A License to Play: Regulating Location-Based Augmented Reality Gameplay on Public Property

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1551

A LICENSE TO PLAY: REGULATING

LOCATION-BASED AUGMENTED REALITY

GAMEPLAY ON PUBLIC PROPERTY

Kate Johnson, Evan Ringel & Amanda Reid

This novel research sits at the intersection of augmented

reality gameplay and government licenses for use of public

property. Governments have long used licensing schema to

assure public safety and order. Augmented reality gameplay on

public lands presents a new, contested use of public

property. Under our proposed licensing scheme, those wishing

to engage in location-based augmented reality (LoBAR)

gameplay on public lands would need a license. This proposal

is akin to how governments—federal, state, and municipal—

have authorized permit schema for use of public property,

including rock climbing, geocaching, street performing, and

film photography. Our Article offers sample legislation for

policymakers to license LoBAR gaming, and a sample license

application is included in the Appendix.

* Kate Johnson is a blockchain software engineer from Washington DC. In 2022, she

graduated from the University of North Carolina at Chapel Hill with a Master’s in Media and

Communication. Her M.A. thesis focused on the strategic uses of virtual and augmented

reality in marketing.

Evan Ringel is a Ph.D. student at the University of North Carolina Hussman School of

Journalism and Media; Media Law Fellow, UNC Center for Media Law and Policy; Graduate

Student Affiliate, UNC Center for Information and Public Life (CITAP). In 2021, he earned

dual degrees: J.D. from University of North Carolina School of Law, and M.A. from the

University of North Carolina Hussman School of Journalism and Media.

Amanda Reid is an Associate Professor at the University of North Carolina Hussman

School of Journalism and Media; Faculty Co-Director, UNC Center for Media Law and Policy;

Faculty Research Affiliate, UNC Center for Information and Public Life (CITAP).

The authors are grateful for thoughtful feedback from Professor Eric Goldman, Professor

Eric E. Johnson, and participants of the 2023 Symposium, “The Intersection of Law &

Technology.” And special thanks are extended to the editors of the UGA Law Review,

including Savannah Grant, Tripp Keeffe, and Millie Price.

The proposal herein is intended to provoke a conversation about regulating contested uses

of LoBAR gameplay on public property. Questions or comments should be directed to

[email protected].

Johnson et al.: A License to Play

Published by Digital Commons @ University of Georgia School of Law, 2023

1552 GEORGIA LAW REVIEW [Vol. 57:1551

TABLE OF CONTENTS

I. INTRODUCTION ................................................................. 1554

II. AUGMENTED REALITY GAMING ...................................... 1558

A. LOCATION-BASED AUGMENTED REALITY (LOBAR)

GAMES ................................................................... 1558

B. WHY LOBAR GAMES ARE POPULAR ......................... 1563

1. Individual-Level Benefits .............................. 1566

2. Community-Level Benefits ............................ 1568

III. POLICYMAKER CONCERNS & REGULATORY INTERVENTIONS

................................................................................... 1571

A. CONTESTED USE OF PUBLIC PROPERTY .................. 1571

B. REGULATORY INTERVENTIONS .............................. 1575

1. Background and Enactment of Milwaukee

County’s LoBAR Ordinance .......................... 1575

2. LoBAR Game Permits and the First Amendment:

Candy Lab v. Milwaukee County ................. 1578

C. OTHER SCHOLARLY PROPOSALS TO REGULATE LOBAR

GAMEPLAY ............................................................. 1581

IV. LICENSE TO PLAY .......................................................... 1582

A. PROPOSAL: AN INDIVIDUAL LICENSE FOR LOBAR

GAMEPLAY ............................................................. 1582

B. SAMPLE LEGISLATION: LOBAR GAMEPLAY LICENSE 1589

Georgia Law Review, Vol. 57, No. 4 [2023], Art. 3

https://digitalcommons.law.uga.edu/glr/vol57/iss4/3

2023] A LICENSE TO PLAY 1553

1. Purpose and Intent ........................................ 1589

2. Scope; Authority ............................................. 1590

3. Definitions ...................................................... 1590

4. Gameplay License—Required ......................... 1590

5. Types of Gameplay Licenses .......................... 1590

6. Gameplay License Application ...................... 1591

7. Issuance or Denial of Gameplay License ...... 1592

8. Fees ................................................................. 1593

9. Notification and Appeals ............................... 1593

10. Assignability .................................................. 1593

11. Indemnification ............................................. 1594

12. Enforcement ................................................... 1594

13. Rights of Violators ......................................... 1594

C. THE CONSTITUTIONALITY OF LOBAR LICENSING .... 1595

V. CONCLUSION ................................................................... 1601

VI. APPENDIX ...................................................................... 1603

Johnson et al.: A License to Play

Published by Digital Commons @ University of Georgia School of Law, 2023

1554 GEORGIA LAW REVIEW [Vol. 57:1551

I. INTRODUCTION

This research sits at the intersection of augmented reality

gameplay and government licenses for use of public property.

Governments—federal, state, and local—license various uses of

public property. To regulate “competing uses” of public forums,

governments often impose a permit requirement.

Recreational

activities on public property can require special permissions, like

hiking,

camping,

fishing,

picnicking,

and group exercising.

See, e.g., Forsyth Cnty. v. Nationalist Movement, 505 U.S. 123, 130 (1992) (“[T]o regulate

competing uses of public forums, [the government] may impose a permit requirement on those

wishing to hold a march, parade, or rally.”).

See, e.g., Half Dome Permits for Day Hikers, NAT’L PARK SERV.,

https://www.nps.gov/yose/planyourvisit/hdpermits.htm (last visited June 17, 2023) (“Permits

to hike . . . are required seven days per week . . . .”); Palouse to Cascades State Park Trail

Registration, W

ASH. STATE PARKS, https://www.parks.wa.gov/1089/Palouse-to-Cascades-

State-Park-Trail-Reg (last visited June 17, 2023) (“Registration is required for [hiking] the

trail.”); Grandfather Mountain State Park, N.C.

STATE PARKS, https://www.ncparks.gov/state-

parks/grandfather-mountain-state-park (last visited June 17, 2023) (“[F]ree permits are

required and must be filled out at the trailhead prior to hiking.”).

See, e.g., 36 C.F.R. § 2.10(a) (2022) (“The superintendent may require permits, designate

sites or areas, and establish conditions for camping.”); 2 COLO. CODE REGS. § 405-7:704(1)

(2017) (“No person shall camp in designated campgrounds or use any campground facilities

of any park or recreation area unless such use is by authority of a valid campground-use

permit issued by the Colorado Parks and Wildlife.”); 4 V

A. ADMIN. CODE § 5-30-150(A) (2010)

(“Camping will be conducted only under a valid reservation.”).

See, e.g., MD. CODE ANN., NAT. RES. § 4-604 (2021) (“Any person 16 years or older shall

secure an angler’s license to fish in the nontidal waters . . . .”); N.C. GEN. STAT. § 113-270.1B

(2019) (“[N]o person may . . . fish . . . without having first procured a current and valid license

authorizing the activity.”).

See 36 C.F.R. § 2.11 (2022) (allowing conditions to be imposed for picnicking in permitted

areas); 2 COLO. CODE REGS. § 405-7:706 (2021) (requiring picnickers to first obtain a permit);

N.Y. COMP. CODES R. & REGS. tit. 9, § 372.7 (2019) (requiring picnics of more than twenty-

five people to first obtain a permit); CITY OF SACRAMENTO, CAL., PARK USE GUIDE:

FREQUENTLY ASKED QUESTIONS, https://www.cityofsacramento.org/-

/media/Corporate/Files/ParksandRec/Permits/PermitPark_AppSPRev052022.pdf?la=en (last

visited June 17, 2023) (granting exclusive access to certain park areas for picnics with

permits).

See, e.g., N.C. DEP’T OF NAT. CULTURAL RES., ROCK CLIMBING MANAGEMENT GUIDELINES,

https://files.nc.gov/ncparks/north-carolina-state-parks-rock-climbing-management-

guidelines.pdf

(last visited June 17, 2023) (requiring a Special Activity Permit for group rock

climbing on public property); OC

PARKS, APPLICATION FOR GROUP INSTRUCTION,

https://www.ocparks.com/sites/ocparks/files/2022-

01/Application%20For%20Group%20Instruction%20-%20%28Fillable%29.pdf (last visited

Georgia Law Review, Vol. 57, No. 4 [2023], Art. 3

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2023] A LICENSE TO PLAY 1555

Other, more expressive activities on public property can also require

government approval, including protests,

parades,

and still and

film photography.

Governments have long used licensing schema to assure public

safety and order. Augmented reality gameplay on public lands

presents a new, contested use of public property. Empirical studies

have shown that location-based augmented reality (LoBAR)

gameplay yields physical and psychosocial benefits.

However,

some community members have raised concerns about public health

and safety, traffic congestion, and property damage.

If left

June 17, 2023) (providing the permit application to conduct group instructions, such as tennis

lessons, on park grounds).

See, e.g., First Amendment Activity, NAT’L PARK SERV.,

https://www.nps.gov/calo/planyourvisit/sup-1st.htm (last visited June 17, 2023) (requiring a

Special Use Permit for First Amendment activities on public property in Cape Lookout);

ONOLULU, HAW., REV. ORDINANCES ch. 10, art. 1, § 10-1.3(5) (2021) (“Expressive activities

. . . require a permit when the expressive activity involves 150 or more persons.”).

See, e.g., HENRICO CTY., VA., CODE OF ORDINANCES § 22-419 (2010) (“It shall be unlawful

to conduct a parade within the county except in accordance with a permit . . . .”); B

OZEMAN,

MONT., CODE OF ORDINANCES § 34.08.040 (2011) (requiring parade conductors to maintain

current and valid permits); NEW ORLEANS, LA., CODE OF ORDINANCES § 154-1651 (1956)

(requiring a permit to conduct a parade in New Orleans).

See, e.g., Filming & Still Photography Permits, NAT’L PARK SERV.,

https://www.nps.gov/aboutus/news/commercial-film-and-photo-permits.htm (last visited

June 17, 2023) (“There are some circumstances when a permit is needed for commercial still

photography.”); F

LA. ST. PARKS, FEE SCHEDULE,

https://www.floridastateparks.org/sites/default/files/inline-

files/2021_05_10%20FSP%20Fee%20Schedule%2005.2022.pdf (last visited June 17, 2023)

(“Photography is permitted without [a permit] . . . except where normal park operations are

disrupted . . . .”); F

LA. DEP’T OF ENV’T PROT., APPLICATION—PHOTOGRAPHY PERMIT FOR

PHOTOGRAPHY, VIDEOGRAPHY AND CINEMATOGRAPHY,

https://www.floridastateparks.org/sites/default/files/media/file/DRP-067%20ENABLED.pdf

(last visited June 17, 2023) (providing the application for a photography, videography, or

cinematography permit in Florida); N

ASHVILLE, TENN. BD. OF PARKS & RECREATION,

COMMERCIAL FILM VIDEO & PHOTOGRAPHY PERMIT APPLICATION,

https://www.nashville.gov/sites/default/files/2021-08/Commercial-Film-Video-Photography-

Permit-Application-2021.pdf?ct=1628521619 (last visited June 17, 2023) (providing the

application for film video and photography in Nashville).

See Alberto Ruiz-Ariza, Rafael Antonio Casuso, Sara Suarez-Manzano & Emilio J.

Martínez-López, Effect of Augmented Reality Game Pokémon GO on Cognitive Performance

and Emotional Intelligence in Adolescent Young, 116 C

OMP. & EDUC. 49, 55–56 (2018) (finding

that Pokémon GO increased daily exercise in adolescents, improved their cognitive

performance, and improved social relationships).

See, e.g., Evan Bush, Des Moines Fed Up with Pokémon Go Players, Asks to “Opt Out” of

Game, THE SEATTLE TIMES (Sept. 1, 2016, 10:38 AM), https://www.seattletimes.com/seattle-

Johnson et al.: A License to Play

Published by Digital Commons @ University of Georgia School of Law, 2023

1556 GEORGIA LAW REVIEW [Vol. 57:1551

unregulated, some worry we risk a tragedy of the commons where

our public parks are overused.

Policymakers and commentators

have considered a variety of legal mechanisms to balance competing

interests at play with LoBAR gaming.

This is the first research to

consider the constitutionality of individual licenses for LoBAR

gameplay.

Licensing LoBAR gameplay sits comfortably within a genre of

licensing schema for other recreational activities on public

property.

The authors express no opinion on the advisability of the

breadth of such licensing schema, which includes licenses for

weddings on public beaches,

use of drones in state parks,

and

news/des-moines-fed-up-with-pokmon-go-players-asks-to-opt-out-of-game/ (“People are

flocking to the South King County city’s marina and beach park, which are home to

Pokéstops, Pokégyms and a plethora of the digital creatures themselves, of course. ‘We’re

talking 150, 200 people down at the marina, and we’re talking at night,’ said Sgt. Doug

Jenkins of the Des Moines Police Department. ‘It’s been a drain on the police resources.

People are driving in there after hours,’ Jenkins said. ‘It’s noise-related, they’re leaving their

garbage around. There are complaints that they’re smoking marijuana and drinking.’”).

See Garrett Hardin, The Tragedy of the Commons, 162 SCI. 1243, 1243 (1968) (theorizing

that finite, common resources can only support finite usage and that overuse leads to

depletion); see also Jin Ha Lee, Jason Yip, Adam Moore, Yeonhee Cho, Zale de Jong, Ryan

Kobashigawa & Alexander Escalera Sanchez, Users’ Perspectives on Ethical Issues Related to

Playing Location-Based Augmented Reality Games: A Case Study of Pokémon GO, 39 I

NT’L J.

HUM.-COMPUT. INTERACTION 348, 349 (2023) (“What if the use of these [LoBAR] games leads

to a tragedy of the commons where public parks are overused?”).

See discussion infra section II.C.

States have long had the power to require a license to fish or hunt on public lands. See,

e.g., Dapson v. Daly, 153 N.E. 454, 454 (Mass. 1926) (“The Legislature has made provision for

the hunting of deer during a restricted period by those duly licensed. These regulations are

valid. The right to hunt deer exists and can be exercised only in accordance therewith.”

(citation omitted)); People v. Setunsky, 126 N.W. 844, 845 (Mich. 1910) (“That the Legislature

has power to regulate the taking of fish and game within the confines of the state, and the

waters that it owns, is unquestionable, not only as to time and place, but as to method. It is

upheld by the decisions of the federal and state courts generally, and has been so held in this

state.”); Leonard & Leonard v. Earle, 279 U.S. 392, 393 (1929) (finding a state business license

to harvest oysters did not violate the federal constitution).

See Wedding Permits, CAPE HATTERAS NAT’L SEASHORE: N.C.,

https://www.nps.gov/caha/planyourvisit/wedding-permits.htm (last visited June 17, 2023)

(presenting the permitting process for weddings at Cape Hatteras National Seashore).

See Remote Controlled Aircraft Permit, WASH. STATE PARKS & RECREATION COMM’N,

https://www.parks.wa.gov/1080/Remote-Controlled-Aircraft (last visited June 17, 2023)

(requiring a permit for “remote controlled aircraft”); Photography & Filming Permits: Drones,

INNEAPOLIS PARK & RECREATION BD., https://www.minneapolisparks.org/rentals-

permits/photography__filming_permits/ (last visited June 17, 2023) (prohibiting drones from

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lotteries for access to national parks.

Others have raised concerns

about governments’ expansive permitting schema.

Scholars worry

that proliferation of permitting schema to engage in expressive

activities on public property poses a threat to First Amendment

freedoms.

In this vein, there are those who mount a robust critique

against the “permit power in the hands of government.”

Exercise

of this power has been called “dangerous” and it can serve as a

“stranglehold on individual behavior.”

Other scholars offer a more

charitable view of regulatory permits and praise their flexible and

contextual regulatory power.

The authors of this Article offer no

rejoinder to these thoughtful perspectives. The authors do not enter

this debate and do not make a normative case. Rather, the authors

taking off or landing on any property that is owned and operated by the Minneapolis Park

and Recreation Board without a permit).

See Enter a Lottery, RECREATION.GOV, https://www.recreation.gov/lottery/available (last

visited June 17, 2023) (administering lotteries for public access to certain areas of national

public lands because “given the high volume of interest, some opportunities require a lottery

process to limit traffic, [and] enhance your experience and reduce our footprint”).

See, e.g., Nathan W. Kellum, Permit Schemes: Under Current Jurisprudence, What

Permits Are Permitted?, 56 DRAKE L. REV. 381, 382 (2008) (“As a tool that empowers a

governmental entity to decide whether a particular message can be heard in the public arena,

permit schemes represent a significant threat to free speech, fueling more and more

controversy about their validity.”). Excessive “occupational licensing” is also ripe for critique.

See, e.g., Jeffrey Zients & Betsey Stevenson, Trends in Occupational Licensing and Best

Practices for Smart Labor Market Regulation, T

HE WHITE HOUSE: PRESIDENT BARACK OBAMA

(July 28, 2015, 12:01 PM), https://obamawhitehouse.archives.gov/blog/2015/07/28/trends-

occupational-licensing-and-best-practices-smart-labor-market-regulation (discussing the

benefits and consequences of occupational licensing).

Compare Kellum, supra note 18, at 383 (criticizing “a growing trend among government

bodies to promulgate and utilize permit schemes that effectively preempt protected

expression on public ways”), with Eric Biber & J.B. Ruhl, The Permit Power Revisited: The

Theory and Practice of Regulatory Permits in the Administrative State, 64 D

UKE L.J. 133, 137

(2014) (“Administrative permits are ubiquitous in modern society.”).

Richard A. Epstein, The Permit Power Meets the Constitution, 81 IOWA L. REV. 407, 417

(1995); see also Edan Burkett, Coordination or Mere Registration? Single-Speaker Permits in

Berger v. City of Seattle, 2010 BYU

L. REV. 931, 961–62 (discussing impermissible permitting

actions by the government); John Juricich, Freeing Buskers’ Free Speech Rights: Impact of

Regulations on Buskers’ Right to Free Speech and Expression, 8 H

ARV. J. SPORTS & ENT. L.

39, 41 (2017) (“[P]ermitting schemes are but another piece of the broken clockwork of case

law governing busking.”).

Epstein, supra note 20, at 416–17.

See Biber & Ruhl, supra note 19, at 228 (“[W]e have offered a framework for thinking

about the scope and design of regulatory permits, showing permitting to constitute a far more

flexible and contextual regulatory power than Professor Epstein’s critique assumed.”).

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only posit that LoBAR gameplay may be licensed to the extent that

other recreational activities (e.g., hiking) and expressive activities

(e.g., moviemaking) may be licensed on public lands.

To analyze the constitutionality of licensing LoBAR gameplay,

this Article proceeds in three parts. Part II outlines how LoBAR

games operate and explores the popularity of such games.

Researchers have identified benefits to the individual and to the

community from LoBAR gameplay, yet the proliferation of such

gameplay can raise concerns. Part III summarizes policymakers’

concerns and various regulatory interventions to navigate contested

uses of public property. The only court to consider a First

Amendment challenge to a special event permit requirement for

LoBAR gaming found that the content-neutral ordinance failed

intermediate scrutiny.

With the current jurisprudential landscape

in mind, Part IV offers sample legislation for policymakers to license

location-based augmented reality gaming. A sample license

application is included in the Appendix.

II. AUGMENTED REALITY GAMING

A. LOCATION-BASED AUGMENTED REALITY (LOBAR) GAMES

Augmented reality (AR) refers to the superimposition of digital

content onto a live video display from a mobile device’s camera.

This overlap creates the illusion that the digital content is present

in the user’s physical world. Video games have become an

increasingly popular form of media.

And software developers have

leveraged advances in technology to create location-based AR games

that superimpose gameplay over a player’s physical environment.

See Candy Lab Inc. v. Milwaukee Cnty., 266 F. Supp. 3d 1139, 1148, 1154 (E.D. Wis.

2017) (holding that the content-neutral ordinance failed intermediate-scrutiny).

See Augmented Reality, INTERACTION DESIGN FOUND., https://www.interaction-

design.org/literature/topics/augmented-reality (last visited June 17, 2023) (discussing the

basic premise and digital techniques of augmented reality).

See Tim Wulf & Matthew Baldwin, Being a Kid Again: Playing Pokémon GO Contributes

to Well-Being Through Nostalgia, 9 STUD. COMM. & MED. 241, 244 (2020) (“Video games have

become a substantial part of human media consumption, especially in the last couple of

decades.”).

See, e.g., Shaojung Sharon Wang & Chih-Ting Hsieh, Ubiquitous Pokémon GO: Human–

Environment Relationships and the Location-Based Augmented Reality Game, 52 ENV’T &

BEHAV. 695, 696 (2020) (describing the game’s use of augmented reality); see also Travis Alley,

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These LoBAR games combine the digital and physical worlds by

featuring the player location as a “key element” of gameplay.

Users are encouraged to move between real-world locations to

access different features within the game.

As a user moves around

a particular location, game tokens or rewards can be accumulated.

The first developer to harness LoBAR technology for gaming was

Niantic Labs: a tech startup originally housed within Google.

2012, Niantic launched Ingress, their first LoBAR mobile game,

which relied on existing technology from Google Earth, Streetview,

and Google Maps.

Niantic left Google in 2015, and in July 2016

the company launched Pokémon GO.

This LoBAR mobile game

was based on the “pocket monsters” found in the Pokémon universe

of trading cards, books, movies, and video games.

The release of Pokémon GO took the world by storm.

The game

was downloaded more than 250 million times on iPhones and

Pokemon Go: Emerging Liability Arising from Virtual Trespass for Augmented Reality

Applications, 4 TEX. A&M J. PROP. L. 273, 273 (2018) (“To catch these Pokémon, players must

physically walk around their environment . . . .”).

Lee et al., supra note 12, at 348 (“Location-based augmented reality (LBAR) games,

which blend the digital world and the real-world via gameplay by featuring the player location

as a key element are becoming increasingly popular.”).

See id. at 349 (describing data on people feeling encouraged to go outside more and the

structure of the game requiring players to visit real-life locations).

Id. at 348.

Jessie Marchessault, Casual Play, Hardcore Community: Social and Spatial Ecosystems

in Location-Based Mobile Gameplay 11 (Sept. 2020) (unpublished M.A. thesis, Concordia

University) (on file with the Concordia University Spectrum Research Repository).

See id. (describing Ingress as “the first of its kind, location-based, augmented reality

mobile game”); see also Andrew L. Rossow, Gotta Catch a Lawsuit: A Legal Insight into the

Intellectual, Civil, and Criminal Battlefield Pokemon Go Has Downloaded onto Smartphones

and Properties Around the World, 16 J.

MARSHALL REV. INTELL. PROP. L. 329, 332 (2017)

(describing the app’s dependence on existing technology and intellectual property); Sara Gold,

When Pokemon Go(es) Too Far: Augmented Reality and Tort Law, 38 W

HITTIER L. REV. 161,

168 (2018) (“Pokemon GO [is not] the first-ever digital game to incorporate augmented-reality

technology. In 2012, Niantic released its first augmented-reality game, Ingress, which is

similar to Pokémon GO in that both games require players to travel to real-life locations to

interact with the game.”).

See Marchessault, supra note 30, at 11.

See Rossow, supra note 31, at 330 (defining pocket monsters as animated creatures that

“exist in the wild”).

See Alf Inge Wang, Systematic Literature Review on Health Effects of Playing Pokémon

GO, 38 E

NT. COMPUTING 1, 1 (2021) (“Pokémon GO is by far the most successful augmented

reality game ever released, and also one of the most successful mobile games of all time

grossed more than $4 billion in revenue and has nearly 600 million unique installs.”); see also

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Android mobile phones in its first three months.

By 2019 it had

been downloaded more than one billion times.

Pokémon GO users

traveled around battling with and capturing Pokémon, which

appeared as digital animal-like beings moving about a player’s

mobile device’s screen.

The mechanics of the game used the

player’s location to dictate which Pokémon creatures the player

would encounter and be able to capture.

Shortly after the game’s release, the appearance of rare Pokémon

(which were more difficult to find and capture) often led to huge

crowds flocking to a single location, as the Tweet in Figure 1 below

illustrates.

The caption on the Tweet reads, “A Wartortle just

showed up on Santa Monica Pier and HUNDREDS of people ran for

it. Absolutely insane #PokemonGo.”

Chia-Yen Hsieh & Tim Chen, Effect of Pokémon GO on the Cognitive Performance and

Emotional Intelligence of Primary School Students, 57 J. EDUC. COMPUTING RSCH. 1849, 1851

(2019) (“Among [AR games], Pokémon GO has gained significant fame in a very short time.

It is the first mass market app that is fully immersed into actual geographical space and that

transcends the virtual, the spatial, the social, and the physical.”).

See Jeremy Winslow, Pokémon GO Surpasses One Billion Downloads, GAMESPOT (July

31, 2019), https://www.gamespot.com/articles/pokemon-go-surpasses-one-billion-

downloads/1100-6468805/ (“Two months after market introduction, the game was

downloaded 500 million times. . . .”).

See id. (“[T]he mobile game has been downloaded more than one billion times since its

July 2016 launch.”).

Gold, supra note 31, at 123.

See id. (“The Pokémon Go smartphone app syncs with the Global Positioning System

(‘GPS’) to generate a map that displays the player’s real-life location, absent any street or

geographic names, and transforms these real-life landmarks into ‘Pokémon-specific’

buildings. In this virtual world, players can hunt for more than 300 species of Pokémon

characters, all modeled after the characters from the original franchise that launched in

Japan in 1996. To play, a player’s smartphone alerts him or her that a Pokémon character is

nearby, and then the player has to travel the short distance in order to locate and capture the

Pokémon by means of a virtual ‘Pokéball’ capturing device.”).

See Sam Thorne (@Strippin), TWITTER (July 13, 2016, 3:16 AM),

https://twitter.com/Strippin/status/753126057973342208.

Id.

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Figure 1: A photograph posted on Twitter in 2016 depicting

a large gathering of Pokémon GO players at a Santa Monica

pier.

Pokémon GO has continued to dominate in the LoBAR mobile

game market. While the game’s popularity has cooled since the

initial mania, Pokémon GO remains one of the most-played and

highest-grossing LoBAR games. The game grossed $1.3 billion in

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2021, the seventh-highest total for a mobile game.

In 2022, an

estimated seventy-nine million users played it at least once a

month.

To capitalize on consumer interest, Niantic Labs and other

companies have introduced similar games depicting characters from

franchises like NBA All-World,

Harry Potter,

Pikmin,

and The

Walking Dead.

Thus, Pokémon GO is just one example of the

practical and real world application of LoBAR technology. Market

researchers have projected average revenue growth of nearly forty

percent over the next decade for the augmented reality and virtual

reality industry.

These market projections are a strong indication

that LoBAR gaming will continue to be a source of entertainment

and revenue over the years to come.

See Craig Chapple, Pokémon GO Catches $6 Billion in Lifetime Player Spending, SENSOR

TOWER (June 2022), https://sensortower.com/blog/pokemon-go-6-billion-revenue (comparing

Pokémon GO’s revenue to other mobile games).

See Pokémon GO Live Player Count and Statistics, ACTIVEPLAYER.IO (June 2022),

https://activeplayer.io/pokemon-go/ (providing a table of the average monthly players from

August 2021 to January 2023).

Niantic, NBA and NBPA Usher in a New “NBA All-World” Mobile Game, NAT’L

BASKETBALL LEAGUE (Jan. 24, 2023, 12:08 PM), https://www.nba.com/news/niantic-nba-

and-nbpa-usher-in-new-nba-all-world-mobile-game.

See Nicole Carpenter, Harry Potter: Wizards Unite Is the Next Step Forward for

Augmented Reality Games, POLYGON (June 20, 2019, 9:00 AM),

https://www.polygon.com/2019/6/20/18683450/harry-potter-wizards-unite-preview-

augmented-reality-games-niantic (stating how both Pokémon GO and Wizards Unite use

augmented reality).

See Amanda Silberling, Pikmin Bloom, An AR Mobile Game, Is Niantic’s Next

Collaboration with Nintendo, TECHCRUNCH (Oct. 27, 2021, 4:29 PM),

https://techcrunch.com/2021/10/27/pikmin-bloom-an-ar-mobile-game-is-niantics-next-

collaboration-with-nintendo/ (stating how Pokémon GO’s creator is releasing another

augmented reality game inspired by Pokémon GO).

See Andrew Webster, The Walking Dead Is Getting a Pokémon GO-Style AR Game, THE

VERGE (Aug. 29, 2017, 4:35 PM), https://www.theverge.com/2017/8/29/16184500/the-walking-

dead-our-world-augmented-reality-game-iphone-android (stating how The Walking Dead is

getting an augmented reality game).

See Technavio, Augmented Reality and Virtual Reality Market Size to Grow by USD

162.71 Billion, CISION (Mar. 31, 2022), https://www.prnewswire.com/news-

releases/augmented-reality-and-virtual-reality-market-size-to-grow-by-usd-162-71-billion--

technavio-301513938.html (stating the projected growth of the augmented reality and virtual

reality market from 2020 to 2025).

See Global Augmented Reality Gaming Market (2021 to 2026)—Industry Trends, Share,

Size, Growth, Opportunity and Forecasts, B

US. WIRE (Feb. 24, 2021, 11:24 AM),

https://www.businesswire.com/news/home/20210224005771/en/Global-Augmented-Reality-

Gaming-Market-2021-to-2026---Industry-Trends-Share-Size-Growth-Opportunity-and-

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B. WHY LOBAR GAMES ARE POPULAR

The immediate and unprecedented commercial success of

Pokémon GO left many commentators and scholars searching for an

explanation.

A frequent explanation for Pokémon GO’s popularity

was nostalgia on the part of the player,

as Pokémon characters

had been a fixture of entertainment media since they were first

introduced in 1996.

Scholars confirmed that nostalgia was a

“crucial” predictor of both a user’s intention to play Pokémon GO

and their subsequent enjoyment of the game.

Forecasts---ResearchAndMarkets.com (projecting “the global augmented reality gaming

market to reach a value of US$ 28.60 Billion by 2026”).

See, e.g., Ágnes Zsila, Gábor Orosz, Beáta Böthe, István Tóth-Király & Orsolya Király,

An Empirical Study on the Motivations Underlying Augmented Reality Games: The Case of

Pokémon Go During and after Pokémon Fever, 133 P

ERS. & INDIVIDUAL DIFFERENCES 56, 63

(2018) (“The popularity of Pokémon Go raises the question as to what motives drive players

to engage in this augmented reality game.”); Brian Barrett, The Quiet, Steady Dominance of

Pokémon GO, W

IRED (July 6, 2018, 7:00 AM), https://www.wired.com/story/pokemon-go-

quiet-steady-dominance/ (“It was completely uncharted territory. The initial fervor, that

global excitement around the game and the way it spread virally, globally, in such a short

period of time. It was a new experience . . . .”); Claire McNear, Five Years Later, “Pokémon

GO” Is Still a Sensation (No, Really), T

HE RINGER (July 9, 2021, 6:20 AM),

https://www.theringer.com/2021/7/9/22569369/pokemon-go-five-years-later (“Long after the

first crowds dissipated, Niantic’s game is setting user and profit records and has inspired a

community of die-hard fans.”); Alex Fitzpatrick, How “Pokémon GO” Took Over the World,

IME, https://time.com/4400791/pokemon-go-iphone-android-nintendo/ (last updated July 12,

2016, 9:54 AM) (“What explains Pokémon Go’s seemingly inexplicable popularity? Go offers

an interesting twist over most games in that players must set off and move around their

physical world.”).

See, e.g., Samuli Laato, Sampsa Rauti, A.K.M. Najmul Islam & Erkki Sutinen, Why

Playing Augmented Reality Games Feels Meaningful to Players? The Roles of Imagination

and Social Experience, 121 C

OMPUT. HUM. BEHAV. 1, 4 (2021) (“[S]tudies have discovered an

association between engagement with the game and nostalgia.”); Wulf & Baldwin, supra note

25, at 256 (“This research provides converging evidence that nostalgia is a considerable factor

in media use and well-being.”).

See Gold, supra note 31, at 163 (stating that the Pokémon GO characters are modeled

after the characters from the 1996 original franchise); see also Zsila et al., supra note 49, at

57 (noting the Pokémon franchise expanded and “movies, comics, trading cards, toys, and

other productions were manufactured as part of the ‘Gotta Catch ’Em All’ global media

sensation”).

See Wulf & Baldwin, supra note 25, at 256 (“Nostalgia was an even stronger predictor of

intention to play . . . .”). Researchers have found that nostalgia served to help Pokémon GO

players construct “meaningful” experiences while searching for Pokémon. See Laato et al.,

supra note 50, at 122 (“[N]ostalgia has been shown to be a stronger predictor of behavioral

inspiration.”). Note that while nostalgia seems to play a role in the continued success of

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Uses and gratification (U&G) theory suggests people seek out

various types of media based on their needs.

U&G researchers

traditionally identified four gratification categories: (1) diversion,

entertainment, and emotional release; (2) personal relationships

and social companionship; (3) personal identity and self-expression;

and (4) surveillance and other forms of information seeking.

New

media technologies can drive new gratifications.

For example,

scholars who study social media have identified other motivations

for media uses, including empowerment and social pressure.

The U&G paradigm can be applied to new technologies, like

augmented reality gaming.

U&G theory can serve to illuminate

Pokémon GO, other LoBAR games that would ostensibly trigger a similar sense of nostalgia

have failed, implying that other aspects of AR gameplay are also factors in commercial

success. See Michael McWhertor, Niantic Is Shutting Down Harry Potter: Wizards Unite,

OLYGON (Nov. 2, 2021), https://www.polygon.com/22759539/harry-potter-wizards-unite-

shutting-down-date-niantic (“Wizards Unite seemingly didn’t find the same wide audience of

Pokémon Go . . . .”).

See Elihu Katz, Jay G. Blumler & Michael Gurevitch, Uses and Gratifications Research,

37 PUB. OP. Q. 509, 514 (1973) (identifying various uses of media, like watching television or

listening to the radio, as ways people fulfill specific needs); see also Princely Ifinedo, Applying

Uses and Gratifications Theory and Social Influence Processes to Understand Students’

Pervasive Adoption of Social Networking Sites: Perspectives from the Americas, 36 I

NT’L J.

INFO. MGMT., 192, 193 (2016) (stating that “[s]ocial and individual needs, which vary from

one person to another, constitute the main reasons why individuals use [social networking

systems],” and investigating the specific factors driving the pervasive use of social networking

systems within the U&G theory framework).

See CarrieLynn D. Reinhard & Brenda Dervin, Media Uses and Gratifications, in 21

CENTURY COMMUNICATION: A REFERENCE HANDBOOK 506, 509 (2009) (“This basic four

appeared, for example, in a 1972 study by McQuail, Blumler, and Brown under the labels

diversion, personal relationships, personal identity, and surveillance” (citing Denis McQuail

et al., The Television Audience: A Revised Perspective, in S

OCIETY OF MASS COMMUNICATION

135 (Denis McQuail ed., 1972))).

See S. Shyam Sundar & Anthony M. Limperos, Uses and Grats 2.0: New Gratifications

for New Media, 57 J. BROAD. & ELEC. MEDIA 504, 504 (2013) (proposing that “affordances of

media technology can shape user needs, giving rise to new and distinctive gratifications”).

See, e.g., Daniël G. Muntinga, Marjolein Moorman & Edith G. Smit, Introducing

COBRAs: Exploring Motivations for Brand-Related Social Media Use, 30 INT’L J. ADVERT. 13,

33–34 (2011) (identifying empowerment and social interaction as motivations for creating

consumers’ online brand-related activities); see also Anabel Quan-Haase & Alyson L. Young,

Uses and Gratifications of Social Media: A Comparison of Facebook and Instant Messaging,

30 B

ULL. SCI. TECH. & SOC’Y 350, 357 (2010) (finding three key motivations for why

participants joined Facebook).

See, e.g., Salvador Bueno, M. Dolores Gallego & Jan Noyes, Uses and Gratifications on

Augmented Reality Games: An Examination of Pokémon Go, 10 APPLIED SCI. 1, 2 (2020)

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LoBAR players’ unmet needs and to explain the gratifications they

receive during gameplay.

One survey of players suggests

gameplay is driven by content gratification (i.e., catching Pokémon),

process gratification (i.e., entertainment), game knowledge, and

achievement.

Another survey of players suggests the motives for

gameplay include game enjoyment, outdoor activity, ease of use,

challenge, and nostalgia.

Another group of researchers found the

two strongest motive for players were recreation and nostalgia.

Another study found that a top motivation for participation in

LoBAR games was exercise.

Researchers also found that active

LoBAR game players report a higher average step count than their

nonplaying peers.

Individual motivations for LoBAR gameplay are

(studying the motivations for using the augmented reality game of Pokémon GO); Ezlika M.

Ghazali, Dilip S. Mutum & Mei Yuen Woon, Multiple Sequential Mediation in an Extended

Uses and Gratifications Model of Augmented Reality Game Pokémon GO, 29

INTERNET RSCH.

504, 504 (2019) (studying the dimensions of U&G influences on the augmented reality game

of Pokémon GO); Juho Hamari, Aqdas Malik, Johannes Koski & Aditya Johri, Uses and

Gratifications of Pokémon Go: Why Do People Play Mobile Location-Based Augmented Reality

Games?, 35

INT’L J. HUM.-COMPUT. INTERACTION 804, 805 (2019) (employing the U&G

framework to study the connection between gratifications from augmented reality games and

the desires to play and pay for the games); Zsila et al., supra note 49, at 55–56 (researching

the motivations behind Pokémon GO players); Zsolt Demetrovics et al., Why Do You Play?

The Development of the Motives for Online Gaming Questionnaire (MOGQ), 43 B

EHAV. RSCH.

METHODS, 814, 814–25 (2011) (suggesting that online gaming represents new ways to satisfy

basic human needs).

See Ghazali et al., supra note 57, at 506 (highlighting that past U&G studies “underline

the suitability of incorporating U&G as the underlying theory to explain players’

psychological needs in association with their gaming behaviours as it helps researchers

understand how and why players obtain gratification during their playing experience”).

Seongsoo Jang & Yi Liu, Continuance Use Intention with Mobile Augmented Reality

Games: Overall and Multigroup Analyses on Pokémon Go, 33 INFO. TECH. & PEOPLE 37, 37

(2020).

Hamari et al., supra note 57, at 811–13.

Zsila et al., supra note 49, at 62; see also id. at 63 (“[T]he lowest scores were observed in

the case of skill development and escapism motives. Therefore, escaping from reality was not

a strong motivation for the respondents to engage in this augmented reality game.”).

See Jocelyn Evans et al., Motivations for Social Interaction: The Case of Pokémon Go

After the Fad Ended, 102 SOC. SCI. Q. 547, 548 (2021) (discussing exercise as a motivation for

the game).

See Alf Inge Wang, Systematic Literature Review on Health Effects of Playing Pokémon

Go, 38 ENT. COMPUTING 1, 6 (2021) (“The primary trend of the articles that report step-counts

is that active Pokémon Go players have a higher number of step-counts than non-players and

that Pokémon Go players significantly increased their step-count from before playing the

game.”).

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varied, yet researchers identify that consistent gratifications

include entertainment and recreation.

1. Individual-Level Benefits. LoBAR games offer benefits both for

the individuals that play them and for the communities that form

around gameplay. One of the notable individual benefits of LoBAR

games is an increase in exercise and physical fitness.

Research

suggests that eighty percent of Americans do not engage in

sufficient physical activity.

By combining enjoyment and

engagement, LoBAR games encourage physical activity and

promote psycho-social outcomes.

LoBAR games leverage gamification and location tracking

technology to encourage players to walk to different places to engage

with the game in real-world settings.

Researchers have found

See Emilio J. Martínez-López, Sebastián López-Serrano, Manuel De La Torre-Cruz &

Alberto Ruiz-Ariza, Effects of the Augmented Reality Game Pokémon GO on Fitness and

Fatness in Secondary School Students, 81 H

EALTH EDUC. J. 54, 54 (2022) (finding gameplay

among previously inactive youth showed a 22.2% increase in cardiorespiratory fitness and an

11.3% decrease in their percentage of body fat compared to non-players); see also Madina

Khamzina, Kaustubh V. Parab, Ruopeng An, Tiffany Bullard & Diana S. Grigsby-Toussaint,

Impact of Pokémon GO on Physical Activity: A Systematic Review and Meta-Analysis, 58 A

J. PREVENTIVE MED. 270, 281 (2020) (explaining that “[p]laying Pokémon Go was found to be

associated with a statistically significant but clinically modest increase in the number of daily

steps taken among game players”); Claudio R. Nigg, Desiree Joi Mateo & Jiyoung An,

Pokémon GO May Increase Physical Activity and Decrease Sedentary Behaviors, 107 A

M. J.

PUB. HEALTH 37, 37 (2017) (finding that “[p]laying Pokémon GO increased moderate to

vigorous physical activity by about 50 minutes per week and reduced sedentary behavior by

about 30 minutes per day”).

See DEP’T OF HEALTH & HUM. SERVS., THE PHYSICAL ACTIVITY GUIDELINES FOR

AMERICANS (2018),

https://health.gov/sites/default/files/201909/Physical_Activity_Guidelines_2nd_edition.pdf.

(“[N]early 80 percent of adults are not meeting the key guidelines for both aerobic and muscle-

strengthening activity, while only about half meet the key guidelines for aerobic physical

activity. This lack of physical activity is linked to approximately $117 billion in annual health

care costs and about 10 percent of premature mortality.”).

See Mathieu Winand, Alicia Ng & Terri Byers, Pokémon “Go” but for How Long? A

Qualitative Analysis of Motivation to Play and Sustainability of Physical Activity Behaviour

in Young Adults Using Mobile Augmented Reality, 27 M

ANAG. SPORT LEIS. 421, 432 (2020)

(positing that Pokémon GO could have prevented player dropouts by integrating a social

network into the game); see also Anthony Barnett, Ester Cerin & Tom Baranowski, Active

Video Games for Youth: A Systematic Review, 8 J.

PHYS. ACT. HEALTH 724, 724 (2011)

(explaining that active video games have “the potential to help remedy the inactivity of

youth”).

See Jung E. Lee, Nan Zeng, Yoonsin Oh, Daehyoung Lee & Zan Gao, Effects of Pokémon

GO on Physical Activity and Psychological and Social Outcomes: A Systematic Review, 10 J.

Georgia Law Review, Vol. 57, No. 4 [2023], Art. 3

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physical, mental, and emotional benefits from this LoBAR

gameplay.

A study of adolescents who played AR games found that

those who played regularly for at least eight weeks had significantly

higher selective attention and concentration levels.

Other reported

health benefits from these games include improved emotional

outlook, higher motivation to exercise and engage in social

situations, and positive effects on social anxiety.

Researchers have

called LoBAR gaming “active leisure activity” because of the

gameplay’s mental, social, and physical benefits.

As noted above, the affordances of these games superimpose

virtual gameplay over the physical world through a mobile phone.

Thus, a core feature of these games requires players to physically

travel from one location to another in order to access different game

content.

Sometimes players travel between locations by vehicle—

which can lead to concerns about traffic congestion and distracted

driving.

In other instances, players walk between locations,

CLINICAL MED. 1, 1 (2021) (“Pokémon GO . . . encourage[s] players to walk in different place

to catch Pokémon characters in real-world settings.”).

A meta-analysis of the research literature suggests playing LoBAR games can promote

meaningful improvements in walking behavior, as well as psychological and social well-being.

See e.g., id. (“Pokémon GO was associated with increased . . . walking, improved mood and

social interaction . . . .”).

Ruiz-Ariza, supra note 10, at 55–56.

See Wang, supra note 63, at 8 (concluding that playing Pokémon GO “can result in

improved wellbeing and emotions . . . [and] being socially and physically active”).

Gordon Chih-Ming Ku, I-Wei Shang & Meng-Fan Li , How Do Location-Based Augmented

Reality Games Improve Physical and Mental Health? Evaluating the Meanings and Values of

Pokémon GO Users’ Experiences Through the Means-End Chain Theory, 9 H

EALTHCARE 794,

794 (2021).

See supra note 64 and accompanying text.

See, e.g., Fredrick Kunkle, Pokémon GO Crash is Proof that Texting and Driving has

Gone Too Far, WASH. POST 2016 (Jul. 18, 2016)

https://www.washingtonpost.com/news/tripping/wp/2016/07/18/pokemon-go-crash-is-proof-

texting-and-driving-has-gone-too-far/ (reporting that a driver crashed into a tree while

playing Pokémon GO); Walter Sim, 9-Year-Old Boy Killed by Truck Driver Playing Pokémon

GO in Central Japan, T

HE STRAITS TIMES (Oct. 28, 2016),

http://www.straitstimes.com/asia/east-asia/9-year-old-boy-killed-by-truck-driverplaying-

pokemon-go-in-central-Japan (noting the death of a child resulting from a Pokémon GO

player’s distracted driving); Chris Baynes, Man Has Leg Amputated After Falling on to

Railway Tracks While Playing Pokémon GO, T

HE INDEP. (Dec. 3, 2018),

http://www.independent.co.uk/news/uk/home-news/man-fall-train-trackspokemon-go-leg-

amputate-railway-track-salisbury-district-phonea8665741.html (“Surgeons were forced to

amputate the leg of a man who fell onto railway tracks while playing Pokemon Go.”).

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1568 GEORGIA LAW REVIEW [Vol. 57:1551

especially if game content is superimposed over locations that are

inaccessible to cars—like public parks.

2. Community-Level Benefits. Playing LoBAR games also enable

community formation of like-minded players. Games like Pokémon

GO have been linked with a “stronger sense of community and

belonging.”

Research suggests that those who play Pokémon GO

in order to make new friends play the game more consistently and

enjoy gameplay more.

Niantic’s design of Pokémon GO seeks to

capitalize on players’ interest in community building by including

features like “raids” and “gyms” where multiple players either

battle against one another or work collaboratively to capture

Pokémon.

By establishing common routes and landmarks where

Pokémon can be captured, the game brings players from diverse

backgrounds into contact with one another.

The communities that

are formed can also thrive outside of AR worlds. The largest online

community for Pokémon GO—with more than 760,000 followers—

operates the subreddit “TheSilphRoad” and describes itself as a

“grassroots network of trainers whose communities span the

globe.”

The community benefits from LoBAR games are not reserved for

the actual players of the game. Prior to the COVID-19 pandemic,

Niantic Labs introduced “sponsored locations” on Pokémon GO,

allowing businesses to apply for advertising within the Pokémon GO

map and schedule periods of increased game activity when they

See Orlando Woods, The Territoriality of Teams: Assembling Power Through the Playing

of Pokémon GO, 9 M

OBILE MEDIA & COMM. 405, 405 (2021) [hereinafter Woods, The

Territoriality of Teams] (discussing how players interact with each other in public spaces).

Evans et al., supra note 62, at 548.

See id. at 550 (“[T]hose who used Pokémon Go as a way to build new relationships with

friends report playing it more than before and find the game more . . . interesting.”).

See Woods, The Territoriality of Teams, supra note 74, at 411 (“All of these virtual objects

offer different opportunities to gain competitive advantage within the game, and to engage

with the physical environment and other players through the game.”).

See Orlando Woods, Experiencing the Unfamiliar Through Mobile Gameplay: Pokémon

GO as Augmented Tourism, 53 AREA 183, 186–87 (2021) [hereinafter Woods, Experiencing

the Unfamiliar] (“As the game establishes certain routes around the city, so too do it bring

players into contact with each other . . . . Practices like these can forge a sense of familiarity

among people otherwise marked as different . . . .”).

The Silph Road, REDDIT, https://www.reddit.com/r/TheSilphRoad/ (last visited June 17,

2023).

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2023] A LICENSE TO PLAY 1569

want more foot traffic around their business.

Economists have

suggested that location sponsorship in LoBAR gaming can offer two-

fold benefits: (1) it can be a new revenue source for game companies,

and (2) it can help brick-and-mortar stores generate foot traffic.

Other scholars have studied the spillover effects on local business

and restaurants near LoBAR portals and posit that the foot traffic

can generate indirect benefits for businesses, like improved online

reputations.

In addition to economic benefits, the map-based gameplay for

LoBAR games can also help players explore unfamiliar

environments, thereby serving as a form of “augmented tourism” by

“providing the motivation and route needed” for players to

experience new places.

Thus, LoBAR technology can be used to

enhance people’s awareness of cultural heritage, and it can be used

to form immersive experiences that enhance people’s motivation for

exploring cultural heritage and promote place satisfaction.

allowing players to interact with landmarks through the virtual

gameplay on their smartphone screen, LoBAR games can bring out

the “playfulness” in each location.

***

As described above, LoBAR games can offer significant benefits

for both individuals and communities. This gameplay involves

See generally Sponsored Locations for Business, NIANTIC,

https://nianticlabs.com/en/sponsoredlocations/ (last visited June 17, 2023) (explaining how to

access a broad audience of players).

See generally Meilin Gu, Zhe Wang, Xinxin Li & Dengpan Liu, Location Sponsorship in

Location-Based Augmented Reality Gaming: A Game-Theoretic Model (Oct. 15, 2021)

(unpublished manuscript), available at

https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3943446 (discussing the potential

benefits of location sponsorship).

See Yuan Zhang & Jie Zhang, Catch Them All: Impacts of Location-Based Augmented

Reality Mobile Applications on Local Businesses, 58 I

NFO. & MGMT., 1, 1 (2021) (“[B]usinesses

located in the surrounding areas may gain indirect benefits after the app’s entry . . . .”).

Woods, Experiencing the Unfamiliar, supra note 78, at 186.

See Shu-pei Tsai, Augmented Reality Ehancing Place Satisfaction for Heritage Tourism

Marketing, 23 CURRENT ISSUES TOURISM 1078, 1078–83 (2019) (discussing the immersive

experience given by such computer-mediated environments).

See Orlando Woods, Gamifying Place, Reimagining Publicness: The Heterotopic

Inscriptions of Pokémon GO, 42 MEDIA, CULTURE & SOC. 1003, 1009 (2020) (explaining the

effects of embedding notions of playfulness into everyday spaces).

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1570 GEORGIA LAW REVIEW [Vol. 57:1551

players traveling from one physical location to another while

engaging with content on their mobile device. Notwithstanding the

well-documented prosocial aspects of LoBAR,

this gameplay has

generated legal and societal tensions.

These concerns include risks

to health and safety,

privacy,

and land management.

The next

part of this Article outlines regulatory intervention policymakers

have considered when trying to negotiate various interests

implicated with LoBAR gameplay.

See, e.g., Lukas Dominik Kazmarek, Michal Misiak, Maciej Behnke, Martyna Dziekan &

Przemyslaw Guzik, The Pikachu Effect: Social and Health Gaming Motivations Lead to

Greater Benefits of Pokémon GO Use, 75 C

OMPUTS. HUM. BEHAV. 356, 356–63 (2017) (finding

that playing Pokémon GO increases activity and thus health outcomes).

See, e.g., Lee et al., supra note 12, at 1–2 (“Mainstream media has reported dozens of

incidents where conflicts arose or individuals were killed or hurt because the players ended

up in dangerous situations during gameplay.”); see generally Maeve Serino, Kyla Cordrey,

Laura McLaughlin & Ruth L. Milanaik, Pokémon GO and Augmented Virtual Reality Games:

A Cautionary Commentary for Parents and Pediatricians, 28 C

URRENT OP. PEDIATRICS 673

(2016) (finding that gameplay benefits included increased exercise, socialization, and outdoor

activity, while negative effects included increased risk of injury, abduction, trespassing,

violence, and cost).

See generally Mara Faccio & John J. McConnell, Death by Pokémon GO: The Economic

and Human Cost of Using Apps While Driving, 87 J. RISK & INS. 815, 815 (2020) (discussing

the harmful injuries resulting from the game); Stefania Barbieri et al., Pedestrian Inattention

Blindness While Playing Pokémon Go as an Emerging Health-risk Behavior: A Case Report,

19 J.

MED. INTERNET RSCH. 86, 87 (2017) (“Road injuries incurred by people playing video

games on mobile phones . . . have also become a cause for concern.”); Pranev Sharma &

Vassilios Vassiliou, Pokémon Go: Cardiovascular Benefit or Injury Risk?,

10 OXFORD MED.

CASE REPS. 267, 267 (2016) (discussing the risks of the potential for distraction from games);

Victoria R. Wagner-Green, Amy J. Wotring, Thomas Castor, Jessica Kruger, Sarah

Mortemore & Joseph A. Drake, Pokémon GO: Healthy or Harmful?, 107 A

M. J. PUB. HEALTH

35, 35–36 (2017) (focusing on the potential harms from the game); John W. Ayers, Eric C.

Leas, Mark Dredze, Jon-Patrick Allem, Jurek G. Grabowski & Linda Hill, Pokémon GO—A

New Distraction for Drivers and Pedestrians, 176 JAMA I

NTERNAL MED. 1865, 1865 (2016)

(assessing car crashes due to Pokémon GO).

See Travis W. Windleharth, Marc Schmalz, Sarah Peterson & Jin Ha Lee, Identity,

Safety, and Information Management Within Communities of Practice in Location-based

Augmented Reality Games: A Case Study of Ingress, 2020 H

UM.-COMPUT. INTERACTION 1, 6–

7 (addressing privacy and safety issues); see generally Philipp A. Rauschnabel, Alexander

Rossman & M. Claudia tom Dieck, An Adoption Framework for Mobile Augmented Reality

Games: The Case of Pokémon Go, 76 C

OMPUTS. HUM. BEHAV. 276, 276–86 (2017) (conducting

a study that established the privacy issues associated with such online games).

See Donald J. Kochan, Playing with Real Property Inside Augmented Reality: Pokemon

Go, Trespass, and Law’s Limitations, 38 WHITTIER L. REV. 70, 72 (2018) (discussing the

property law issues relating to Pokémon GO).

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2023] A LICENSE TO PLAY 1571

III. POLICYMAKER CONCERNS & REGULATORY INTERVENTIONS

A. CONTESTED USE OF PUBLIC PROPERTY

In the aftermath of Pokémon GO’s release in 2016, tensions

developed between LoBAR gameplay and property rights of

landowners. Property owners around the world reported an uptick

in trespassing by players looking to access the Pokéstops and

Pokégyms that the game maker superimposed on private

property.

One Massachusetts resident alleged that “more than 15”

trespassing Pokémon GO players entered his property to access the

Pokégym that Niantic virtually placed on his property.

In states

like Texas, Arizona, Utah, Alabama, South Carolina, and

Pennsylvania, law enforcement agencies issued statements

warning players not to trespass in search of an elusive Pokémon.

LoBAR game developers appear aware of the potential for

trespass by players. Niantic Labs’ Terms of Service include both an

admonition not to trespass and prescriptions for how LoBAR game

players should interact with others.

Notwithstanding Niantic’s

attempts to discourage misbehaving players, the company faced

legal challenges. In 2017, a lawsuit was filed against Niantic Labs,

accusing the company of “flagrantly disregarding the foreseeable

consequences” of placing Pokéstops on or directly adjacent to private

property.

Three separate lawsuits against Niantic were

See Nathaniel Mott, “Pokémon GO” Is Not a License to Trespass, INVERSE (July 22, 2016),

https://www.inverse.com/article/18683-pokemon-go-not-license-trespass-get-off-my-lawn

(reporting on international trespassing incidents related to Pokémon GO).

Second Consolidated Amended Class Action Complaint ¶ 5, In re Pokémon GO Nuisance

Litig., No. 3:16-cv-04300, 2017 WL 10525833 (N.D. Cal. Aug. 28, 2017).

See Mott, supra note 91 (“Police in Texas, Arizona, Utah, Alabama, South Carolina,

Pennsylvania, and Washington, DC have warned Pokémon GO players not to trespass while

playing the game. Departments in other states, including Massachusetts and Virginia, have

also reported a rise in trespassing and told Pokémon GO players to obey the law.”).

See Niantic Terms of Service, NIANTIC LABS § 3.3 (May 8, 2023),

https://nianticlabs.com/terms/en/ (“You agree that in conjunction with your use of the

Services, you will maintain safe and appropriate contact with other players and other people

in the real world. You will not harass threaten or otherwise violate the legal rights of others.

You will not trespass, or in any manner attempt to gain or gain access to any property or

location where you do not have a right or permission to be, and will not otherwise engage in

any activity that may result in injury, death, property damage, nuisance, or liability of any

kind.”).

Second Consolidated Amended Class Action Complaint, supra note 92, ¶ 5.

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1572 GEORGIA LAW REVIEW [Vol. 57:1551

consolidated into a class action.

Plaintiffs brought nuisance and

trespass claims and alleged that Niantic should be liable for the

actions of its players.

The suit was later settled after a district

court in California refused to grant Niantic’s motion to dismiss.

In a 2019 settlement with landowners, Niantic agreed to

institute game reforms, including a more effective complaint

process whereby public and private parties could notify Niantic of

problematic LoBAR gameplay.

Niantic also created a “mechanism”

for public parks allowing a park to request that Pokéstops and

Pokégyms only operate during the park’s hours of operation.

100

However, the company was only bound by the terms of the

settlement through the end of 2022.

101

The class action complaint against Pokémon GO included

allegations that groups of players entered plaintiffs’ private

property “at all hours of day and night” while using their phones to

catch Pokémon.

102

The complaint also alleged damage from players

attempting to enter enclosed areas on plaintiffs’ property,

103

as well

as litter on their property that was left behind by players.

104

However, the concerns generated by LoBAR gameplay were not

limited to litter and trespass on private property;

105

concerns also

arose when gameplay occurred in and near public spaces. Plaintiffs

cited their proximity to a “small municipal park,”

106

a “pedestrian

See Plaintiffs’ Motion for Final Approval of Settlement at 4–5, In re Pokémon GO

Nuisance Litigation, No. 3:16-cv-04300, 2019 WL 3244466 (N.D. Cal. June 13, 2019)

(detailing the procedural history).

Second Consolidated Amended Class Action Complaint, supra note 92, ¶¶ 171–87

(alleging the nuisance and trespass claims).

See Plaintiffs’ Motion for Final Approval of Settlement at 5 (detailing the procedural

history).

See id. at 7 (enjoining Niantic to “promptly address future complaints of trespass and

nuisance by Pokémon Go players”).

100

Id. at 8.

101

See id. at 7 (establishing a “three-year Settlement Period”).

102

Second Consolidated Amended Class Action Complaint, supra note 92, ¶ 75.

103

See id. ¶ 88 (alleging that players trespassed on a plaintiff’s property and broke her

fence).

104

See id. ¶¶ 123, 125 (alleging that players littered on private property).

105

See Kristi Palma, Police: Stop Trespassing While Playing Pokémon GO, BOSTON.COM

(July 12, 2016), https://www.boston.com/news/local-news/2016/07/12/police-stop-trespassing-

play-pokemon-go/ (“[P]olice are reminding gamers to keep their quests for a Pikachu off of

private property.”).

106

Second Consolidated Amended Class Action Complaint, supra note 92, ¶ 56.

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access point to [a] park,”

107

and a “sculpture garden”

108

as key

factors that eventually spurred litigation.

Affordances of LoBAR games serve to bring players to public

landmarks and spaces such as parks and monuments. This

gameplay then channels players into a common space (e.g., where a

Pokéstop or Pokégym is located).

109

Many municipalities have

welcomed LoBAR players into their parks. Niantic hosts an annual

Pokémon GO Fest in cooperation with cities around the world.

110

the annual event, the game maker releases exclusive Pokémon,

which has served to draw in large groups of players.

111

In 2019, the

festival had over 85,000 in attendance in Germany

112

and more than

60,000 in attendance at Grant Park in Chicago.

113

Commentators

estimate that the events contributed nearly $250 million in tourism

revenue.

114

The in-person portion of the 2022 Pokémon GO Fest was

scheduled to take place in large public parks in Berlin, Seattle, and

Sapporo; it connected over 150,000 players and was estimated to

107

Id. ¶ 74.

108

Id. ¶ 104.

109

See Woods, Experiencing the Unfamiliar, supra note 78, at 186 (“The map, therefore, is

an integral part of the game; it is the ‘guidance device that lead[s] players to Pokéstops and

portals,’ and integrates player, the game, and the environment in which it is played.”

(citations omitted)); Alley, supra note 26, at 278 (“The mapping system in Pokémon Go is the

primary feature that has contributed to the App’s success. The App runs on a real-time GPS

mapping interface that shows players’ real-world surroundings including neighboring streets,

landmarks, and geographical distinctions.”).

110

Ashleigh Klein, Pokémon Go Fest Sapporo—Every Shiny Pokémon Listed, GINX (Aug.

5, 2022), https://www.ginx.tv/en/pokemon/pokemon-go-fest-sapporo-every-shiny-pokemon-

listed.

111

Id.

112

See Summer Adventures Continue at Pokémon GO Fest 2019 Dortmund!, POKÉMON GO

LIVE (July 9, 2019), https://pokemongolive.com/en/post/gofest-dortmund-2019/ (“More than

85,000 attendees attended over the four-day event and 200,000 Trainers played in the

surrounding Dortmund area.”).

113

See Jack Fennimore, Pokemon Go Fest 2019 Attendance Triple That of Last Year, HEAVY

(June 18, 2019), https://heavy.com/games/2019/06/pokemon-go-fest-2019-attendance/ (“More

than 60,000 players attended Pokemon Go Fest 2019 in Grant Park, Chicago over the four

day weekend . . . .”).

114

See Nick Statt, Pokémon Go’s Live Events Drove Nearly $250 Million in Tourism

Revenue Last Year, THE VERGE (Jan. 22, 2020),

https://www.theverge.com/2020/1/22/21076597/pokemon-go-fest-live-events-tourism-

revenue-ar-niantic-labs (“Niantic Labs says its live events for augmented reality hit Pokémon

Go contributed $247 million in tourism revenue last year across three cities.”).

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1574 GEORGIA LAW REVIEW [Vol. 57:1551

generate over $300 million in revenue to the local economies of the

host cities.

115

LoBAR gaming in public parks is not without controversy,

however. Despite the economic successes and revenue generated

from LoBAR gameplay, some states and municipalities have

responded to constituents’ concerns by seeking to limit or condition

gameplay in public spaces.

116

News coverage has recounted

instances of players “trampling through award-winning roses” in

San Diego’s Rose Garden; players also left cigarette butts and other

trash behind.

117

A city in Washington requested that Niantic

remove Pokéstops and Pokégyms entirely from their marina and

city park because large gatherings of players were causing an

“unsustainable amount of traffic.”

118

In Canada, police were forced

to break up a large group of Pokémon GO players in Montreal after

players gathered at a public park at night to catch Dragonite—a

rare Pokémon.

119

The next section examines legislative attempts to regulate

LoBAR games, including a 2017 First Amendment-based legal

challenge in Candy Lab, Inc. v. Milwaukee County.

120

115

See Zeroghan, Pokémon GO Live Events Contribute Over $300M to Local City Economies

in 2022, POKÉMON GO HUB (Nov. 9, 2022), https://pokemongohub.net/post/news/pokemon-go-

live-events-contribute-over-300m-to-local-city-economies-in-2022/ (“The return of Pokémon

GO Fest live events gave over 150,000 players a chance to connect and explore together in the

real world, while making a meaningful contribution to the city economies of Berlin, Seattle,

and Sapporo[.] Data from research firm Statista shows that Niantic’s three flagship Pokémon

GO Fest live events delivered a combined $309 million contribution to the local economies of

their host cities in 2022, including total expenditure and associated increase in tax revenue.”).

116

See H.B. 6601, 99th Gen. Assemb., Reg. Sess. (Ill. 2016) (enacting a law requiring

developers of location-based video games to remove “ecologically sensitive” sites and

“historically significant” site from the game).

117

Laura McVicker, Pokemon Play at Balboa Park Damages Rose Garden: Visitors, NBC 7

SAN DIEGO (July 19, 2016), https://www.nbcsandiego.com/news/local/pokemon-play-at-

balboa-park-damages-rose-garden-visitors/68701/.

118

KOMO Staff, Des Moines: Stop with the Pokemon Go at Our Marina and Park, KOMO

NEWS (Aug. 25, 2016), https://komonews.com/news/local/des-moines-stop-with-the-pokemon-

go-at-our-marina-and-park.

119

See Christian Hoffer, Police Called on Large Group of Pokemon Go Players Chasing Rare

Pokemon, COMICBOOK (July 21, 2016), https://comicbook.com/news/police-called-on-large-

group-of-pokemon-go-players-chasing-rare/ (stating that the party “forc[ed] the police to

intervene” and “[t]he crown had gathered at Cabot Square, reportedly to catch a Dragonite

lingering in the area”).

120

266 F. Supp. 3d 1139 (E.D. Wis. 2017).

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B. REGULATORY INTERVENTIONS

To date, no state has enacted specific regulations for LoBAR

gaming. Lawmakers in New York

121

and Illinois

122

considered

statutory amendments to target LoBAR games; however, neither

state has enacted legislation. A proposed Illinois bill made it to

committee, but it failed to garner enough support to progress

further.

123

As discussed below, the only enacted regulation specific

to LoBAR games is an ordinance from Milwaukee County,

Wisconsin.

1. Background and Enactment of Milwaukee County’s LoBAR

Ordinance. After Pokémon GO was released in July 2016,

Milwaukee County lawmakers began fielding complaints from

constituents about large groups of people playing the game in the

county’s parks.

124

In a park that the news media described as one of

the “most active Pokémon GO sites in the Midwest,” players were

reportedly littering, trampling the grass and flowers, and remaining

121

No bill was formally introduced. See Jimmy Vielkind, Assemblyman Ponders Pokemon

Go Legislation, POLITICO (July 13, 2016), https://www.politico.com/states/new-

york/albany/story/2016/07/assemblyman-ponders-pokemon-go-legislation-103747 (quoting

Assemblyman Felix Ortiz who stated that “he’s not prepared to introduce legislation to

Pokemon Go . . . but hopes game companies recognize potential risks in their products and

react accordingly”).

122

The bill would have required developers of LoBAR games to remove in-game objects

from ecological and historical sites as well as private properties within two business days of

a request from a property owner, manager, or custodian. See H.B. 6601, 99th Gen. Assemb.,

Reg. Sess. (Ill. 2016) (“Within 2 business days of receiving a request from the real property

owner, manager, or custodian, the developer of a location-based video game shall remove from

its location-based video game an ecologically sensitive or location, historically significant site

or location . . . deemed as dangerous by the real property owner, manager, or custodian.”).

123

See GR Staff, Location-Based Video Game Act “Pidgey’s Law” Rejected by Illinois

Legislators, G

AMERANT (May 3, 2017), https://gamerant.com/pokemon-go-law-illinois/

(reporting that “lawmakers in Illinois have been mulling over new legislation intended to

protect sensitive areas from players of location-based games” but “the bill proposing the new

rules failed to gain sufficient support in a House Judiciary-Civil Committee vote”).

124

See Susan Bence, Pokémon Go Triggers Resolution: “We Want Lake Park to be Used, but

in a Proper Way,” WUWM 89.7 FM (Feb. 2, 2017), https://www.wuwm.com/environment/2017-

02-02/pokemon-go-triggers-resolution-we-want-lake-park-to-be-used-but-in-a-proper-way

(discussing recommendations from various members of the community around Lay Park in

Milwaukee County).

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1576 GEORGIA LAW REVIEW [Vol. 57:1551

in the parks after park hours.

125

Local residents also complained

that the increase in LoBAR gameplay resulted in inadequate

bathrooms for parkgoers, unauthorized vendors in the park,

parking violations, and significantly increased traffic congestion.

126

One lawmaker estimated that as a result of LoBAR gaming, the

county was forced to spend tens of thousands of dollars on additional

law enforcement and park maintenance services.

127

In August 2016, the Milwaukee County Parks Director sent a

letter to Niantic advising the company that it needed obtain a

geocaching permit for each Pokéstop or Pokégym located in a county

park.

128

According to the letter, the permit did not include a fee, but

it would have required Niantic to monitor each location four times

a year for damage caused by, according to the Parks Director,

“throngs of players.”

129

The letter from the Parks Director sought to

assure Niantic that the county was not seeking to block Pokémon

GO from operating in public parks or other county facilities.

130

Niantic neither responded to the letter nor sought a geocaching

permit.

131

In December 2016, the county enacted an ordinance

specifically to regulate gameplay.

132

In relevant part, the ordinance

provided as follows:

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

125

Don Behm, No Common Ground on Pokemon Go, MILWAUKEE J. SENT. (Sept. 13, 2016),

https://www.jsonline.com/story/news/local/milwaukee/2016/09/13/no-common-ground-

pokemon-go/90322362/.

126

Bence, supra note 124; see also Behm, supra note 125 (stating the negative consequences

of the game such as “traffic congestion; parking problems along Wahl Ave.; littering; damaged

turf; lack of restrooms; and risk of damage to natural areas”).

127

See Behm, supra note 125 (discussing the additional municipal services needed).

128

See Don Behm, Parks Permit Required for Pokémon Placement, MILWAUKEE J. SENT.

(Aug. 24, 2016), https://www.jsonline.com/story/news/local/milwaukee/2016/08/24/parks-

permit-required--pokemon-placement/89273396/ (addressing the intent of the Milwaukee

County Parks letter).

129

Id.

130

See id. (detailing the purpose of the permits).

131

See id. (“Niantic officials could not be reached for comment.”).

132

See MILWAUKEE, WIS., CODE ORDINANCES § 47.03(3) (2023) (“Games and amusements

prohibited except in designated areas.”).

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culture (the “DPRC”) . . . . [The permitting] 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[.]

133

The ordinance applied to both virtual reality gaming and LoBAR

gaming; however, it only defined one type of gaming. In a resolution

accompanying the ordinance, it defined 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.”

134

The ordinance used

the term “location-based augmented reality games,” but did not

define it.

135

After Milwaukee County passed the ordinance, all AR game

developers planning to superimpose LoBAR game content on

coordinates within any Milwaukee County park were required to

apply for a special use permit by filling out a ten-page application.

136

The application mirrored the one the Parks Department used for

other special events. The application requested detailed information

about the proposed event, including estimated attendance, desired

location within the park, event dates and times, a site map, and

whether and how the event would be advertised.

137

Applicants were

also responsible for providing detailed plans for garbage collection,

on-site security, and medical services (including liability

insurance).

138

The Milwaukee County permit required applicants to

133

Id.

134

S. Res. 16–637, Milwaukee Cnty. Bd. (Wis. 2017).

135

MILWAUKEE, WIS., CODE ORDINANCES § 47.03(3).

136

See Candy Lab Inc. v. Milwaukee Cnty., 266 F. Supp. 3d 1139, 1143 (E.D. Wis. 2017)

(noting the application and its process).

137

See id. at 1143–44 (detailing the contents of the requested application information).

138

See id. at 1144 (“It requires detailed plans for garbage collection, on-site security, and

medical services . . . .”). Note that these requirements are not uncommon for special event

permit applications in public and national parks; however, such permits typically apply to

large day-and-time-specific events such as sporting events, ceremonies, and concerts. See 36

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submit multiple fees to the Parks Department.

139

Permission was

not guaranteed; submission of the application did not automatically

grant an applicant’s permission to conduct the proposed event.

140

The Department had the discretion to demand further

information.

141

And the application gave the Department “sole

discretion” to “grant, deny, revoke, or suspend any permit, at any

time and for any reason.”

142

2. LoBAR Game Permits and the First Amendment: Candy Lab v.

Milwaukee County. Shortly after the passage of Milwaukee

County’s ordinance, Candy Lab, a company that has been

developing LoBAR software since 2011, sought to launch a game

called Texas Rope ‘Em in Milwaukee County.

143

Candy Lab’s LoBAR

game operated similarly to Pokémon GO; players were encouraged

to traveled from location to location to obtain virtual playing cards

that would help to construct the best possible poker hand.

144

In late

March 2017, Candy Lab’s CEO contacted a Milwaukee County

official to explain his planned LoBAR game and to inquire whether

Candy Lab would be required to seek a special event permit before

releasing the game in the local area.

145

A county official confirmed

that the new ordinance required Candy Lab to obtain a special

events permit before releasing Texas Rope ‘Em if the game maker

wished to superimpose any gaming stops in Milwaukee County

parks.

146

Candy Lab did not apply for a permit to release Texas Rope

‘Em.

147

The company neither wanted to undergo the lengthy process

of securing a permit per the ordinance nor did it want to incur the

fees associated with obtaining the necessary services (e.g., garbage

C.F.R. § 2.50 (2022) (detailing when such permits will be denied depending on the kind of

activity occurring in the park area).

139

See Candy Lab Inc., 266 F. Supp. 3d at 1144 (describing the fees).

140

See id. (detailing the submission of the application).

141

See id. (“It also requires payment of several fees, and reserves to the DPRC the

discretion to demand information.”).

142

Id.

143

See id. at 1142 (discussing when Candy Lab was created and how its game is playable

on in “select cities, including Milwaukee”).

144

See id. (detailing the goal and how the game Texas Rope ‘Em functions).

145

See id. at 1144 (noting the application submission and discussion with the DPRC Special

Events Coordinator).

146

See id. (indicating the need to submit permit and include a map with desired virtual

gaming spots).

147

See id. (“As of the date of this Order, Candy Lab has not applied for a permit . . . .”).

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collection, on-site security, medical services, and liability

insurance).

148

Instead, Candy Lab challenged the constitutionality

of the new ordinance in federal court. Candy Lab sought a

preliminary injunction to prevent enforcement of the ordinance on

the grounds that it violated the game maker’s First Amendment

interests.

149

Siding with Candy Lab, the district court denied

Milwaukee County’s motion to dismiss.

150

The court then granted

the temporary injunction to prevent Milwaukee County from

enforcing the ordinance.

151

Relying on U.S. Supreme Court precedent extending First

Amendment protections to video games, the district court held that

LoBAR games similarly receive some level of First Amendment

protection.

152

In the district court’s assessment, LoBAR games are

expressive content in the sense that they employ “features

distinctive to the medium” like displaying the location of content on

a map shown on the player’s phone, which the user must then

“physically navigate to and ‘grab’ using the phone’s camera.”

153

As a “threshold question” in determining whether the ordinance

violated the First Amendment, the court analyzed whether the

ordinance was a content-neutral restriction on speech (which would

trigger intermediate scrutiny) or a content-based restriction on

speech (which would trigger strict scrutiny).

154

Despite Candy Lab’s

argument that the Milwaukee County ordinance was content-

based—because it “singles out” LoBAR games for additional

148

See id. at 1141 (noting Candy Lab’s aversion to submitting a permit).

149

See id. (suggesting the ordinance violated Candy Lab’s First Amendment right to

freedom of speech).

150

See id. at 1145 (“[T]he Court finds that Candy Lab has shown a sufficient likelihood of

success to warrant preliminary injunctive relief.”).

151

See id. at 1141 (granting Candy Lab’s motion and denying the county’s motion).

152

See id. at 1146 (noting precedent instructing video games to be treated just as other

forms of expression under the First Amendment (citing Brown v. Entm’t Merchs. Ass’n, 564

U.S. 786, 790 (2011))).

153

The court rejected Milwaukee County’s argument that the game lacked expressive

elements and was no more than a “pictorial overlay on the real world to facilitate a card

game.” See id. (differentiating LoBAR games from typical video games). The court also

rejected the city’s claim that Texas Rope ‘Em lacks First Amendment protection because the

application was allegedly illegal gambling. Id. at 1147.

154

Id. at 1148.

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“administrative and logistical burdens”—the court ultimately ruled

that the ordinance was content-neutral.

155

Applying intermediate scrutiny, the ordinance was struck down

because it lacked “adequate standards” to guide the decision of

whether to grant or deny the permit.

156

The district court concluded

the ordinance impermissibly allowed Milwaukee County officials

“boundless discretion” in their decision-making process.

157

The

court’s analysis also called into question the narrow tailoring of the

ordinance, suggesting that Milwaukee County showed a “lack of

sophistication” by treating game developers as event-holders.

158

Regulating a game maker as if it was seeking to hold just a single

event in a county park fundamentally misunderstands of the nature

of LoBAR games. These games are not typically played at a precise

time or predictable location within a park. Like other mobile games,

LoBAR games are played by individuals or groups at various times

and in general locations of their choosing. Rather than burdening

game developers, the district court suggested that the County

should directly regulate any “objectionable downstream conduct”

from LoBAR game players themselves.

159

The court advised that the

County could address its concerns by “aggressively penalizing

gamers who violate park rules or limiting gamers to certain areas

of the park.”

160

The Candy Lab case offers valuable guidance in the unclear legal

landscape surrounding LoBAR gameplay in public spaces. First, the

district court struck down the only enacted U.S. law specifically

targeting LoBAR gameplay for its inadequate tailoring. Second, the

opinion suggests that LoBAR game developers enjoy some level of

155

According to the court, the ordinance’s differential treatment for location-based AR

games is based not on the content of the speech but rather on the mode or channel of the

speech. See id. at 1150 (“[T]he Court finds that the Ordinance is content-neutral.”).

156

See id. (“[T]he Ordinance does not pass muster . . . .” (citing Thomas v. Chicago Park

Dist., 534 U.S. 316, 323 (1989))).

157

The court noted that the four factors by which the ordinance authorized a permit denial

were not enumerated in the application itself; the application itself explicitly stated that an

application could be granted or denied “at any time, for any reason.” See id. at 1150–51 (noting

the great discretion the County retained in permit control (citing City of Lakewood v. Plain

Dealer Pub. Co., 486 U.S. 750, 764 (1988))).

158

See id. at 1153 (“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.”).

159

Id.

160

Id. at 1154.

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First Amendment protection for the expressive elements of the

games. Following the Candy Lab case, scholars and commenters

searched for other policy solutions to tackle the concerns raised by

LoBAR gameplay. The next Section summarizes various scholarly

proposals; the next Part then outlines the authors’ analysis of game

play licensing.

C. OTHER SCHOLARLY PROPOSALS TO REGULATE LOBAR GAMEPLAY

In the wake of the Candy Lab court invalidating Milwaukee

County’s LoBAR special permit requirement, scholars and

commenters offered other suggestions for how to balance competing

interests. The primary remedies for the concerns raised by LoBAR

games focused on the interests of private landowners, private

spaces, and the rights to exclude others from their property. Some

of these solutions involved various forms of an opt-out system, which

would allow private parties to exclude their physical property from

LoBAR games.

161

Others called for an opt-in system, which would

establish a default expectation that game content would only be

superimposed on private land if a landowner explicitly indicated

that they wanted to participate.

162

One scholar proposed a national

“Do-Not-Locate” registry, which would offer the advantage of

161

See, e.g., Alley, supra note 26, at 292–93 (proposing an opt-out system for businesses if

gameplay hinders sales and an opt-in system for private landowners if they want to

participate); Joseph Carrafiello, No Trespassing: A Lawmaker’s Guide to Protecting Property

Rights in the Age of Augmented and Mixed Reality, 80 O

HIO ST. L.J. 583, 595 (2019)

(suggesting that Congress should pass a “Virtual Trespass” statute which allows for opt-in or

opt-out schemes); Danielle Nicole Craft, Common Law Consequences of Catching ‘Em All:

Exclusionary Property Rights in Augmented Space and an Alternative Notice/Opt-Out

Procedure for Location-Based Augmented Reality Technology, 48 S

ETON HALL L. REV. 841,

867 (2018) (calling for state legislation requiring LoBAR game developers to create a GPS-

based online database of game content so that private landowners can opt out).

162

See, e.g., Alley, supra note 26, at 292 (proposing an opt-out system for businesses if

gameplay hinders sales and an opt-in system for private landowners if they want to

participate); Kochan, supra note 90, at 70 (expressing a “preference” for an opt-in scheme for

private owners); Carrafiello, supra note 161, at 595 (suggesting that Congress should pass a

“Virtual Trespass” statute which allows for opt-in or opt-out schemes); Craft, supra note 161,

at 867 (calling for state legislation requiring LoBAR game developers to create a GPS-based

online database of game content so that private landowners can opt out).

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functioning more efficiently than state legislation or local

ordinances.

163

These various proposals may mitigate some of the private harms

resulting from LoBAR games; however, they do little to address

concerns about the potential burden on public spaces. Policymakers

have broad authority to safeguard the health, welfare, and safety of

constituents. If animated to address concerns about LoBAR

gameplay on public property, the next Part of this Article discusses

the permissibility of licensing.

IV. LICENSE TO PLAY

A. PROPOSAL: AN INDIVIDUAL LICENSE FOR LOBAR GAMEPLAY

Consistent with the First Amendment, states may regulate

expressive conduct in a public forum to protect public health, safety,

or welfare.

164

To that end, policymakers may require permits for

gatherings in a park—even when such gatherings are protests

designed for issue advocacy.

165

For policymakers seeking a solution

to the concerns raised by LoBAR gameplay in public spaces, this

Article considers a novel approach: an individual license. The

163

William T. McClure, When the Virtual and Real Worlds Collide: Beginning to Address

the Clash Between Real Property Rights and Augmented Reality Location-Based Technologies

Through a Federal Do-Not-Locate Registry, 103

IOWA L. REV. 331, 357–58 (2017).

164

Cf. Josephine Havlak Photographer, Inc. v. Vill. of Twin Oaks, 864 F.3d 905, 919 (8th

Cir. 2017) (upholding, as content neutral and constitutional, a municipal ordinance requiring

a permit for all commercial activity in its neighborhood park—including commercial

photographers).

165

See Thomas v. Chicago Park Dist., 534 U.S. 316, 322 (2002) (upholding Chicago Parks

permitting process despite challenge from organization seeking to hold rallies in support of

marijuana legalization and ruling that a permit to use public property is consistent with the

First Amendment when (1) “[n]one of the grounds for denying a permit has anything to do

with what a speaker might say”; (2) “the ordinance (unlike the classic censorship scheme) is

not even directed to communicative activity as such, but rather to all activity conducted in a

public park”; and (3) “the object of the permit system (as plainly indicated by the permissible

grounds for permit denial) is not to exclude communication of a particular content, but to

coordinate multiple uses of limited space, to assure preservation of the park facilities, to

prevent uses that are dangerous, unlawful, or impermissible under the Park District’s rules,

and to assure financial accountability for damage caused by the event”); see also Santa Monica

Food Not Bombs v. City of Santa Monica, 450 F.3d 1022, 1025–26 (9th Cir. 2006) (upholding

city ordinance requiring a permit for community events held in public spaces including parks,

streets, and sidewalks if regulation was tailored to events that realistically presented serious

traffic, safety, and competing use concerns).

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Milwaukee County ordinance at issue in Candy Lab also employed

a permitting scheme; however, that ordinance required an

application from the game developer, rather than game players.

166

Thus, our proposal is the first to analyze individual licensing for

LoBAR gameplay.

Under such a licensing scheme, those wishing to engage in

LoBAR gameplay on public lands would need a government license.

This proposal is akin to how governments—federal, state, and

municipal—have authorized permit schema for use of public

property, including rock climbing,

167

geocaching,

168

street

166

See Candy Lab Inc. v. Milwaukee Cnty., 266 F. Supp. 3d 1139, 1143 (E.D. Wis. 2017)

(noting the application process).

167

See, e.g., Rock Climbing, ROCKY FACE MOUNTAIN RECREATIONAL AREA,

https://rockyfacepark.com/rock-climbing/ (last visited June 17, 2023) (generating the rule that

“[n]o climbing is allowed without possession of a valid daily permit”); Rock Climbing Permit,

OLO. SPRINGS, https://coloradosprings.gov/parks/webform/rock-climbing-permit (last visited

June 17, 2023) (“Rock Climbing is governed by City Code 9.9.104 as well as administrative

regulations and guidelines set forth by the Parks, Recreation and Cultural Services

Director.”).

168

See, e.g., N.Y. STATE OFF. OF PARKS, RECREATION & HIST. PRES., GUIDANCE DOCUMENT:

GEOCACHING IN STATE PARKS AND HISTORIC SITES (2013),

https://parks.ny.gov/documents/inside-our-agency/OPRHPGeocacheGuidanceDocument.pdf

(creating the rule that “OPRHP has developed a written permit form (available in PDF

format) that is required for each geocache installed on lands under the agency’s jurisdiction.”);

U.S.

DEP’T OF AGRIC. FOREST SERV. S. REGION, GEOCACHING ON THE NATIONAL FORESTS IN

NORTH CAROLINA (2010),

https://www.fs.usda.gov/Internet/FSE_DOCUMENTS/stelprdb5288138.pdf (providing that

“[c]aches that will be in place longer than a year require a formal special use permit”);

Geocaching,

PENN. DEP’T OF CONSERVATION & NAT. RES.,

https://www.dcnr.pa.gov/Recreation/WhatToDo/Geocaching/Pages/default.aspx (last visited

June 17, 2023) (providing that “[g]eocaches can be found in many of Pennsylvania’s 121 state

parks, and all of the 20 state forest districts. Placing them does require a permit as outlined

in the DCNR’s Guidelines for Placing Caches (PDF)”).

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performing,

169

and photography.

170

Some of these permitting

systems have been challenged in court, like permits for film

photography in national parks,

171

permits to distribute materials in

national parks,

172

and busking (or street performing) in a city

center.

173

The vast majority of permit requirements, however, have

gone unchallenged. Even in instances when one jurisdiction’s

license system is invalidated, dozens more, in jurisdictions across

the country, remain in effect. As discussed below, three exemplars

of this phenomenon are permit requirements for (1) busking, (2) film

and still photography, (3) drone use.

169

See Street Performers & Artists (Buskers Program), CITY OF FORT LAUDERDALE,

https://www.fortlauderdale.gov/government/departments-a-h/city-manager-s-

office/nighttime-economy/street-performers-artists-buskers-program (last visited June 17,

2023) (listing program requirement that “[s]treet artists and performers must bring their

valid permit and clearly display their permit during all busker activities”);

CITY OF CHI.,

STREET PERFORMER LICENSE, https://40thward.org/wp-content/uploads/2019/06/Street-

Performer-License-Factsheet-BACP.pdf (last visited June 17, 2023) (stating that “[a] street

performer license is required for individuals that perform in a public area”);

Busking

Program, CITY OF NAPA [hereinafter Napa Busking Program],

https://www.cityofnapa.org/1107/Busking-Program (last visited June 17, 2023) (creating rule

that “[a] permit is required to participate in the Busking Program”); C

ITY OF SALEM,

DOWNTOWN STREET PERFORMER RULES & REGULATIONS (2021),

https://www.salemma.gov/sites/g/files/vyhlif7986/f/uploads/street_performers_rules_regulati

ons_and_map_10-2021_revised_1.pdf (creating regulations for performers in the city). But see

Young v. Sarles, 197 F. Supp. 3d 38, 41 (D.D.C. 2016) (enjoining the Washington Metropolitan

Area Transit Authority (WMATA) from enforcing regulations to prevent busking on certain

“free” areas on WMATA property).

170

Some public parks have limited photography or videography for, among other reasons,

“resource protection.” See Fees,

FL. ST. PARKS, https://www.floridastateparks.org/fees (last

visited June 17, 2023) (listing rule that “[p]hotography is permitted without fee for all

purposes except where normal park operations are disrupted or for resource protection” and

to “[c]ontact park staff when photography permits are required”).

171

See Price v. Barr, 514 F. Supp. 3d 171, 191 (D.D.C. 2021) (holding that a statute

requiring permits for commercial filming violated the First Amendment and was therefore

unconstitutional). But see Josephine Havlak Photographer, Inc. v. Vill. of Twin Oaks, 864

F.3d 905, 919 (8th Cir. 2017) (upholding, as content neutral and constitutional, a municipal

ordinance requiring a permit for all commercial activity in its neighborhood park–including

commercial photographers).

172

See Boardley v. U.S. Dep’t of Interior, 615 F.3d 508, 525 (D.C. Cir. 2010) (holding

National Park Service regulations that required a permit to distribute printed materials in

national parks violated the First Amendment).

173

See Berger v. City of Seattle, 569 F.3d 1029, 1035 (9th Cir. 2009) (en banc) (holding

Seattle’s busking permit unconstitutional because it violated the First Amendment).

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A permit is required for buskers in cities like Miami,

174

Fort

Lauderdale,

175

Chicago,

176

and Napa.

177

In 2009, the Ninth Circuit

struck down Seattle’s busking permit on First Amendment

grounds.

178

In striking down the permitting scheme, the Ninth

Circuit framed the permitting requirement as a prior restraint on

speech with a “heavy presumption” against its constitutionality.

179

The circuit court noted that the Supreme Court has “consistently”

invalidated individual speech permitting schemes even when those

schemes regulated the solicitation of private homes.

180

Seattle’s

permit directly threatened the “zenith” of First Amendment

protection in public fora like streets and parks and was not a

narrowly tailored time, place, or manner restriction on speech.

181

Despite the Ninth Circuit’s decision, busking permits remain in

effect in cities across the United States.

174

See MIAMI BEACH, FLA., CODE ORDINANCES ch. 18, art. XV (2010),

https://library.municode.com/fl/miami_beach/codes/code_of_ordinances?nodeId=SPAGEOR_

CH18BU_ARTXVSTPEARVE (providing regulations for buskers in Miami).

175

See FORT LAUDERDALE, FLA., CODE ORDINANCES ch. 23, art. VI (2015),

https://library.municode.com/fl/fort_lauderdale/codes/code_of_ordinances?nodeId=COOR_C

H23SOPEET_ARTVISTPESTAR (providing regulations for buskers and artists in Fort

Lauderdale).

176

See CHIC., ILL., MUNICIPAL CODE ch. 2-244, art. III (2012),

https://codelibrary.amlegal.com/codes/chicago/latest/chicago_il/0-0-0-2636178 (providing

regulations for buskers in Chicago).

177

See Napa Busking Program, supra note 169 (detailing goals of the busking program as

well as explaining the steps to apply for a permit).

178

See Berger, 569 F.3d at 1035 (emphasizing the importance of individual speech).

179

Id. at 1037.

180

Id. at 1038.

181

Id. at 1039–40.

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A permit is required for filming and still photos in Arizona state

parks,

182

in Los Angeles County,

183

in certain Philadelphia parks,

184

and in Milwaukee County parks.

185

In 2021, a D.C. district court

struck down the National Parks Service (NPS) permitting and fee

requirement for commercial filming activities on First Amendment

grounds.

186

The district court ruled that, by regulating only

“commercial filming”—but not other types of commercial (or

filming) activity—the NPS was imposing a content-based restriction

on expressive speech.

187

While the court acknowledged that the NPS

may have a compelling interest in protecting natural resources, the

permitting requirement was not narrowly tailored to protect that

interest.

188

This ruling was reversed by the U.S. Court of Appeals

for the D.C. Circuit.

189

182

See ARIZ. STATE PARKS & TRAILS, PHOTOGRAPHY/FILMING PERMIT APPLICATION (2021),

https://arizona-content.usedirect.com/storage/Admin/20221014074350permit-application-

2022-23.pdf (“A personal photography permit applies to each of the following: Wedding and

engagement photos; Family portraits; School or graduation pictures, homecoming or prom

pictures, modeling portfolios; or Any other posed photography session that uses a park

location as a backdrop for pictures and/or that require special attire.”).

183

See Film & Photo Permit, L.A. CNTY., https://beaches.lacounty.gov/film-photo-permit/

(last visited June 17, 2023) (“The Los Angeles County Department of Beaches and Harbors

requires that any persons engaged in the business or activity of filming, videotaping, or

otherwise producing motion pictures or still photography for television or public exhibition at

any place, must obtain a Film Permit. Film Permits are required in Marina del Rey, on Los

Angeles County beaches, and in County parking lot use for commercial film, video or still

photography shoots.”).

184

See PHILA. PARKS & RECREATION, MEDIA PERMIT (2022),

https://www.phila.gov/media/20220623133944/Media-Application-rev-06.2022.pdf (providing

a multi-step application (including a waiver) for anyone wanting a permit to shoot media

content in the parks).

185

See Formal Photography Permit, MILWAUKEE CNTY. PARKS,

https://county.milwaukee.gov/EN/Parks/Plan/Get-a-Permit (last visited June 17, 2023) (“A

photography permit is required for all wedding, engagement, family and school pictures or

any other posed photography session that uses a park location as a backdrop and/or requires

special attire.”).

186

See Price v. Barr, 514 F. Supp. 3d 171, 193–94 (D.D.C. 2021) (“[This section] and its

implementing regulations also fail to leave open any alternative channels for commercial

filmmakers who would like to film in national parks without a permit.”).

187

See id. at 188 (“[This section] and its implementing regulations are, in fact, content-

based restrictions on speech.”).

188

See id. at 188–89 (“Defendants do not even attempt to argue that [this section] and its

implementing regulations meet this standard.”).

189

See Price v. Garland, 45 F.4th 1059, 1075–76 (D.C. Cir. 2022), rehearing en banc denied,

2022 WL 15524454 (denying the petition for rehearing the lower court’s holding that

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On appeal, the permit-and-fee requirements for

“noncommunicative” First Amendment activity of commercial

filming were reviewed for reasonableness—which the circuit court

found they “surely are.”

190

Filmmaking, according to the circuit

court, “undoubtedly is protected by the First Amendment.”

191

Nevertheless, “[noncommunicative] filmmaking is subject to the

same degree of regulation in a traditional public forum as it would

be in a nonpublic forum.”

192

Thus, the NPS filmmaking restrictions

were reviewed for reasonableness.

193

The permit-and-fee regime

passed this reasonableness inquiry (1) by being viewpoint-neutral

194

and (2) by furthering two significant government interests: “(a)

raising revenue to maintain and improve the parks; and (b)

ensuring that filming does not harm federal lands or otherwise

interfere with park visitors’ enjoyment of them.”

195

Thus, much like

in other government-owned parks, a permit is required to engage in

commercial filmmaking in our national parks.

A permit is required to take off or land a drone in Minneapolis

parks,

196

in New York parks,

197

and in Virginia state parks.

198

documentary filmmaking may be reasonably subject to permit-and-fee requirements since

“speech-protective rules of a public forum apply only to communicative activity”).

190

See id. at 1075 (holding that “regulations governing filmmaking on government-

controlled property need only be ‘reasonable,’ which the permit-and-fee requirements for

commercial filmmaking on NPS land surely are”).

191

Id. at 1067.

192

Id. at 1071–72.

193

See id. at 1072 (“The upshot is that filmmaking on all NPS land is subject to the same

‘reasonableness’ standard that applies to restrictions on first amendment activity in a

nonpublic forum.”).

194

See id. (“No party argues (nor could they) that the permit-and-fee requirements

discriminate based upon viewpoint.”).

195

Id.

196

See Drone Use Application, Procedures & Fees, MINNEAPOLIS PARK & RECREATION BD.,

https://www.minneapolisparks.org/rentals-permits/photography__filming_permits/ (last

visited June 17, 2023) (“Permits are required for all drone flight that is from, within and on

Minneapolis Park and Recreation Board property.”).

197

See N.Y. PARKS, RECREATION & HIST. PRES., REGULATING UNMANNED AIRCRAFT

SYSTEMS, OPR-PCD-018 (Jan. 6, 2015), https://parks.ny.gov/documents/inside-our-

agency/PublicDocuments/GuidancePolicies/RegulatingUnmannedAircraftSystemsDronesMo

delAirplanesQuadCopters.pdf (“The launch, landing and operation of UAS [Unmanned

Aircraft Systems] is allowed in state parks and historic sites only with prior written approval

by the agency through a permit authorizing the specific time, location and type of use.”).

198

The Virginia Administrative Code bans all drone operations in all Virginia State Parks

or DCR-owned property. See 4 VA. ADMIN. CODE § 5-30-400 (2022) (“No person shall . . .

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2022, a Texas district court struck down Texas’s drone statute on

First Amendment grounds.

199

The court classified the Texas law as

a content-based restriction on speech; the state law prohibited

journalists from collecting drone footage on private property, but it

did not proscribe footage collected on public property or by

professors, insurance employees, or real estate brokers.

200

The

district court was not persuaded that Texas could show that the law

was “actually necessary” to protect a compelling government

interest in private property or individual privacy.

201

An appeal is

currently pending in the U.S. Court of Appeals for the Fifth

Circuit.

202

Drone regulations outside of Texas are unaffected by this

litigation. While there have been isolated challenges to permit

requirements, permitting regimes remain common and popular

among policymakers.

For illustrative purposes, this Article considers a state statute

requiring a license for LoBAR gameplay in state-owned parks.

203

Suppose “New Carolina” decided to adopt an individual license

requirement for LoBAR gameplay. New Carolina’s license could be

administered by a state administrative agency through a statutory

operate within or upon any park; any . . . drone . . . .”). There is an exception only if the

Department of Conservation and Recreation (DCR) issues a Special Use Permit. See VA. DEP’T

CONSERVATION & RECREATION, UNMANNED AIRCRAFT, https://www.dcr.virginia.gov/state-

parks/document/rules-drones.pdf (last visited June 17, 2023) (“Persons who seek to use

unmanned aircraft on a DCR State Park or Natural Area Preserve . . . shall apply for a special

use permit . . . .”).

199

See Nat’l Press Photographers Ass’n v. McCraw, 594 F. Supp. 3d 789, 813 (W.D. Tex.

2022) (“IT IS FURTHER ORDERED that [Texas statutes] violate the First and Fourteenth

Amendments and are therefore unconstitutional.”).

200

See id. at 805 (“The Surveillance and No-Fly Provisions are both content-based

restrictions that regulate based on the subject of the expression.”).

201

See id. at 807 (“Defendants have failed to establish that alternative means are

insufficient to sufficiently protect [government] interests.”).

202

See id. at 813 (noting the appeal pending before the 5th Circuit), appeal docketed, No.

22-50337 (5th Cir. May 3, 2022).

203

Note that a state-issued license likely would not necessarily apply to municipal-owned

property. Municipalities could choose whether to require a separate permit. Alternatively,

municipalities could negotiate “reciprocal agreements” similar to agreements between

bordering states around fishing licenses. For example, Georgia has agreements with

Alabama, Florida, North Carolina, and South Carolina allowing holders of Georgia fishing

licenses to fish in the waters covered without obtaining a fishing license from the bordering

state. See Georgia Fishing: Agreements with Bordering States,

EREGULATIONS,

https://www.eregulations.com/georgia/fishing/agreements-with-bordering-states (last visited

June 17, 2023) (listing Georgia’s fishing agreements with other states).

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grant of authority. The hypothesized statute could grant authority

to the New Carolina “Department of Parks, Recreation, and

Wildlife” to license LoBAR gameplay in state parks. Such a proposal

is in line with how states have assigned authority to administer

other licenses on public lands.

204

For analysis and consideration,

suggested statutory language is presented in the Section below.

B. SAMPLE LEGISLATION: LOBAR GAMEPLAY LICENSE

The proposed legislation proceeds as follows:

Section 1. Purpose and Intent

Section 2. Scope; Authority

Section 3. Definitions

Section 4. Gameplay License—Required

Section 5. Types of Gameplay License

Section 6. Gameplay License Application

Section 7. Issuance or Denial of Gameplay License

Section 8. Fees

Section 9. Notification and Appeals

Section 10. Assignability

Section 11. Indemnification

Section 12. Enforcement

Section 13. Rights of Violators

1. Purpose and Intent. This <legislative body> recognizes and

supports the public’s interest in the enjoyment of <Jurisdiction>

Parks. At the same time, the safety of members of the public in the

<jurisdiction> is of utmost importance. This <legislative body> also

values the preservation of the natural and cultural resources of the

<jurisdiction>, prioritizing allowing the public to experience those

resources while protecting the <jurisdiction’s> compelling interests

in public health and safety and resource conservation. In

implementing a license requirement for location-based augmented

reality gameplay in <Jurisdiction> Parks, this <legislative body>

204

See, e.g., NEV. REV. STAT. § 232.020 (2021) (creating and assigning authority to the

Department of Conservation and Natural Resources); N.Y.

ENV’T CONSERVATION LAW § 3-

0301(P) (McKinney 2021) (authorizing the Department of Environmental Conservation to

delegate matters such as issuing permits and licenses to other agencies).

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seeks to protect those valuable resources and limit disruption of

park use while allowing all to enjoy their time at the park.

2. Scope; Authority. This <legislation> applies to all

<jurisdiction-owned parks> within <the jurisdiction>.

3. Definitions. The following words and phrases shall have the

meanings ascribed to them in this section, except where the context

clearly indicates a different meaning:

“Location-based augmented reality game” means a game

that superimposes digital content based on a player’s

location onto a live video display from that player’s mobile

device.

“Location-based augmented reality gameplay” means the

act of operating a location-based augmented reality game on

a mobile device.

“Gameplay License” means permission to operate a

location-based augmented reality game within

<Jurisdiction> Park issued pursuant to <this legislation>.

“Player” means any natural individual of at least [__]

<e.g., 16> years of age.

“<Jurisdiction> Park” means all public parks, beaches,

wetlands, playgrounds, athletic fields, recreation centers,

marinas, golf courses, open spaces and areas publicly owned

and acquired for the conservation of natural resources and

the enjoyment thereof by the residents of <the jurisdiction>.

4. Gameplay License—Required. No player shall operate a

location-based augmented reality game within any <Jurisdiction>

Park without first applying for and receiving a Gameplay License

from <the authorized department>, issued in accordance with <this

legislation>.

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5. Types of Gameplay Licenses. There shall be the following types

of Gameplay Licenses for location-based augmented reality gaming

issued by the <jurisdiction>:

Resident short-term license that enables the licensee to

operate a location-based augmented reality game in any

<Jurisdiction> Park for a period of ten (10) days, subject to

all applicable Park rules and regulations and the provisions

of this <legislation>.

Nonresident short-term license that enables the licensee

to operate a location-based augmented reality game in any

<Jurisdiction> Park for a period of ten (10) days, subject to

all applicable Park rules and regulations and the provisions

of this <legislation>.

Resident annual license that enables the licensee to

operate a location-based augmented reality game in any

<Jurisdiction> Park for a period of one (1) year, subject to all

applicable Park rules and regulations and the provisions of

this <legislation>.

Nonresident annual license that enables the licensee to

operate a location-based augmented reality game in any

<Jurisdiction> Park for a period of one (1) year, subject to all

applicable Park rules and regulations and the provisions of

this <legislation>.

Resident lifetime license that enables the licensee to

operate a location-based augmented reality game in any

<Jurisdiction> Park for the duration of their life, subject to

all applicable Park rules and regulations and the provisions

of this <legislation>.

Nonresident lifetime license that enables the licensee to

operate a location-based augmented reality game in any

<Jurisdiction> Park for the duration of their life, subject to

all applicable Park rules and regulations and the provisions

of this <legislation>.

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6. Gameplay License Application. Each application for a

Gameplay License must be completed in full and filed with <the

authorized department> or such other office as may be designated

by <the authorizing commissioner>.

Each application must include the following information:

• The full legal name of the applicant.

• The date of birth of the applicant.

• The desired starting date of the Gameplay

License.

• The phone number and email address of the

applicant.

• The residency status of the applicant.

• The mailing address of the applicant.

• The desired Gameplay License of the

applicant: Short-term, Annual, or Lifetime.

To obtain a Gameplay License, the applicant (or their legal

guardian if the applicant is under the age of majority in the

jurisdiction) must certify that they will abide by all <Jurisdiction>

Park rules and regulations while operating a location-based

augmented reality game.

7. Issuance or Denial of Gameplay License. The <authorizing

commissioner> or their designee shall issue a Gameplay License

under this <legislation> upon receipt of a completed application and

Gameplay License fee.

The <authorizing commissioner> or their designee shall

deny the Gameplay License if the conditions of the

<legislation> and all applicable laws and regulations have

not been met or if the application contains incomplete or

false information.

The <authorizing commissioner> or their designee may

immediately revoke a Gameplay License which has been

granted, if the conditions of the <legislation> and all

applicable laws and regulations are no longer being met or if

the information supplied by the applicant becomes false or

incomplete.

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A Gameplay License obtained through fraud or through

material misrepresentation on the application is deemed

void ab initio.

8. Fees. A non-refundable application fee of [$___] is required

with the submission of any Gameplay License application to <the

authorized department>.

In addition to the application fee, the fees for Gameplay

Licenses are according to the following schedule, and shall

be paid prior to the issuance of a Gameplay License:

Resident, short-term: [$___]

Nonresident, short-term: [$___]

Resident, annual: [$___]

Non-resident, annual: [$___]

Resident, lifetime: [$___]

Non-resident, lifetime: [$___]

9. Notification and Appeals. The <authorized department> shall

act upon the Gameplay License application in a timely fashion and

shall approve or deny the application within three (3) business days

of receipt. The applicant will be notified in a prompt fashion after a

decision on approval or denial.

Any notice of denial will explain why the license was

denied and state the appropriate remedy (if applicable).

An unsuccessful applicant may appeal the decision to

<the authorized department> through the form available on

the <the authorized department’s> website. The appeal shall

be adjudicated within thirty (30) calendar days from receipt

of the form.

10. Assignability. A Gameplay License to operate a location-

based augmented reality game on <jurisdiction-owned parks> is

non-assignable and non-transferable.

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11. Indemnification. All license holders shall agree to defend,

indemnify, and hold harmless <the jurisdiction> and its officers,

agents and employees from any suit, actions on claims arising out

of or in any way connected with the licensed activities, except for

any claims or liability arising from the negligence or misconduct of

the <jurisdiction>, its agents, officers, or employees.

12. Enforcement. A violation for location-based augmented

reality gameplay without a license in a <jurisdiction park> shall

result in the violator being served with a notice of violation subject

to the following fines and penalties:

(1) First offense: [$___] <e.g., $50.00>.

(2) Second offense in the previous 12-month period:

[$___] <e.g., $100.00>.

(3) Third offense in the previous 18-month period: [$___]

<e.g., $250.00>; ineligible for application for permit for one

year.

(4) Fourth or subsequent offense in the previous 24-

month period: [$___] <e.g., $500.00>; ineligible for

application for permit for two years.

These fines do not preclude the violator from being subject to

other penalties, including but not limited to a trespass warrant.

A violator shall also be liable for administrative costs and

damages incurred by <the Department>.

13. Rights of Violators. A violator who has been served with a

notice of violation, shall elect either to:

(1) Pay the civil fine in the manner indicated on the notice;

(2) Request an administrative hearing before <an officer

of the court (e.g., a special magistrate)>, appointed as

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provided <by the jurisdiction>, to appeal the decision of <the

compliance officer> that resulted in the issuance of the notice

of violation.

***

C. THE CONSTITUTIONALITY OF LOBAR LICENSING

In assessing the constitutionality of a LoBAR license

requirement, a threshold inquiry is whether gameplay is protected

by the First Amendment. The answer is likely yes; however, no

court has squarely addressed this question. The Supreme Court has

found that the First Amendment protects nude dancing,

205

live

entertainment,

206

parade organizing,

207

and the failure to salute the

flag.

208

The Court has never demanded “a narrow, succinctly

articulable message” as a condition for First Amendment

protection.

209

The Court has also recognized that the expressive

elements in video games are protected.

210

It is likely a court would find that game makers have protectable

First Amendment interests. And much like listeners, who have an

interest in receiving information from speakers, game players likely

have an interest in receiving entertainment and expression from

205

See City of Renton v. Playtime Theatres, Inc., 475 U.S. 41, 54–55 (1986) (holding that

the city’s zoning ordinance aimed at regulating “adult theaters” satisfies the “dictates of the

First Amendment”).

206

See Schad v. Borough of Mount Ephraim, 452 U.S. 61, 61, 76–77 (1981) (noting the First

Amendment “requires sufficient justification for the exclusion of a broad category of protected

expression” and the questioned ordinance in this case cannot impose a complete ban on live

entertainment).

207

See Hurley v. Irish-Am. Gay, Lesbian & Bisexual Grp. of Bos., 515 U.S. 557, 559 (1995)

(ruling that a mandate requiring private citizens who organize a parade to “include among

the marchers a group imparting a message that organizers do not wish to convey” violates

the First Amendment).

208

See W. Va. State Bd. of Educ. v. Barnette, 319 U.S. 624, 642 (1943) (holding “the action

of the local authorities in compelling the flag salute” to “transcend[] constitutional limitations

on their power and invade[] the sphere of intellect and spirit” of the First Amendment).

209

Hurley, 515 U.S. at 569.

210

See Brown v. Entm’t Merchs. Ass’n, 564 U.S. 786, 790–91 (2011) (acknowledging that

“video games qualify for First Amendment protection” and generally, the government lacks

power “to restrict expression because of its message, its ideas, its subject matter, or its

content”).

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game developers.

211

It is acknowledged that the expressive activity

associated with LoBAR gameplay is distinguishable from other,

more traditional modes of disseminating ideas like books and

pamphlets.

212

While the precise scope and extent of the First

Amendment protection for players is unclear, for present purposes

it is presumed that some degree of free speech protection would

apply to gameplay.

First Amendment analysis also includes an assessment of the

type of forum in which the expressive activity is taking place.

Courts recognize three types of government-controlled spaces: (1)

traditional public forums, (2) designated public forums, and (3)

nonpublic forums.

213

Public parks, like our streets and sidewalks,

are generally regarded as a traditional public forum.

214

On public

property, other expressive activities—like demonstrations and

rallies—can be subject to reasonable time, place, and manner

regulations.

215

211

The Supreme Court has held that the First Amendment protects not only a speaker’s

right to free speech, but also a listener’s right to receive information. See, e.g., Lamont v.

Postmaster Gen., 381 U.S. 301, 308 (1965) (Brennan, J., concurring) (“The dissemination of

ideas can accomplish nothing if otherwise willing addressees are not free to receive and

consider them. It would be a barren marketplace of ideas that had only sellers and no

buyers.”); Island Trees Sch. Dist. v. Pico, 457 U.S. 853, 867 (1982) (“[W]e have held that, in a

variety of contexts, ‘the Constitution protects the right to receive information and ideas.’”

(citing Stanley v. Georgia, 394 U.S. 557, 564 (1969))); Va. State Bd. of Pharm. v. Va. Citizens

Consumer Council, 425 U.S. 748, 763–64 (1976) (acknowledging the strong individual and

societal interests in the free flow of information).

212

See Watchtower Bible & Tract Soc’y of N.Y., Inc. v. Vill. of Stratton, 536 U.S. 150, 151

(2002) (acknowledging “the historical importance of door-to-door canvassing and

pamphleteering as vehicles for the dissemination of ideas”).

213

See Minnesota Voters All. v. Mansky, 138 S. Ct. 1876, 1885 (2018) (recognizing the three

types of government-controlled spaces); Perry Educ. Ass’n v. Perry Loc. Educators’ Ass’n, 460

U.S. 37, 45–46 (1983) (addressing different types of property).

214

See Mansky, 138 S. Ct. at 1885 (“In a traditional public forum—parks, streets,

sidewalks, and the like—the government may impose reasonable time, place, and manner

restrictions on private speech, but restrictions based on content must satisfy strict scrutiny,

and those based on viewpoint are prohibited.”). Note that not all public lands are necessarily

a public forum. The inquiry turns on the purpose to which the property is put. For present

purposes, we sidestep this fact-based inquiry and generally presume that public parks are

public fora.

215

See Grayned v. City of Rockford, 408 U.S. 104, 115 (1972) (“Our cases make equally

clear, however, that reasonable ‘time, place and manner’ regulations may be necessary to

further significant governmental interests, and are permitted.”); see also Cox v. New

Hampshire, 312 U.S. 569, 578 (1941) (finding that the government’s licensing scheme was a

valid “exercise of local control over the use of streets for parades and processions”).

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To regulate competing uses of a public forum, a valid time, place,

and manner permitting schema must meet four key constitutional

requirements. First, it must not delegate overly broad licensing

discretion to a government official.

216

Second, it must not be based

on the content of the message. A licensing statute lacks content

neutrality (1) if it burdens only certain messages

217

or (2) if it

imposes a burden on all messages, while granting officials

unfettered discretion to treat messages differently.

218

Third, the

statute must be narrowly tailored to serve a significant

governmental interest.

219

And last, it must leave open ample

alternatives for communication.

220

Consistent with other valid licensing schema, the above proposed

LoBAR license does not contain a grant of overly broad discretion.

221

As the Supreme Court has prescribed, this license would be

administered in a “ministerial” and “routine” manner based on

216

See Watchtower Bible, 536 U.S. at 162 (holding that an ordinance relying on an exercise

of discretion by a city official was invalid).

217

A content-based regulation is one that (1) “draws distinctions based on the message a

speaker conveys” or (2) “applies to particular speech because of the topic discussed or the idea

or message expressed.” Reed v. Town of Gilbert, 576 U.S. 155, 163 (2015).

218

See Thomas v. Chicago Park Dist., 534 U.S. 316, 323 (2002) (“Where the licensing official

enjoys unduly broad discretion in determining whether to grant or deny a permit, there is a

risk that he will favor or disfavor speech based on its content.”); Cox, 312 U.S. at 577

(concluding the statute was content neutral because there was “no evidence that the statute

ha[d] been administered otherwise than in the fair and non-discriminatory manner”).

219

See United States v. Albertini, 472 U.S. 675, 688–89 (1985) (“Regulations that burden

speech incidentally or control the time, place, and manner of expression must be evaluated

in terms of their general effect. Nor are such regulations invalid simply because there is some

imaginable alternative that might be less burdensome on speech. Instead, an incidental

burden on speech is no greater than is essential, and therefore is permissible under O’Brien,

so long as the neutral regulation promotes a substantial government interest that would be

achieved less effectively absent the regulation.” (internal citations omitted)).

220

See Forsyth Cnty. v. Nationalist Movement, 505 U.S. 123, 130 (1992) (“[A]ny permit

scheme . . . must leave open ample alternatives for communication.”); see also Clark v. Cmty.

for Creative Non-Violence, 468 U.S. 288, 293 (1984) (noting that time, place, and manner

regulations are “valid provided that they are justified without reference to the content of the

regulated speech, that they are narrowly tailored to serve a significant governmental interest,

and that they leave open ample alternative channels for communication of the information”).

221

See City of Lakewood v. Plain Dealer Publ’g Co., 486 U.S. 750, 757 (1988) (“[I]n the area

of free expression[,] a licensing statute placing unbridled discretion in the hands of a

government official or agency constitutes a prior restraint and may result in censorship.”);

see also Miami Herald Publ’g Co. v. City of Hallandale, 734 F.2d 666, 673 (11th Cir. 1984)

(“In order to qualify as narrowly tailored, a content neutral ordinance must avoid vesting city

officials with discretion to grant or deny licenses . . . .”).

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objective criteria set forth in the proposed enabling legislation.

222

the Court has instructed, there must be “narrow, objective, and

definite standards to guide the licensing authority.”

223

Section 7 of

the proposed legislation sets forth limited basis on which a LoBAR

license would be denied. After a completed application is submitted

(along with the necessary fees), an eligible permit issues in a “timely

fashion,” according to Section 9. This license schema does not

impose a long waiting period, and licenses would be issued

routinely.

224

Thus, spontaneous gameplay would not be hindered by

the license requirement.

225

The proposed fee structure is set forth in Section 8 of the

authorizing legislation and is not left to the “arbitrary” and

“unbridled discretion” of a government official.

226

The Supreme

Court has long recognized the validity of a fee imposed as a

“regulatory measure to defray the expenses of policing the activities

in question.”

227

A licensing fee may be constitutionally invalid if it

leaves too much discretion to the administrator.

228

In the proposed

schema above, fees are assessed based solely on in-state residency

and desired length of license. The Supreme Court has upheld

similar graduated fee schedules that were based on residency

222

Poulos v. New Hampshire., 345 U.S. 395, 403 (1953).

223

Shuttlesworth v. City of Birmingham, 394 U.S. 147, 151 (1969).

224

Cf. Kaahumanu v. Hawaii, 682 F.3d 789, 805 (9th Cir. 2012) (“[T]he [beach wedding]

permit requirement does not delegate overly broad discretion to a government official. The

substantive criteria for granting a permit are clear. So long as an applicant agrees to the

terms and conditions of the permit and pays the fee, the regulations leave little or no

discretion . . . .”).

225

See Watchtower Bible & Tract Soc’y of N.Y., Inc. v. Vill. of Stratton, 536 U.S. 150, 167

(2002) (noting concerns that a licensing scheme would unduly burden spontaneous expressive

activity); see also Kaahumanu, 682 F.3d at 805 (“The absence of any significant burden on

Plaintiffs’ speech weighs heavily in the narrow tailoring analysis.”).

226

Forsyth Cnty. v. Nationalist Movement, 505 U.S. 123, 133 (1992).

227

Murdock v. Pennsylvania, 319 U.S. 105, 113–14 (1943); see also Jacobsen v. Harris, 869

F.2d 1172, 1172 (8th Cir. 1989) (finding that fee covering administrative costs of processing

news rack permit applications did not violate First Amendment).

228

See Nationalist Movement, 505 U.S. at 134 (finding that the statute was not content-

neutral because the administrator could adjust the permit fee based on his guess that the

crowd might react more heavily to a given protest).

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status.

229

And these fees are unlikely to implicate the Dormant

Commerce Clause.

230

This proposed licensing system is content neutral because it does

not distinguish among expressive, gameplay activities based on the

gaming content.

231

It applies to all LoBAR gameplay on public

property. Although this licensing requirement would apply to all

LoBAR gameplayers—not only those who litter and congest public

property—policymakers are not required to wait for damage to

occur. Other public park permits (e.g., protesting, picnicking, and

photographing) are not predicated on a speculation of which

attendees pose the greatest threats to safety and order.

232

On the

other hand, there are significant government interests not

addressed by this LoBAR gameplay license. LoBAR gameplayers

are not the only park users who may raise concerns. Other park

permits are similarly targeted and affect non-problematic uses (e.g.,

camping, drone use, geocaching placement, etc.). Thus, this

proposed license is neither overbroad nor unduly narrow. The

Supreme Court has instructed that a narrowly-tailored licensing

schema need not be the least restrictive or least intrusive means to

further a government interest.

233

The inquiry is whether the

regulation burdens substantially more expressive activity than

necessary to achieve the scheme’s important goals.

234

229

Cf. Toomer v. Witsell, 334 U.S. 385, 398–99 (1948) (“The State is not without power . . .

to graduate license fees . . . or even to charge non-residents a differential which would merely

compensate the State for any added enforcement burden they may impose or for any

conservation expenditures from taxes which only residents pay.” (footnotes omitted)).

230

See Am. Trucking Ass’ns v. Mich. Pub. Serv. Comm’n, 545 U.S. 429, 437–38 (2005)

(finding that taxes on “purely local activity” of interstate trucking firms do not deter or

discriminate against interstate activities and do not violate the Dormant Commerce Clause);

South Dakota v. Wayfair, Inc., 138 S. Ct. 2080, 2093–94 (2018) (“The Court has consistently

explained that the Commerce Clause was designed to prevent States from engaging in

economic discrimination so they would not divide into isolated, separable units.”).

231

See Glendale Assocs., Ltd. v. NLRB, 347 F.3d 1145, 1155 (9th Cir. 2003) (describing

what makes a rule content-neutral).

232

Cf. Epstein, supra note 20, at 412 (“Once the permit is required, the individual citizen

becomes a supplicant before the government in all cases, whether or not any real threat of

harm exists.”).

233

See Ward v. Rock Against Racism, 491 U.S. 781, 798 (1989) (“[W]e reaffirm today that

a regulation of the time, place, or manner of protected speech must be narrowly tailored to

serve the government’s legitimate, content-neutral interests but that it need not be the least

restrictive or least intrusive means of doing so.”).

234

See id. at 799–800 (“[T]he requirement of narrow tailoring is satisfied so long as the . . .

regulation promotes a substantial government interest that would be achieved less effectively

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Here, the proposed the permit scheme bears a direct relationship

to, and furthers, significant governmental interests. First, the

government has a substantial interest in regulating competing uses

of public parks.

235

In upholding a city park’s content-neutral

permitting scheme, the Supreme Court acknowledged the

government’s interests are four-fold: (1) to coordinate multiple uses

of limited space; (2) to assure preservation of the park facilities; (3)

to prevent uses that are dangerous, unlawful, or impermissible; and

(4) to assure financial accountability for any damages caused.

236

Valid government interests include public safety and

convenience,

237

as well as good order and aesthetics.

238

A second

justification is that an individual permit is necessary because the

nature of LoBAR gameplay makes a special event permit

impractical and nonsensical.

239

Requiring individual licenses, akin

to other recreational licenses, is a means “not substantially broader

than necessary to achieve the government’s interest.”

240

This

LoBAR licensing system outlined above defines LoBAR games as

ones that superimposes digital content based on a player’s location

onto a live video display from that player’s mobile device. Unlike the

Milwaukee Ordinance that left the term undefined, this definition

serves to avoid potential concerns about overbreadth.

absent the regulation . . . . So long as the means chosen are not substantially broader than

necessary to achieve the government’s interest, however, the regulation will not be invalid

simply because a court concludes that the government’s interest could be adequately served

by some less-speech-restrictive alternative.” (citation omitted)).

235

See Price v. Barr, 514 F. Supp. 3d 171, 190 (D.D.C. 2021) (“Protecting national park land

and the resources it contains is a substantial governmental interest.”); Kaahumanu v.

Hawaii, 682 F.3d 789, 803 (9th Cir. 2012) (concluding it was a significant government interest

to regulate competing and overlapping uses of Hawaii’s public lands, including its public

beaches).

236

See Thomas v. Chi. Park Dist., 534 U.S. 316, 322 (2002) (discussing the purpose of the

permit system).

237

See Heffron v. Int’l Soc’y for Krishna Consciousness, Inc., 452 U.S. 640, 650 (1981) (“As

a general matter, it is clear that a State’s interest in protecting the ‘safety and convenience’

of persons using a public forum is a valid governmental objective.”); see also New Eng. Reg’l

Council of Carpenters v. Kinton, 284 F.3d 9, 26 (1st Cir. 2002) (“Public safety and convenience

are paradigmatically permissible considerations in the issuance of permits.”).

238

See Horton v. City of St. Augustine, 272 F.3d 1318, 1333 & n.19 (11th Cir. 2001) (noting

“other enumerated municipal purposes” for limiting street performer activities included

“congestion, noise, illegal activity, rudeness, and diminished aesthetics”).

239

Cf. Candy Lab Inc. v. Milwaukee Cnty., 266 F. Supp. 3d 1139, 1153 (suggesting that

Milwaukee County’s ordinance is placing a “square peg in a round hole”).

240

See supra note 234 and accompanying text.

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Last, the proposed individual LoBAR license schema leaves open

ample alternatives for gameplay. No license is needed to play on

private residential property or at consenting business

locations.

241

Thus, a license for LoBAR gameplay on public property

is likely to survive intermediate scrutiny because it is ministerial,

content neutral, and narrowly tailored to significant governmental

interests.

V. CONCLUSION

The fact that LoBAR gameplay may be licensed can fuel critiques

by those wary of government licenses that control access and use of

public property. Yet, as discussed above, a license to play is likely to

survive First Amendment review.

242

In other words, LoBAR

licensing sits comfortably within the wider practice of licensing

recreational and expressive activities. However, such a license may

animate concerns about the proliferation of government licensing

schemes.

243

This sample LoBAR gameplay legislation is offered to start a

conversation; it is not intended as a complete answer. There are

legitimate concerns about equitable access to public parks

244

and

concerns that the impecunious may be hampered in their ability to

engage in valuable gameplay. The authors leave for future analysis

the normative advisability of the wider practice of licensing so many

activities on public property. For present purposes, we note that a

241

Cf. Kaahumanu v. Hawaii, 682 F.3d 789, 805 (9th Cir. 2012) (“The ‘entire medium’ of a

beach wedding is clearly not foreclosed. A person need not obtain a permit to conduct a

commercial beach or beach-related wedding on sites other than a state beach. These

alternative sites include county beaches or private property next to any beach.”).

242

See supra section III.C.

243

Compare Kellum, supra note 18, at 383 (criticizing a “growing trend among government

bodies to promulgate and utilize permit schemes that effectively preempt protected

expression on public ways”), with Biber & Ruhl, supra note 19, at 137 (“Administrative

permits are ubiquitous in modern society.”).

244

See Hayley Smith, Visiting a State Park? Your Library Card Can Get You in for Free,

L.A. TIMES (Apr. 7, 2022, 2:46 PM), https://www.latimes.com/california/story/2022-04-

07/visiting-a-state-park-your-library-card-can-get-you-in-for-free (“In an effort to provide

more equitable outdoor access for all Californians, residents can now use their library cards

to check out day passes for free access to more than 200 state parks, officials announced this

week.”).

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LoBAR gameplay license is likely consonant with constitutional

principles.

Thus, our scholarly contribution is two-fold: (1) to highlight the

variety of permits that governments currently require for public

access and use of public property; and (2) to suggest that requiring

LoBAR gamers to seek a license to play on public property fits

within the broad exercise of government power.

245

Much like how

governments have required permits for beach weddings,

246

street

performances,

247

commercial photography at municipal parks,

248

and filming activities in national parks,

249

policymakers could

require a LoBAR license to play on public property.

***

245

For example, policymakers have used this broad authority to safeguard the health,

welfare, and safety of residents to prohibit the use of recreational devices, like roller skates,

from public property.

See N.J. ADMIN. CODE § 7:2-2.25 (2014) (“The use of roller skates and

skateboards on State Park Service roads and parking lots is prohibited.”); ZEPHYRHILLS, FLA.

CODE OF ORDINANCES § 70.20 (2008) (“It shall be unlawful for any person to use a skateboard,

skates, scooters, inline skates, roller blades, coaster, or bicycle on property owned and

maintained by the city, including city parks, when such area is designated as prohibiting such

usage.”); C

OM., CAL. MUN. CODE ch. 9.50.020 (2011) (“No person shall ride, use or propel any

bicycle, skateboard, rollerblade, roller skate or other coaster device, whether powered by

human or motorized means [i]n or upon any public facility, including, but not limited to

parking lots or structures, with the exception of any facility that is specifically designated for

such use . . . .”).

246

See Kaahumanu, 682 F.3d at 803 (concluding a beach wedding permit requirement was

“reasonably designed to minimize conflicting uses of limited beach area and to conserve the

physical resource of the beaches”).

247

See Horton v. City of St. Augustine, 272 F.3d 1318, 1333 (11th Cir. 2001) (“The City’s

restriction of street performances within a four-block area of an historic district satisfies this

First Amendment analysis and is a legitimate exercise of legislative authority.”). But see

Berger v. City of Seattle, 569 F.3d 1029, 1033 (9th Cir. 2009) (invalidating on First

Amendment grounds a city’s permit requirement for street performers).

248

See Josephine Havlak Photographer, Inc. v. Vill. of Twin Oaks, 864 F.3d 905, 905 (8th

Cir. 2017) (upholding, as content neutral and constitutional, a municipal ordinance requiring

a permit for all commercial activity in its neighborhood park–including commercial

photographers).

249

See Price v. Garland, 45 F.4th 1059, 1059 (D.C. Cir. 2022) (upholding, as reasonable and

constitutional, National Park Service (NPS) permit-and-fee requirements for commercial

filmmaking on NPS lands).

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VI. APPENDIX

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