Game On: Candy Lab AR Files First Amendment Challenge to Milwaukee’s Pokemon Go-Inspired Ordinance

The first shot in the battle for free speech rights in augmented reality has been fired–and I’m proud to be the one who pulled the trigger.

In prior posts, I have tracked Milwaukee County’s proposal and adoption of an ordinance regulating location-based augmented reality games. Written as a knee-jerk reaction to the number of people visiting County parks during last summer’s Pokemon Go craze, the law prohibits “companies” from “introducing virtual and location-based augmented reality games into” Milwaukee County Parks without a permit.

This is what makes Milwaukee’s reaction to the game different from every other municipality’s across the country. To solve the problem of the occasionally unruly or trespassing player, other cities did what cities always do: enforce the rules of conduct against those who break them. Milwaukee went a giant leap beyond that by regulating the companies publishing the games. And not just Pokemon Go, but the entire genre of “virtual games” (whatever those are) and “location-based augmented reality games.”

Candy Lab AR has been in the business of creating location-based and AR mobile content for more than six years. Its latest release, Texas Rope ‘Em, functions much like Pokemon Go in many ways. Players need to visit game stops at designated geographic coordinates in order to collect digital items that they can then use to play a game. Except here, the items are playing cards rather than Pokemon, and the game is Texas Hold ‘Em poker.

Some of the game stops in Texas Rope ‘Em are located in Milwaukee County Parks. According to the County, that makes Candy Lab AR subject to its ordinance, meaning that the company must seek and obtain a permit from the County before it publishes or even advertises the game. The prerequisites to obtaining that permit, though, are absurdly burdensome. The 10-page application requests a vast amount of information, such as estimated attendance, location in park, event dates and times, site map, whether and how the event will be advertised. It requires detailed plans for garbage collection, on-site security, and medical services, and warns that applicants will be responsible for these services. Applicants must have liability insurance and make it available on-site for inspection. It also requires payment of several fees, and reserves the limitless discretion to demand more. Even after all this, submitting the application does not automatically grant an applicant a permit.

Like most of the companies publishing innovative location-based and AR software, Candy Lab AR is still a start-up reliant on a handful of investors. It can’t realistically afford to go through this process with one municipality, much less all the others that will jump on the bandwagon if laws like this are allowed to stand.

What’s more, game publishers shouldn’t have to worry about this at all, because no public body has the right to prohibit the publication of video games in the first place. The Supreme Court has directly ruled that video games are speech. “Video games communicate ideas—and even social messages,” it said, “through many familiar literary devices (such as characters, dialogue, plot, and music) and through features distinctive to the medium (such as the player’s interaction with the virtual world). That suffices to confer First Amendment protection.”

Prohibiting a company from publishing augmented reality video games, merely because it’s afraid of how people might use those games, is a classic example of prior restraint – something the First Amendment simply does not allow. If Candy Lab AR had created a book or a map describing where to find certain objects in Milwaukee parks, there is no question the County could not prohibit the company from publishing that content. What makes them think they have the power to regulate the same content just because it is published in in the form of augmented reality software?

The terminology is also incredibly vague. It does not even attempt to define “location-based augmented reality game,” for example, and there at least a half-dozen different types of games that could potentially fit that definition. “Virtual gaming” is defined so broadly as to include even playing with toy lightsabers. And don’t even get me started on the phrase “introduce [an AR game] into” the parks. As I consistently remind people, the AR content isn’t really there. It’s just imagery on a mobile device screen displayed on top of a live video feed. The only place a company “introduces” its mobile app “into” is an app store.

That’s why Candy Lab AR hired me and my firm to file a civil rights lawsuit against Milwaukee challenging this ordinance on First Amendment grounds. Andrew Couch, CEO of Candy Lab AR, issued this statement: “We made the decision to take a stand against this ordinance because it was the right thing to do – not only for our company, but for the entire industry,” he said. “Augmented reality promises to be one of the most important media for expression and communication in the 21st century. Combining augmented reality with location-sensing technology not only enables great gameplay, but also provides unique methods of storytelling, art, navigation, commerce, and more. We can’t let ill-conceived laws like this one hamper the medium before it even gets off the ground.”

Our complaint and motion for preliminary injunction are also supported by written testimony from two other giants in the AR field: Ori Inbar, President of AugmentedReality.Org, and Mark Skwarek, a pioneering digital artist who teaches AR at NYU Polytechnic.

I have been blogging and speaking on issues exactly like this for more than six years. It is amazingly gratifying to be part of the very first effort to vindicate First Amendment rights in the AR medium. I hope to have positive developments to report in the near future.

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