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Judge issues injunction against Milwaukee’s Pokémon Go ordinance

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Pokéstops are protected by the first amendment ... for now

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A district court has issued an injunction against Milwaukee County, which enacted an ordinance in February intended to curb the spread of augmented reality games like Pokémon Go in public spaces.

When Pokémon Go was released last summer one of its first casualties was Milwaukee’s Lake Park. According to a report by Milwaukee County Parks presented to the county board in September 2016, the game resulted in “unanticipated and negative consequences” for the park system, including “traffic congestion, parking issues, littering, damaged turf, risks to natural habitats, lack of restrooms, and noncompliance with park system operational hours.”

In response, county board supervisor Sheldon Wasserman stepped forward to present an amendment to Chapter 47 of the Milwaukee County General Ordinances to create a “policy for location-based augmented reality games” in the public parks. Enacted on February 2, the new ordinance would require companies like Niantic to get permission from the county before placing its Pokéstops in public parks and, among other things, to respect the closing time of those parks.

But Candy Lab AR, another location-based augmented reality game company, filed suit. They alleged that the ordinance was unlawful and today, four months after their suit was filed, a judge issued an injunction.

In his accompanying statement, judge J. P. Stadtmueller said that requiring companies like Candy Lab and Niantic to acquire a permit was unnecessarily burdensome. Instead, he recommended that Milwaukee simply do the work of policing their parks.

“Forcing a square peg in a round hole demonstrates a true lack of tailoring, much less ‘narrow’ tailoring designed to address the County’s interests as they might be affected by Candy Lab,” Judge Stadtmueller wrote. “Rather than prohibit publication of the game itself, the County could address its concerns by directly regulating the objectionable downstream conduct. ... This might include aggressively penalizing gamers who violate park rules or limiting gamers to certain areas of the park. Such measures would assuage the alleged evils visited upon the parks by gamers while stifling less expression than the Ordinance does.”

According to the Milwaukee Record, supervisor Wasserman is eager to take the ordinance to trial.

“I understand the federal judge’s injunction on this law right now, and I’m looking forward to a trial date on this issue,” Wasserman told the Record. “From what I’m being told by the lawyers, this really is a groundbreaking case. We are the only municipality in the nation that has enacted a law involving virtual reality.

“I’ve also been told by the lawyers that this case is getting so hot, and that it brings up so many constitutional questions, that this has the potential to go all the way up to the U.S. Supreme Court.”