Political Condom Vendors Not Protected by 1st Amendment, Judge Rules

NEW YORK — Two street vendors selling politically stirring condoms charged for not carrying vendor licenses cannot claim the 1st Amendment as a defense, a Manhattan judge has ruled.

Defendants Thomas Larsen and Edward Wardle were charged with selling Practice Safe Policy’s Obama and Palin Condoms on New York streets without licenses.

The condoms feature images of President Barack Obama and former vice-presidential candidate Sarah Palin coupled with timely double entendres. The Obama slogans included "The Ultimate Stimulus Package," while Palin's wrapper features "As Thin as Her Resume."

The defendants were both represented by Joel Berger, an attorney at Sonnenfeld & Richman.

Berger argued that his clients’ actions were protected by the 1st Amendment and fell within the “written matters” exception to the city’s licensing requirements, which exempts any vendor who "hawks, peddles [or] sells…written matter," including "newspapers, periodicals, books, pamphlets" and "other similar written matter.”

Nevertheless, on July 30, criminal court Judge Michael Gerstein rejected that argument, maintaining that the novelty prophylactics constituted commercial speech, not constitutionally protected persuasive speech.

"The fact that the clever marketing of these products is tied to current events does not, by itself, entitle them to full constitutional protection," Gerstein wrote. Practice Safe Policy, he said, "is also now advertising Oil Spill Condoms, 'Drill Without the Spill.' Such activity seems more clearly focused on marketing a brand rather than engaging in fully protected speech."

Following the ruling, the defendants agreed to adjournments contemplating dismissal and were required to complete one day of community service.

Practice Safe Policy founder Benjamin Sherman told XBIZ that he disagrees with Gerstein’s ruling and that the company has been selling its products following the city’s requirements.

“According to the Department of Consumer Affairs (DCA) and the NYPD, all that is needed to vend political merchandise in the city of New York is a Certificate of Authority to Collect Sales Tax, which all our vendors have,” Sherman said. “The DCA and NYPD allow for the vending of T-shirts, flags, and buttons bearing political messages, but not condoms, even though we clearly express our views on the packaging.”

Each of the company’s condoms features a catchphrase with corresponding reasoning printed on the package.

“For example, we use the saying ‘The Ultimate Stimulus Package,’ for one of our Obama Condoms,” Sherman said. “This phrase is our most obvious play on words yet. It’s meant to call attention to the severity of our economic state. Many Americans think that the Stimulus Package is full of holes, however, ours is not. The ‘Ultimate Stimulus Package,’ is intended to get the general public laid, not laid off, and to use comedy to stimulate political awareness and conversation.”

With the ruling, Sherman weighs the ramifications on his business in New York.

“For argument’s sake, let’s say that we do need a general vendors license because our political awareness products are not protected under the 1st Amendment,” he said. It is impossible to get a General Vendors license, as New York City limits the number of non-food vendor licenses to 853, and food vendor licenses to 3,100. The waiting list currently runs about 25 years and has been closed to new applicants since 1993.”

Obama Condoms are available at ObamaCondoms.com, and Palin Condoms are sold at ThePalinCondom.com.

For more information, email info@practicesafepolicy.com.

Copyright © 2024 Adnet Media. All Rights Reserved. XBIZ is a trademark of Adnet Media.
Reproduction in whole or in part in any form or medium without express written permission is prohibited.

More News

Justices Alito, Thomas Invoke Victorian-Era Morality Law, Raising Censorship Concerns

Several national publications reported this week on widespread concern among Free Speech advocates after U.S. Supreme Court Justices Samuel Alito and Clarence Thomas repeatedly invoked during a hearing the infamous segregation-era law the Comstock Act, which was the cornerstone of U.S. censorship of sexual material from the 1870s until the 1970s.

LELO Launches 'Masturbitter' Craft Beer to Promote Male Sex Talk

LELO has partnered with Great Beyond Brewing Company to launch Masturbitter, a craft beer, to encourage men to discuss sex.

Nebraska AV Bill Moves Forward Despite Privacy, Free Speech Concerns

Nebraska’s unicameral Legislature has given first-round approval to LB 1092, the state’s version of the age verification bills being sponsored around the country by anti-porn religious conservative activists.

Performers in Meta Blacklisting Lawsuit Seek to Preserve Antitrust Claims

Adult Performance Artists Guild board officers Alana Evans, Kelly Pierce and Ruby have informed a California court that, although they want to drop their lawsuit claiming that Meta conspired with OnlyFans to blacklist rival premium fan platforms’ talent, they may still pursue antitrust claims in the future.

Xgen Now Shipping ZOLO's 'Stroke Off' Collection

Xgen Products is now shipping the Stroke Off collection of 11 handheld strokers and four masturbators modeled after lifelike body parts.

Nobü Unveils 'Gyrä' Vibrating Grinding Pad

Nobü has introduced the new Gyrä vibrating grinding pad.

Orion Introduces New 3-Motor Vibrator From 'Sweet Smile' Line

Orion Wholesale has debuted the new three-motor RC G- & P-Spot Vibrator from its Sweet Smile line.

C1R Debuts 'Vers' Suction Dildo, Butt Plug

C1R has introduced its new Vers liquid silicone suction dildo and butt plug.

FSC, Co-Plaintiffs to Ask US Supreme Court to Review Constitutionality of Texas Age Verification Law

Free Speech Coalition (FSC) and its co-plaintiffs in the challenge to Texas’ controversial age verification law have petitioned the United States Court of Appeals for the 5th Circuit to stay its recent decision upholding the law, because they intend to appeal to the U.S. Supreme Court to review the law’s constitutionality.

Blush Erotica, The Kinky Candle Company Partner for Branded Candle

Blush Erotica has partnered with The Kinky Candle Company for an official branded candle.

Show More