Guns and Planes: Georgia, Delta, and the Battle Between the First and Second Amendments

By: Dalal Hillou

In response to the tragic shooting at Marjory Stoneman Douglas High School in Florida and the calls for gun control that followed, companies across the United States announced new policies or efforts supporting gun control.[1] Consumers on both sides of the debate threatened to take their business elsewhere and pressured companies into releasing new policies and statements.[2] Companies that have succumbed to such pressure include: FedEx, which stated that it supported the right to own firearms and would continue providing a discount for National Rifle Association (NRA) members, but does not support ownership of assault rifles;[3] Dick’s Sporting Goods, which ended selling assault rifles and high-capacity magazines and selling to anyone under the age of 21;[4] and Hertz, which announced that it would no longer provide its rental discount program to the NRA.[5]

Major company Delta Air Lines made headlines in early 2018 when it announced that it would end its discount for travel to the NRA’s annual meeting.[6] Delta claimed that it had a neutral stance in the national gun control debate, and that it continued to support the Second Amendment.[7] Only thirteen NRA members utilized the discount.[8] In response to this seemingly small move, Georgia Republican lawmakers responded with a $40 million slap across the face.[9]

Delta’s headquarters are in Atlanta, Georgia, and the company had tried for some time to persuade the state’s legislature to pass a $40 million tax break on sales tax for jet fuel.[10] However, Delta’s revocation of the NRA discount angered Georgia politicians like Casey Cagle.[11] The state House voted 135-24 and the state Senate voted 44-10 in support of a bill that cut income taxes, but did not include a tax break for airlines.[12] Governor Deal signed the bill in early March.[13]

Some critics of Georgia’s actions have argued that its punishment of Delta’s stance on the NRA is a violation of the First Amendment.[14] Such critics cite to Citizens United v. Federal Election Commission, where the Supreme Court ruled in favor of Citizens United, a conservative political advocacy group, and held that corporations possess rights to express political views.[15] In a strange twist, progressives who were infuriated at the time of that ruling are now arguing for corporate personhood where corporations, like people, have a First Amendment-protected right to freedom of speech.[16] They argue that states cannot selectively choose to whom they will give government benefits on the mere basis of political ideology.[17] Retaliating against a corporation due to its unfavorable point of view could be a violation of the First Amendment.[18]

Other states – such as New York and Virginia – have quickly circled in on the spat between Georgia and Delta, with hopes to entice the major airline to move its headquarters and business elsewhere.[19]

 


[1] David Spiegel, Companies are Taking Action on Gun Control because Politicians Won’t: CNBC survey, CNBC (March 23, 2018), https://www.cnbc.com/2018/03/23/companies-acting-on-gun-control-because-government-wont-cnbc-survey.html (reporting that some companies feel inclined to take action on gun control because the government will not).

[2] Damian J. Troise, Companies Face Mounting Pressure to Pick Sides in Gun Debate, U.S. News (Feb. 27, 2018), https://www.usnews.com/news/business/articles/2018-02-27/companies-face-mounting-pressure-to-pick-sides-in-gun-debate (informing that both sides of the debate are threatening boycott initiatives).

[3] Id.

[4] James Best, Companies That Changed Policy Over Gun Control Debate, NBC Washington (March 2, 2018), https://www.nbcwashington.com/news/business/Heres-a-List-of-Companies-That-Have-Cut-Ties-With-the-NRA–475434663.html (listing several companies that announced reform to their sales policies in response to the gun control debate).

[5] Id.

[6] UPDATE: Delta Ends NRA Discount to Annual Meeting, Delta (Feb. 24, 2018, 12:00 PM) https://news.delta.com/update-delta-ends-nra-discount-annual-meeting (providing a short announcement regarding the end of discounted fares for the NRA).

[7] Id.

[8] Alex Horton, Only 13 NRA Members Used Delta’s Discount. Ending it Cost the Airline a $40 Million Tax Break, The Washington Post (March 3, 2018), https://www.washingtonpost.com/news/business/wp/2018/03/03/only-13-nra-members-used-deltas-discount-killing-it-cost-the-airline-a-40-million-tax-break/?utm_term=.d1d6f701efc8 (calculating Delta’s decision to cut off the discount to the 13 NRA members who used it to losing “over $3 million per passenger”).

[9] Id.

[10] Matt Pearce, Delta Tried to Find a Middle Ground on Gun Control — Only to Discover There Wasn’t One, Los Angeles Times (Feb. 27, 2018, 3:!5 PM), http://www.latimes.com/nation/la-na-delta-nra-20180226-story.html.

[11] Casey Cagle (@CaseyCagle), Twitter (Feb. 26, 2018, 2:02 PM) https://twitter.com/CaseyCagle/status/968199605803454465 (writing “I will kill any tax legislation that benefits @Delta unless the company changes its position and fully reinstates its relationship with @NRA.  Corporations cannot attack conservatives and expect us not to fight back.”).

[12] Lucinda Shen, Delta Ended NRA Discounts. Now Georgia Is Stripping the Airline of a $40 Million Tax Break, Fortune (March 1, 2018), http://fortune.com/2018/03/01/nra-delta-georgia-tax-cut/.

[13] Valerie Richardson, Georgia Governor Signs Bill Without Delta Tax Break After NRA Rift, The Washington Times (March 2, 2018), https://www.washingtontimes.com/news/2018/mar/2/ga-gov-signs-bill-without-delta-tax-break-nra-rift/.

[14] Matt Pearce, supra note 10.

[15] 558 U.S. 310 (2010) (ruling that the First Amendment does not allow restrictions to free speech on the basis of a speaker’s corporate identity).

[16] Kent Greenfield, Georgia Violated Delta’s First Amendment Rights, Slate (March 2, 2018, 11:41 AM), https://slate.com/news-and-politics/2018/03/georgia-violated-deltas-first-amendment-rights.html (providing a brief history on recent Supreme Court rulings regarding corporate personhood).

[17] Id.

[18] Id.

[19] Lucina Shen, supra note 12.