to the next case to be argued as wandering daigo inc verses distich zero number sixteen six twenty two may please the court george carpenter lowboy show inflection for the plaintiff your honour's your orders this case involves a quintessential public forum a park in the center of the city of albany that has all the attributes of a park not only that it is freely open for the desk the common congregate and eat and discuss it's used as a place of public protest and it is adjacent to the major government buildings in the city of albany all those attributes mak someone and specifically on your core yes your honour's first well i might note that the state never made that argument the district court in the first instance made that argument on the motion to dismiss and the state then adopted that position that this  dicks and that's exactly what the state is doing here and i think it's important that the state never took this was it could the state not run a children's concert program in a part of the plaza in the summer and have a series of three concerts in which they had programs oriented towards young kids and didn't include rappers who were rapping violent lyrics and so on absolutely and we never take the position that publicly sponsored concerts for example or a limited public forum but this this permit to allow food trucks on the park is no different than having a pretzel vendor on forty second street was was licensing food vendors to place their truck on the plaza and if you go to the if you go to forty second street you find a pretzel van there he's got to get a permit from the city of new york if the city of new york said we're now going to call our permitting program for vendors on the street the new york city lunch program the city can buy if she dixit say we're now in a state program why why is that so in the city was advertising the availability of this which substituted for a prior actual sub contracts a deck so there were a limited number of spaces the city was providing the water and electric cook ups they were making it known to the state employees and tourists and kind of wrapping it in the city's welcome albany in this limited portion of the mall why isn't that quite different from just a warning permits to sites on forty second street because the fact that the fact that the state would allow  doesn't change the nature that these are simply vendors on the mall and incidentally they not perceived at along like a children's program is not perceived by the public to be a quote state sponsored program it's perceived to be vendors if you walk off what was the evidence to that effect about what the public perception was i think that just as a matter of common sense is the court says and all the other cases for example in the monument case was no evidence about how the public actually perceived the protein either way either way as  interests of the advertisements or whether they were banners were that they were grouped in a particular area that was kind of roped off anyway right it wasn't roped off as it as if you're a children's book and was not is the records show what portion of the plaza it occupied that it being a collection of trucks i don't believe it does they're simply they were simply placed in a place convenient so that people can come along just in terms of speech and protecting speech what public forum has to do we have a right of people to speak and what is it that really limits speech to say vs vendors ok what use going on here is something more limited it has tongue tied as there was a law school if for example if for example the state didn't say we're going to call it a program in the state said we're going to license vendors on the mall just as a city of albany license vendors around the corner on state street and they had the vendors out there and they said you your vendor i don't like wandering day go get off of here i don't think there'd be any question that that would violate the first amendment because they're making a statement in a quintessential public place  and i think the fact that the state called it a program does not does not change that in addition the state never considered it a publicly sponsored program because they cited regulations that the actual catholic ation and the denial sites a re gulation that deals with the public's use of state space not state sponsored programs and i am not speaking about this as states reach that other ground of the district court much more problem with that i'm still focusing on whether the public and i do want to emphasize that even if even if it were limited public forum did not entitle to viewpoint discrimination and it's unquestionable that this is viewpoint discrimination that's  question i want to ask i mean is even discrimination is is it viewpoint because it says that derogatory terms cannot be used whil positive terms can be used like polish pain pantry or is valid question of viewpoint whenever you can a term like that positively like who we are has come to be  that would be not allowed and that that's what makes it you know i think i think i think clearly first of all there's no there's no policy here it's mr repeat oh looking someone brought the application question that's another question that's right but it but to but to answer your question we don't know what the what the standard is you can use it positively ethnically but not positively act ethnically even if that were the data you have we do have forbidden right and i think i think the tam case the federal circuit decision in tam and the questioning in the supreme court in tim indicates that it's that the it should matter whether the group wants to call themselves lance because they're positive or negative and when it when a bureaucrat says we don't like slants because we think it's offensive to a certain group of people that's clearly if you point discrimination i see my time is let me just ask you quick questions what is the if if is your position that if we find the forum to be the plaza of a public forum to reply intermediate scrutiny of central hudson because this is commercial speech or do we have to play his tricks but actually the case was not clear on that your honor we said at the very least  got apply central hudson but i would submit that the both the court the decisions in this court and in the supreme court are vague with regard to that but in any case if it's a quintessential public forum they can't meet either strict scrutiny test or the central hudson test and they don't even try and even if it is a limited public forum as the state argues i don't think there's any question that is government speech but even if it's a limited public forum it's unquestionable that's got to be reasonable and there's no basis for reasonable test here as the third circuit said in the recent n w a c p versus philadelphia case but it's clearly a viewpoint discrimination never i might add also even if even if it were a limited public forum you have to have a written articulable standard which they do not have here they have got a guy who says i apply family values as i see it when i see it and in this case i saw it i found it to be offensive let me ask another question so the  litigation has to do with what happened in two thousand and thirteen and twenty fourteen and i understand that the standards have since changed it's not clear to me exactly what remedy you are seeking the damages element has been dropped or settled i understand  you're looking for some form of injunctive relief we want to know what would that really look like permanent injunction that they cannot ban us from the plaza based upon our name and we applied into it so if they had stated a policy  discriminatory in some other illegal way you think that would be we would need to strike that down and whatever the current standards are even that that would be more specific if they had additional process for example language writing words was that the part that was written in the application we think that the deck clearly clearly was directed to conduct personal personal to person conduct on the mall but even that we thought we argue was unconstitutionally vague and he and if i may go on he said he didn't rely on that he said what he did was i asked him what did you what standard did you rely on in rejecting this he said i just i saw it it's offensive and i rejected it i want to go back to  that is if we assume we view that this was guided discretion at the time it was used and after instead standards are there are sufficient can you get an injunction or declaratory judgment or is of that something that we no longer are will normally give because now there are adequate standards and again i'm not saying that's the only issue i'm not saying that the standards now are adequate but the question please take your time in responding will give them to state them additional time as well and would like to explore this  i lose on all the other issues and my only issue is the vagueness and arbitrariness of the standards and there are proper standards and we don't know what they are but if they articulate proper standards that don't f violate any of the rules then at that point if there were such and there are not today then we would not be entitled to injunctive relief if we were evaluated under those standards but what's not where we are because it could show what the standard is today i believe it's exactly the same as it was when we brought the case there's no change in the you know what was there was there's a new set of rules to to apply to get on the more which we met there was a new set of rules in two thousand and fourteen now with regard to speech and we met this record shows we met every single one of them and then the application was rejected solely on the grounds of the name wandering daigle that's undisputed in the record i believe that they have issued new rigged rules that say in writing a family friendly now whether that's adequate and whether that that is not in the record specific enough but that's i think the basis of this information i don't think it's in the record it's not in the record and family friendly i think is clearly vague and unconstitutional and that would not be enough until this case family friendly was in the mind of mr rubio and it they build a whole post talk rationalization based upon the fact that mr reeve ito made a decision to prohibit a particular doll or he made the decision that somebody could use the n word at a concert record it talks about the fact that it's not just the name of the entity but the name of the man you the other names the sandwiches am i correct that sandwiches are no longer beer those names which were the poem making i think the records clear on that i think the sandwiches of clearly changed over time but the testimony is legit ice was that we perceive ourselves as working class italians and people came up to us like the name and suggested other names and which were ethnically related and we that goes with our theme and we adopted that and we did have those names are a bit of a testified i looked at their menu online i didn't like the names of the sandwiches either and that's why i told them they couldn't they can participate in the program the please the court scene of charger for the state your honors i want to come back to the last point we were discussing but i want to start by saying the state has the right in its proprietary capacity to decide who it will do business with this is not a case like the founder a vendor on forty second street and consistent with the constitution it may choose to do business with corporations whose products do not reflect or contain to write a time so i need to interrupt i don't understand this is doing business or subcontract and i saw this is a permit in regime you know after all the applicants were paying fifteen hundred dollars to participate and to just be given space on the public plaza to sell sandwiches in what way is that doing business hires the reason it's not permitting regime is because the state is not acting in its regulatory capacity to license wandering day go to have a permit to do business in the state they are licensed or to that apartment estate to conduct business under that corporate name anywhere the state and plaintiffs have seized upon the word permit but if you look at the record there is a contractual agreement they are subcontract out to provide food services the state does not run a state cafeteria i need to pursue that further usually in the sub contracting arrangement the contractors paying to receive services here is the sub contractor who's paying for the opportunity to provide services to the public and is not receiving money from the state at all why is that subcontract it's sub contracting because the state is authorized to provide food service for plaza employees and visitors instead of the put this in a different with somebody because we were jewish or italian or muslims would that be all right because this was a contract being invested in viscount action would that be all right say is that the state is acting in its proprietary capacity in which this court and supreme court has says when the state is acting as a proprietor we're not licensed in them generally to do business in the state that that is a non public forum the plaintiffs only sought and applied for access to the program no one was for happening them from the interrupt again but this had to do with presence on the on the plaza that is used for all kinds of public purposes throughout the year and that is surrounded by government buildings which seems to be the quintessential public forum i need help getting from the plaza is an open place where people congregate and express fuz and where the interests in free speech are strongest to reducing that to a proprietary and exercise of the government's proprietary authority in contracting relations let me start with  to sell that food in the plaza that's where they wanted to be their trucks were there in the in the area which is has traditionally been used for speech well traditional artificial to say they were really seeking access to a program in this context isn't it no your honor because members of the public no member of the public is a allowed to drive a car a cart a truck of any sort and start selling wares on the plaza it is still part of a government complex and the office of general services manages that type of activity as far as traditional public activity no one is saying people cannot walk across the plaza wearing a t shirt or carrying a sign that advertises wanderings that day go but that's not w was happening here and also the plaza itself is not typically like other village squares and parks it's part of a government building complex yes there is some public space available yes but access is still limited and controlled by the state to a great degree and in this case do people not congregate there and demonstrate there are some demonstrations there typically the demonstrations are held in the parks next to the capitol but again the places for not seeking access to conduct that kind of traditional expressive activity they were seeking access to calm and sell their food out of their truck they agree that the sole purpose of the program was to provide launch services and i don't know if members of the panel are familiar with the plaza but underneath the plaza in the concourse level we also have several vendors who are leasing space to provide food services this is just an extension of that for the few weeks in the neutrality first of all you putting aside the fact that although they've manufactured a viewpoint for the appeal that is not what they were seeking to do admittedly in our brief we cite to several places of the record where the plane to said they were not trying to put forth a viewpoint but in any event in a nonpublic forum restrictions based on content are permissible and in this case we have the state for having all ethnic slurs as a category of speech not some slurs are prohibited and others are where the outward policy talked about ethnic slurs what policy do you heard the policy is there are written guidelines of course even prior to two thousand and fourteen and there has also been a longstanding overarching policy that has been applied to previous events by the state the record contains those examples which highlight them in our brief the written rules for vendor participation prohibit that is being treated as up as an ethnic slur i mean that specifically he's being treated as an ethnic slur then there's discussion of it as being wrong or contexts in just even even if you're talking i mean how much decision users do what isn't you know i think it's obvious as reasonable people what constitute ethnic slurs their menu well that could be true your honor but in this case all ethnic slurs are prohibited whether it's the n word whether it's wondering whether it's any other star that someone might think of what is a star is  each other usually the other way around using el guapo because walker is was right i think it's it would be obvious that certain terms are ethnic slurs and the state is prohibiting all of them from its program obvious to someone when they see it well like pornography but when i see it i know certainly not your honor but there i have to look it up he wasn't sure right he did go to do a search to make sure of his understanding of the term and you know he did have a personally offensive reaction to it but he was not acting on his own whim and his own personal feeling about this he had h who was involved in this program he knew the family friendly policy that the state had had over years for example the record contains evidence of blackface figurines being permitted to perform or use the n word being taken off the stage at a show so this wasn't a policy that came out of nowhere any time there was a state sponsored event or program these policies are overarching and as to the the the the huge this issue which is tying into the unbridled discretion at the threshold we believe the district court correctly determined that that doctrine prior restraint doesn't apply here because the forum was not open to facilitate expressive activity we're not saying the state can go into a here we're really talking about this was facilitated to open a lunch program not to take traditional expressive activity cabinet into a program in an unconstitutional manner but even assuming the doctrine applied the decision was made with writ policy and consistently applied policy which does not necessarily have to be written down yes the written rules for a vendor participation in this program for example there are four hundred three and following of appending the they prohibit harassment name calling profane language they're attached to the application there is part of the contract there are also written rules for vendors that have i want to know the ones with the relevant to this issue  and you said harassment name calling and what else profane language language how are he's faking his harassment name calling name calling is a close and profane language is not profane language i mean you know i i do know that under fascism in nearly recalled anything they didn't like obscene but that both name calling or profane language and really no reasonable person could disagree that slurs fall within the type of language that would be not fitting it within a family friendly environment or environment that's comfortable for the diverse population that traverses and works at the plaza but in and if i could just touch on the remedy i'm really not sure how much time i have left to feel for the answer in terms of the remedy if the court finds that there's not enough standards to guide discretion in these circumstances that the remedy is not an order directing the the plaintiffs truck to participate in the program because the challenge beast a facial emphasize again that this is not the state just trying to prohibit the expression of ethnic slurs generally or controversial language but in the context of our program where we're acting in our proprietary capacity we want to decide who we're doing business with the reasonable view of that from the public is that this is a state program it's advertised it's such on close circuit television throughout the plaza through e mails that you are saying that in any event this is very different from the tam case before the supreme court because they've attacked it is whether the state allows certain things to be given a certain do agree that the team case does does not apply here because the government was acting right as a regulator to prohibit receiving trademark protection at all yes yes but in this case they're authorized to do business here and to say they're wandering to go and do their truck business but they just can't say this is wandering draco brought to you with the support and indorsement as a contractor of the new york state government just go ahead please go ahead are you pressing the point that the district court made that this pro clearly indicated her intent to analyze this under the form now says for private speech so the parties naturally focus their argument on that but we believe the government's right to choose its own message includes a right to decline to know you're under the the all third alternative rationale put forth by the district court was not raised by the state at any time prior to make sure that i understand yes you're saying that the state sponsorship of this program is is  comprised of providing electric and water hookups and the application process receiving the fifteen hundred dollars fee and advertising on closed circuit t v is that right and i guess there's an e mail message that goes out well yeah anything is there anything in addition to that there's the generally excuse me the general control of the program which is completely in the states what is there in addition to what i've identified that for example they must be located on a very particular spot of the plaza that is designated for these applicants excuse me for the vendors they must they must only be there at certain times of the day or on certain days of the week they must include you know the entirety of the season that's on firemen's but i don't see that is part of public face speak that say so i apologize i misunderstood your question yes the  advertisements in the cluster get cv the emails that go out to any member of the public who has signed up to receive these emails about state sponsored events going on there which include a list of the vendors that will be participating this was a kin to the laws should be and enjoy the remedy should be an injunction in joining them from prohibiting the truck truck to participate on the place on the plaza based upon their name secondly i think the term case is relevant because in that case the government argues this is a government program you can use this land as a band if you want all we're saying is if you want to be in our government program and be listed on our register which means it's or like they're saying it's our program then we can discriminate and i think the federal circuit rejected that clearly if for no other reason then even if it were a government program it's blatant viewpoint discrimination my adversary says that all ethnic slurs are prohibited there's nothing in the record that even suggests that in fact if you want to look at the regulation that governs the use of state property for the public please look at s p a forty one which lists the rules on which the commissioner can deny use of state property there's not a single reference to speech let alone racial speech even if they did expressly prohibit racial slurs that is clear viewpoint discrimination not only does tam say that not only it but that but the supreme court and did the dissent and walker said banning banning license plates that are offensive to the public is blatant viewpoint discrimination in the majority didn't disagree in fact they prohibit the use of fighting words on  could they i think they are fighting words i think are generally even prohibited in a quintessential public forum but they don't it never made the argument that these are fighting words and i don't think there was a case to support it there was just a little testimony that this punch someone in the mouth that's right which clearly is not the test because somebody wearing the jacket that uses the f word might get punched as well so that and incidentally this is not a content based distinction this is a viewpoint based distinction there's not a single case that suggest that what mr rubio did was a content determination it was clearly viewpoint so even if you agree with my adversary that this is a limited public forum a state sponsored program they cannot discriminate based upon viewpoint and that's exactly what they did find the viewpoint was that he did not like the term daigo because he believed it was a slur on italians and he that particular articulation that viewpoint was to him offensive and therefore should be prohibited just as they say to texas said the confederate flag on a license plate is offensive and there's no question that not a situation where they're saying ok we want you to use it if we think it's complimentary but we're not allowing you to use it if we think it's derogatory that that's the viewpoint but we don't not want their content i says or de go in a positive sense is ok but not a negative since it was offensive you know i think i think to say to say to ben words that in the mind of the bureaucrat is offensive or may be offensive to a group words that are clearly offense under your theory you can ban any offensive because he can't he cannot ban words that in his mind would be offensive to particular segments of the public that viewpoint discrimination and in fact that's what already really says the judge misread or even entirely yes could you if you  said we will ban words which are ethnically offensive and that we're being able to be done in a specific enough way so that we know what they are and don't have a problem having let's assume we know what they are and say it and we band fees whether they are positive or whether they are naked would that be viewpoint discrimination or  think it's clearly viewpoint discrimination because the why is the banning of words that are whether positively or nude suppose you said in a fitting we will not allow any political statement of any sort positive or negative is vet viewpoint well if you said i am and if they said well certain noncommercial statements but not political that's viewpoint discrimination if they said well noncommercial but not political i believe that's viewpoint discrimination  i will say that i will say that laying over all of this is the reid decision where the supreme court said that seem to be saying even in a non public forum even content distinctions are in permissible because in that case the court said and just as brian is a concurrent said we're dealing with a not we're not dealing with a public forum here we're dealing with the public highways and the court said when you when you say it when you put a different standard for travel signs versus other kinds of