Food truck removed from Statehouse Market over slogan, raising free speech implications

Smash Daddy’s Burgers, Fries, Etc. has participated in the Statehouse Market for about two years.

A food truck that’s been a regular at the Indiana Statehouse’s weekly market for about two years had its participation revoked over a slogan on the side of the vehicle, and one law professor thinks it brings First Amendment questions.

In an email to Smash Daddy’s Burgers, Fries, Etc., a state personnel department official said they’d “received several complaints regarding the slogan” and, as a result, had “been directed to cancel” two upcoming sessions.

Owner Scott Sims said the suggestive saying — “you’ll love our meat in your mouth” — had rarely been an issue before.

“I could count on one hand the complaints I’ve had over the last 20 years,” said Sims, who’s used the slogan both for a previous restaurant — called Between the Bun — and since launching his truck at the end of 2023.

But recently, two parties took issue with it: a Christian school and the state government. The former was more understandable, Sims said, but the latter was, in his view, “ridiculous” and “censorship.”

Kirollos Barsoum, communications director of the State Personnel Department, said “Participation of food trucks and other vendors at the Statehouse Market is by invitation and is at the discretion of the State Personnel Department. We routinely evaluate vendors based on a variety of operational and programmatic considerations, and we reserve the right to modify the vendor rotation or discontinue participation at any time.”

The Capital Chronicle also asked for copies of any complaints received and he said “no responsive written records exist.”

Zachary Cormier, an associate professor of law at Indiana University’s Robert H. McKinney School of Law, said there could be First Amendment implications. Offensiveness alone can’t be precluded by the government.

For it to regulate that kind of speech, he said, it’d need to rise to the level of obscenity. That standard, while varying from community to community, tends to be high.

“And usually these types of business slogans that are meant to be provocative,” Cormier said, “you know maybe even have some type of sexual connotation or double entendre, don’t normally rise to that level.”

“If it’s just the slogan, I think there would be a real concern about this not rising to the level of formal obscenity,” he added.

Cormier referenced a 2018 case in the U.S. Court of Appeals Second District which pertained to a food truck.

The State of New York denied a food truck participation in a government lunch program because of the truck’s branding, which featured ethnic slurs. The truck sued. The Second Circuit ultimately reversed a lower court’s decision, finding the state engaged in viewpoint discrimination against the truck.

That case built off a 2017 U.S. Supreme Court decision in Matal v. Tam. The U.S. Patent and Trademark Office denied an application for a band called The Slants because it would potentially be disparaging toward Asian people, citing a provision in the federal Lanham Act prohibiting trademarks that are disparaging. In an 8-0 decision, SCOTUS found this clause violated the First Amendment and was unconstitutional.

The Supreme Court again struck down part of the Lanham Act in 2019, deciding its restrictions on “immoral” or “scandalous” trademarks was also unconstitutional.

Sims, the food truck owner, also felt he didn’t get a chance to appeal or come up with a solution since the email stated the decision was “final.” Nobody had complained to him while at the market, he said, and he’ll lose between $4,000 and $5,000 in revenue from the two Thursdays he’ll miss in August and September.

“We stay constantly busy — do a huge amount of sales when we’re there,” Sims said.

He said the slogan depends on how you want to read it.

“I mean, we make burgers and hot dogs, so you’ll love our meat in your mouth,” Sims said. “But I’m sure, and as they did, some people took it the wrong way.”

Indiana Capital Chronicle is part of States Newsroom, a nonprofit news network supported by grants and a coalition of donors as a 501c(3) public charity. Indiana Capital Chronicle maintains editorial independence. Contact Editor Niki Kelly for questions: [email protected].