When Pokemon Go took the nation by storm in the summer of 2016, officials in Milwaukee, Wisconsin, were not amused.
Sure, the hugely popular augmented reality game was getting kids (and adults!) to roam around outside—probably doing more to get kids moving than Michelle Obama ever did—in the hopes of catching and battling their fictional "pocket monsters," but Milwaukee County officials were worried about how the game's popularity was affecting parks and other public spaces. Augmented reality games like Pokemon Go require gamers to be in certain physical locations in order to collect pokemon or complete in-game tasks, and public parks became hot spots for the game's overlaid reality.
Rather than being thrilled to see people of all ages flocking to places like the city's Lake Park to enjoy a new form of recreation, though, Milwaukee County implemented new rules requiring permits before anyone could engage in "electronic gaming" in parks and other public spaces.
The permitting process is ridiculously long and entirely subjective. Even if you go through the trouble of filling out the 10-page form, parks department officials can reject a permit application for any reason they might want to dream up. It's a clear overreaction to a passing fad—not many people are playing Pokemon Go anymore—and a sadly bureaucratic, old-fashioned response to the emergence of new technologies that will change the way American play video games and experience the outdoors.
It might also be a violation of the First Amendment.
A lawsuit filed in federal court by a California video game company, Candy Labs AR, challenges Milwaukee's gaming-in-public-parks ordinance as an unconstitutional prior restraint on free speech. Candy Labs AR is currently beta testing a new game, Texas Rope 'Em, that incorporates elements of poker into an augmented reality (that's what the "AR" stands for) Pokemon Go-style gaming experience, but the company says it is impossible to comply with Milwaukee County's permitting process.
The permitting process is rather ridiculous. Aside from standard fare like only allowing game play during hours when the parks are open, the new rule requires would-be gamers to go through an "internal review by the Department of Parks, Recreation, and Culture 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," according to the Milwaukee County Code. The ordinance does not establish any objective criteria for the DPRC to follow when reviewing a permit application, does not set any time limit for the review, and does not require anyone who wishes to play a non-virtual game—kickball, football, etc.—to go through any sort of permitting process. Without those specifications, the county's parks department has the authority to approve or deny any permit for practically any reason, the lawsuit alleges.
Getting a permit requires filling out a 10-page application, providing information like estimated attendance, event dates and times, whether or not the event will be advertised, and plans for on-site garbage and emergency medical services. Permit holders have to assume full liability for the duration of the event, including the costs of any damage to the park or to any "employees, agents, representatives, and guests," and must provide proof of having $1 million of general liability coverage, with the Milwaukee County DPRC listed as a beneficiary.
All that to use a supposedly public park.
Milwaukee's augmented-reality gaming ordinance is a two-dimensional government regulation for a three-dimensional world, Candy Lab AR's lawsuit argues.
The ordinance seems to expose a complete lack of understanding of the thing Milwaukee County is trying to regulate. Augmented reality games are not "events" like carnivals or bar-be-ques, with guest lists and assigned locations. Instead, they allow gamers to create hubs—like the "gyms" in Pokemon Go—within the overlaid game reality. More popular hubs become more attractive for other users to visit, while less popular ones fade away—a market-like, organic system that allows the game to evolve in ways that could never be designed.
"Texas Rope 'Em—like other mobile applications—does not have 'dates' and 'times' but is always accessible to a user once downloaded to a mobile device," the lawsuit argues. "Candy Lab AR cannot reliably estimate the number of people who will both download the application and travel to a specific location (such as the Milwaukee County Parks) to play the game." There's also no way for the company to estimate the amount of garbage removal, security, or medical services needed by gamers, and the liability requirements for every single person who plays the game "would be financially prohibitive."
But does a poorly written and overly complex permitting process rise to the level of being a violation of free speech?
Candy Labs AR's lawsuit conceeds that Milwaukee officials are allowed to regulate use of parks however they see fit, but argues that requiring a permit for video gaming is an unconstitutional restraint on speech. The Constitution protects publishers from having to get a government-issued permit before releasing a book, the company argues, and the same protections should extend to other forms of media, like video games.
In a response to the lawsuit filed earlier this month, attorneys for Milwaukee County argue that games like Texas Rope 'Em are not entitled to the same First Amendment protections as books, because the game "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," the response argues. "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."
As the attorneys for Milwaukee County note, video games are covered by First Amendment protections. The U.S. Supreme Court in 2011 ruled that California could not ban the sale of certain violent video games because the medium was protected by the First Amendment.
Although there has been no definitive ruling on whether augmented reality games are covered by that same legal precedent, it is difficult to come up with an argument that gives First Amendment protection to traditional computer games—many of which also have no narrative or dialogue—but not to AR experiences. Those protections are not contingent on the inclusion of traditional story elements, and do not require "communicative features" .
If no settlement is reached, the case is set to go to trial in U.S. District Court for the Eastern District of Wisconsin next April.
In any case, it's worth noting that rules like Milwaukee's could have a chilling effect on the development of new tech and do little to protect the public interest.
Pokemon Go, which inspired such concern among Milwaukee officials last year, is no longer the most popular game in town. Its user base has declined to about 8 million daily users (down from more than 22 million daily at the game's peak in late July 2016). Milwaukee's ordinance is now "a vestigial reminder of the initial panic" on the part of public officials, writes Anne Hobson, a tech policy fellow at the R Street Institute, a free market think tank based in Washington, D.C.
"While the panic may have passed, the costs of compliance with these laws remains," Hobson says. "Retrofitting existing regulatory frameworks onto digital constructs will not end well for policymakers, public safety officials or the app users this ordinance seeks to protect."