In 2011, the Supreme Court affirmed the Ninth Circuit (and a federal district court) in granting a pre-enforcement challenge to a California law that restricted the sale or rental of violent video games to minors. The Court acknowledged that the law violated the First Amendment (See Brown v. Entertainment Merchants Association (2011), publically available here). This is publically known.

What was not publically known until September 8th, 2015, is that this decision was influenced by some of the Supreme Court Justices, Elena Kagan and Stephen Breyer, actually playing the super violent video game “Postal 2,” which was the primary subject of the case. On September 8th, Kagan gave an informal talk at her alma mater, Harvard Law School (begin roughly 24 minutes in), to a crowd mostly made up of first-year law students in which she disclosed this fact. Descriptions of the game and some quotations from Kagan can be found in an article reported by the Washington Post on September 18th, 2015.

The event hits home for two important reasons:

First, the shock value. In my youth, I may also have played this game a few times. The game allows the user to do some pretty sick stuff—peeing on people, dousing them in gasoline and then flicking matches at them, and knocking people’s heads off with shovels, to note some of the worst. I am trying to imagine my parents playing the game, and I think they or just about anyone they knew over the age of 45 would have been absolutely appalled. Imagine Justices Breyer, then roughly 70, and Kagan, then roughly 50, hunched over a computer in their chambers, murdering virtual; certainly not the image the Supreme Court robes typically conjure. What’s more is that Kagan apparently was really into it. In her own words, she said Justice Breyer “thought is was really horrible, really disgusting and repellant, and I was like ‘next round, next round (see Kagan’s informal talk, above).’”

Second, this may be a violation of evidentiary and ethical principles that prohibit judges from conducting independent inquiries relating to a case. The possibility of such violations has become a huge issue as information has become increasingly available, and problems seen by the Court have become increasingly technical. The body of law relating to the limits on independent judicial inquiry is quite murky, and there are exceptions to the rules. While full treatment of the issue would take more than the space of this blog post, it is certainly possible that Breyer and Kagan’s playing the video game would constitute a prohibited, independent inquiry. Accepting this premise, imagine how much the Justices playing the game may have affected their decision-making. Kagan even noted during her Harvard Law talk that the Justice’s differing reactions may have been outcome determinative, explaining their different judgments (Kagan for the majority, Breyer dissenting).

I think this type of exposure may have been particularly egregious because it could certainly be extremely prejudicial evidence. While Kagan’s reaction was mild, the balance of the Court would likely have had reactions more akin to Breyer’s. The concentrated and numerous representations of violence that many violent video games present are probably overwhelming to anyone who has never played a video game before (the likely experience of most, if not all of the members of the Court). It is hard to imagine a Justice appropriately weighing the importance of freedom of speech in the context of such a reaction. I think I, having seen the game before, might even have an aversive reaction if I were to see the game played again today.

Of course, it may be important for Justices to have this type of experience to appropriately decide a case. After all, how can someone appropriately explain the experience of playing a video game through the traditional devices of the Court. The quantity, magnitude, or tone of violence in a video game can all bear on the likely effect that playing these types of games might have, and understanding these types of intangible and summative qualities could be very useful for a Justice in accurately assessing the reasonableness of a restriction in this and other contexts. In any event, look for changes in rules restricting independent judicial inquiry as issues faced by courts continue to become more technical, and information becomes even more readily available. Have fun imagining Kagan and Breyer playing Grand Theft Auto or some other antisocial game together (for more hypothetical SCOTUS fun, see here).

Dan Ward

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