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.
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