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A Wisconsin county law requiring permits for location-based augmented reality games likely restricts constitutionally protected speech because it gives county officials unlimited discretion to grant, deny, or revoke such permits, the U.S. District Court for the Eastern District of Wisconsin held July 20 ( Candy Lab, Inc. v. Milwaukee County , 2017 BL 251783, E.D. Wis., No. 17-CV-569-JPS, 7/20/17 ).
The decision may be the first to hold that an augmented reality game is entitled to First Amendment protection, David B. Hoppe, a virtual reality attorney and principal of Gamma Law in San Francisco, told Bloomberg BNA July 21. But it also raises questions as to whether games lacking expressive elements would not qualify as protected speech, he said. Gamma Law is a practice group within Access International Law Group PC.
Mobile app developer Candy Lab Inc. sued Milwaukee County, Wis. after learning that it needed to obtain a special event permit before releasing its augmented reality game to the public. Candy Lab’s game, “Texas Rope ‘Em,” superimposes visual elements onto an image of the real world on users’ mobile devices. The game involves players traveling to real-world locations to collect poker cards.
The court blocked the county from enforcing its ordinance until further order. It also denied the county’s bid to dismiss Candy Lab’s claim.
An attorney for the county didn’t immediately respond to Bloomberg BNA’s request for comment.
Candy Lab’s game contains “at least the minimum quantum of expression needed to constitute protectable speech,” Judge Joseph Peter Stadtmueller said.
The U.S. Supreme Court held in Brown v. Entertainment Merchants Ass’n, 564 U.S. 786, that video games are entitled to First Amendment protection because they communicate ideas. But until now, little guidance existed on whether that protection extends to virtual or augmented reality, the district court said.
The court rejected the county’s argument that “Texas Rope ‘Em” is simply a card game and doesn’t communicate any ideas or messages. The game has sufficient expressive content because it takes place in a Western-themed virtual environment and “conveys ideas related to the Wild West and scavenger hunting,” the court said.
The county’s ordinance is a content-neutral restriction on free speech because it doesn’t target particular types of augmented reality games, the court said. But it doesn’t pass constitutional muster because it gives government officials unlimited discretion to suppress speech, the court said. The ordinance expressly provides that Milwaukee County parks “in its sole discretion may grant, deny, revoke, or suspend any permit, at any time and for any reason,” according to the court.
Warner Norcross & Judd LLP represented Candy Lab. Husch Blackwell LLP represented Milwaukee County.
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