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Judge uses 1st Amendment on Pokemon Go park ban. It's super effective!

County had hoped to protect land from gamer stampede

By Thomas Claburn, 22 Jul 2017

Milwaukee County's rules to keep its parks from being overrun by augmented reality gamers have been suspended by a judge over concerns that they violate the First Amendment.

US District Court Judge JP Stadtmueller on Thursday granted plaintiff Candy Labs' request for a preliminary injunction, preventing the rules from being enforced while the game maker's case is heard.

After Pokémon Go players flooded Lake Park in Milwaukee, Wisconsin, last summer, local officials, aghast at the trash and vandalism, instituted an ordinance that required makers of location-based AR games to obtain a permit in order to utilize locations in county parks.

Park officials want game makers to:

  • Be liable for player behavior
  • Provide $1m in liability coverage
  • Send representatives to game locations
  • Pay for restrooms
  • Seek approval for content
  • Assume other costs

The ordinance took effect in January. Then in April, Candy Labs filed a lawsuit against Milwaukee County to challenge the permit requirement, fearing that such regulation, if adopted elsewhere, could prove ruinous to the nascent AR market.

Milwaukee County attorneys fought back, arguing that the game maker's Texas Rope 'Em title did not quality for First Amendment protection because it lacked communicative content and focused on gambling.

Judge Stadtmueller, however, disagreed. After observing in his court order that the ordinance "does not appear narrowly tailored to serve the interests it purports to promote," he cited case law saying state regulation cannot "burn the house to roast the pig."

He characterized the rules as strange and unsophisticated, pointing to the way they treat Texas Rope 'Em as an event, when the game isn't designed to be played at a specific time or place.

The judge suggested the County would do better to penalize players who misbehave, rather than shifting the burden upstream to the game maker. (How that might work, given current funding for state and local parks, is unclear.)

Brian Wassom, a partner at Warner Norcross & Judd who is representing Candy Lab, told The Register in June that he thought the County's argument was terrible, given that the Supreme Court in 2010 recognized that video games, like books and films, qualify for First Amendment protection.

In a phone call with The Register on Friday, Wassom expressed satisfaction at the ruling. "We could not be happier," he said. "It's exactly what we asked for. It's a great affirmation of this medium of AR. And I think it will go a long way to easing people's fears that governments will be draconian in how they regulate it."

Milwaukee officials, who previously indicated openness toward modifying the rules to make them more acceptable, did not immediately respond to a request for comment. ®

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