Candy Lab Inc v. Milwaukee County et al
ORDER signed by Judge J.P. Stadtmueller on 7/20/2017: GRANTING 6 Plaintiff's Motion for Preliminary Injunction; DENYING 14 Defendants' Motion to Dismiss the Complaint; and DENYING 23 Defendants' Motion to Stay Discovery and Hold In Abeyance Pending Motions. (cc: all counsel) (jm)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
CANDY LAB INC.,
MILWAUKEE COUNTY BOARD OF
SUPERVISORS, and MILWAUKEE
COUNTY DEPARTMENT OF PARKS,
RECREATION, AND CULTURE,
Case No. 17-CV-569-JPS
This case concerns a location-based augmented reality (“AR”)
mobile application developed by Plaintiff Candy Lab, Inc. (“Candy Lab”).
The app is a game is called “Texas Rope ‘Em,” and it is reminiscent of the
traditional poker game from which its name derives. The game accesses the
phone’s rear-facing camera during gameplay and overlays visual elements
onto the image of the real world as seen through the camera, including
playing cards which the user can collect. Part of the game involves the user
traveling to specific real-world locations to collect these cards, with the aid
of the camera images and an in-game map.
The first runaway hit in this game genre was Pokémon Go. Although
its storyline is, of course, quite different, Pokémon Go has gameplay
elements very similar to Texas Rope ‘Em, including location-based and AR
elements that require players to travel to real-world locations to play the
game. Such locations include, at times, public parks owned and maintained
by Milwaukee County.
Defendants, collectively referred to herein as “the County,” say that
while playing Pokémon Go, players trashed Milwaukee County parks,
stayed after park hours, caused significant traffic congestion, and made
excessive noise. Their impact ultimately cost the County thousands of
dollars in increased police and park maintenance services. In response, the
County adopted an ordinance (the “Ordinance”) requiring those offering
such games to apply for event permits and secure garbage collection,
security, and medical services, as well as insurance. Offering a game
without a permit can result in a fine or jail time.
Candy Lab wishes to offer Texas Rope ‘Em to County residents to
use in County parks. It does not want to apply for a permit to do so, nor
incur the fees associated with obtaining the services necessary to secure a
permit. Candy Lab brought this action challenging the Ordinance on the
ground that it violates Candy Lab’s First Amendment right to freedom of
Presently before the Court is Candy Lab’s motion for a preliminary
injunction against enforcement of the Ordinance and the County’s motion
to dismiss the complaint for failure to state a claim. The motions are fully
briefed and, for the reasons stated below, Candy Lab’s motion will be
granted and the County’s motion will be denied.1
The County also filed a motion to stay these proceedings until at least
October 2017. (Docket #23). The County argues that it plans to consider amending
the Ordinance later this year and that this matter should be held in abeyance on
the hope that some or all of Candy Lab’s concerns may be mooted by a change in
the Ordinance. Although the Court has the power to stay proceedings to promote
efficiency and conserve scarce judicial resources, Landis v. N. Am. Co., 299 U.S. 248,
254 (1936); Texas Indep. Producers & Royalty Owners Ass’n v. EPA, 410 F.3d 964, 980
(7th Cir. 2005), neither goal would be served by a stay here. The Court is not
inclined to delay the progress of this case on the mere possibility that some
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Texas Rope ‘Em and Augmented Reality Video Games
The relevant facts are not in dispute. Candy Lab is a company that
has been developing location-based and AR software since 2011. Candy Lab
not only creates its own applications but also licenses its proprietary
software engine to others.
Location-based applications are those that track the real-time
physical location of the device running the application, and allow the user
to interact with digital content based on the device’s geolocation.
“Augmented reality” refers to the digital enhancement of physical senses,
most commonly sight. Candy Lab’s mobile applications augment reality by
superimposing images on a live video display from a mobile device’s rearfacing video camera, creating the illusion that the image is physically
present on the other side of the device.
In July 2016, Pokémon Go arrived on the scene. This mobile game
uses location-sensing technology and AR imagery to create a game world
in which players interact with digital content in designated geolocations,
called “game stops,” and discover virtual creatures that are algorithmically
generated in response to players’ locations. Pokémon Go quickly became
one of the world’s most popular mobile game applications.
In March 2017, Candy Lab announced the launch of the first locationbased AR poker game, Texas Rope ‘Em. The goal of Texas Rope ‘Em is to
beat the dealer in the popular poker variant “Texas Hold ‘Em.” Players
unspecified amendments to the Ordinance may be considered at a later date. The
tenuous potential benefit of the County’s proposed stay, considered against the
potential harm Candy Lab and others may suffer in the interim, counsels against
staying the proceedings at this time. The motion will be denied.
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begin the game with two of the five required playing cards. To build their
hands, players must carry their mobile device to game stops indicated on
the game map to obtain a new card. Once the player has set his or her hand,
the cards are played against the dealer. If the player loses, he or she can try
again. Players who beat the dealer win points and, in future versions of the
game, will be able to win in-app bonuses or prizes. Candy Lab reports that
none of these prizes will be worth money. See (Docket #18 ¶ 7).
Consistent with its name, Texas Rope ‘Em has a Texas theme,
including graphics and a color scheme that evoke the Wild West. When a
player travels to a game stop and chooses a card to collect, the game
generates an animated lasso that whips forward and grabs the selected
card. Candy Lab’s CEO describes this as reminiscent of “rustling up” cards
like a cowboy would with cattle. Id. ¶¶ 5–6. However, there are no other
characters in the game besides the player and the dealer, and the dealer is
not itself represented or animated in any fashion. Id. ¶ 4.
Texas Rope ‘Em is currently in “1.0” or “beta” form, meaning that
although it is publicly available, its functionality is limited compared to the
anticipated full public release. The game is currently playable in select
cities, including Milwaukee, and is being actively showcased at technology
events. The game is presently free to download and play, though later
versions will likely offer in-app purchases.
Pokémon Go and the Rise of Discontent
The unanticipated popularity of Pokémon Go in July 2016 drew
thousands of users across the country outside while playing the game. One
member of the Milwaukee County Board of Supervisors (the “Board”),
Sheldon Wasserman (“Wasserman”), says he received complaints that large
numbers of people were playing the game in his district’s Lake Park, some
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of whom littered, trampled the grass and flowers, and stayed past park
hours. There were also reports of inadequate bathrooms for parkgoers,
unauthorized vendors in the park, parking violations, and significantly
increased traffic congestion. Wasserman claimed that, as a result, the
County was forced to spend tens of thousands of dollars on additional law
enforcement and park maintenance services. See (Docket #2-1 at 2).
Wasserman proposed Resolution 16-637, which became Section
47.03(3) of the Milwaukee County Code of General Ordinances, to regulate
games like Pokémon Go by targeting the companies that publish them.
Multiple supervisors spoke against the Ordinance during deliberations,
disputing Wasserman’s claims about the game’s impact. These officials
argued that the gamers were not causing disturbances and that it was a
positive development to see a diverse new group of people using the parks.
They perceived the true driving force behind residents’ complaints to be
fear of the unknown and umbrage at an unanticipated increase in use of the
nearby public parks.
Wasserman emphasized that the Ordinance was not directed against
Pokémon Go players, but instead sought to regulate the businesses that
profit from them. Wasserman believed that the Ordinance could help
control the growing popularity of games like Pokémon Go and, perhaps
more importantly, leverage that popularity to make money for the County,
which was required to maintain the parks which were so heavily used
On February 2, 2017, the Board adopted the Ordinance by a vote of
13–4. On February 20, the Ordinance was published and became effective.
The Ordinance reads, in relevant part:
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(3) Permits required for location-based augmented reality
games. Virtual and location-based augmented reality games
are not permitted in Milwaukee County Parks except in those
areas designated with a permit for such use by the Director of
the Department of Parks, Recreation, and Culture [(the
“DPRC”)]. Permits shall be required before any company may
introduce a location-based augmented reality game into the
Parks, effective January 1, 2017. The permitting application
process is further described on DPRC’s website for companies
that create and promote such games. That process shall
include an internal review by the DPRC to determine the
appropriateness of the application based on site selection,
protection of rare flora and fauna, personal safety, and the
intensity of game activities on park lands. Game activity shall
only occur during standard park hours, unless otherwise
authorized by the DPRC Director, who has the authority to
designate special events and activities within the Parks
outside of the standard operational hours.
(Docket #2-1 at 4). The resolution adopting the Ordinance (but not the
codified language itself) defines “virtual gaming” as “an activity during
which a person can experience being in a three-dimensional environment
and interact with that environment during a game, and the game typically
consists of an artificial world of images and sounds created by a computer
that is affected by the actions of a person who is experiencing it;
and. . .[further provides that] Pokémon Go fits the characteristics defined
by virtual gaming and is considered as such by the standards of the DPRC.”
Id. at 3. The Ordinance does not define the term “location-based augmented
reality games,” although it implies that Pokémon Go is such a game. See id.
The DPRC website notes that the “Milwaukee County Parks 2017
Special Event Application” (the “Permit Application”) is required for
“virtual gaming.” The 10-page Permit Application requests a large amount
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of information about a proposed event, such as estimated attendance,
location within the park, event dates and times, a site map, and whether
and how the event will be advertised. See id. at 16–26. It requires detailed
plans for garbage collection, on-site security, and medical services, and
warns that applicants will be responsible for these services. The Permit
Application requires applicants to have liability insurance and make it
available on-site for inspection. It also requires payment of several fees, and
reserves to the DPRC the discretion to demand more information. Further,
the Permit Application cautions that “[s]ubmittal of an application does not
automatically grant [an applicant] a permit or confirmation to conduct your
planned event.” Id. at 18. Indeed, the Application warns that “Milwaukee
County Parks in its sole discretion may grant, deny, revoke, or suspend any
permit, at any time and for any reason.” Id. at 21.
The Ordinance was codified at Section 47.03(3) of the County
Municipal Code. Chapter 47 of the Code regulates County “Parks and
Parkways.” Section 47.29(1) specifies that the penalty for violation of a
provision of that chapter is a fine of not less than $10.00 nor more than
$200.00. A court may order up to ninety days of jail time if the fine is not
paid. Additionally, police officers can arrest violators, and the DPRC can
issue citations in addition to the penalties described in the municipal code.
In late March 2017, Candy Lab’s CEO, Andrew Couch (“Couch”),
contacted the County to explain Texas Rope ‘Em and confirm that Candy
Lab requires a Special Event permit before releasing its game to the public.
responded, “you must complete the attached Special Event Application and
submit with a map of all of the areas that you would like to add virtual
gaming stops.” Couch again responded to confirm that “[Candy Lab]
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requires a Special Events permit before releasing Texas Rope ‘Em to the
public.” Broderick said yes.
As of the date of this Order, Candy Lab has not applied for a permit,
and the County reports that, as a result, it has not and currently is not
enforcing the Ordinance against Candy Lab.
Motion for Preliminary Injunction
To obtain a preliminary injunction, a plaintiff must show that (1) he
will suffer irreparable harm in the period before final resolution of his
claims; (2) traditional legal remedies are inadequate; and (3) the claim has
some likelihood of success on the merits. Jones v. Markiewicz-Qualkinbush,
842 F.3d 1053, 1058 (7th Cir. 2016); Girl Scouts of Manitou Council, Inc. v. Girl
Scouts of U.S. of Am., Inc., 549 F.3d 1079, 1086 (7th Cir. 2008). If the court
determines that the plaintiff has failed to demonstrate any one of these three
threshold requirements, it must deny the injunction. Abbott Labs. v. Mead
Johnson & Co., 971 F.2d 6, 11 (7th Cir. 1992).
If the plaintiff makes these threshold showings, the court then
assesses whether the balance of harms favors the plaintiff or the defendant
and where the public interest lies. Jones, 842 F.3d at 1058; ACLU of Ill. v.
Alvarez, 679 F.3d 583, 589 (7th Cir. 2012). In so doing, the court employs a
sliding scale approach: “[t]he more likely the plaintiff is to win, the less
heavily need the balance of harms weigh in his favor; the less likely he is to
win, the more need it weigh in his favor.” Roland Mach. Co. v. Dresser Indus.,
Inc., 749 F.2d 380, 387 (7th Cir. 1984); Abbott Labs., 971 F.2d at 12.
Overarching this entire analysis, the court should be mindful that “[a]
preliminary injunction is an extraordinary remedy never awarded as of
right.” Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 24 (2008).
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Motion to Dismiss for Failure to State a Claim
Federal Rule of Civil Procedure 12(b)(6) provides for dismissal of
complaints which fail to state a viable claim for relief. Fed. R. Civ. P.
12(b)(6). To state a viable claim, a complaint must provide “a short and
plain statement of the claim showing that the pleader is entitled to relief.”
Id. 8(a)(2). In other words, the complaint must give “fair notice of what
the. . .claim is and the grounds upon which it rests.” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555 (2007). However, a complaint that offers “‘labels
and conclusions’” or “‘a formulaic recitation of the elements of a cause of
action will not do.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting
Twombly, 550 U.S. at 555). The allegations must “plausibly suggest that the
plaintiff has a right to relief, raising that possibility above a speculative
level[.]” Kubiak v. City of Chicago, 810 F.3d 476, 480 (7th Cir. 2016). In
reviewing the complaint, the Court is required to “accept as true all of the
well-pleaded facts in the complaint and draw all reasonable inferences in
favor of the plaintiff.” Id. at 480–81.
The Court will frame its decision around Candy Lab’s request for a
preliminary injunction. As might be expected, the County’s arguments for
dismissal are identical to its arguments relating to Candy Lab’s likelihood
of success on the merits. Thus, the Court will fold its findings on the motion
to dismiss into that portion of the discussion below.
Although a preliminary injunction requires several threshold
showings, in First Amendment cases the availability of such relief normally
turns on the plaintiff’s likelihood of success. Joelner v. Vill. of Wash. Park, Ill.,
378 F.3d 613, 620 (7th Cir. 2004). If this is shown, courts will generally
presume that irreparable harm will occur in the absence of an injunction,
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Elrod v. Burns, 427 U.S. 347, 373 (1976) (plurality opinion); Citizens for a Better
Env’t v. City of Park Ridge, 567 F.2d 689, 691 (7th Cir. 1975) (holding that even
a “temporary deprivation” of First Amendment rights constitutes
irreparable harm), that there is no adequate remedy at law, Nat’l People's
Action v. Vill. of Wilmette, 914 F.2d 1008, 1013 (7th Cir. 1990), that the
government will suffer no undue hardship from an injunction, Joelner, 378
F.3d at 620, and that the public interest favors an injunction, Connection
Distrib. Co. v. Reno, 154 F.3d 281, 288 (7th Cir. 1998) (public interest always
favors barring enforcement of an unconstitutional law).
Thus, the principal question presented is whether the Ordinance
violates the First Amendment. Subsumed in this question are several
others, including whether Texas Rope ‘Em counts as protectable speech and
how protections for video games under the First Amendment interact with
park permitting schemes like that enacted in the Ordinance. These are
multifaceted issues where little definitive guidance exists.2 Nevertheless,
the Court finds that Candy Lab has shown a sufficient likelihood of success
to warrant preliminary injunctive relief.
Texas Rope ‘Em Qualifies for First Amendment Protection
The Supreme Court has instructed that video games, like other forms
of expression, are entitled to First Amendment protection. Brown v. Entm’t
Merchs. Ass’n, 564 U.S. 786, 790 (2011). Yet the County contends that Candy
Lab’s game does not warrant protection because it does not have sufficient
expressive elements such as plot, characters, or dialogue, which the Court
The legal academy is just beginning to tangle with the thorny questions
raised by AR and virtual-reality technology. See Mark A. Lemley & Eugene
Volokh, Law, Virtual Reality, and Augmented Reality (March 15, 2017), available at
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in Brown recognized as important to the communication of ideas. See id. The
game, in the County’s view, is no more than a pictorial overlay on the real
world to facilitate a card game; it communicates no ideas or messages. The
County suggests that no case has extended the First Amendment to AR
games, and that this Court should not be the first.
But the County fails to cite any case in which such protection was
denied to an AR game, and in Brown, the Supreme Court spoke clearly:
“whatever the challenges of applying the Constitution to ever-advancing
technology, ‘the basic principles of freedom of speech and the press, like
the First Amendment’s command, do not vary’ when a new and different
medium for communication appears.” Id. at 789 (quoting Joseph Burstyn, Inc.
v. Wilson, 343 U.S. 495, 503 (1952)). Having reviewed the evidence
submitted, the Court is satisfied that Texas Rope ‘Em has sufficient
expressive content. The game immerses a player in a Western-themed
virtual environment, complete with a Texas-themed game title, color
scheme, and graphics, allowing the player to corral favorable playing cards
using an animated lasso. The game conveys ideas related to the Wild West
and scavenger hunting to lend an air of excitement and novelty to a
traditional card game. Moreover, what Candy Lab’s game lacks in
compelling literary tropes, it makes up for by employing “features
distinctive to the medium (such as the player’s interaction with the virtual
world).” Id. at 790. These include displaying card locations on a map on the
user’s phone, which the user must then physically navigate to and “grab”
using the phone’s camera.
Of course, the Seventh Circuit in American Amusement Machine
Association v. Kendrick, 244 F.3d 572, 579–80 (7th Cir. 2001), attempted to
distinguish between first-person shooting games that “used actors and
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simulated real death and mutilation convincingly” from “games [that]
lacked any story line and were merely animated shooting galleries.” But
Texas Rope ‘Em is more expressive and interactive than a simple virtual
card table, sweepstakes (using display elements mimicking casino games),
Telesweeps of Butler Valley, Inc. v. Kelly, No. 3:12-CV-1374, 2012 WL 4839010,
at *1 (M.D. Pa. Oct. 10, 2012), or bingo, There to Care, Inc. v. Comm’r of Ind.
Dep’t of Revenue, 19 F.3d 1165, 1167 (7th Cir. 1994). Moreover, the Supreme
Court in Brown largely eschewed such aesthetic judgments, since the task
of courts is not to act as critics. Brown, 564 U.S. at 790 (“Under our
Constitution, ‘esthetic and moral judgments about art and literature. . .are
for the individual to make, not for the Government to decree, even with the
mandate or approval of a majority.’”) (quoting United States v. Playboy
Entm’t Group, Inc., 529 U.S. 803, 818 (2000)). On the present record, the Court
finds that Texas Rope ‘Em contains at least the minimum quantum of
expression needed to constitute protectable speech. See Brown v. Elec. Arts,
Inc., 724 F.3d 1235, 1241 (9th Cir. 2013) (“Even if Madden NFL is not the
expressive equal of Anna Karenina or Citizen Kane, the Supreme Court has
answered with an emphatic ‘yes’ when faced with the question of whether
video games deserve the same protection as more traditional forms of
Also specious is the County’s contention that Texas Rope ‘Em
constitutes illegal gambling and is therefore unprotected by the First
Amendment. The County asserts that the game represents an illegal lottery,
Indeed, the Court in Brown, faced with gory, violent video games
bordering on the “disgusting,” held that “disgust is not a valid basis for restricting
expression.” Brown, 564 U.S. at 798. If disgust is not a good reason to prohibit
speech, certainly the suggestion that Texas Rope ‘Em is boring cannot be.
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which in Wisconsin consists of (1) a game of chance, (2) consideration, and
(3) a prize. Wis. Stat. § 945.01(5)(a). According to the County, Texas Rope
‘Em satisfies each element, since it is played by drawing cards at random
and awards prizes to winners. It also provides Candy Lab with commercial
benefit, both in terms of revenue for downloading the game and publicity
through playing the game in public.
The current, early stage of development for the game, and the record
as developed thus far, belies these contentions. First, downloading the
game is free, and the game does not yet offer in-app purchases. The
evidence presented suggests that at this time, there is no direct
consideration to the developer, Candy Lab, when people obtain or play the
game. Nor are “prizes” currently available for game winners, and certainly
nothing of value as contemplated by Wisconsin law.
Most importantly, the Court is not convinced that Texas Rope ‘Em
can be fairly described as a game “determined by chance, even though
accompanied by some skill,” as required by Wisconsin law. Id. The game
certainly involves randomly generated playing cards, but it rewards the
skill and industry of the player in reacting to the virtual environment,
seeking out additional playing cards, competing against others to reach
game stops, and deploying cards strategically against the dealer. See State
v. Dahlik, 330 N.W.2d 611, 618 (Wis. Ct. App. 1983) (finding that a lottery
must be “predominantly controlled by chance”). Candy Lab’s creation
therefore surpasses Telesweeps, 2012 WL 4839010, at *1, which involved the
virtual depiction of a wholly random, pre-determined sweepstakes result.
See also Serpico v. Vill. of Elmwood Park, 799 N.E.2d 961, 968 (Ill. Ct. App. 2003)
(in simulated gambling, “[t]he players unassumingly slide a token or coin
into [the] machines and push a button or pull a lever, thereby surrendering
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any control they may have over the sequence of events that, in the end, yield
either fortune or loss”).
Accordingly, the Court concludes that Texas Rope ‘Em qualifies for
First Amendment protection and that the County’s motion to dismiss on
that ground must be denied.
Candy Lab Has Shown a Sufficient Likelihood that the
Ordinance Violates the First Amendment
Having determined that Texas Rope ‘Em is entitled to First
Amendment protection, the Court turns to how the Ordinance regulates it.
Candy Lab asserts two broad types of claims: first, that the Ordinance as
applied to it has chilled its exercise of First Amendment rights, and second,
that the Ordinance is unconstitutional on its face and is therefore
unenforceable against anyone. See (Docket #1 at 18–19). The Court is obliged
to consider the as-applied attack first, since a finding that the Ordinance is
unconstitutional as applied to Candy Lab would obviate the need for a
broader constitutional ruling regarding the validity of the Ordinance as a
whole. Bd. of Trs. of State Univ. of N.Y. v. Fox, 492 U.S. 469, 484–85 (1989);
Commodity Trend Serv., Inc. v. Commodity Future Trading Comm’n, 149 F.3d
679, 688 n.5 (7th Cir. 1988).
However, the Court need not tarry long over the as-applied
challenge to find that it must address Candy Lab’s claims of facial
invalidity. The County argues that Candy Lab’s as-applied challenge fails
out of the gate because Candy Lab has not applied for a permit and,
consequently, the County has not enforced the Ordinance against it. See
(Docket #15-3). The County is correct in this regard. See Ctr. for Individual
Freedom v. Madigan, 697 F.3d 464, 476 (7th Cir. 2012).
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Candy Lab, in turn, argues that this is irrelevant, since it need not
subject itself to enforcement of the Ordinance in order to raise a facial
challenge. (Docket #20 at 16–17). This too is correct. Madigan, 697 F.3d at
476; Brandt v. Vill. of Winnetka, Ill., 612 F.3d 647, 649–50 (7th Cir. 2010). The
evidence submitted by Candy Lab, in particular its correspondence with
County officials, raises a “realistic danger” that the Ordinance will be
enforced against it if it releases its game to Milwaukee County residents, as
it plans to do. Babbitt v. United Farm Workers Nat’l Union, 442 U.S. 289, 298
(1979); Virginia v. Am. Booksellers Ass’n, 484 U.S. 383, 393 (1988). This is all
that is required to establish Candy Lab’s standing to mount a facial attack
on the Ordinance.
The Court next considers the merits of Candy Lab’s facial challenges.
Coloring this analysis is the fact that the Court faces novel circumstances in
this case—neither the Court nor the parties has the benefit of on-point
authority concerning the propriety of an injunction against an ordinance
which circumscribes the playing of AR mobile video games in public parks.
With that in mind, the Court notes that Candy Lab raises three distinct
claims: (1) that the Ordinance is an invalid prior restraint on speech; (2) that
the Ordinance is impermissibly vague; and (3) that the Ordinance is
overbroad. The Court need only analyze the first claim, as it is sufficient to
warrant granting Candy Lab’s motion.
The First Amendment accommodates reasonable restrictions on the
time, place, and manner of speech, as long as they are (1) content-neutral,
(2) narrowly tailored to serve a significant government interest, and (3)
leave open ample alternative channels for communication of the
information. Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989); Clark v.
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Cmty. for Creative Non-Violence, 468 U.S. 288, 293 (1984).4 The threshold
question, as in all First Amendment cases, is whether the challenged
regulation is content-based. See Playboy, 529 U.S. at 813. If the regulation is
content-based, it is subject to strict scrutiny; if content-neutral, it is subject
to intermediate scrutiny. Id. On this issue, Candy Lab posits that because
the Ordinance singles out AR games for increased administrative and
logistical burdens, it discriminates against them based upon their content.
On the present record, the Court cannot agree. The Supreme Court
held in Hill v. Colorado, 530 U.S. 703, 723 (2000), that a law which places no
restrictions on a particular viewpoint or subject matter is content-neutral.
As the Court explained, the fact that a County employee must review the
content of a game to determine if it falls within the scope of the Ordinance
does not in itself mean that the Ordinance is content-based. Id. To the
contrary, the Ordinance can be interpreted and applied without reference
to the subject matter of Texas Rope ‘Em—i.e., a Texas-themed poker game.
The Ordinance imposes restrictions on functionalities of games like
Texas Rope ‘Em, most importantly the fact that they are location-based. The
Ordinance covers such games regardless of their content, be it poker,
zombie-killing, or Pokémon-catching. As such, it cannot be said that the
Ordinance applies to one game or another “because of the topic discussed
Candy Lab asks the Court to analyze the Ordinance as a prior restraint on
speech, while the County suggests that the Ordinance should be assessed
according to the principles applicable to time, place, and manner restrictions.
Certainly the jargon in this area can become confused, and the analytical
frameworks often overlap. But the Seventh Circuit has instructed that permitting
schemes, like the one at issue here, are to be analyzed as time, place, and manner
restrictions. MacDonald v. City of Chicago, 243 F.3d 1021, 1031–32 (7th Cir. 2001);
Thomas v. Chicago Park Dist., 227 F.3d 921, 923–24 (7th Cir. 2000). The Court must
use the prescribed framework.
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or the idea or message expressed.” Reed v. Town of Gilbert, Ariz., 135 S. Ct.
2218, 2227 (2015); Turner Broad. Sys., Inc. v. F.C.C., 512 U.S. 622, 660 (1994)
(holding that a “speech regulation that applies to one medium (or a subset
thereof) but not others. . .‘is insufficient by itself to raise First Amendment
concerns’”) (quoting Leathers v. Medlock, 499 U.S. 439, 452 (1991)). This
distinguishes the present case from the ordinance at issue in Reed, where
different restrictions applied to signage depending on whether the sign
directed a person to an event, expressed preference for a political candidate,
or expressed some other idea or message. Reed, 135 S. Ct. at 2227; see also
Norton v. City of Springfield, Ill., 806 F.3d 411, 412 (7th Cir. 2015) (a city
ordinance against panhandling was premised on “the topic discussed” by
the speaker, i.e., a plea for money).
Likewise, the history and purpose of the Ordinance do not reflect a
content-based animus in the County officials who adopted it. Their aim was
to prevent litter, vandalism, traffic, and other problems attendant upon AR
games like Pokémon Go. There is no evidence that their decisions were
premised on a dislike for Japanese art or culture any more than a desire to
curb gambling or show distaste for Western aesthetics. See Left Field Media
LLC v. City of Chicago, Ill., 822 F.3d 988, 990 (7th Cir. 2016) (finding contentneutral an ordinance that “regulates peddling, without regard to what the
peddler sells,” whether it be “bobblehead dolls,” “baseball jerseys,” or
printed matter). In short, nowhere in the Ordinance is there an indication
that the County sought to agree, disagree, or otherwise express a view on
the content of the AR games that might be played in its parks. Reed, 135 S.
Ct. at 2227–28.
In this way, the Ordinance is similar to the anti-robocall statute
challenged in Patriotic Veterans, Inc. v. Zoeller, 845 F.3d 303, 305 (7th Cir.
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2017), which was found content-neutral because it did not disfavor the
nature of the call (such as to promote a political candidate) but the
functionality of the call itself—a call placed by an automatic dialing
machine resulting in a message from a robot. Even more apt is the district
court’s decision in Ameritech Corp. v. United States, 867 F. Supp. 721, 732
(N.D. Ill. 1994), which held that discrimination between interactive versus
traditional television programming was not premised on the viewpoints or
subject matter discussed in the programs themselves. So too, here, the
Ordinance surely treats AR games differently from other mobile
applications, but the distinction is the mode or channel of speech, not its
content. Compare City of Cincinnati v. Discovery Network, Inc., 507 U.S. 410,
428 (1993) (“[A] prohibition against the use of sound trucks emitting ‘loud
and raucous’ noise in residential neighborhoods is permissible if it applies
equally to music, political speech, and advertising.”), with Berger v. City of
Seattle, 569 F.3d 1029, 1051 (9th Cir. 2009) (ordinance banning verbal, but
not written, solicitation of money by street performers was unconstitutional
because it depended on the contents of the speech even though it limited
only the manner of expression).
To be sure, there is some appeal to Candy Lab’s position on this
question. Recall that Brown seems to treat the literary and interactive aspects
(physical or virtual) of video gaming as an undivided, expressive whole.
See Brown, 564 U.S. at 790. Taken to its furthest limit, this would mean that
although the Ordinance does not care about the contents of the AR game
being played, it is arguably content-based because it is directed at the
physical act of game-playing, which is itself a part of the expression.
This was a suggestion, though only dictum, in Candy Lab’s principal
citation, Weigand v. Village of Tinley Park, 114 F. Supp. 2d 734, 737 (N.D. Ill.
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2000): “Indeed, the regulation might plausibly be argued to be contentbased, not content-neutral, insofar as playing a game could be the content
of the expressive activity.” The Court does not adopt that position for the
reasons stated above, in particular the fact that the Ordinance is
undoubtedly content-neutral as to the message or idea conveyed by the
games it regulates. Further, the parties have not directed the Court to clear
authority instructing how to measure the expressive content of a video
game. And Brown itself is of little help, since there the regulation was
directed at “violent” video games, an undoubtedly content-based inquiry.
Brown, 564 U.S. at 799. Consequently, on the state of the record and the
authorities presented, the Court finds that the Ordinance is content-neutral.
Nevertheless, resolution of that question is not dispositive, as the
Ordinance does not pass muster even under the more lenient standards
applicable to content-neutral time, place, and manner restrictions. This is
because the Ordinance does not employ sufficient procedural safeguards to
ensure the protection of First Amendment rights. Thomas v. Chicago Park
Dist., 534 U.S. 316, 323 (2002). Even content-neutral regulations “may not
condition. . .speech on obtaining a license or permit from a government
official in that official’s boundless discretion.” City of Lakewood v. Plain
Dealer Pub. Co., 486 U.S. 750, 764 (1988); Saia v. People of State of New York,
334 U.S. 558, 560 (1948). An acceptable regulation must “contain adequate
standards to guide the official’s decision and render it subject to effective
judicial review.” Thomas, 534 U.S. at 323; Niemotko v. State of Maryland, 340
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U.S. 268, 271 (1951); Forsyth County, Ga. v. Nationalist Movement, 505 U.S.
123, 130 (1992).5
Such standards are critical because even in cases where a regulation
is content-neutral on its face, “placing unbridled discretion in the hands of
a government official or agency. . .may result in censorship.” Lakewood, 486
U.S. at 758. As the Court explained in Lakewood,
Standards provide the guideposts that check the licensor and
allow courts quickly and easily to determine whether the
licensor is discriminating against disfavored speech. Without
these guideposts, post hoc rationalizations by the licensing
official and the use of shifting or illegitimate criteria are far
too easy, making it difficult for courts to determine in any
particular case whether the licensor is permitting favorable,
and suppressing unfavorable, expression.
Id. In other words, despite the apparently content-neutral nature of a
permitting scheme, “[w]hen virtually unlimited discretion exists,. . .the
possibility is too great that it will be exercised in order to suppress
disfavored speech.” MacDonald v. Chicago Park Dist., 132 F.3d 355, 361 n.6
(7th Cir. 1997); Boardley v. U.S. Dep’t of Labor, 615 F.3d 508, 517 (D.C. Cir.
2010). Additionally, unfettered discretion may lead to self-censorship, out
of fear of denial of the ability to speak. Lakewood, 486 U.S. at 759; see also
Forsyth, 505 U.S. at 133 n.10 (explaining that “the success of a facial
Candy Lab argues that the Ordinance must contain the safeguards
enumerated in Freedman v. Maryland, 380 U.S. 51, 58–60 (1965), which relate to
judicial review of licensing schemes—in that case, a motion picture censorship
statute. But in Thomas the Supreme Court explained that park permitting schemes
are unlike licensing schemes. Thomas, 534 U.S. at 322. While the latter often carry
self-evident censorship concerns which require prompt judicial review, permitting
schemes applicable to all speakers (i.e., content-neutral) do not so clearly raise the
spectre of censorship. Id. Thus, Thomas defines less stringent safeguards necessary
for permitting schemes. Id. at 323.
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challenge on the grounds that an ordinance delegates overly broad
discretion to the decisionmaker rests not on whether the administrator has
exercised his discretion in a content-based manner, but whether there is
anything in the ordinance preventing him from doing so”).6
Under any reading of the Ordinance, no such standards exist. The
Ordinance directs all prospective game publishers to complete the Permit
Application. The Ordinance indicates that County officials will determine
“the appropriateness of the application based on site selection, protection
of rare flora and fauna, personal safety, and the intensity of game activities
on park lands.” (Docket #2-1 at 4). Yet the Permit Application is inconsistent
with the idea that these criteria will limit a reviewing official’s discretion,
as it expressly warns that “Milwaukee County Parks in its sole discretion
may grant, deny, revoke, or suspend any permit, at any time and for any
Here again, overlapping analyses engender much confusion. The Court in
Thomas stated that even a content-neutral regulation must place some boundaries
on an official’s discretion to avoid the danger that the regulation would be wielded
in a content-based way. Yet the Seventh Circuit has folded the unbridleddiscretion requirement into the requirement of viewpoint neutrality. Southworth v.
Bd. of Regents of Univ. of Wis. Sys., 307 F.3d 566, 580 (7th Cir. 2002). The Court of
Appeals reasoned that because the underlying concern in Thomas and its
predecessors was a danger of viewpoint-based discretionary decision-making,
failure to sufficiently fetter the reviewer’s discretion meant that the law in question
was not content-neutral. See id. This theoretical defense of the unbridled-discretion
requirement seems at odds with the language of Thomas. Nevertheless, the Court
need not waste time searching out the appropriate place for the unbridleddiscretion requirement within the overarching analytical framework. Whether it
is considered a part of viewpoint neutrality or a separate constitutional
requirement, violating it renders a law facially invalid. See id.; Thomas, 534 U.S. at
323; H.D.V.-Greektown, LLC v. City of Detroit, 568 F.3d 609, 623 (6th Cir. 2009)
(holding that, under Thomas, a content-neutral ordinance “(1) must contain
adequate standards to guide the official’s decision, (2) must not be based on the
content of the message, (3) must be narrowly tailored to serve a significant
government interest, and (4) must leave open ample alternatives for
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reason.” (Docket #2-1 at 21).7 Such unbridled discretion in the hands of a
County official runs afoul of the Supreme Court’s requirements for
permitting schemes like that envisioned in the Ordinance. See Niemotko, 340
U.S. at 327 (finding that a licensing scheme granting the government
“limitless discretion” is invalid); MacDonald v. City of Chicago, 243 F.3d 1021,
1026 (7th Cir. 2001) (“It is well established that where a statute or ordinance
vests the government with virtually unlimited authority to grant or deny a
permit, that law violates the First Amendment’s guarantee of free speech.”).
Granted, the Permit Application itself notes some things that would
subject an application to denial, such as failing to submit all required
documentation or failing to provide proof of insurance. See generally
(Docket #2-1 at 16–26). But the Application does not expressly mention the
four specific matters listed in the Ordinance as being pertinent to
applications submitted by AR game developers, casting doubt on the
notion that those factors will actually cabin a reviewer’s discretion. See
Lakewood, 486 U.S. at 769 (striking down an ordinance which placed “no
explicit limits on the Mayor’s discretion”).
Moreover, even if this discrepancy between the Ordinance and the
Permit Application did not exist, the Ordinance’s criteria are themselves too
vague to afford adequate protection to free speech interests. In Thomas, the
The County complains that its refusal to “guarantee approval cannot
constitute unfettered discretion, for if approval was guaranteed, there would be
no permit process at all.” (Docket #15 at 18). This is simply untrue; where a
regulation touches upon protected expression, it must include appropriate
safeguards. Such was the case in MacDonald, where the ordinance was upheld in
part because it “requir[ed] the Commissioner to grant a parade permit, unless
specifically articulated public-safety concerns exist.” MacDonald v. City of Chicago,
243 F.3d 1021, 1028 (7th Cir. 2001). By contrast, here the County does not have a
default rule of permission.
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Court upheld a permitting scheme which listed thirteen grounds on which
a permit could be denied. Id. at 324. One such limitation forbade events that
presented an “unreasonable danger to the health or safety of park users.”
Id. The Ordinance, by contrast, mentions that “site selection” is an issue of
concern, but provides no guidance as to which sites within a park might be
suitable for playing an AR game.
Likewise, upon reading phrases like “protection of rare flora and
fauna” and “the intensity of game activities on park lands,” how is a
developer to know how much flower-trampling is too much, or what plants
count as “rare,” or what “intense” use of parklands entails? The Ordinance
in effect states that County officials can consider protecting nature when
reviewing a permit application, but there are no standards to guide either
the applicant or the reviewer in this endeavor. This is not acceptable. See
Shuttlesworth v. City of Birmingham, Ala., 394 U.S. 147, 149–50 (1969)
(overturning ordinance that required the city commission to issue a parade
permit unless in “its judgment the public welfare, peace, safety, health,
decency, good order, morals or convenience required that it be refused”).
Finally, it is worth noting that when the Ordinance simply lists
“personal safety” as a relevant consideration, this falls appreciably short of
the more robust criterion approved in Thomas: “unreasonable danger to the
health and safety of park users.” Whose personal safety? How severe must
the danger be? The Ordinance, the Permit Application, and the County do
not say. Put differently, while prohibiting “unreasonable” danger is
allowed under the First Amendment, it does not follow that a nebulous
consideration for “personal safety” is acceptable. MacDonald, 243 F.3d at
1028 (holding that even flexibly written criteria were permissible since they
included limiting terms such as “substantially, “unnecessarily,” and
Page 23 of 27
“sufficient”). The Ordinance thus dooms itself in its failure to provide
“narrowly drawn, reasonable and definite standards” to guide the County
officials who must apply it. Niemotko, 340 U.S. at 271.8
This finding is enough to invalidate the Ordinance. In closing, the
Court observes that the Ordinance suffers from other serious infirmities,
most notably that it does not appear narrowly tailored to serve the interests
it purports to promote. Here, the Ordinance is revealed for its strangeness
and lack of sophistication. The Ordinance treats game developers like
In Lakewood, the Court held that to overturn a licensing scheme admitting
limitless discretion, the challenger must also demonstrate a “close enough nexus
to expression, or to conduct commonly associated with expression, to pose a real
and substantial threat of the identified censorship risks.” Lakewood, 486 U.S. at 759.
Yet Thomas, which found that any content-neutral regulation must place limits on
discretion, mentioned no such nexus requirement. Thomas, 534 U.S. at 323.
Whether and how the nexus requirement of Lakewood survives Thomas has not
clearly been answered by any case the parties or the Court were able to find. The
Seventh Circuit has applied the nexus requirement since Thomas, but has not done
so consistently. Compare Weinberg, 310 F.3d at 1044 (straightforward discussion of
nexus requirement), with MacDonald, 243 F.3d at 1026 (analyzing unfettered
discretion issue without mention of nexus requirement).
But assuming that the nexus requirement applies here, it is satisfied. The
Lakewood Court contrasted the regulation at issue in that case, concerning
placement of newsracks, with a hypothetical regulation on the placement of soda
vending booths. Lakewood, 486 U.S. at 760. While the placement of newsracks was
closely related to the dissemination of the news, and therefore of central concern
to the First Amendment, controlling where a soda vendor operates would have at
most an incidental effect on whatever unrelated speech might occur around him.
Here, the Ordinance adequately abuts areas of First Amendment
concern—the expressive content of Texas Rope ‘Em—so that Lakewood would
permit a facial challenge to lie. The stakes here are not the incidental possibility of
speech occurring at a soda counter; instead, the Ordinance seeks to curtail speech
itself, or conduct associated with that speech. Thus, while the Ordinance’s
language and history are professedly content-neutral, the close relation between
the Ordinance and protected expression, and the unfettered discretion that County
officials enjoy in evaluating permit applications, “pose a real and substantial
threat” that the censorship risks the Lakewood Court identified could arise. Id.
Page 24 of 27
Candy Lab as though they are trying hold an “event” in a Milwaukee
County park. However, this misunderstands the nature of the problem,
since Candy Lab’s video game will not be played at a discrete time or
location within a park. 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
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. Ward, 491 U.S. at 791.
Rather than prohibit publication of the game itself, the County could
address its concerns by directly regulating the objectionable downstream
conduct. Butler v. State of Michigan, 352 U.S. 380, 383 (1952) (a state
regulation cannot “burn the house to roast the pig”). 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. See Smith v. Executive Dir. of Ind. War Memorials Comm’n,
742 F.3d 282, 289 (7th Cir. 2014) (“A regulation ‘need not be the least
restrictive or least intrusive means’ of furthering the government’s interest
(in this case the orderly use of its property), but at the same time the
government ‘may not regulate expression in such a manner that a
substantial portion of the burden on speech does not serve to advance its
goals.’”) (quoting Ward, 491 U.S. at 798–99).
The County’s contention that its Ordinance solves the problems
presented by AR games, (Docket #15 at 23–24), is irrelevant. This misses the
operative question: whether less restrictive measures would be inadequate
Page 25 of 27
as a substitute. McCullen v. Coakley, 134 S. Ct. 2518, 2534 (2014) (“Where
certain speech is associated with particular problems, silencing the speech
is sometimes the path of least resistance. But by demanding a close fit
between ends and means, the tailoring requirement prevents the
government from too readily ‘sacrific[ing] speech for efficiency.’”) (quoting
Riley v. Nat’l Fed’n of Blind of N.C., Inc., 487 U.S. 781, 795 (1988)). It was the
County’s burden to show that less restrictive measures are insufficient,
Entm’t Software Ass’n v. Blagojevich, 469 F.3d 641, 646 (7th Cir. 2006), and it
has not yet done so.
As a result, the Court finds that there is a reasonable likelihood that
Candy Lab will succeed on its claim that the Ordinance violates the First
Amendment on its face. The Court is therefore obliged to grant the motion
for a preliminary injunction.
For the reasons stated above, the Court finds that Candy Lab has
satisfied the prerequisites for a facial challenge to the County’s Ordinance.
As a result, the Court will deny the County’s motion to dismiss and, by
separate order entered this date, it will enjoin the County from enforcement
of the Ordinance until further order of this Court.
IT IS ORDERED that Plaintiff’s motion for preliminary injunction
(Docket #6) be and the same is hereby GRANTED;
IT IS FURTHER ORDERED that Defendants’ motion to dismiss the
complaint (Docket #14) be and the same is hereby DENIED; and
IT IS FURTHER ORDERED that Defendants’ motion to stay
discovery and hold in abeyance Plaintiff’s motion for preliminary
injunction (Docket #23) be and the same is hereby DENIED.
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Dated at Milwaukee, Wisconsin, this 20th day of July, 2017.
BY THE COURT:
J. P. Stadtmueller
U.S. District Judge
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