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April 28, 2021

Is Justice Kavanaugh eager to bring proportionality review to government sanctions ... to protect speech under the First Amendment?

It comes as no suprise that a lot of attention is being given to the Supreme Court case argued today inolving a First Amendment claim brought by a young public high schooler suspended from the cheerleading squad for dropping f-bombs on his Snapchat.  This Politcio piece reviews the basics of the arguments, and I was both surprised and struck by a comment during argument by Justice Kavanaugh.  Here, via this oral argument transcript from Mahanoy Area School Dist. v. B. L., is the comment and context (with my emphasis added):

[A]s a judge and maybe as a coach and a parent too, it seems like maybe a bit of over -- overreaction by the coach.

So my reaction when I read this, she's competitive, she cares, she blew off steam like millions of other kids have when they're disappointed about being cut from the high school team or not being in the starting lineup or not making all league....

So maybe what bothers me when I read all this is that it didn't seem like the punishment was tailored to the offense given what I just said about how important it is and you know how much it means to the kids.  I mean, a year's suspension from the team just seems excessive to me.

But how does that fit into the First Amendment doctrine or does it fit in at all in a case like this?

I lack the First Amendment expertise to know if the notion of reviewing state sanctions for excessiveness or proportionality is particularly notable or novel.  But I have enough Eighth Amendment expertise to know it could be so vauabe if Justice Kavanaugh and other Justices were far more willing to question state sanctions in the form of extreme prison terms when they do not "seem like the punishment was tailored to the offense" and "just seems excessive."

Though finding notable these comments by Justice Kavanaugh about what seemed to him an excessive punishment, I doubt we should be expecting him to carry these sentiments over the the Eighth Amendment.  After all, Justice Kavanaugh's first big Eighth Amendment ruling functionally limited its protection for juvenile murderers via the Jones opinion.

April 28, 2021 at 09:50 PM | Permalink


Maybe, as someone who infamously and very publicly blew off steam, he just empathizes with the student?

Posted by: John | Apr 29, 2021 10:15:09 AM

I was pretty much going to say what John said. It seems better not to read a lot into it. Also, she's a white girl from Pennsyltucky ("Frackville" is literally down the road, you can't make this stuff up), so I'm sure that helps make her sympathetic to Bart.

Anyway, on the merits, I'm no 1A expert either, but it does have some kind of strict scrutiny analysis right. So couldn't proportionality figure into whether something is narrowly tailored?

Posted by: hardreaders | Apr 29, 2021 11:55:56 AM

Not sure that strict scrutiny applies. Precedent is that schools have a compelling issue in restricting "disruptive" speech, but that's a little bit of a vague fact-specific standard. Issue in this case is whether disruptive speech has to be on-campus/at school function or can schools punish off-campus "disruptive" speech.

I think problem caused by this case (which might lead to a dismiss as improvidently granted ruling) is that the Justices don't see the speech at issue here (a profane response to not making an extracurricular squad with no suggestion of any action to follow) as particularly disruptive making it a poor case for evaluating when a school can regulate off-campus speech. If the speech had occurred at school, maybe it would violate restrictions on obscene language which in most cases might involve a day of detention and writing on the board 100 times "I will not curse about school staff." Clearly the school's response to this event was extreme response to something that is probably outside the scope of permissible regulation by the school. And that makes it a poor vehicle for determining the scope of a school's power to respond to more serious off-campus deeds short of turning things over to law enforcement.

Posted by: TMM | Apr 30, 2021 10:58:29 AM

You may well be right on all that. My point was just that you can at least conceive of some instances where existing 1A law might include that sort of consideration. It wasn't necessarily connected to this particular case. And I don't think the OP's observation was either—but he should correct me on that one if needed.

Posted by: hardreaders | Apr 30, 2021 11:18:09 AM

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