAD-RFT Document 158 Filed 08/31/15 Page 5 of 31

Case 1:13-cv-01053-MAD-RFT Document 158 Filed 08/31/15 Page 6 of 31

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

Case 1:13-cv-01053-MAD-RFT Document 158 Filed 08/31/15 Page 7 of 31

Two state employees singled out the application as offensive and

Sindermann, 408 U.S. 593, 597 (1972)).

Case 1:13-cv-01053-MAD-RFT Document 158 Filed 08/31/15 Page 8 of 31

Case 1:13-cv-01053-MAD-RFT Document 158 Filed 08/31/15 Page 9 of 31

Defendants SOMF 44-49.

Two OGS employees brought the

COMF refers to Plaintiff Wandering Dago Inc.s Counterstatement of Material Facts

Case 1:13-cv-01053-MAD-RFT Document 158 Filed 08/31/15 Page 10 of 31

Case 1:13-cv-01053-MAD-RFT Document 158 Filed 08/31/15 Page 11 of 31

public forum. As the Court has recognized,

Case 1:13-cv-01053-MAD-RFT Document 158 Filed 08/31/15 Page 12 of 31

Case 1:13-cv-01053-MAD-RFT Document 158 Filed 08/31/15 Page 13 of 31

Case 1:13-cv-01053-MAD-RFT Document 158 Filed 08/31/15 Page 14 of 31

Case 1:13-cv-01053-MAD-RFT Document 158 Filed 08/31/15 Page 15 of 31

Case 1:13-cv-01053-MAD-RFT Document 158 Filed 08/31/15 Page 16 of 31

the Lunch Program, is the appropriate forum.

Cornelius v. NAACP Legal Defense &

Case 1:13-cv-01053-MAD-RFT Document 158 Filed 08/31/15 Page 17 of 31

Case 1:13-cv-01053-MAD-RFT Document 158 Filed 08/31/15 Page 18 of 31

concluded that the Sign Code is a paradigmatic example of content-based discrimination

Case 1:13-cv-01053-MAD-RFT Document 158 Filed 08/31/15 Page 19 of 31

Case 1:13-cv-01053-MAD-RFT Document 158 Filed 08/31/15 Page 20 of 31

Case 1:13-cv-01053-MAD-RFT Document 158 Filed 08/31/15 Page 21 of 31

Case 1:13-cv-01053-MAD-RFT Document 158 Filed 08/31/15 Page 22 of 31

PRAGMATICS 36, 47 (2015) (attached as

Exhibit 1 to the Declaration of George F. Carpinello (Carpinello Decl.)).

Case 1:13-cv-01053-MAD-RFT Document 158 Filed 08/31/15 Page 23 of 31

Case 1:13-cv-01053-MAD-RFT Document 158 Filed 08/31/15 Page 24 of 31

THE STATE IS NOT ACTING IN A PROPRIETARY CAPACITY.

Likewise, the State admits thatunlike a

Case 1:13-cv-01053-MAD-RFT Document 158 Filed 08/31/15 Page 25 of 31

And as Defendants have

Just as the State cannot regulate a parade

WANDERING DAGOS RIGHT TO EQUAL PROTECTION WAS VIOLATED.

Case 1:13-cv-01053-MAD-RFT Document 158 Filed 08/31/15 Page 26 of 31

Case 1:13-cv-01053-MAD-RFT Document 158 Filed 08/31/15 Page 27 of 31

Plaintiff cannot show an intent to inhibit the exercise of constitutional rights.

Case 1:13-cv-01053-MAD-RFT Document 158 Filed 08/31/15 Page 28 of 31

Second, it is entirely disingenuous. Defendants continued to rely on the pretextual

DEFENDANT DESTITO IS AN APPROPRIATE DEFENDANT FOR INJUNCTIVE RELIEF.

Case 1:13-cv-01053-MAD-RFT Document 158 Filed 08/31/15 Page 29 of 31

QUALIFIED IMMUNITY IS IRRELEVANT.

Case 1:13-cv-01053-MAD-RFT Document 158 Filed 08/31/15 Page 30 of 31