Augmented reality wins big in 1st Amendment legal flap

A judge on Thursday declared as unconstitutional a local Wisconsin ordinance mandating that the makers of augmented reality games get special use permits if their mobile apps were to be played in county parks. The law—the nation's first of its kind—was challenged on First Amendment grounds amid concerns it amounted to a prior restraint of a game maker's speech. What's more, the law was seemingly impossible to comply with.

The federal lawsuit was brought by a Southern California company named Candy Lab. The maker of Texas Rope 'Em—an augmented reality game with features like Pokemon Go—sued Milwaukee County after it adopted an AR ordinance in February in the wake of the Pokemon Go craze. Because some of its parks were overrun by a deluge of players, the county began requiring AR makers to get a permit before their apps could be used in county parks.

The permitting process also demanded that developers perform the impossible: estimate crowd size, event dates, and the times when mobile gamers would be playing inside county parks. The permits, which cost as much as $1,000, also required that developers describe plans for garbage collection, bathroom use, on-site security, and medical services. Without meeting those requirements, augmented reality publishers would be in violation of the ordinance if they published games that included playtime in Milwaukee County parks.

US District Judge J.P. Stadtmueller issued a preliminary injunction Thursday blocking Milwaukee County from enforcing the law until the outcome of a trial tentatively set for April. "Greater injury will be inflicted upon plaintiff by the denial of injunctive relief than will be inflicted upon defendants by the granting of such relief," the judge ruled. (PDF)

The county did not immediately respond for comment.

The third dimension

In court papers, the county said (PDF) that augmented reality games like Texas Rope 'Em" were not protected by the First Amendment:

Texas Rope 'Em is not entitled to First Amendment protection because it does not convey any messages or ideas. Unlike books, movies, music, plays and video games—mediums of expression that typically enjoy First Amendment protection—Texas Rope 'Em has no plot, no storylines, no characters, and no dialogue. All it conveys is a random display of cards and a map. Absent the communicative features that invoke the First Amendment, Candy Lab has no First Amendment claim.

In Texas Rope 'Em, the county added, "The player simply views randomly generated cards and travels to locations to get more. That is not the type of speech that demands First Amendment safeguards."

Brian Wassom, Candy Lab's lawyer, said the judge's decision undercuts the county's argument.

"I think it's a huge win for the medium of augmented reality as a whole," he said in a telephone interview. "It's a strong affirmation that AR is a medium for creative expression."

Niantic, the developer of Pokemon Go, told Ars in a recent interview that it was working with Milwaukee County and other jurisdictions to alter game locations and to accommodate park hours.