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Casey Cagle's tweet on Delta, the NRA and tax breaks. Is it legal?
Lt. Gov. Casey Cagle is running to replace Georgia Gov. Nathan Deal. (Atlanta Journal-Constitution) Lt. Gov. Casey Cagle is running to replace Georgia Gov. Nathan Deal. (Atlanta Journal-Constitution)

Lt. Gov. Casey Cagle is running to replace Georgia Gov. Nathan Deal. (Atlanta Journal-Constitution)

Miriam Valverde
By Miriam Valverde March 1, 2018

Georgia Lt. Gov. Casey Cagle vowed to kill any legislation that would benefit Delta Air Lines if the Atlanta-based company did not backtrack on its decision to end an agreement with the National Rifle Association to remain "neutral" in the national debate over gun control.

The announcement came as the Georgia Legislature considered a broad tax bill that included a jet fuel tax exemption, which the Atlanta Journal-Constitution reported could save Delta about $40 million a year.

"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," said Cagle, who serves as Senate president and is running for governor, in a  tweet Feb. 26.

Two days later, a state Senate committee stripped out the jet fuel perk from the broad tax bill. On March 1, the Senate passed a tax bill — without the jet fuel tax break — along a 44-10 vote. The House and Senate now have to agree on a final bill before it is sent to the governor.

Cagle’s statement was a promise of future action and political stance, so we are not rating it on the Truth-O-Meter. But we wanted to look into it after seeing  chatter wondering if it would be legal for Cagle to follow up on his threat.

Experts told PolitiFact Georgia that there’s room to argue it could become a First Amendment violation, but the fact that Delta did not already have the tax break makes the situation more nuanced.

Michael J. Gerhardt, a constitutional law professor at the University of North Carolina School of Law, pointed to the 2010 U.S. Supreme Court case Citizens United vs. Federal Election Commission that said corporations also have First Amendment rights.

"Generally, the government may not punish anyone, much less a single company, for expressing itself (or trying to control the expression of its values)," Gerhardt said. "If Georgia punishes the airline for expression Georgia does not like, that is a First Amendment violation."

Additionally, Gerhardt said it seems Georgia is "trying to force or compel Delta to engage in an expressive association that Delta does not want to have."

Implementing a policy for a certain purpose can be a form of expression, and if the Georgia government took adverse action against Delta for its expression, it would be "a distinctive sort of First Amendment violation," said Gregory Magarian, a professor at Washington University in St. Louis specializing in constitutional and First Amendment law.

Delta’s decision to cut ties with the NRA can be perceived as symbolic speech and possibly political speech, which are protected by the First Amendment, said Kathleen Burch, a law professor at Atlanta’s John Marshall Law School.

And unless an entity is paid to speak on behalf of the government, it can’t be forced to engage in speech it wouldn’t engage in otherwise, Burch said.

Whether Delta would have a strong legal case against Georgia is questionable, since it didn’t have the tax exemption to begin with.

Eugene Volokh, who teaches free speech law at the University of California Los Angeles School of Law, noted circumstances within and out of legal bounds.

"Retaliating against a company based on its speech may be unconstitutional," Volokh said. "But retaliating based on the company’s commercial conduct, such as the termination of a discount, is constitutional."

Amid Delta’s spat with Georgia, on Feb. 27 governors from New York and Virginia offered the airline a new home for its headquarters.

"Hey @delta—Virginia is for lovers and airline hubs. You're welcome here any time," tweeted Virginia Gov. Ralph Northam.

"[email protected], if Georgia politicians disagree with your stand against gun violence, we invite you to move your headquarters to New York," tweeted New York Gov. Andrew Cuomo.

Randall Woodfin, mayor of Birmingham, Ala., also told Delta his city was open for business.

"Hey @Delta . You know, in mathematics, Delta represents the change in something, e.g. 🔺HQ. Let’s chat. #BHM," Woodfin tweeted Feb. 27.

In a Feb. 28 interview with Fox News’ Fox & Friends, Cagle reaffirmed his disagreement with Delta’s decision but also acknowledged the airline’s importance to the state, calling it a "family member."

"I think that obviously Delta is free to make any decision that they want to," Cagle said. "And oftentimes you know families do get into squabbles, they are a family member here in Georgia."

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Our Sources

Twitter, @CaseyCagle tweet Feb. 24, 2018, tweet Feb. 26, 2018, tweet Feb. 28, 2018

The New York Times, A List of the Companies Cutting Ties With the N.R.A., Feb. 24, 2018

The New York Times, Suspect Confessed to Police That He Began Shooting Students ‘in the Hallways’, Feb. 15, 2018

Twitter, @NRA tweet, Feb. 28

Delta Air Lines News Hub, UPDATE: Delta ends NRA discount to annual meeting, Feb. 24, 2018

Georgia legislature, House Bill 918

The Atlanta Journal-Constitution, Georgia Senate vows to ground Delta tax break after NRA decision, Feb. 26, 2018

The Atlanta Journal-Constitution, Pro-gun Georgia lawmakers score political victory over Delta, March 1, 2018

ABC News, The Associated Press, The Latest: Governor bemoans 'squabble' over Delta, NRA, Feb. 28, 2018

Email interview, Eric J. Segall, a law professor at Georgia State University College of Law, Feb. 27, 2018

Email interview, Michael J. Gerhardt, a constitutional law professor at the University of North Carolina School of Law, Feb. 27, 2018

Email interview, Eugene Volokh, free speech law professor at the University of California Los Angeles School of Law, Feb. 27, 2018

Phone interview, Gregory Magarian, a professor at George Washington University in St. Louis specializing in constitutional and First Amendment law, Feb. 27, 2018

Phone interview, Kathleen Burch, a law professor at Atlanta’s John Marshall Law School, Feb. 27, 2018

Twitter, @GovernorVA tweet, Feb. 27, 2018

Twitter, @NYGovCuomo tweet, Feb. 27 2018

Twitter, @WoodfinforBham tweet, Feb. 27, 2018

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Casey Cagle's tweet on Delta, the NRA and tax breaks. Is it legal?