The rubbers have to hit the road. Two unlicensed street vendors fighting for the right to sell political-themed condoms under the guise of free speech have had their lawsuit rubbed out by a Manhattan Criminal Court judge. Thomas Larsen and Edward Wardle, employees of the novelty-condom company Practice Safe Policy, were given tickets on Canal Street and in Times Square for pushing prophylactics like The Palin, which comes in a wrapper with the slogan "When Abortion is Not an Option." Their Obama condom's described as "Ultimate Stimulus Package." On Friday judge Michael Gerstein ruled that no matter how hilarious their products, their business was not protected by the First Amendment.
Law.com reports that despite the condom-makers' purported desire "to stimulate political awareness and conversation" through novelty contraceptives, Judge Gerstein ruled that the defendants were engaged in commercial 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," Judge Gerstein wrote. Practice Safe Policy, "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... While commercial activity is an essential part of our society, it is not subject to the same level of First Amendment protection as is political and other advocacy speech."