A Wisconsin court is set to decide whether augmented reality games like Pokemon GO are free speech protected by the first amendment of the US constitution. The background: In the few weeks of collective public madness that followed the release of Pokemon GO, many parks and other public areas were flooded by Pokemon GO players, causing problems with litter, overcrowding, and likely freaking out people who had no idea about the game or what was going on.
Not wanting to deal with scenes like the one below on a regular basis, the Milwaukee County Board of Supervisors passed an ordinance requiring the publishers of all augmented reality games to obtain a permit if their apps can be used in Milwaukee parks. Among other things, the bylaw requires publishers to come up with plans for medical services, on-site security, garbage removal and liability insurance. Compliance with the bylaw is of course wildly impractical for any game company, so its’ effect is to essentially ban augmented reality games from all Milwaukee public parks.
While all this may have been forgotten as the Pokemon GO craze died down in the months after the game’s release, recently Candy Lab, a Southern California company responsible for “Texas Rope ‘Em” an augmented-reality game similar to Pokemon GO, brought a suit against the park board on the ground that the bylaw violates its free speech rights under the US Constitution, and the two sides are currently battling out in court over the issue.
While the US Supreme Court has already decided that video games as a whole are constitutionally-protected free speech, the park board is trying to convince the court that augmented reality games specifically lack the elements of expression necessary to qualify as speech. Basically, the board is arguing that if a game has no real plot, characters, or storyline, but just involves you walking from place to place looking at things through your phone, then it’s not protected by the first amendment because it lacks any any expressive content.
While it will be interesting to see what the court decides on this issue, I find it a bit surprising that this matter ended up in court in the first place. I’m sure a much cheaper and quicker solution to this problem for Candy Lab would have been to simply disable access to the game in Milwaukee’s parks. This would have likely been trivial to do from a technical standpoint, and I very much doubt it would have had any meaningful effect on the game.
Instead, the company has chosen to bring a lawsuit, and all the expense and hassle that entails. This approach simply can’t make financial sense for them, which begs the question of why they’re going through with it. Maybe they’re trying to set a precedent which will stem a potential future wave of similar regulations in other cities, maybe they’re looking for publicity, or maybe they’re just huge fans of free speech. Either way, irrespective of their motivation, if their lawsuit is successful the precedent they set will make other jurisdictions think twice before adopting similar regulations, and the entire gaming industry will have benefited from their actions.