In a recent interview, U.S. Supreme Court justice Elena Kagen revealed that she and another justice played a controversial game to help decide a case.
In 2011, the court weighed in on Brown, Governor of California, et al. v. Entertainment Merchants Association et al., a case which pertained to the constitutionality of a ban on selling or renting violent video games to minors; whether such a ban violated the First Amendment. In 2005, the State of California passed a law that banned the sale of violent video games to anyone under 18 years old. The law went into effect in 2006.
The game most prominently mentioned in case filings was Postal 2, a 2003 first-person shooter known for its gory and controversial gameplay. Critics accused the game of encouraging dismemberment, mass homicide and lewd behavior. “Running With Scissors” company head Vince Desi argued that his game was meant to be presented in a humorous, “over the top” way.
In a September 8 interview with Harvard Law Dean Martha Minow, Kagen stated that she played “the violent video game that was most involved in the case.” According to Kagen, she and Justice Stephen Breyer wanted to understand the content they were ruling on. After all, the case “was about violent video games. And there was a kind of vague definition in the statute provided about which violent video games would be regulated.” Kagen went on to say, “The truth of the matter is that I don’t know a lot about video games. I don’t know about violent video games.”
Kagen recalled having Breyer’s clerks set up the game in his office. The two justices faced off against each other, “killing everybody left and right.” At one point, Breyer reportedly conveyed to Kagen that the game was “really horrible, really disgusting and repellent,” to which she replied, “Next round, next round.” Kagen surmised that the differences of opinion regarding the game played an outcome in the court’s decision.
On June 27, 2011, the Supreme Court voted 5-4 to strike down the California law. The majority opinion stated that video games — like protected books, plays and movies that preceded them — qualified for First Amendment protections. Justice Antonin Scalia, author of the majority opinion, added the legislative intent to ban the sale of violent video game was “seriously underinclusive,” because the legislation did not prohibit an adult relative, friend or acquaintance from purchasing the otherwise “banned” video game for them.
Watch the September 8 interview with Kagen below: