Protecting the right to Pokemon Go

My column for the Washington County Daily News is online. Here you go:

The summer of 2016 will be remembered for many things. It was the summer when America came to grips with the fact that Donald Trump was the Republican candidate. It was the summer when terrorism swept across the world from Nice to Dhaka to the Pulse nightclub in Orlando. It was the summer of Brexit when Britain voted to leave the European Union.

It is also the summer of watching hordes of people stumble through public places staring at their smartphones as they tried to capture animated creatures in the augmented reality of Pokemon Go. While the Pokemon Go craze has come and gone, it has left some interesting legal ramifications in its wake.

During the Pokemon Go phenomenon, the leaders of Milwaukee County became frustrated that so many people were wandering through public parks playing the game. The huge influx of people enjoying the public parks damaged landscaping, left trash, and sometimes disrupted other visitors. Rather than just enforce the existing rules against such damaging and disruptive behavior, Milwaukee officials decided to go after the businesses that make games like Pokemon Go. In January, the Milwaukee County Board passed an ordinance that required the companies who created virtual and location-based augmented reality games to get a permit and post a $1 million certificate of insurance in order for people to play their games in the park.

On its face, the ordinance was ridiculous and unenforceable. The fact that the users of a game might damage flowers in a county park hardly makes the producers of that game responsible, nor should a county be able to arbitrarily restrict access to public property for people engaging in legal activities. But the Milwaukee Common Council is not known for its logical dexterity. In response to the ordinance, a company called Candy Lab Inc., which makes a different augmented reality game, sued the county.

Last week, U.S. District Court Judge J.P. Stadtmueller issued a preliminary injunction prohibiting Milwaukee County from enforcing its ordinance saying that it likely violates the First Amendment. This might be the first time in the nation’s jurisprudence that First Amendment protections have been expressly extended to augmented reality games.

In his ruling, Stadtmueller systematically dismantles Milwaukee County’s ordinance and all of its flaws. He says in part, “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,” and that the game in question, “contains the least minimum quantum of expression needed to constitute protectable speech.” In a final slap at Milwaukee County officials, the judge states, “the Ordinance is revealed for its strangeness and lack of sophistication.”

This ruling is a good reminder that while technologies change, constitutionally protected rights do not. In his ruling, Stadtmueller correctly cites and earlier case, Brown v. Entm’t Merchs. Ass’n, in which the Supreme Court clearly stated that, “whatever the challenges of applying the Constitution to everadvancing 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.”

That statement is a recognition of the fact that rights are endowed upon individuals. Our right to free speech is inherently individual and deserving of protection irrespective of the medium of transmission. The men who wrote our Constitution likely never envisioned telephones, the internet, or Pokemon Go, but they did not need to in order for the protections they wrote to apply. The right is to be protected. The technology is irrelevant.

This same principle applies to other rights as well. We also have a right to keep and bear arms (which is actually a more specific declaration of our broader right to property). And while our founders never envisioned the complexity or sophistication of modern firearms, they did not need to. The right is to be protected. The technology is irrelevant.

Our Constitution is not, nor was it ever intended to be, a living document. It does not need to be. Its brilliance rests in the understanding that human rights live in the bosom of each and every person. We must protect those rights whether they are being exercised with a quill, pen, keyboard, smartphone, musket or AR-15.