Florida Gov. Ron DeSantis, who described his state as "an oasis of freedom" at the Conservative Political Action Conference (CPAC) in February, brags that he has been "creating a resilient business-friendly environment" with "low taxes" and "decreased regulation." Those avowed commitments are plainly at odds with a law the Republican governor signed in May, which prohibits businesses from requiring proof of COVID-19 vaccination from customers as a condition of entry or service. Yesterday a federal judge highlighted that contradiction by issuing a preliminary injunction blocking enforcement of Florida's law against Norwegian Cruise Line, freeing the company to require vaccine documentation from passengers when it resumes service in Florida later this month.
Facing potential penalties of $5,000 per passenger, Norwegian sued Florida Surgeon General Scott Rivkees, who runs the state Department of Health, the agency charged with enforcing the ban. The company argued that Florida's law, which codified and expanded an executive order that DeSantis issued on April 2, violated the First Amendment by imposing content-based restrictions on speech; ran afoul of the Dormant Commerce Clause by imposing unjustified burdens on interstate and international commerce; and was preempted by cruise ship guidelines issued by the Centers for Disease Control and Prevention (CDC). U.S. District Judge Kathleen Williams concluded that Norwegian was likely to prevail on the first two claims while postponing assessment of the third claim.
Williams' 59-page order emphasizes the challenges that companies like Norwegian face as they try to restart cruises while minimizing the risk of COVID-19 transmission and reassuring customers who are worried about that danger:
During the early days of the pandemic, major COVID-19 outbreaks occurred on the cruise ships Diamond Princess and Grand Princess….Even with precautions, cruising raises unique risks of COVID-19 outbreaks, concerns that are now heightened due to the Delta Variant. Cruise ships involve the movement of a large volume of individuals in close quarters for days and weeks and present many opportunities for person-to-person contact in crowded or indoor settings, such as group and buffet dining, entertainment events, and excursions. Ship cabins are small, increasing the risk of transmission between cabinmates. Similarly, the crew typically live and eat in small congregate places. In addition, once a cruise concludes, passengers may engage in air transportation or other types of common transports to return home. Consequently, infected passengers who disembark and return to their communities could occasion further widespread transmission and possibly "super spreader" events.
Cruise lines also have to comply with complicated and changeable COVID-19 regulations at multiple ports in both foreign countries and U.S. possessions, many of which require testing or quarantine for unvaccinated visitors. And while a federal judge blocked enforcement of the CDC's cruise ship rules in June after concluding that they likely exceeded the agency's statutory authority, companies like Norwegian are still committed to following the CDC's guidelines.
Given these considerations, it is not hard to understand why Norwegian decided that requiring proof of vaccination from passengers was the most cost-effective way to resume cruises, although other companies have adopted different approaches. Carnival, for instance, requires that at least 95 percent of passengers be vaccinated, allowing exceptions only when they are consistent with that target. "Cruise lines that do allow unvaccinated passengers onboard require them to comply with additional restrictions and requirements," Williams notes. "For instance, companies have required unvaccinated guests to purchase traveler's insurance, take additional COVID-19 tests during the cruise at their own expense, and comply with restrictions regarding access to venues, events, and excursions."
Norwegian's policy avoids the need to police unvaccinated passengers' behavior, streamlines compliance with local regulations, and offers an appealing option for customers who are worried about the risk of COVID-19 outbreaks, including vaccinated passengers whose immune responses may be compromised by preexisting medical conditions. Williams cites surveys finding that "only 50 percent of respondents [were] confident that the cruise industry can reopen safely coming out of the pandemic" and that "80 percent of respondents would prefer to sail on a cruise with a vaccine requirement." But Florida has decreed that such requirements are illegal when they involve mandatory documentation, regardless of what customers want and regardless of what businesses decide is the most sensible policy.
Florida argued that its ban regulates conduct rather than speech. Williams disagreed, citing several Supreme Court precedents dealing with commercial speech, including a 2011 decision that overturned Vermont's ban on using prescriber-specific information from pharmacies for marketing purposes. Every justice in the Court's "conservative" wing joined that decision, reflecting their general suspicion of commercial speech restrictions—another traditionally Republican position that DeSantis has abandoned.
Williams is "skeptical" that Norwegian's demand for proof of vaccination counts as commercial speech, since it "does not relate 'solely' to an economic interest." Norwegian "submitted evidence showing that it had non-economic justifications for requiring the documentation, including to prevent a COVID-19 outbreak aboard its ships and the communities where it travels." Furthermore, "unlike advertising or marketing, these [vaccination] documents do not propose a commercial transaction."
Even assuming that Florida's law is a regulation of commercial speech, which under current case law triggers less scrutiny than restrictions on other kinds of communication, the statute still has to "directly and materially advance" a "substantial government interest," and it cannot be "more extensive than is necessary to serve that interest." Williams thinks Florida has failed to satisfy that test, which the U.S. Supreme Court established in the 1980 case Central Hudson Gas & Electric v. Public Service Commission of New York.
Florida argues that its law is necessary to protect "medical privacy" and prevent "discrimination" against unvaccinated people. "Defendant has presented no evidence to demonstrate that his asserted interests are in response to real problems that Florida residents are actually facing," Williams writes. "There is no evidentiary support to show that residents have experienced intrusions on their medical privacy or discrimination because some businesses, including cruise lines, have required COVID-19 vaccination documentation. The legislative record cited by Defendant is bereft of any facts or data underpinning the Statute's purported purpose."
Assuming that Florida is addressing actual problems, Williams says, its law is not properly tailored to do so. She notes that Florida has not actually banned discrimination against unvaccinated people: Its law allows cruise lines to serve only passengers who say they have been vaccinated, provided the companies do not require documentation. The statute does not apply to employees, so it allows businesses to require that their workers present proof of COVID-19 vaccination. And despite the state's avowed concern about privacy, businesses are still free to demand other kinds of medical information from their customers, including "COVID-19 test results, hospital records, other vaccination records, [and] information regarding exposure to third parties with COVID-19." Nor did legislators consider alternative ways to protect medical privacy, such as regulations regarding the retention, copying, or dissemination of vaccination records.
Williams also concludes that Florida has not shown that its interference with interstate and international commerce is justified by "local benefits," as required by the Dormant Commerce Clause, a doctrine aimed at protecting federal authority in this area. "In his brief, three-paragraph response to Plaintiffs' dormant Commerce Clause argument, Defendant fails to specifically articulate any local purpose that justifies the Statute's alleged burdens on interstate commerce," she writes.
Assuming that the "local purpose" is the same as the rationale that Florida cited in response to Norwegian's First Amendment claim (protection against discrimination and invasion of medical privacy), Williams says, that argument fails in this context for the same reasons. "Defendant cites to no relevant authority to support his claim that these objectives constitute legitimate state interests," she writes. "Furthermore [Florida's law] does not actually advance the objectives of protecting 'medical privacy' and [preventing] 'discrimination' against unvaccinated individuals in any meaningful way."
Williams says Florida's "purported desire to protect medical privacy" is inconsistent with its "failure to regulate employers, COVID-19 test results, and other medical documentation—including documentary proof-of-vaccination requirements for schoolchildren." And she again notes that the statute does not actually forbid discrimination against unvaccinated people, since "cruise lines have adopted measures and practices that differentiate between vaccinated and unvaccinated passengers." Those measures and practices, such as limiting the movement of unvaccinated passengers and requiring them to undergo repeated COVID-19 tests at more than $100 a pop, remain legal under Florida's statute.
Constitutional issues aside, DeSantis' embrace of Florida's law is hard to reconcile with his professed desire to create a "business-friendly environment" featuring "decreased regulation." At CPAC, DeSantis declared that "every Floridian has a right to earn a living and all businesses have a right to operate." Apparently DeSantis respects that right only when businesses operate the way he thinks they should.