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'Message condoms' win in NYC ruling
By David L. Hudson Jr.
First Amendment scholar
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.”
