Two-Dimensional Laws In a Three-Dimensional World: Augmented Reality and the 1st Amendment

The law - and those who draft the legislation that frames it - is having a hard time contending with the speed and impact of new technology.

The question is, since this has been happening for about 20 years now, is why. JL


David Kravets reports in ars technica:

Candy Lab, the maker of Texas Rope 'Em, is suing over the requirement adopted in the wake of the Pokemon Go craze that resulted in a Milwaukee park being overrun by players. The permit, which costs $1,000, requires estimates for crowd size, event dates and times. It also calls for plans about garbage collection, bathroom use, on-site security, and medical services. The Constitution protects a book publisher from a permit to release a book, Candy Lab says the same is true for AR games played in public spaces.
A First Amendment issue is brewing in federal court over a local Wisconsin ordinance—the nation's first—that requires publishers of augmented reality mobile games like Pokemon Go and Texas Rope 'Em to get a special use permit if their apps require gamers to play in Milwaukee County parks.
A Southern California company called Candy Lab, the maker of Texas Rope 'Em, is suing the county over the requirement that was adopted in February in the wake of the Pokemon Go craze that resulted in a Milwaukee county park being overrun by a deluge of players. The permit, which costs as much as $1,000, requires estimates for crowd size and the event dates and times. It also calls for plans about garbage collection, bathroom use, on-site security, and medical services.
Candy Lab says it's impossible to comply with the permit for it fledgling app. Candy Lab can neither realistically answer the permit's questions (PDF) nor afford to pay for the other requirements like on-site security when users of its platform hunt for a winning hand in its augmented reality version of Texas Hold 'Em. Like Niantic's Pokemon Go, Candy Lab's app is built to be played in designated parks and other areas. These types of mobile apps provide users with an augmented and interactive view of the park.
The issue comes as augmented reality mobile games are slowly becoming popularized. Simultaneously, municipalities like Milwaukee are trying to deal with a technology that can create an influx of people at their parks—with taxpayers left to foot the bill for cleaning up.Candy Lab said the county is free to regulate the park however it sees fit. But what it cannot do is impose a permitting process on a game publisher, the company said. The requirement for a "special event permit" amounts to a prior restraint of speech in violation of the First Amendment, the company claims in its lawsuit. (PDF)
Just like the Constitution protects a book publisher from requiring a permit to release a book, Candy Lab says the same is true for augmented reality games that are played in public spaces. "They are tying to shoehorn us into this existing permitting scheme for events that are finite in time," Brian Wassom, Candy Lab's attorney, said in a Friday interview. "They're passing two-dimensional laws in a three-dimensional world."

Game over

But the county views it from a different dimension, one where augmented reality games like Texas Rope 'Em are 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," the county said. (PDF)
The county said it was aware of the 2011 Supreme Court ruling against California's ban on the sale or rental of violent video games to minors. In coming to that conclusion in Brown v. Entertainment Merchants Association, (PDF) the justices said that video games amounted to speech protected under the First Amendment. But that doesn't mean the same is true when it comes to augmented reality, according to the county.
"No court has yet determined whether an augmented reality game receives First Amendment protection," the county notes in its response to Candy Labs' federal lawsuit. "As explained in Brown, the reason that video games receive First Amendment protection is because they communicate ideas and messages through literary devices or through features distinctive to the medium. ...In other words, video games will be protected under the First Amendment if they include sufficient communicative, expressive, or informative elements to fall at least within the outer limits of constitutionally protected speech."

It's a feature, not a bug

Texas Rope 'Em, the county maintains, "has no storylines, no characters, no plot and no dialogue. 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." The county also claims the app is an illegal form of gambling not entitled to First Amendment protection.
Wassom, the attorney for Candy Lab, told Ars that the county's argument is "ridiculous."
"Those are features of a particular expression of a game," he said. "That doesn’t make it not entertainment and not speech."
Niantic, the maker of Pokemon Go, told Ars that "continued innovation and responsible game play, rather than regulation, is the way that developers, players, and their communities will realize the potential of this technology for civic engagement, creative expression, and health." The company said it is working with Milwaukee to help placate its concerns.
"We have worked with parks departments, in Milwaukee and other communities, to optimize the distribution of gameplay including removing or relocating some gameplay locations while adding new ones in other areas and also by adding the ability to control the hours of operation for game locations to conform with local rules," Niantic said.
Wassom said that Candy Lab would formally respond in court to the county's arguments on Wednesday. US District Judge JP Stadtmueller in the Eastern District of Wisconsin has set an April 2018 trial date if no settlement is reached.