It’s been about two and a half months since my client Candy Lab AR and I filed a First Amendment lawsuit challenging Milwaukee County’s attempt to regulate the publication of location-based augmented reality games. The Ordinance at issue was inspired by Pokemon Go players in county parks last year, but is drafted so broadly and incoherently as to potentially sweep in a broad swath of protected speech. What’s more, instead of simply regulating how people use the parks, this Ordinance purports to forbid companies from even publishing the games without a permit. That’s what courts call a “prior restraint,” and is one of the things that makes this Ordinance particularly offensive to the freedom of speech so fundamental to our civil society.
This is a uniquely critical point in time in which to be reaffirming the First Amendment’s relevance in the context of AR. Even in the short amount of time since we filed the lawsuit, the amount of available content–and the capacity to create it–has proliferated exponentially. Apple has finally announced its long-awaited first foray into AR with ARKit, rolling out with iOS11 in the fall. Facebook and Snap made similar announcements, and over the next several days, Motive.io will be making available the most robust, accessible publishing platform for location-based AR games yet. The augmented medium is no longer just for professional developers; it is starting to become a democratic platform for expression that rivals the internet itself, as we aficionados always knew it would be. Some pushback from authorities and entrenched interests will be inevitable, but we can’t have innovation stifled by ignorance of the technology or of the law.
We’ve recently completed briefing on our Motion for Preliminary Injunction. Milwaukee’s primary response to the motion was that AR games in general, and my client’s app (Texas Rope ‘Em) in particular, aren’t creative enough to deserve First Amendment protection anyway, so, no harm, no foul. The County also filed a separate Motion to Dismiss the case on the same grounds. This argument misses the mark on several levels. For one thing, it’s just wrong as a factual matter; Candy Lab AR’s app can be accurately described as entertainment content, a video games, a map, and artwork, all of which are categorically protected forms of speech. And even if, for argument’s sake, this specific app somehow didn’t deserve legal protection, that still wouldn’t matter, because the issue is the unconstitutionality of the Ordinance in general, not just as applied to one app. First Amendment law allows us to challenge–and the court to strike down–an unconstitutional law because of its effect on the industry, and on society, as a whole. The County can’t avoid that outcome just by shooting the messenger.
After reading our responses to their arguments, Milwaukee also filed another motion–this time to put the case on hold for months while it “contemplates” amending the Ordinance in some unspecified way. We’ve opposed that motion too. There’s no reason to expect the County to get it right the next time without guidance from the court, especially when they continue to insist on such flawed legal arguments–and when they insist on the ability to continue enforcing the Ordinance against others in the meantime. Every day this Ordinance remains in effect chills speech across the AR industry and is an affront to the First Amendment.
Feedback from other across the AR spectrum and beyond has been tremendous. Whether it’s been in person or in social media conversations, the words of encouragement and support continue to come, as Candy Lab AR CEO Andrew Couch explained in this open letter. Even the comments sections of the various news articles covering the case have been overwhelmingly agreeable.
Speaking of news coverage, there’s been no shortage of it. Below are a representative sample of articles discussing the case:
The Hollywood Reporter (“The wave of the future hit a courtroom”)
Ars Technica (“They’re passing two dimensional laws in a three dimensional world.”)
Associated Press (carried by publications worldwide, as shown here in the Chicago Tribune)
Inverse (“Milwaukee’s War on ‘Pokémon GO’ Could Change Tech Forever”)
Michigan Tech News (“a case that is expected to have far-reaching implications for the fast-growing augmented reality industry”)
TechDirt (“Candy Labs asserts the ordinance is a prior restraint… And it’s quite difficult to see how that isn’t the case.”)
We expect the Court’s rulings on the pending motions anytime now. Those decisions will determine where the case goes from here. Stay tuned.