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.”
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