Life, liberty and the pursuit of pokemon. Not quite the ideals the United States were founded upon, but close enough. On Thursday, a Wisconsin federal judge issued a preliminary injunction barring Milwaukee from enforcing an ordinance that was adopted in reaction to 2016’s Pokemon Go phenomenon. The ruling from the court is that the ordinance likely violates the First Amendment.City officials were aghast at large numbers of individuals playing Pokemon Go who visited parks, littered, trampled grass and flowers, and stayed past park hours. It cost the city tens of thousands of dollars in additional law enforcement and park maintenance services. So in January, the Midwestern city decided to require permits for virtual and location-based augmented reality games. Companies releasing games were told to go through a process that reviews the “appropriateness of the application,” submit a “certificate of insurance” in the amount of $1 million of general liability coverage, and potentially pay other fees as well.That didn’t sit well with Candy Lab AR, makers of the augmented reality poker game Texas Rope ‘Em. The company sued.
In response to the lawsuit, Milwaukee argued that Texas Rope ‘Em — a game where players collect cards and build their hands by visiting certain locations — wasn’t entitled to First Amendment protection because it didn’t have sufficient expressive elements such as plot, characters or dialogue.
“But the County fails to cite any case in which such protection was denied to an AR game,” writes U.S. District Court judge J.P. Stadtmueller, adding that the Supreme Court spoke clearly in the 2011 decision, Brown v. Entm’t Merchs. Ass’n: “[W]hatever the challenges of applying the Constitution to ever-advancing technology, ‘the basic principles of freedom of speech and the press, like the First Amendment’s command, do not vary’ when a new and different medium for communication appears.”
In what looks to be a first, an augmented reality game is deemed by a court to have sufficient expressive content to gain protection under the First Amendment.
That doesn’t finish the analysis, as the judge must then examine whether the city’s restrictions are content-neutral and narrowly tailored to serve a significant government interest.
Milwaukee does convince Stadtmueller that its ordinance is content-neutral.
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The judge writes that the city is targeting location-based games “regardless of their content, be it poker, zombie-killing, or Pokemon-catching” and that “nowhere in the Ordinance is there an indication that the County sought to agree, disagree, or otherwise express a view on the content of the AR games that might be played in its parks.”
But Stadtmueller says that’s not enough because the ordinance is procedurally unsound — only giving game developers “vague” standards on what’s permissible and potentially placing too much censorship discretion in the hands of government officials. The judge picks apart health and safety limitations as well as a lack of guidance on “site selection.”
“Likewise, upon reading phrases like ‘protection of rare flora and fauna’ and ‘the intensity of game activities on park lands,’ how is a developer to know how much flower-trampling is too much, or what plants count as ‘rare,’ or what ‘intense’ use of parklands entails,” the judge asks.
Stadtmueller closes his opinion (read in full here) with some words of wisdom to officials who may wish to regulate life, liberty and the pursuit of pokemon.
“Here, the Ordinance is revealed for its strangeness and lack of sophistication,” the opinion states. “The Ordinance treats game developers like Candy Lab as though they are trying hold an ‘event’ in a Milwaukee County park. However, this misunderstands the nature of the problem, since Candy Lab’s video game will not be played at a discrete time or location within a park. Requiring Candy Lab to secure insurance, portable restrooms, security, clean-up, and provide a timeline for an ‘event’ is incongruent with how Texas Rope ‘Em (or any other mobile game) is played.”
He continues: “Forcing a square peg in a round hole demonstrates a true lack of tailoring, much less ‘narrow’ tailoring designed to address the County’s interests as they might be affected by Candy Lab. Rather than prohibit publication of the game itself, the County could address its concerns by directly regulating the objectionable downstream conduct. This might include aggressively penalizing gamers who violate park rules or limiting gamers to certain areas of the park. Such measures would assuage the alleged evils visited upon the parks by gamers while stifling less expression than the Ordinance does.”