Georgia and Delta Relationship Hits Turbulence

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By Sabrina Heck, Staff Member (Vol. 16)

In light of the most recent school shooting in Parkland, Florida, corporations like Dick’s Sporting Goods and Walmart have changed their policies on gun sales. Other major corporations, such as First National Bank of Omaha, MetLife, Hertz, and Symantec, have diminished or discontinued their affiliation with the National Rifle Association (NRA) by ending discount programs for NRA members. Most notable has been Delta Airlines’ disassociation with the National Rifle Association.

On February 24, 2018, Delta tweeted, “Delta is reaching out to the NRA to let them know we will be ending their contract for discounted rates through our group travel program. We will be requesting that the NRA remove our information from their website.” A Delta spokesman, Trebor Banstetter, informed multiple news organizations that only thirteen people had booked tickets using the NRA discount for the upcoming conference.

Delta CEO, Edward Bastain, has stated “we are not taking sides” in the national debate over gun control. Delta’s decision to end discounts for NRA members who were attending the gun-rights group’s annual meeting in Dallas was intended as a showing of the company’s neutrality in the debate. Unfortunately for Atlanta-based Delta, this move to be neutral and stay outside of the gun control debate sparked conflict and animosity between the corporation and Georgia legislators.

Shortly after Delta reported their cutting ties with the NRA, Republican Lt. Gov. Casey Cagle tweeted, “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.” On Thursday, March 1, 2018,  the state House and Senate voted to pass a broad tax bill after GOP lawmakers eliminated language that would have exempted jet fuel from sales taxes.

The question now is whether or not the state of Georgia has infringed upon a corporation’s First Amendment rights by dropping the jet-fuel tax break that Delta wanted from a recently passed tax bill—likely intended as a punishment. The 2010 U.S. Supreme Court case Citizens United vs. Federal Election Commission  held that corporations have First Amendment rights. Analyzing the facts of this case under Citizens United, it would appear that the state of Georgia has infringed on Delta’s First Amendment rights. Constitutional law professor Michael J. Gerhardt remarked that, “generally, the government may not punish anyone, much less a single company, for expressing itself (or trying to control the expression of its values). . .[i]f Georgia punishes the airline for expression Georgia does not like, that is a First Amendment violation.”

While it seems there is a clear First Amendment violation, whether Delta would have a strong legal case against Georgia is questionable. According to Rust v. Sullivan, the government can selectively fund programs without violating the Constitution. If the government were to threaten to take away funding they had already provided because of an organization’s viewpoint, then there would be a First Amendment violation. In the present case, Delta did not have the tax exemption to begin with, so the state is not taking something away from Delta that it already had.

Delta has not stated that they will be taking any action against the state or that they intend to move their headquarters out of Atlanta. Bastain commented that“[n]one of this changes the fact that our home is Atlanta and we are proud and honored to locate our headquarters here.”

First Amendment Newsflash 2/19-3/11

Welcome to First Amendment Newsflash, the First Amendment Law Review’s bi-weekly roundup of the latest in free expression and religious freedom news and commentary. Check here every other Sunday for a new edition! Need First Amendment news in the meantime? Follow FALR on Twitter and Facebook for regular updates.

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Photo Credit: Courtesy of Mark Warner

 

Federal Court News

A federal judge suggested that President Trump mute rather than block his critics on Twitter as a settlement to resolve a First Amendment lawsuit.

An Iowa man who criticized his hometown over a foul odor sued the city to prevent the city from making legal threats or taking any action to force him to remove his criticisms online.

An organizer of last summer’s Charlottesville white nationalist rally is suing the city over its denial of his request to host an anniversary event.

Conspiracy theorist Alex Jones argues that his use of the Pepe the Frog cartoon is political speech protected by the First Amendment after the original cartoonist sued the website Infowars for selling a poster copying the character.

The Satanic Temple sued an Arizona city accusing its officials of violating the group’s free speech rights after being denied an opportunity to give the opening prayer at a city council meeting.

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Banned for 140 Characters or Less

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By Wil Safrit, Staff Member (Vol. 16)

Every day, Americans tweet at their respective politicians. Some tweets may be messages of support, while others could be suggestions on how to  better represent the interests of the politicians’ constituents. Some representatives have decided to tune out criticism by simply blocking those that disagree with them—for example: President Trump, Maryland Governor Larry Hogan, and Kentucky Governor Matt Bevin. However, this raises the question: if politicians cannot silence their opponents at rallies, should they be able to silence them online?

Proponents of the latter view argue that politicians may not  ban individuals from their respective social media pages because Twitter and Facebook are public forums that afford all the right to be heard and to communicate their opinions. Therefore, a ban would violate their First Amendment rights.

The Public Forum Doctrine and Social Media

A public forum has traditionally been defined as a place that “[has] immemorially been held in trust for the use of the public and, time out of mind, [has] been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions.” Places such as parks, streets, or other public areas are places of free assembly and discussion with which the government may not interfere. However, the Supreme Court has not yet extended this definition to non-physical locations, which include the Internet. This criteria applies only to traditional public forums. Although social media profiles would not fit the narrow definition of traditional public forums, the Court could designate them as limited public forums.

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The End of Whistleblowing in North Carolina? A Brief Examination of North Carolina’s Property Protection Act

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By Roy Jacobs, Staff Member (Vol. 16)

These rats were nuisances, and the packers would put poisoned bread out for them; they would die, and then rats, bread, and meat would go into the hoppers together.  Upton Sinclair, The Jungle

These were the stakes when Upton Sinclair, after weeks of undercover research in the meatpacking industry, published The Jungle in 1906. The descriptions of unsanitary working conditions and animal cruelty inspired the passage of legislation relating to food quality and production. Over a century later, activists still model undercover investigations after this blueprint. While advanced technology has made documenting the conditions on factory farms easier, potential whistleblowers in the U.S. must now worry about violating “Ag-Gag” laws.

What is an Ag-Gag law? Imagine you are an animal rights activist who secures employment on a dairy farm in order to uncover any animal abuse that may be committed there. You do not reveal your affiliation because the farm would not hire you otherwise, and it will not matter if you do not uncover any abuse. While there, some of your co-workers put a chain around a cow’s neck and drag the cow across a concrete floor using a tractor. You record a video of the incident and release it, hoping it will at least result in criminal charges for those who perpetrated the abuse and in well-deserved negative publicity for the industry. However, you discover that you have been charged with the crime of “Interference with Agricultural Production” because you gained access to the facility through misrepresentation and failed to secure the owner’s consent before recording on the premises.

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First Amendment Newsflash 2/5-2/18

Welcome to First Amendment Newsflash, the First Amendment Law Review’s bi-weekly roundup of the latest in free expression and religious freedom news and commentary. Check here every other Sunday for a new edition! Need First Amendment news in the meantime? Follow FALR on Twitter and Facebook for regular updates.2000px-Simpsons_tv_icon.svg

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Federal Court News

The Second Circuit threw out a free speech challenge by Citizens United to New York’s requirement that registered charities disclose their donors annually.

The organizers of the Charlottesville rally plan to use a First Amendment defense to a lawsuit alleging that the rally organizers incited violence and are legally responsible for the 30 injuries and one death that occurred.

A brother and sister convicted of cyberstalking linked to the brother’s ex-wife’s death allege that their freedom of speech rights were violated.

A high school senior filed suit stating his First Amendment rights were violated after he was told not to interrupt the city mayor’s question and answer session at his high school.

Arguments have begun in the ACLU of San Diego’s appeal to the Ninth Circuit to rule that a U.S. Customs and Border Protection policy prohibiting photographers at border ports without permission violates the First Amendment.

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The Price of Free Speech: A Brief Examination of Expressions Hair Design et al. v. Schneiderman

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By Samantha Aparicio, Staff Member (Vol. 16)

Modern technology and the use of credit cards has created a world where one can make immediate purchases and have access to accounts without the former delay of checks, banks, or cash. This need for immediate gratification has allowed for a monopoly of credit card issuers who can capitalize on customers’ and merchants’ reliance. Most people view credit cards as a necessity to function in our present economy; a tool that creates an ease of access when making purchasing decisions. Does this ease of access have an expense? Who pays the price? In New York, the merchants pay the ultimate price for this immediate gratification. In order for merchants to utilize customers’ credit cards for payment, they must have appropriate technology, and company-approved charging methods, in order to access customers’ funds.  However, the Supreme Court has implied that merchants’ First Amendment freedom of speech rights are implicated when states attempt to control how merchants price their goods.

In order to accommodate for the use of credit cards, merchants have two options available to them. They may use an increased price, “credit surcharge price,” that accommodates for the fees that merchants must pay credit card issuers in exchange for the ability to use credit cards as a payment method, or the merchant may offer a discount for the use of cash. Only ten states ban the use of credit card surcharge prices, including New York.

New York General Business Law § 518 provides that “[n]o seller in any sales transaction may impose a surcharge on a holder who elects to use a credit card in lieu of payment by cash, check, or similar means.” Essentially, the New York law prevents retailers from using this surcharge method to increase the retail price of a product for purchases made with a credit card. However, there are no laws that prevent merchants from utilizing the second of the merchant options: providing a discounted price for customers paying with cash. The penalty for using surcharges and violating this law ranges from a possible $500 fine to a potential one-year sentence in prison.

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First Amendment Newsflash 1/22-2/4

Welcome to First Amendment Newsflash, the First Amendment Law Review’s bi-weekly roundup of the latest in free expression and religious freedom news and commentary. Check here every other Sunday for a new edition! Need First Amendment news in the meantime? Follow FALR on Twitter and Facebook for regular updates.

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Photo Credit: Courtesy of Charlie Nguyen

 

Federal Court News

A federal judge refused to block the removal of a Confederate monument on courthouse grounds in north Louisiana after the United Daughters of the Confederacy filed a First Amendment claim.

The Trump administration filed court documents supporting a lawsuit against the University of California, Berkley accusing the school of violating the First Amendment by restricting campus speakers with conservative viewpoints.

A federal judge threw out a defamation lawsuit over the “hate group” label that dozens of nonprofit groups received on a website database of U.S. charities.

A federal judge ordered the University of Iowa to temporarily reinstate a conservative Christian organization as a registered student organization after the university revoked campus registration when the group denied a leadership position to a gay student who would not affirm a statement of faith rejecting homosexuality.

The parties involved in a federal lawsuit, claiming a woman’s First Amendment rights were violated after a police officer grabbed her phone and deleted a photo she took of her son in the officer’s vehicle, reached a settlement.

A federal judge temporarily blocked a Kansas law prohibiting state contractors from participating in boycotts against Israel, ruling that the state law violates state contractors free speech rights.

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