In July, a federal court in Wisconsin granted a preliminary injunction to Candy Lab, the maker of the popular “Pokemon Go” game, after Milwaukee County required the company to obtain a permit in order for players of its games to play in the county’s parks.

In 2016, Candy Lab released Pokemon Go, which allows players to use smartphones with location-sensing technology and “augmented reality”—whereby the phone displays an image suggesting that the image is physically present in front of the user—to play the game in a particular geolocation.  The runaway success of the game meant that many public parks became popular with players, including Milwaukee County’s Lake Park.  In summer 2016, the county observed large numbers of people playing the game in the park, and reported increases in litter, trampling of grass and flowers, players staying past the park’s closing hours. The park additionally had inadequate bathrooms, unauthorized vending, parking problems, and traffic congestion as a result of the game.  The county responded with an ordinance prohibiting virtual- and augmented-reality games in the county’s parks, except with a permit.  In 2017, Candy Lab released another augmented-reality game, Texas Rope ‘Em, but refused to obtain a permit from the county.  Candy Lab then sued the county, claiming a violation of its free speech rights.

In reviewing Candy Lab’s motion for preliminary injunction, the court first determined that Candy Lab’s games are entitled to First Amendment protection.  The court relied on cases holding that video games receive such protection.  The court then reviewed Candy Lab’s four claims:  that the ordinance failed the familiar time, place, and manner test; and that the ordinance is an unconstitutional prior restraint on speech, vague, and overbroad.

Over the strong objection of Candy Lab, the court found the regulation was content neutral, because the county’s regulation of virtual- and augmented-reality games was unrelated to the content of the speech and did not regulate based on the speech contained in the game.  This finding is curious given that the ordinance appears to facially single out particular games for special treatment, however, it was the court’s position that the regulation simply regulated the use of location-based game technology.

The court then found, however, that the ordinance was an unconstitutional prior restraint because the permitting scheme contained no standards by which local officials could grant permits to Candy Lab or other makers of virtual- or augmented-reality games, giving administrative officials effectively unbridled discretion to grant or deny permits.  In closing, the court also observed that the ordinance was not narrowly tailored, because it treated Candy Lab as if it were an organization holding an event in the county park.  But the court noted that virtual- and augmented-reality games were not like events as follows: “Requiring Candy Lab to secure insurance, portable restrooms, security, clean-up, and provide a timeline for an ‘event’ is incongruent with how Texas Rope ‘Em (or any other mobile game) is played.”  As such, the court found that Candy Lab had a reasonable likelihood of succeeding on the merits against the county.

Candy Lab Inc. v. Milwaukee Cnty., ___ F. Supp. 3d ___, 2017 WL 3088380 (E.D. Wis. Jul. 20, 2017).

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Photo of Brian J. Connolly Brian J. Connolly

Brian Connolly represents public- and private-sector clients in matters relating to zoning, planning, development entitlements and other complex regulatory issues.  Brian’s practice encompasses a broad range of land use matters including zoning compliance, rezonings and other regulatory amendments, planned-unit developments, development agreements, private covenants and restrictions, land use and zoning litigation, initiatives and referenda associated with land use approvals, and real estate transactions.  Brian additionally specializes in the First Amendment and land use issues associated with outdoor sign and advertising regulation, and fair housing matters in local planning and zoning.