It’s hard to picture Supreme Court Justice Elena Kagan, a former solicitor general of the United States as well as a former dean of Harvard Law School, hunched over at a video game console, controller clenched in her hands, playing a violent video game. It is harder still to imagine her opponent, Justice Stephen Breyer, sitting beside her engaged in the virtual combat, all under the august roof of the United States Supreme Court. But it happened. The year was 2011. She would have been about 51; he 73.

Since the face-off took place in Breyer’s office at the high court, we have to assume they were not wearing their robes — though that would have been a sight.

They were, however, playing in the line of duty. They were struggling to decide a major constitutional question: Whether a California law banning the sale or rental of violent video games to minors violated the First Amendment. As Kagan recently told the story at Harvard Law School, neither had made up their minds. It was a “really hard case. A super hard case,” she said. 

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In her interview September 8 with current Harvard Law Dean Martha Minow, Kagan did not name the title of the game they were playing, except to say that it was “the violent video game that was most involved in the case.” According to the briefs in Brown, Governor of California, et al. v. Entertainment Merchants Association et al., that would have been the game called “Postal 2,” known to the high court as “Postal II” from its description in California’s brief, which was quivering with outrage as it described:

…. Torturing images of young girls, setting them on fire, and bashing their brains out with a shovel, for no reason other than to accumulate more points in the game. In one scene in Postal II, the player (who sees through the eyes of the shooter) looks through a scope on an assault rifle and sees a very realistic image of a person’s face. The player then shoots the victim in the kneecap. As the player watches the victim attempt to crawl away, moaning in pain, the player pours gasoline on the victim and lights him on fire. As the burning victim continues to crawl, the player urinates on the victim, and says “That’s the ticket.” After noting that it “smells like chicken,” the player again looks at the victim through the scope on the gun, and again sees a realistic human face, on fire, crawling toward him. The player then shoots the victim in the face, which turns into charred remnants of a human image. In another scene, the player hits a woman in the face with a shovel, causing blood to gush from her face. As she cries out and kneels down, the player hits her twice more with the shovel, this time decapitating her. The player then proceeds to hit the headless corpse several more times, each time propelling the headless corpse through the air while it continues to bleed.

 

As a footnote, by the way, and in fairness, the state’s gory view of the game differs rather dramatically from that of its creators at a company called “Running with Scissors.” Vince Desi, head of the company, said in an interview with The Post that “while much of the content was extreme, it was how we presented the content,” that mattered, and that was sort of humorous, “over the top,” he said, “like the Three Stooges.” The game “has been the scapegoat game for the industry generally,” he said, and it was being used as an example by the state.

In any case, as Kagan tells, 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 … The truth of the matter is that I don’t know a lot about video games. I don’t know about violent video games.”

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But she wanted to find out.

As she explained in the Harvard interview, she went into her law clerks’ office the morning of oral argument in the case and asked, “‘is there a kind of violent video game that everybody will know?'” They suggested “Mortal Kombat.” And, indeed, during the oral argument, she asked the lawyer for California: “So how do we separate violent games that are covered from violent games that are just as violent that are not covered?” and “Do you think Mortal Kombat is prohibited by this statute?”

“I don’t know what she’s talking about,” quipped Justice Antonin Scalia.

In the video, however, she does not say “Mortal Kombat” was the game she and Breyer wound up playing but rather the game that “was most involved in the case.” And, as it happens, Desi said he had sent the high court nine copies of “Postal 2” as a kind of hail Mary pass. He said he had no idea whether they ever received it. “A person like myself doesn’t reach a justice. We created a package, a fan package, and sent nine copies. If they’re going to judge the case,” he thought, “they should see the game for themselves because 90 percent of what was written about it was inaccurate.”

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To this day, he told The Post, he has no idea whether the justices got the game. And while it does seem like that was the game Kagan and Breyer must have been playing, she did not explain at Harvard where she obtained it.

Breyer “had his clerk set it up in his office and I went over to his office. And there we were, killing everybody left and right.” What she remembers is that Justice Breyer “thought it was really horrible, really disgusting and repellent. And I was like, ‘next round, next round.'”

As she described the encounter, she paused for a second. “I don’t know if I should say this,” she told the Harvard Law School students, but their sharply different reactions to the game were “probably reflective of the fact that we did come out on different sides of this case,” though she quickly added, “I like to think that there are better reasons than that.”

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The decision, announced June 27, 2011, was 7-2 to strike down the California law. Justice Antonin Scalia wrote the majority opinion, saying that it did not survive the strict scrutiny required by the First Amendment. If its purpose was to protect children from “portrayals of violence, the legislation is seriously underinclusive, not only because it excludes portrayals other than video games, but also because it permits a parental or avuncular veto,” a reference to the fact that under the law, an adult relative could go out and purchase an otherwise banned video for a child.

“And as a means of assisting concerned parents, it is seriously overinclusive because it abridges the First Amendment rights of young people whose parents (and aunts and uncles) think violent video games are a harmless pastime.”

Kagan joined the opinion along with Justices Anthony Kennedy, Ruth Bader Ginsburg, Sonia Sotomayor. (Chief Justice John Roberts and Justice Samuel Alito concurred in the ultimate outcome striking down the law but not in the reasoning in Scalia’s opinion.)

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Justice Clarence Thomas filed a dissent disagreeing with Scalia for the majority.

And Breyer wrote his own dissenting opinion, citing, among other things, numerous studies suggesting that violent video games may be harmful to children.

“Unlike the majority, I would find sufficient grounds in these studies and expert opinions for this Court to defer to an elected legislature’s conclusion that the video games in question are particularly likely to harm children …. Sometimes, children need to learn by making choices for themselves. Other times, choices are made for children—by their parents, by their teachers, and by the people acting democratically through their governments. In my view, the First Amendment does not disable government from helping parents make such a choice here—a choice not to have their children buy extremely violent, interactive video games, which they more than reasonably fear pose only the risk of harm to those children. For these reasons, I respectfully dissent.”

Below is the entire video of Kagan’s recent talk at Harvard Law. The section dealing with the video game starts at 25 minutes into the video.

Correction: An earlier version of this story incorrectly said the court was divided 5-4. The outcome was 7-2.

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