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Lawsuit Argues Games Like “Pokémon Go” Should Have First Amendment Protections


In the aftermath of the Pokémon Go phenomenon that swept across the country during the summer of 2016, Milwaukee, Wisconsin quietly passed a law requiring app developers to get permits and have expensive insurance policies before augmented reality games could be used in public parks.

That law is now being challenged by Candy Lab AR, the app developer behind Texas Rope ‘Em, an augmented reality game where players must move throughout their physical environment to complete a full hand of poker. In a lawsuit filed April 21st, Candy Lab alleges:

“[Milwaukee’s] restriction impinges on Candy Lab AR’s right to free speech by regulating Candy Lab AR’s right to publish its video games that make use of the augmented reality medium. The Ordinance is a prior restraint on Candy Lab AR’s speech, impermissibly restricts Candy Lab AR’s speech because of its content, and is unconstitutionally vague such that Candy Lab AR does not have notice as to what speech must be approved by permit and which it can express without seeking a permit.”

Milwaukee County filed a motion to dismiss on May 31st which states, somewhat colorfully: “There can be no First Amendment violation where there is no First Amendment right.”

The county then enters into an interesting First Amendment analysis. The dismissal motion reads:

“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.”

Milwaukee’s dismissal request has yet to be ruled on, but the judge in the case has instructed both parties to prepare for trial on April 16, 2018.

[image via Image via Kaspars GrinvaldsShutterstock]

Follow Colin Kalmbacher on Twitter: @colinkalmbacher

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