November 2017 - Parks & Recreation - 30

L AW R E V I E W

In so doing, the court found the ordinance " covers such games regardless of
their content, be it poker, zombie-killing, or Pokémon-catching. " As a result, the court concluded the ordinance
was content neutral; that is, not applied
" to one game or another because of the
topic discussed or the idea or message
expressed. "
Moreover, in the opinion of the federal
district court, " the history and purpose
of the Ordinance do not reflect a content-based animus [i.e., hostility] in the
County officials who adopted it " :
[The County's] 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
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to curb gambling or show distaste
for Western aesthetics.
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.
While acknowledging the ordinance
treated AR games differently from
other mobile applications, the court
found this distinction was based on
" the mode or channel of speech, not
its content. " As a result, the federal
district court concluded the ordinance
was content-neutral.
Inadequate Procedural Safeguards
Despite content-neutral time, place and
manner restrictions in the ordinance,
the federal district court found the chal-

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lenged ordinance did not " employ sufficient procedural safeguards to ensure the
protection of First Amendment rights. "
As noted by the court, a content-neutral
regulation " may not condition speech
on obtaining a license or permit from
a government official in that official's
boundless discretion " :
An acceptable regulation must
contain adequate standards to guide
the official's decision and render it
subject to effective judicial review.
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.
In this instance, the court found " no
such standards exist " in the challenged
ordinance. While the ordinance directed
all prospective game publishers to complete the Permit Application, it was left
to the discretion of county officials 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. " What was most troubling,
was that the court found the Permit Application allowed the reviewing official
unbridled discretion in determining the
" appropriateness " of a given application.
Specifically, the court was concerned by
expressed language in the Permit Application, which asserted: " Milwaukee County Parks in its sole discretion may grant,
deny, revoke, or suspend any permit, at
any time and for any reason. "
Accordingly, the federal district court
held the challenged ordinance was invalid because it vested " unbridled discretion
in the hands of a County official. " As
noted by the court, an ordinance which
vests the government with virtually unlimited authority to grant or deny a permit violates the First Amendment's guarantee of free speech.

November 2017 - Parks & Recreation

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