Video Games

Milwaukee County Sued For Requiring 10 Page Permit Application to Play Pokemon Go in Public Park

Do augmented reality games get First Amendment protections like books, movies, and traditional video games?



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."

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  1. That gets a proggie A for effort.

    Surely that program created 10 jobs. That’s 10 lamp posts that get guaranteed benefits and a pension for doing nothing more than showing up for the rest of their lives.

    Excellent work.

  2. then they came for the frisbee-golfers…

    1. Can’t have any of those people sitting on benches listening to the birds either. We have to control these people from themselves.

      1. then they came for the duck feeders…

    2. We must not recognize anything to be Ultimate other than the Government.

    3. Then they came for the men with mustaches and sunglasses wearing trench coats.

  3. how about ‘fuck off, slaver?’

  4. OT. Well, that didn’t take long:

    “LITTLE ROCK, Ark. (AP) ? Arkansas’ new Ten Commandments monument was smashed to pieces early Wednesday by someone driving a vehicle into it less than 24 hours after the 6-foot (1.8 meter) granite statue was placed on state Capitol grounds.”…..ign=buffer

    1. Good taste strikes again.

    2. freedom to exercise hatred of religion > negligence per se

    3. I like it because it demonstrates the fundamental problem with regulating behavior. You’ll always forget some cases.

      In this case they forgot to add an 11th commandment – thou shalt not drive thy car into a granite statue.

    4. Looks like it was the same guy from before too. Michael Tate is nothing if not consistent.

    5. I told them to make it an explode on contact device…but they never listen…

  5. not many people are playing Pokemon Go anymore

    As late as April Pokemon Go had 65 million active monthly users.

    1. Yeah, but how many of those are just checking in once a week to see if there’s a Pidgey in their living room?

      1. My PokeVan isn’t getting the visits it used to.

    2. My guess is it is very cyclic. A new update comes out, a lot of people check in for a day and then stop playing again.

      That being said, I don’t think any of this is that relevant to the fact that Slavers need to fuck off.

      1. slavers gotta slave…

  6. Look, a walk in the park isn’t a walk in the park, having fun is serious business. You have to have somebody coordinating this spontaneity or else you have people just doing whatever they want and nobody wants that.

    1. Especially not in the name of spontaneity.

  7. It’s always nice when bureaucrats themselves set out to teach children how useless bureaucrats are.

  8. I wonder if Milwaukee has thought to introduce the bullshit edge of IP rights into the issue. New York City busted souvenir dealers who used the NYC skyline on their merchandise and San Fran did much the same thing with the Golden Gate Bridge, claiming the image itself was their property. If you make a calendar or a post card or a coffee mug that features a picture of Elvis Presley, well, the Elvis Presley estate owns the rights to that image, but what about the surf on Miami Beach or a landscape of the Colorado Rockies or the roadside flowers out on the highway – can I take a picture of the Las Vegas strip, silk-screen it on a T-shirt and sell the T-shirt? Milwaukee should just sue for copyright infringement and let the courts sort it out because God knows where that would wind up these days.

    (There’s a hundred lawsuits a day over crap involving IP rights – the company that makes the Candy Crush game wanted to sue the shit out of anybody using the word “crush” until Dr Pepper stepped in and pointed out that they were using the word “crush” long before the Candy Crush folks were and if they wanted to get into a pissing contest, Dr Pepper was up for it.)

  9. A more worthwhile ban would stop children from playing kickball in the street front of homes without the owner’s permission. That, at least, would protect innocent people from property damage that actually happens.

  10. TLDR: Don’t play the game if you’re an adult male.

    1. You’re not kidding about not reading.

  11. Do augmented reality games get First Amendment protections like books, movies, and traditional video games?

    That’s not the correct question. The correct question is, do I have a right to stand or spend time in a public space? I don’t need to ‘recognize’ explicit First Amendment protections for each and every pastime in which someone might engage. I don’t need permission to play Pokemon Go 1.0 and then a new set of permissions allowing me to play Pokemon Go 1.1

    1. Seems odd to try to make this a First Amendment question. The game makers have a right to publish their games. I think that’s about all the First says about the matter.

      The real question is, as you say, about the nature of public spaces like parks.

      I have no idea what people actually do when playing these games. I imagine it involves some running around or something. If similar activities are permitted in a park, it doesn’t seem reasonable to restrict the games specifically.

      1. The activity of these games consists of checking your phone for a point of interest, walking to said point, performing some activity in the game, and then moving on to the next point of interest.

        1. It uses new technology to turn ambling around a park into something new and dark.

    2. It is a first amendment question though. We have a first amendment right to publish our speech. We also have a first amendment right to consume speech that we wish to consume. If both of those are true, what right does the city of Milwaukee have to say when and where we can practice our first amendment right to consume speech?

      For example, does the City of Milwaukee have the right to say one cannot sit on a park bench or under a shade tree and read a book? If not, why can they prevent that same person from playing a mobile game on said bench or under said tree?

  12. 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.

    So it’s like getting a concealed carry permit? Except for the expensive required training and fees.

    I think there should be a permitting process for the fourth and fifth amendments as well, not only a good revenue generator, but saves a lot of lawsuits from those who do not get a permit. Or get rejected without cause or recourse. Fixes all the issues with asset forfeiture, and gets a lot of compelled testimony into the record.

    1. I can’t believe there’s any real expectation of people going through the permit process. This is either simply about giving the cops another “legal” excuse to harass people at the park who they deem to be behaving “suspiciously” or “disruptively”.

  13. Release the game and tell Leslie Knope to go fuck herself.

    1. I’m Ron Swanson and I approve this message.

  14. The correct response from the game developers would have been making the sidewalks in front of the homes of city government officials worth extra points. Bonus points for playing at 2am. Bonus points for screaming obscenities into the phone at a large volume while playing.

  15. I’d like the Wisconsin politicians to please write an essay detailing the plot, characters, dialogue, and communicative elements of a Jackson Pollack painting. Or any other example of abstract art. Or a photograph of a sunset. Go ahead, Wisconsin, I’ll wait.

    No one doubts that those works are covered by the First Amendment. This issue makes me want to create an AR disc golf game, then point out that they allow people to play ACTUAL disc golf, which has a far greater potential to damage “rare flora and fauna”, without a permit of any kind, yet they want a permit to allow the throwing of VIRTUAL frisbees? The stupid, it burns us…

    1. yup, really sucks to be rare flora and fauna…

  16. 100 years from now, folks will look back on a law like this and regard it in the same light we look at archaic laws on the books still today. Can’t eat Corn Flakes on Sunday, et al.

  17. Milwaukeean here. I was one of the people calling for the resignation of the parks director the first time they tried to pull this crap last year. Their literal rationale for coming down on Pok?mon GO players was that their attendance in the park might generate litter and crowding. As opposed to any kind of park guests!? I was always of the impression that the parks service is supposed to encourage public use of park grounds, but apparently the point is actually to be an insufferable bureaucracy.

    1. It seems like the preferred situation is that no one comes to the parks at all I guess.

    2. Did it work? I mean, did the park’s director resign? Or at least issue an apology?

  18. Digital idiots.

  19. Someone needs to come out with the “Animal Pharm” TM and see if the government gets the irony when challenged.

    The Pharm is really a game designed to help you find the drop site where your dealer left your stuff. It makes copping more exciting and less risky. It turns buying into an Easter egg hunt of sorts….but shhhhh. It’s really about politics 😉

  20. The permitting process is clearly ridiculous and of no use, because it doesn’t take care of the public interests. Pokemon was the name which becomes popular just in few hours in 2016.

  21. Someone needs to come out with the “Animal Pharm” TM and see

  22. 100 years from now, folks will look back on a law like this and regard it in the same light we look

  23. The correct response from the game developers would have been making the sidewalks in front of the homes of city government officials worth extra points

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