Georgia Violated Deltas First Amendment Rights

[SunSeeker]

If corporations are people, the airline has a free speech case against the state over its stance against the NRA.

On Monday, Georgia Lt. Gov. Casey Cagle lashed out at Delta, announcing he would seek to kill broader tax legislation that also would provide the company a $50 million tax break on jet fuel. He made his rationale clear on Twitter, saying the benefit would not be returned unless Delta “changes its position and fully reinstates its relationship with @NRA.” Cagle concluded: “Corporations cannot attack conservatives and expect us not to fight back.” On Thursday, the Georgia Legislature passed the larger tax measure, now stripped of the jet-fuel cut, and the GOP governor announced he would sign it.
...
If the legislature punished Delta by taking away a state benefit because of its stand on the NRA, it would be a clear violation of the First Amendment’s restriction on viewpoint-based discrimination. Should it matter that the tax benefits were new? Probably not. Georgia could not, for example, make admission to a new state college exclusive to NRA supporters. The reason we don’t see many such cases is a matter not of principle but of evidence. There might be a host of reasons why a provision in a proposed bill gets yanked, and courts would not want to assume legislators have unconstitutional motives. But retaliation for a disfavored viewpoint is a constitutional harm. And while it might be difficult to prove sometimes, it is not here. Just reread the lieutenant governor’s tweet.

https://slate.com/news-and-politics/2018/03/georgia-violated-deltas-first-amendment-rights.html?via=homepage_taps_top

[sheshe2]

1. K&R

[PoliticAverse]

2. That's a bad legal argument. Unless the state is singularly denying Delta a benefit that everyone...

else is getting they can certainly discriminate arbitrarily. Delta has a right to not associate with the NRA, they don't
have a right to get a special tax benefit written into the law for them.

[SunSeeker]

4. The state cannot have an unconstitutional reason for acting.

Delta is not demanding a special tax law be written for them, only that the state not withdraw existing benefits for unconstitutional reasons.

[PoliticAverse]

5. That's the point. This isn't a benefit only being given to or removed from Delta.

They are proposing to end the exemption for everyone who buys jet fuel.
As long as the state treats everyone the same it isn't an "unconstitutional reason".
This was a suppose to be a temporary tax exemption that keeps getting extended.
If they end it can the courts force them to extend the sales tax exemption indefinitely?
What if the court forces them to reinstate it and in 6 months the state wants to end it
because the state wants the sales tax revenue back?

[SunSeeker]

6. No, you are missing the point.

If the evidence shows that the only reason you did it is because of unconstitutional desires, then you are hosed.
That almost never happens because most legislators are smart enough to state on the record some legitimate reason for ending the benefit, such as that the tax benefit was not producing the jobs they had hoped and they would rather spend the money on education where it's more sorely needed.

But these red state Republican doofuses only listed one reason and that was to punish Delta for exercising its First Amendment rights not to be associated with the NRA. As the Boston University law professor who wrote the article explained in the article:

The decision to offer or rescind tax benefits is usually within the discretion of lawmakers. But states cannot limit government benefits—whether free public education or tax breaks—to those who adhere to a particular ideological orthodoxy. That is the free speech right protected by the Pledge of Allegiance case. There are narrow exceptions to this rule. The government can fund private speakers to amplify a government viewpoint (as with anti-smoking campaigns) and can condition spending to achieve policy goals (as with subsidies for energy-saving windows). The lines can be hard to draw in the gray areas. But the mortgage deduction can’t be given only to those who voted for Trump, and a public school can’t expel a kid for wearing a “Black Lives Matter” armband.

If the legislature punished Delta by taking away a state benefit because of its stand on the NRA, it would be a clear violation of the First Amendment’s restriction on viewpoint-based discrimination. Should it matter that the tax benefits were new? Probably not. Georgia could not, for example, make admission to a new state college exclusive to NRA supporters. The reason we don’t see many such cases is a matter not of principle but of evidence. There might be a host of reasons why a provision in a proposed bill gets yanked, and courts would not want to assume legislators have unconstitutional motives. But retaliation for a disfavored viewpoint is a constitutional harm. And while it might be difficult to prove sometimes, it is not here. Just reread the lieutenant governor’s tweet.

[PoliticAverse]

7. The error that author made was that the benefit isn't being taken away from Delta alone...

they are just choosing to not extend a tax benefit available to anyone that was expiring.

It's one thing if you pass a bill that removes a benefit from a specific group for something they said, quite another if you don't pass a bill to continue an expiring tax benefit that was available to anyone.

[SunSeeker]

8. The error you're making is that collateral damage does not cleanse the state's motive.

As the article states, Georgia legislators punished Delta Air Lines by rescinding a proposed jet-fuel tax cut from the state’s new tax law. 

Just because there are others who, as collateral damage, may have been denied this benefit, does not mean the state did not violate the Constitution. So long as the state is stoooopid enough to tweet their unconstitutional motives, they are hosed.

[PoliticAverse]

9. What are the courts going to do, make the Georgia legislature pass a law that was only proposed? nt

[SunSeeker]

10. Depends on what remedies are requested in the prayer.

The Court could just order the jet fuel tax cut rescission void. Then the legislators would have to vote the whole tax cut package down, or convincingly come up with another reason for a rescission of the jet fuel tax cut from the package.

[grumpyduck]

3. WAHOOO!!!!!

I hope they go after the Lt Gov, the legislature, and everyone with a finger in the pot and hang them up to dry!!!!!

And I hope the media has a field day (make that a field month) with it. Except, of course, for Fox, which will probably not mention it.

OTOH, Delta has already said they broke off w/ NRA because they didn't want to be part of this whole conversation (or words to that effect), and have gotten a ton of good will because of it. So I have to wonder whether they'll file a lawsuit or not; their people are probably weighing long-term scenarios and pros & cons right now.