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Federal judge: Cruise lines can require proof of vaccination -- even in Florida

It’s an injunction and not a final ruling, but it’s still a loss for Ron DeSantis. In April, the Florida governor issued an executive order, later passed as a statute, that prohibited businesses from imposing requirements to show COVID-19 vaccination status as a condition of entry. That may have proven popular in some circles, but not among cruise line operators, who wanted to reassure passengers that they would be safe from COVID-19 — or at least as safe as possible.

Last night, a federal judge enjoined Florida from enforcing the statute, allowing Norwegian Cruise Lines to follow its own policy. The ruling makes clear where Judge Kathleen Williams thinks this case will end up:

A federal judge ruled Sunday in favor of Norwegian Cruise Line Holdings (NCLH), allowing them to require passengers to show proof of vaccination in defiance of Florida’s vaccine passport ban.

US District Judge Kathleen Williams granted the cruise line a preliminary injunction, temporarily blocking enforcement of the ban, concluding NCLH would likely win in its argument that the ban infringes upon the company’s constitutional rights.

In the 59-page ruling, she said Florida failed “to provide a valid evidentiary, factual, or legal predicate” for the vaccine passport ban and that the law could negatively impact public health.

This isn’t just a loss for DeSantis. If Williams’ final ruling follows this path and gets upheld by the appellate court, it will begin to set a precedent that will impact similar orders in other states, notably Texas. That may not impact such EOs and statutes as they apply to government offices but it will stop states from regulating against individual decisions by businesses — leaving them free to adopt whatever standards they wish on a private-property basis. Normally, that would fit the philosophy of conservatives who view government interference in such decisions with some skepticism.

Interestingly, Williams — an Obama appointee for those keeping score — bases her injunction on First Amendment grounds. She writes that Florida’s law amounts to a content-based restriction on speech:

The Statute prohibits businesses from requiring their patrons to present “documentation certifying COVID-19 vaccination or post-infection recovery” for access or services. Fla. Stat. § 381.00316(1). However, nothing in the Statute prohibits businesses from demanding documentation of a negative COVID-19 test or any other type of medical or informational documentation. In fact, because the Statute allows businesses to institute “screening protocols”29 to protect public health, id., business entities are expressly permitted to require this type of documentation, including COVID19 test results, other vaccine documentation, and other types of medical information. 30 Under Section 381.00316, the only documentation businesses cannot demand is COVID19 vaccine documentation. Accordingly, the statute is a content-based restriction because it singles out documentation regarding a particular subject matter (certification of “COVID-19 vaccination or post-infection recovery”) and subjects it to restrictions (businesses may not require them for entry or services) that do not apply to documents regarding other topics. See Barr, 140 S. Ct. at 2346 (“Because the law favors speech made for collecting government debt over political and other speech, the law is a content-based restriction on speech.”); Otto, 981 F.3d at 862 (“If adorable videos of puppies are allowed and horrifying videos of puppy abuse are not, that restriction is based on content, no matter how desirable it may be.”); Wollschlaeger v. Governor, State of Fla., 848 F.3d 1293, 1307 (11th Cir. 2017) (“The record-keeping, inquiry, and anti-harassment provisions of [the federal Firearm Owners Protection Act] are speaker-focused and content-based restrictions. They apply only to the speech of doctors and medical professionals, and only on the topic of firearm ownership.”).

Application of the analyses set forth by the Supreme Court in Reed and Sorrell v. IMS Health Inc., 564 U.S. 552 (2011), demonstrates that Section 381.00316 is a content-based restriction on speech. …

Reed and Sorrell make clear that a law constitutes a content-based restriction if it singles out particular speech on a subject matter for less favorable treatment. Similar to the laws in Reed and Sorrell that disfavored “Temporary Directional Signs” and marketing, Section 381.00316 singles out and disfavors documentary proof of COVID-19 vaccination, subjecting this particular content to greater restrictions than other forms of documentation. While businesses are prohibited from requiring customers to produce COVID-19 vaccination documentation, they are free to demand other categories of documents to provide services. 31 As such, Section 381.00316 constitutes a content-based restriction on speech.

Florida tried arguing that the statute was not intended to regulate speech but economic activity. Customers could still voluntarily provide proof of vaccination if they so chose. Williams ruled that this argument misses the point:

Accordingly, the fact that Section 381.00316 does not forbid the exchange of COVID-19 vaccination documentation between businesses and patrons does not mean that it is not a regulation of speech. Like the laws at issue in Reed, Sorrell, Otto, and Wollschlaeger, Section 381.00316 regulates speech because it restricts the free flow of information by rendering the exchange permissible in some circumstances but impermissible in others.

Defendant’s position that Section 381.00316 does not implicate the First Amendment because it merely regulates an economic activity is similarly unavailing. A valid regulation on economic or professional conduct is “not unconstitutional as an abridgement of the right to free speech, so long as any inhibition of that right is merely the incidental effect of observing an otherwise legitimate regulation.” Locke v. Shore, 634 F.3d 1185, 1191 (11th Cir. 2011) (emphasis added); Dana’s R.R. Supply v. Att’y Gen., Fla., 807 F.3d 1235, 1251 (11th Cir. 2015). Defendant does not explain how the Statute affects protected speech in merely an incidental way. In any event, Sorrell cuts sharply against Defendant’s position that Section 381.00316 does not trigger First Amendment scrutiny.

Florida also tried to assert a state interest in protecting medical privacy of its citizens, and to prevent “discrimination” against unvaccinated Floridians. Williams points out, however, that the rule only applies to customers, and not employees. It also doesn’t stop businesses from allowing businesses to treat customers with unknown status differently than others:

First, Section 381.00316 only prevents businesses from requiring patrons to provide “documentation certifying COVID-19 vaccination or post-infection recovery,” but nothing in the statute appears to prohibit businesses from imposing a vaccination requirement. While companies cannot require customers to verify their vaccination status with “documentation,” the statute does not prohibit businesses from verifying vaccination status in other ways (e.g., orally). Accordingly, under Section 381.00316, businesses could still “discriminate” against unvaccinated individuals by adopting a vaccination requirement, which they could enforce by requiring oral verification of vaccination status before entry or by deterring unvaccinated patrons from entering by putting up signs that read “vaccinated customers only” and “unvaccinated patrons are not allowed.”

In addition, the Statute also does not prohibit businesses from subjecting unvaccinated customers—and those who decline to verify their vaccination status and are deemed unvaccinated—to restrictions, requirements, and expenses that do not apply to vaccinated patrons.37 For instance, other cruise lines operating in Florida have required unvaccinated passengers to take multiple COVID-19 tests throughout the cruise at their own expense, with each test costing more than $100. (DE 35-1 at 15–51.) These passengers are also required to purchase costly travel insurance that covers medical travel and related costs for COVID-19. (Id.) Cruise lines have also limited unvaccinated passengers’ access to events, activities, and venues. (Id.) Unvaccinated guests on Royal Caribbean’s Freedom of the Seas do not have access to certain dining venues, the casino, art auctions, the indoor pool, or the spa and during shows, they are required to sit in the back of the theater. (DE 35-1 at 22–29.) Princess and Carnival have also limited the excursions available to unvaccinated guests at ports of call. (DE 35-1 at 31–51.) Thus, Section 381.00316 does not prohibit businesses from treating unvaccinated passengers differently by charging them more while offering them less. 38 Furthermore, Furthermore, the Statute does not prevent cruises from continuing to offer adult-only cruises that exclude children, who are a significant cohort of the unvaccinated population. (DE 35-1 at 11–13.)

Finally, because the Statute does not regulate employers, it does not prohibit employers from requiring COVID-19 vaccination documentation for continued employment or adopting policies that favor vaccinated over unvaccinated employees, such as disallowing unvaccinated employees to return to the worksite or assigning them different work. 39 In sum, if combatting discrimination were the goal, merely banning the exchange of COVID-19 vaccination documentation is an ineffective way to accomplish this objective because the Statute does not directly prohibit the treating of unvaccinated persons or those who decline to verify their vaccination status by businesses and employers differently.

It takes Williams a long time to get to the Commerce Clause, where DeSantis’ order really has problems in regard to the cruise lines, but get there she does. The Florida statute fails any test at any level of scrutiny on this point, Williams rules:

Consequently, this is a case where “measures that are [facially] nondiscriminatory place an unconstitutional burden on interstate commerce.” Bibb, 359 U.S. at 529. Therefore, as applied to Plaintiffs, and at this stage of the proceedings, because Defendant fails to provide a valid evidentiary, factual, or legal predicate for the local benefits that purportedly justify Section 381.00316’s restrictions, Plaintiffs have shown that the Statute is likely to fail the Pike balancing test and is likely unconstitutional under the dormant Commerce Clause. 5

It’s on this point especially that the cruise lines had an almost-slam-dunk case against the statute. Their operations epitomize the necessity of the Commerce Clause; Williams goes on at length over the complicated compliance issues facing cruise lines even under normal operations. This law was bound to fail on this point alone (and so will the California law that attempts to regulate Iowa pig farms, for that matter). By pushing it to this extent, Florida has given the court an opportunity to not just overturn its enforcement in a true interstate-economic application but also for any intrastate enforcement as well.

That won’t be too much of a setback for DeSantis. The benefit he derived came mostly from the announcement of the EO, not the enforcement of the statute. The latter was bound to be messy, especially as entertainment venues such as Walt Disney World and others begin to enforce vaccine mandates on employees. This ruling might let DeSantis off the hook while giving him a handy scapegoat.