In a decision that extends First Amendment rights to the augmented reality gaming industry, the U.S. District Court for the Eastern District of Wisconsin issued an injunction against Milwaukee County declaring that its ordinance forcing AR game makers to acquire special permits is likely to be a violation of free speech.
Brian D. Wassom, a partner at Warner Norcross & Judd LLP, served as lead counsel for plaintiff Candy Lab AR, the augmented reality game maker who filed the lawsuit in April 2017. The court’s decision grants a preliminary injunction preventing the ordinance from being enforced while the game maker's case is heard.
“This is a huge win – not only for Candy Lab, but for the entire augmented reality industry,” Wassom said. “Although AR is a relatively new technology, it’s becoming an increasingly important medium for creative expression. This decision is an affirmation that AR should continue to grow unimpeded by ill-conceived laws and with the full protection of the U.S. Constitution.”
In creating its ordinance, Milwaukee County said that the Pokémon Go craze, which brought thousands of players to area parks, had increased county costs by requiring additional police and maintenance services. The ordinance was enacted to force game makers to apply for special permitting and pay specific new fees.
According to Wassom, if Candy Lab had instead created a book describing locations in Milwaukee parks, there is no question that the company would be allowed to publish the content. Yet the county attempted to regulate the same content just because it was published in the form of augmented reality.
“This is a classic example of prior restraint,” Wassom said.
In his ruling, U.S. District Court Judge J. P. Stadtmueller agreed, saying that the ordinance "does not appear narrowly tailored to serve the interests it purports to promote." He cited case law saying state regulators cannot "burn the house to roast the pig."
Wassom, who wrote the book Augmented Reality Law, Privacy and Ethics, is available for media interviews today.
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