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A First Amendment issue is brewing in federal court over a local Wisconsin ordinancethe nation's firstthat requires publishers of augmented reality mobile games like Pokemon Goand Texas Rope 'Em to get a special use permit if their apps require gamers to play in Milwaukee County parks.

A Southern California company called Candy Lab, the maker of Texas Rope 'Em, is suing the county over the requirement that was adopted in February in the wake of the Pokemon Gocraze that resulted in a Milwaukee county park being overrun bya deluge of players. The permit, which costs as much as $1,000, requires estimates for crowd size and the event dates and times. It also calls for plans about garbage collection, bathroom use, on-site security,and medical services.

Candy Lab says it's impossible to comply with the permit for it fledgling app. Candy Lab can neither realistically answer the permit's questions(PDF) nor afford to pay for the other requirements like on-site security when users of its platform hunt for a winning hand in its augmented realityversion of Texas Hold 'Em. Like Niantic's Pokemon Go, Candy Lab's app is built to be played in designated parks and other areas. These types of mobile apps provide users with an augmented and interactive view of the park.

Candy Lab said the county is free to regulate the park however it sees fit. But what it cannot do is impose a permitting process on a game publisher, the company said. The requirement for a "special event permit"amounts to a prior restraint of speech in violation of the First Amendment, the company claims in its lawsuit. (PDF)

Just like the Constitution protects a book publisher from requiring a permit to release a book, Candy Lab says the same is true for augmented reality games that are played in public spaces."They are tying to shoehorn us into this existing permitting scheme for events that are finite in time," Brian Wassom, Candy Lab's attorney, said in a Friday interview. "They're passing two-dimensional laws in a three-dimensional world."

But the county views it from a different dimension, one where augmented reality games like Texas Rope 'Em are not protected by the First Amendment.

"Texas Rope 'Em is not entitled to First Amendment protection because it does not convey any messages or ideas. Unlike books, movies, music, plays and video gamesmediums of expression that typically enjoy First Amendment protectionTexas Rope 'Em has no plot, no storylines, no characters, and no dialogue. All it conveys is a random display of cards and a map. Absent the communicative features that invoke the First Amendment, Candy Lab has no First Amendment claim," the county said. (PDF)

The county said it was aware of the 2011 Supreme Court ruling against California's ban on the sale or rental of violent video games to minors. In coming to that conclusion in Brown v. Entertainment Merchants Association, (PDF) the justices said that video games amounted to speech protected under the First Amendment.But that doesn't mean the same is true when it comes to augmented reality, according to the county.

"No court has yet determined whether an augmented reality game receives First Amendment protection," the county notes in its response to Candy Labs' federal lawsuit."As explained in Brown, the reason that video games receive First Amendment protection is because they communicate ideas and messages through literary devices or through features distinctive to the medium. ...In other words, video games will be protected under theFirst Amendment if they include sufficient communicative, expressive, or informative elements to fall at least within the outer limits of constitutionally protected speech."

Texas Rope 'Em, the county maintains,"has no storylines, no characters, no plot and no dialogue. The player simply views randomly generated cards and travels to locations to get more. That is not the type of speech that demands First Amendment safeguards."The county also claims the app is an illegal form of gambling not entitled to First Amendment protection.

Wassom, the attorney for Candy Lab, told Ars that the county's argument is "ridiculous."

"Those are features of a particular expression of a game," he said. "That doesnt make it not entertainment and not speech."

Niantic, the maker of Pokemon Go, told Ars that "continued innovation and responsible game play, rather than regulation, is the way that developers, players, and their communities will realize the potential of this technology for civic engagement, creative expression, and health."The company said it is working with Milwaukee to help placate its concerns.

"We have worked with parks departments, in Milwaukee and other communities, to optimize the distribution of gameplay including removing or relocating some gameplay locations while adding new ones in other areas and also by adding the ability to control the hours of operation for game locations to conform with local rules," Niantic said.

Wassom said that Candy Lab would formally respond in court to the county's arguments on Wednesday. US District Judge JP Stadtmueller in the Eastern District of Wisconsin has set an April 2018 trial date if no settlement is reached.

Listing image by Candy Lab

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Augmented reality lawsuit provides augmented view of 1st Amendment - Ars Technica

Hundreds of people commented on Bernard Weisberger's widely shared article on the dangers Donald Trump poses to press freedom.

Your Turn: Red Alert The First [...]

President Donald Trump speaks during a press conference at the White House on Feb. 16, 2017. Trump berated the media repeatedly, calling CNN, The New York Times and other outlets "dishonest" and "very fake news" for reporting unfavorable stories about him. (Photo by Jabin Botsford/The Washington Post via Getty Images)

In a recent article for BillMoyers.com, Red Alert: The First Amendment Is in Danger, Bernard Weisberger wrote that Donald Trump is threatening freedom of speech in America with his frequent attacks on the press. In Trumps eyes, Weisberger writes, the most villainous persecutors are the mainstream fake news organizations that dare to oppose his actions and expose his lies. Weisberger reminds us that another US president, John Adams, despised criticism and, with the help of Congress, was able to crack down on the press. In the midst of a national emergency in 1798, Adams signed the Sedition Act, a direct violation of the Constitutions guarantee of freedom of speech. A number of journalists were prosecuted and locked up for speech critical of the government. Weisberger says it could happen again.

Hundreds of people wrote on Facebook page in response to the post; a sampling of these lightly edited comments can be seen below, including a response by Weisberger.

BY Bernard Weisberger | June 2, 2017

Excluding the media

Earlier this year at one of Sean Spicers off-camera briefings, The New York Times, CNN and other news sources were excluded. EXCLUDED from an administration-sponsored forum designed to facilitate getting news out! In my mind this is a clear violation of the First Amendment. John Connett

The covfefe heard around the world

Were already experiencing how Trump manipulates the press. For example, when a stupid typo (covfefe) can make the headlines on the first page for a week while shoving the Russian investigation to the back page or not mentioning it at all. Its only one of many examples of how Trump has succeeded Stay focused; we can walk and chew gum at the same time, so prove it and while investigating Trumps numerous missteps and misleads, stop making them the main story for days on end; always keep the Russian investigation on the front burner. Margi Underwood

What about Obama?

How quickly we forgot the Obama administrations war on whistleblowers. Good thing there wasnt any genuine trouble there. Michael Peck [Note: Peck made a number of related comments, which can be viewed in this thread.]

Mr. Peck, you are clutching at straws to make it seem that Obama was no better than Trump is now. Prosecuting those who broke a law against revealing state secrets is not the same as demanding a law that makes it a crime to criticize the president and thereby suppress all political opposition. Bernard Weisberger

One of many threats

The GOP is attacking our Constitution on every front rule of law, free and independent press, free and fair elections, First Amendment guarantee of free speech yet no one seems concerned that America is on the verge of becoming an autocracy! If you havent already, read Timothy Snyders On Tyranny: Twenty Lessons from the Twentieth Century for a reality jolt. Jack Wall

Like Russia or Turkey

Everyone who cares had better contact their senators and representatives because criticism is driving Trump off the cliff. They have already cut off the White House press corps, refuse to answer questions and advocated locking up protestors. How does that make us different from Russia or Turkey or any other authoritarian state? Trump is a baby. He is not strong. He would go to any lengths to shut down the negative press. Beware. It is up to you to protect our Constitution. Trump has never read it. Sheila Karlson

Stifling speech makes us all losers

We have a voice and need to keep using it. Everyone loses when free speech is stifled. Trump and his administration have been trying to undermine and control the media from the beginning of his campaign. We have to continually pull ourselves out of the weeds and not be duped by all the noise. Stay focused and do your research. Dont forget hate begets hate so be careful to not let anger become a distraction. Rhonda Donaldson Combs

Theodore Roosevelt on criticizing the president

To announce that there must be no criticism of the president, or that we are to stand by the president, right or wrong, is not only unpatriotic and servile, but is morally treasonable to the American public. Nothing but the truth should be spoken about him or any one else. Theodore Roosevelt quote, shared by Simone Carbone

Enough with Big Data: Knock on Doors and Talk to Voters

Daily Reads: Trump Allies Mount Incompetence Defense; UK Election Stunner

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Your Turn: Red Alert The First Amendment Is in Danger - BillMoyers.com

Forbes

Tuned In To The First Amendment: Court Upholds Satellite Radio's Right To Choose Advertisers Forbes Business entities have endured increasingly strident criticism of their free speech rights in recent years. Thankfully, the US Supreme Court and most lower federal courts have declined to embrace critics' ideologically-driven perspective that the First ...

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Tuned In To The First Amendment: Court Upholds Satellite Radio's Right To Choose Advertisers - Forbes

Twitter was an invaluable tool for candidate Donald Trump, allowing him to bypass traditional media channels and connect with a passionate base of followers. But as president, Trump's frequent use of Twitter is turning out to be a major liability for him.

President Trump's tweets earlier this week about his controversial "travel ban" executive order may end up undermining that executive order in court. To recap: Back in January, the president signed the original version, which banned travelers from seven Muslim-majority countries from entering the United States, but gave priority to refugee claims made by individuals whose religion "is a minority religion in the individual's country of nationality." This meant that the executive order effectively favored non-Muslim refugees over Muslim refugees, which many legal experts saw as a violation of the First Amendment. Freedom of religion specifically the Establishment Clause prohibits the government from favoring some religious groups over others.

On February 9, the Court of Appeals for the Ninth Circuit temporarily blocked the Trump administration from carrying out the order. The Trump administration decided to go back to the drawing board and revise it. Among other things, the administration removed the provision giving priority to refugees from minority religious groups in fact, it scrubbed the order of all references to religion. Nevertheless, the Court of Appeals for the Fourth Circuit ruled on May 25 that the revised executive order still violates the Establishment Clause. The Supreme Court will likely be deciding if the order is constitutional this fall.

As is his custom, President Trump took to Twitter to vent his frustration: "The Justice Dept. should have stayed with the original Travel Ban, not the watered down, politically correct version they submitted to S.C." This statement hurts the argument that the government will likely make in front of the Supreme Court that the revised executive order is sufficiently different in motive and operation from the original to pass constitutional muster.

It might seem strange that President Trump's social media habits could have an impact on the constitutionality of the travel ban. But that's because when it comes to the Establishment Clause, courts not only consider the letter of the law, but also the spirit of it. A law, or an executive order, cannot be constitutional if its primary purpose is to discriminate on the basis of religion. When judges are determining a law's primary purpose, they're not just limited to looking at the text. They can also look at the "historical context" of the law and the specific sequence of events leading to its passage. The Fourth Circuit considered President Trump's campaign tweets to be a vital part of the executive order's historical context, citing his campaign promises to ban Muslims from the United States as "creating a compelling case that [the revised executive order's] primary purpose is religious." By suggesting that the second order was merely a "watered down" version of the first, with the same purpose, President Trump's recent tweets are only adding to a record that may be used against the executive order when its fate is in the hands of the Supreme Court.

On less serious matters, President Trump is also facing a potential legal challenge from two users on Twitter that the president had recently blocked. These two, with the aid of the Knight First Amendment Institute, sent the White House a letter on June 6 stating that the president had violated their First Amendment rights when he blocked them, purportedly because they were critical of his policies. It seems bizarre that blocking someone on Twitter could potentially violate the Constitution, but this stems from President Trump's role as a government official and his use of Twitter to discuss domestic and foreign policy. One could argue, as the two angry tweeters might, that President Trump has turned his Twitter account into a limited public forum a place where people can express themselves. A similar thing happens when the government allows people to use its meeting spaces, or enables people to leave comments on an online forum. The government can place reasonable regulations on this sort of activity for example, by blocking users who make threats, or censoring profane comments but it can't discriminate against users based on their point of view.

It's unclear whether the challenge to the president's Twitter blocking practices will end up in court. But it's worth watching and interesting to note that Twitter has gotten President Trump embroiled in two different First Amendment legal matters.

Lata Nott is executive director of the First Amendment Center of the Newseum Institute. Contact her via email at lnott@newseum.org, or follow her on Twitter at @LataNott

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INSIDE THE FIRST AMENDMENT: Trump's use of Twitter puts him in ... - Meridian Star

On May 31, at approximately 7:30 in the morning Eastern Time, the president of the United States of America blocked me on Twitter.

This was right after I had sent @realDonaldTrump a series of tweets advising him to spend more time with his 11-year-old son Barron instead of golfing every weekend. I also called him an "orange tyrant." I had been doing that sort of thing for a while, as part of a loose group of mostly left-leaning verified Twitter users who regularly tweet at Donald TrumpTwitter makes replies to Trump from verified users more visible than other replies, so a bunch of us take advantage of this to criticize, fact-check, and sometimes taunt the famously thin-skinned chief executive.

While it started as a funny pastime to call out Trump for his confusing, inconsistent, and false comments, it developed into something a bit more serious. On Tuesday, the White House admitted that Trump's tweets were "official statements," but even before that, these 140-character ramblings were obviously important. In the last few days alone Trump has started an international incident by tweeting about the London mayor's response to a terror attack and startling the entire world by taking an anti-Qatar stance on Twitter.

Trump's tweets make headlines every day, are referenced in congressional hearings, discussed at foreign policy summits, and a frequent topic at White House press briefings. They may even end up being referenced in the Supreme Court in arguments over Trump's travel ban. And who knows, maybe being one of several voices who routinely push back on his stream-of-consciousness nonsense could at the very least promote some small amount of political discourse, and maybesomehowmake a difference. But I wasn't holding my breath.

Then Trump blocked me, and I'm pretty sure he did it himself.

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The night before, he tweeted the now-infamous line, "Despite the constant negative press covfefe," a bizarre typo that remained online from around midnight until about 6 AM. To me, that was evidence that Trump is the sole man behind his account, rather than his communications team. Figuring out which tweets are tapped out by the president and which come from his team is something of a media parlor gamebut blocking me, the guy who tried to get high smoking coffee and drunk on kombucha? That's a petty, pointless move that had Trump's small fingerprints all over it.

Within a few days, I came to learn that I was not the only one to be censored. Following my block on May 31, about a dozen left-leaning journalists, pundits, and otherwise critics had also been blocked after posting replies to his timeline. The tweets that seemed to provoke the blocks ranged from fairly aggressive to innocuous. One writer called him "a flakey, orange, illiterate, racist lizard"; a famous cyclist simply tweeted "Greetings from Pittsburgh, Sir." Both were shut down.

I'm more than happy to admit that this whole thing sounds absolutely silly, but it also points to a unique question over whether or not the president should be silencing his critics in such a mannereven when the criticism is taking place on an insular, not-as-relevant-as-its-users-think social media platform. (Sorry, @jack.)

While some of us have found workarounds to continue taking part in the conversation, the blocks have undoubtedly created a chilling effect, with a number of users unable to reply to Trump, or were simply discouraged.

The question is, could these blocks constitute a violation of the First Amendment?

Twitter is a private service that is free to regulate its content as it sees fit. (And actually, some people think it should do a little more regulating.) But Donald Trump is not a private citizen, and the presidency has some fairly strict and extensive rules governing lines of communication.

I don't understand any of them because I studied film and psychology in college. So instead, I've been working with DC attorney Nicole J. Monsees to help understand the legal issues surrounding this case. I've also joined an effort by the Knight First Amendment Institute at Columbia University to get Trump to unblock his critics.

On Tuesday, lawyers at Knight sent Trump a letter demanding he unblock us on the grounds that these blocks violate our freedom of speech due to what @realDonaldTrump represents. "This Twitter account operates as a 'designated public forum' for First Amendment purposes, and accordingly the viewpoint-based blocking of our clients is unconstitutional," reads the letter.

The relevant body of law is a set of rules concerning how the government interacts with the public in open forums. In the offline world, private buildings are sometimes used to host town hall meetings, for instance, and when they are, these meetings fall under something called the "Public Forum Law."

In essence, meetings between government officials and constituents are presumed to be a public space, like a street corner or a public park. While there may be certain rules that all participants must adhere to (no nudity or violent threats, for example), government officials are theoretically not allowed to limit criticism or otherwise divergent viewpoints at such meetings.

Does Public Forum Law apply online as well? Monsees pointed to a number of cases where courts found that it did.

One legal fight that began in 2012, Hawaii Defense Foundation v. City and County of Honolulu, came about after the Honolulu Police Department's Facebook page removed comments in which a user accused the department of "getting your internet nazi powers rolling early in the morning." Problematically, the department's Facebook page indicated that it was "a forum open to the public," and the ensuing lawsuit, which took two years to resolve, cost Honolulu about $31,000 in attorney fees, and forced them to establish new social media policies.

One could argue that @realDonaldTrump is Trump's private account and therefore not subject to the same rules as @POTUS, the official presidential account. But @realDonaldTrump's tweets are official statements just as @POTUS's tweets are.

Relatedly, @realDonaldTrump's tweets are also likely subject to the Presidential Records Act of 1978. After lawmakers in both parties and the National Archives told the White House that presidential tweetseven those deleted because of misspellingsshould be preserved for posterity, administration officials reassured everyone that they were being properly saved.

The current Knight Foundation legal effort is about more than just Trump. He won't be the last president to rely on social media, and it's important to set standards for what presidents can and can't do when it comes to limiting the discourse that occurs on their pages. That discourse might be inane and insultingbut hey, so are many of Trump's tweets.

Follow Jules Suzdaltsev on Twitter, where he is still tweeting at Trump.

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My Weird Battle to Get the President to Unblock Me on Twitter - VICE