Milwaukee, Pokemon Go, and the First Amendment

Is the City's New Ordinance a Step Too Far?

https://www.flickr.com/photos/lens-cap/10711092734/in/photolist-hjv9GE-fpVjwT-DsTeQw-5wwTT7-71pYqu-hiG5tx-pL6kge-ckpz2-bEJiRV-5ktxQP-bRTVpB-c2RxeQ-but5GQ-cAq4Gq-bPUQVR-3Xkmq-u3Ak1T-9hjz3Y-dZT6b7-ccB1aj-5A2Lcy-7uVVf-4yy1Sp-4idqNF-fu6Rws-dAcjeg-sSmJT6-e18Cmo-vLGc5p-bxkt31-dWkga2-dWFNX3-dG7d1Q-dUxfeq-dQS6GD-c8dcBW-pPhyzY-zy6eGT-pLry8h-bV5SaW-7uVVg-dYqDWH-buJFXh-ce8Gkd-9eK6SG-dis9Sy-c5aMJs-2Zu5TB-4famXi-4WmjoM

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I have been warning for years of an upcoming clash between First Amendment free speech rights and the regulation of augmented reality content.

Now it looks like that day may have arrived.

The Milwaukee Record reports that, yesterday morning, “members of the Milwaukee County Board unanimously recommended for approval a proposed ordinance that would make sure something like the Pokemon Go/Lake Park controversy of the past summer never happens again. The proposed ordinance states that in the future, developers of ‘virtual and location-based augmented reality games’ must apply for permits to place things like PokeStops in Milwaukee County parks.” The text of the ordinance reads:

Virtual and location-based augmented reality games are not permitted in Milwaukee County Parks except in those areas designated with a permit for such use by the Director of the Department of Parks, Recreation, and Culture. Permits shall be required before any company may introduce a location-based augmented reality game into the Parks, effective January 1, 2017. The permitting application process is further described on DPRC’s website for companies that create and promote such games. That process shall include an internal review by the DPRC to determine the appropriateness of the application based on site selection, protection of rare flora and fauna, personal safety, and the intensity of game activities on park lands. Game activity shall only occur during standard park hours, unless otherwise authorized by the DPRC Director, who has the authority to designate special events and activities within the Parks outside of the standard operational hours.

Here’s the problem: AR gaming companies don’t “place things like PokeStops in Milwaukee County parks,” because they’re not actually there. (An important distinction from the geocaching regulations also referenced in the article.) The entire appeal of AR is all about creating the illusion that virtual content is present in the physical world–but it’s just an illusion. Instead, they are bits of data on a server that get rendered by a mobile device as pixels on a screen. They are the creative expression of the game designers who made them. In short, they are speech. The U.S. Supreme Court has been crystal-clear about this: video games are free speech protected by the First Amendment.

So are maps, by the way, which is really all Pokemon Go is–an interactive map. (The Pokestops themselves aren’t even AR; they only appear in the map view. The only AR feature of the game is the interaction with creatures, and even that is entirely optional.) And that is why it’s problematic to argue, as some inevitably will, that restrictions like this are “reasonable time, place, and manner restrictions” on speech. If the maps on AR games can be regulated, what’s next?  Google Maps? Waze? Each of these contain user-generated/edited, interactive maps too. And why not the scavenger hunt sponsored by the local church youth group, for that matter? That’s also a game that might encourage youngsters to run around a public park looking for things.

Then there are all the still-emerging applications of location-based AR that go so far beyond what Pokemon Go offers–like large-scale detective games, history tours, and community organizing tools. There’s even a platform that aspires to be the YouTube of user-generated location-based AR experiences. Does Milwaukee think it can simply ban all of this activity unless someone pulls a permit?

And why would the city’s logic end with mobile games? For example, the climactic scene of Star Wars: The Force Awakens turned the obscure Irish island where it was filmed into an overnight tourist mecca. If irate Irish residents now resent the visitors and wish to restrict travel to the island, that’s one thing. But should they be able to ban showing of the movie? Should Milwaukee be able to ban showings of Wayne’s World because it might make viewers want to visit locations in Mil-e-wah-que?

Cities already have the (limited) ability to regulate access to their parks, and the behavior of those who visit it. But regulating speech that merely encourages others to visit a public place is something entirely different.

Here’s the part of the post where I say that these are my personal views, and acknowledge that there may be relevant facts I don’t know. Perhaps there’s more to Milwaukee’s actions than what was reported. Maybe it will be limited in some other way that fits constitutional muster. Perhaps a judge will completely disagree with my perspective.

But I doubt it.

HT to Steve Glista for the link.

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