First Amendment

Does First Amendment protect augmented reality games like Pokémon Go? Suit raises the issue

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A Wisconsin county is fighting a First Amendment lawsuit that challenges its attempt to regulate augmented reality games like Pokémon Go.

In a May 31 motion, Milwaukee County says there is no court precedent giving First Amendment protection to augmented reality games and the suit by app developer Candy Lab should be tossed.

Candy Lab is challenging a county ordinance that requires augmented reality game makers to get a permit before the games can be played in public parks.

Augmented reality technology superimposes computer-generated images on live smartphone video. Candy Lab uses the technology for its “Texas Rope ’Em” poker game. Players start with two random cards and must travel to designated locations to collect additional cards.

Candy Lab’s April 21 suit (PDF) says the Milwaukee County ordinance amounts to a prior restraint on its speech, is unconstitutionally vague, and restricts its speech on the basis of content. The Hollywood Reporter, the Associated Press, Courthouse News Service and the Register have stories.

Milwaukee County counters that “Texas Rope ’Em” isn’t entitled to First Amendment protection because it doesn’t convey any messages or ideas, the dismissal motion (PDF) says. The game “has no plot, no storylines, no characters and no dialogue,” the county argues.

Nor is there any federal court decision extending First Amendment protection to augmented reality games, the dismissal motion says.

Candy Lab’s complaint is full of ad hominem attacks on Milwaukee County and colorful allegations about all the ways in which the new ordinance violates its First Amendment rights,” the dismissal motion says. “But Candy Lab forgets one thing. There can be no First Amendment violation where there is no First Amendment right.”

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