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Obama and Palin Condoms Not Protected Under First Amendment, Judge Rules

A photo of a condom picturing former US Republican vice-presidential candidate Sarah Palin, after a series of political condoms were handed over for free as part of an advertisement campaign, in New York, January 12, 2009. The condoms are part of a line of limited edition political condoms created by the New York City company Practice Safe Policy, featuring President-elect Barack Obama, former Republican presidential candidate John McCain and McCain's presidential running-mate Sarah Palin. The condoms are for sale on the company's website for USD 5.95 for one, USD 9.95 for two or the triple pack for USD 12.95. AFP PHOTO/Emmanuel Dunand (Photo credit should read EMMANUEL DUNAND/AFP/Getty Images) Getty Images

Selling politically-themed condoms is not protected under the First Amendment's guarantee of free speech, a Manhattan Criminal Court judge ruled last week.

After two unlicensed street vendors hawking condoms for the company Practice Safe Policy were ticketed on the streets of New York, the company took the case to court with an argument that their wares amount to a constitutionally protected form of speech, the New York Daily News reports.

The vendors were selling condoms with names like "The Palin," which features a picture of Sarah Palin and the message "When Abortion is Not an Option." Condoms with an image of President Obama on the wrapper are labeled the "Ultimate Stimulus Package."

The company argued in court that the condoms were comparable to buttons and bumper stickers, which are explicitly exempted as free speech from New York City's licensing code, Mark Fass on Law.com reports. Judge Michael Gerstein, however, reportedly ruled that the condoms constituted 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," Gerstein reportedly 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."

Practice Safe Policy, meanwhile, continues to sell its condoms online.