Judge won’t toss charges involving political-message condoms

Friday, August 6, 2010

A New York City criminal court judge has refused to dismiss charges against two men for selling novelty condoms bearing political messages without obtaining a street vendor’s license.

Although the condom wrappers featured messages about President Barack Obama and former vice presidential candidate Sarah Palin, the judge found that such expression was predominantly commercial in nature and not entitled to an exception in the license law for newspapers, books and other written material.

City officials had charged Thomas Larsen and Edward Waddle for selling condoms on the street without a license for the company Practice Safe Policy. Police observed Larsen selling “Obama condoms” and “Palin condoms” the corner of Broadway and Canal Streets. Court papers did not specify the part played by Waddle, whose case was consolidated with Larsen's.

One of the wrappers showed a picture of the president with the message, “HOPE IS NOT A FORM OF PROTECTION.” The wrapper picturing Palin said, “WHEN ABORTION IS NOT AN OPTION,” with the footnote, “As Thin As Her Resume.”

New York City Administrative Code § 20-453 says that “it shall be unlawful for any individual to act as a general vendor without having first obtained a license … except that it shall be lawful for a general vendor who … sells … newspapers, periodicals, books, pamphlets and other similar written matter.”

The defendants argued in their motion to dismiss that the novelty condoms fell with the statutory language of “other similar written matter.”

Judge Michael Gerstein of the Criminal Court of the City of New York in New York County disagreed in his July 30 opinion in People v. Larsen. He distinguished the sale of message condoms from the sale of books and newspapers by categorizing the former as commercial speech, writing that the defendants’ actions “clearly focused on marketing a brand rather than engaging in fully protected speech.”

He added that “common sense dictates that topical novelty products, notwithstanding their expressive packaging, are not inherently similar to books, newspapers and pamphlets.”

Gerstein then determined that the vendor licensing law was narrowly tailored and not targeted at specific messages or viewpoints.   He also found that the defendants had other ways to disseminate their message condoms. “Defendants, should they so desire, may personally distribute these products to the public free of charge without running afoul of the statute,” he wrote. “Should they be unable to obtain a license, they may sell their products through stores or on the Internet.”

Because Gerstein dismissed the defendants’ motion to dismiss the charges, the matter now heads to trial. Gerstein added at the end of his opinion that “at trial, the evidence may demonstrate that Defendants were engaged primarily in advocacy rather than commercial activities.”

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