‘Message condoms’ win in NYC ruling

Friday, March 4, 2011

Charges of unlicensed vending have been dismissed against a man for selling political-message condoms on Broadway in New York City, because a criminal court judge determined that the condoms fell within the “written material” exception to the law.

In September 2010, Jose Andujar allegedly sold condoms carrying caricatures of President Barack Obama, Arizona Sen. John McCain and former Alaska Gov. Sarah Palin with satirical slogans about public issues. For example, an Obama condom bore the message, “Hope Is Not a Form of Protection,” a McCain condom said, “Old But Not Expired,” and a Palin condom declared, “When Abortion is Not an Option.”

Andujar argued that he did not need a vendor’s license to sell the condoms because they fell within the written-matter exception of the city’s administrative code. 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.”

In enacting this measure and the exception, the New York City Council wrote: “It is consistent with the principles of free speech and freedom of the press to eliminate as many restrictions on the vending of written matter as is consistent with the public health, safety and welfare.”

The Department of Consumer Affairs, the agency that enforces the law, has construed the exception to apply to “items bearing political messages” such as “t-shirts, buttons, and flags.”

Judge Lynn R. Kottler reasoned in the Feb. 28 decision in People v. Andujar that the political-message condoms were indistinguishable from political T-shirts and buttons. The judge noted that people would buy these condoms not for sexual use but for their political, satirical slogans.

“Here, the reasonable consumer of these condoms is unlikely to purchase them for use as a barrier device used during sexual intercourse, which the usual purpose of such items,” Kottler wrote. “Rather, the reasonable consumer would purchase the defendant’s condoms because of the political message contained on the wrapper.”

The District Attorney’s Office cited another New York criminal court judge’s ruling, in People v. Larsen, which rejected a similar argument by two defendants. The judge in the July 2010 Larsen ruling found that the condom sellers were engaged in commercial speech, which is entitled to less First Amendment protection than political speech.

However, Judge Kottler disagreed with that reasoning, writing that “this Court is not persuaded that the defendant’s sale of the condoms amounts only to commercial speech which is therefore afforded less protection under the First Amendment.”

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