People v. Larsen

• Decision Date: 30 July 2010
• Citation: 29 Misc.3d 423,906 N.Y.S.2d 709
• Parties: The PEOPLE of the State of New York v. Thomas LARSEN, Defendant The People of the State of New York v. Edward Wardle, Defendant.
• Court: New York Criminal Court

906 N.Y.S.2d 709

29 Misc.3d 423

The PEOPLE of the State of New York

v.Thomas LARSEN, Defendant

The People of the State of New York

v.Edward Wardle, Defendant.

Criminal Court, City of New York,

New York County.

July 30, 2010.

Cyrus R. Vance, Jr., District Attorney (Michael Ford, Esq. of counsel), for the People.

Joel Berger, Esq., for defendant Thomas Larsen.

Steven Banks, Esq., The Legal Aid Society (Todd Albert, Esq. of counsel), for defendant Edward Wardle.

MICHAEL GERSTEIN, J.

We are asked to determine whether topical novelty condoms should be deemed expressive items similar to other First Amendment protected items for purposes of exempting vendors of those items from New York City's general vendor licensing statute, Administrative Code § 20-453. Our decision requires analysis of First Amendment jurisprudence, as well as analysis of the statute upon which the charge is based and the items sold by Defendants.

Defendants ¹ are each charged with violating § 20-453, for allegedly displaying and offering for sale condoms on the street without a general vendor license. Defendants move to dismiss the Complaints for facial insufficiency pursuant to CPL § 170.30, arguing that their activity falls within the First Amendment exceptions to the licensing requirement. Specifically, Defendant Larsen ("Larsen") argues that the novelty condoms fall within the "written matter" exception specified in § 20-453. Defendant Wardle ("Wardle"), relying on a 2005 New York City Department of Consumer Affairs letter that lists vendors of "items bearing political messages" as exempt from the licensing statute, argues that the sale of items is protected by the First Amendment.² The People oppose the motion.

Underlying Facts

It is undisputed that the police observed Larsen at the intersection of Broadway and Canal Streets and Wardle at the intersection of Broadway and West 47th Streets displaying and offering for sale "Obama Condoms" and "Palin Condoms." ³ At the time of observation, neither Defendant was displaying a license issued by the NYC Department of Consumer Affairs, norcould they produce one when asked. One of the "Obama Condoms" wrappers bears an image of President Barack Obama in front of the White House with the banner heading, "HOPE IS NOT A FORM OF PROTECTION." This message is explained on the reverse side of the wrapper as "a call to action" for the Obama Administration "that hope is not enough and responsibility is needed." The message is also meant as "a call to sexual responsibility; you can't just pull out and Hope.' " Another Obama Condom is titled "THE ULTIMATE STIMULUS PACKAGE" and "is meant to call attention to the severity of our economic state" and "to get people laid, not laid off." The "Palin Condoms" bear an image of Sarah Palin in front of mountainous terrain suggestive of Alaska with the banner heading, "WHEN ABORTION IS NOT AN OPTION," footnoted "As Thin As Her Resume." On the reverse side of the wrapper, it states that this message "takes aim at both [Sarah Palin] and the Republican Party's stance on a woman's right to choose. If a woman should not be granted the right to choose then condoms become of the utmost importance." The wrappers bear the insignia of Practice Safe Policy (PSP) and provide alink to its website, www. practicesafe policy. com.

We take judicial notice that, according to a June 9, 2008 press release, PSP is the "nation's first brand devoted to showcasing the indecent relations between politics and sex." Through its "intimate yet topical novelty products," PSP wants to turn people's attention from "minor concerns like the war, the economy or healthcare and instead focus on the truly important issue of the day: Practicing Safe Policy in the bedroom." www. practicesafe policy. com/ about. PSP is a division of Vertu Group, L.L.C., a New York Limited Liability Corporation. See N.Y. Limited Liability Law (2010).

Given these messages, Defendants argue that their merchandise fall within the First Amendment exceptions to § 20-453, and thus the case should be dismissed.

Legal Background

A. The First Amendment

As an "essential mechanism for democracy," the First Amendment "protects all forms of peaceful expression in all of its myriad manifestations." Bery v. City of New York, 97 F.3d 689, 694 (2nd Cir.1996) citing Abood v. Detroit Board of Education, 431 U.S. 209, 97 S.Ct. 1782, 52 L.Ed.2d 261 (1977). It extends protection not only to written or spoken words, but also to "pictures, films, paintings, drawings,and engravings," Kaplan v. California, 413 U.S. 115, 93 S.Ct. 2680, 37 L.Ed.2d 492 (1973), and numerous other avenues of expression. See Bery, 97 F.3d at 694.

First Amendment protection is not diminished by the fact that speech "is sold rather than given away." City of Lakewood v. Plain Dealer Publ'g Co., 486 U.S. 750 756, 108 S.Ct. 2138, 100 L.Ed.2d 771 (1988). As a result, courts have struck down laws enacted to control or suppress speech at different points in the speech process: restrictions requiring a permit at the outset, Watchtower Bible & Tract Soc. Of NY, Inc. v. Village of Stratton, 536 U.S. 150, 122 S.Ct. 2080, 153 L.Ed.2d 205 (2002); imposing a burden by impounding proceeds on receipts or royalties, Simon & Schuster, Inc. v. Members of N.Y. State Crime Victims Bd., 502 U.S. 105, 112 S.Ct. 501, 116 L.Ed.2d 476 (1991); seeking to exact a cost after the speech occurs, New York Times Co.v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686; and subjecting the speaker to criminal penalties, Brandenburg v. Ohio, 395 U.S. 444, 89 S.Ct. 1827, 23 L.Ed.2d 430 (1969). Citizens United v. FEC, 558 U.S. 50, 130 S.Ct. 876, --- L.Ed.2d ---- (2010).

B. The Evolution of the Commercial Speech Doctrine

In Chaplinsky v. New Hampshire, 315 U.S. 568, 571-72, 62 S.Ct. 766, 86 L.Ed. 1031 (1942), the Supreme Court recognized certain "well-defined and narrowly limited classes of speech" that have never been thought to raise any Constitutional problem. These classes of speech are: the lewd and obscene, the profane, the libelous, and the insulting or "fighting" words-those which by their very utterance inflict injury or tend to incite an immediate breach of the peace.⁴ Id. at 572, 62 S.Ct. 766. Such words, the Court concluded, "are no essential part of any exposition of ideas." Id.

Just a month after Chaplinsky, the Supreme Court indicated that commercial speech fell into one of the limited classesof restricted speech. In Valentine v. Chrestensen, 316 U.S. 52, 62 S.Ct. 920, 86 L.Ed. 1262 (1942), the Supreme Court addressed efforts by the City of New York to regulate advertising. In that case, Chrestensen purchased a former Navy submarine, printed handbills advertising that visitors could, for a fee, "[s]ee how men live in a Hell Diver," and sought permission to dock his submarine at a city-owned dock at Battery Park. Id. New York City denied Chrestensen permission to dock at the city dock, and police informed him that § 318 of New York City's Sanitary Code prohibited distribution of any commercialhandbill or other advertising matter in any public place, except leaflets making public protests. Id. After obtaining permission to dock at a state-owned pier in the East River, Chrestensen then printed new handbills, the front advertising the "Hell Diver" at its new location, and the back protesting the City's refusal to permit him to dock at the city dock. Id.

The Second Circuit, by a divided court, affirmed the lower court's decision enjoining enforcement of the regulation against Chrestensen, noting the need to distinguish between profit-making and nonprofit-making activities. Chrestensen v. Valentine, 122 F.2d 511, 516 (2nd Cir.1941). Nevertheless, in terms of regulating expression in public places on circulars and handbills, the Second Circuit held that there should be no difference between "group protest for abstract religious or political principle and individual protests for concrete business injuries." Id. The dissent, finding no relationship between the two sides of the handbill other than that Chrestensen determined to put them on a single sheet of paper, noted that free speech protection "should not be extended to commercial advertisements simply because the word speech,' taken alone, includes both social and business discourse." Id. at 524-525.⁵

However, when Chrestensen's suit reached the Supreme Court, the Court easily disposed of his First Amendment argument, stating: "We are ... clear that the Constitution imposes no ... restraint on government as respects purely commercial advertising," and thus reversed the Circuit and vacated the injunction against the City. Valentine, 316 U.S. at 54, 62 S.Ct. 920 ("If [Chrestensen] was attempting to use the streets of New York by distributing commercial advertising, the prohibition of the code provision was lawfully invoked against his conduct.").

Three decades later, the Supreme Court directly addressed the issue of commercial speech. In a case challenging a Virginia statute that prohibited the advertising of drug prices, the Court moved away from Valentine, concluding that "speech which does no more than propose a commercial transaction' " is not "so removed from any exposition of ideas' " that it lacks all protection. Virginia State Bd. of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748, 762, 96 S.Ct. 1817, 48 L.Ed.2d 346 (1976). The Court held drug price advertising is protected because:

[s]o long as we preserve a predominantly free enterprise economy, the allocation of our resources in large measure will be made through numerous private economic decisions. It is a matter of public interest that those decisions, in the aggregate, be intelligent and well informed. To this end, the free flow of commercial information is indispensable.

Id. at 765, 96 S.Ct. 1817. Despite the expansive language, Virginia Board granted only minimal protection to commercial speech, noting that "a different degree of protection is necessary to insure that the flow...