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Free Speech

Florida Ban on Private Businesses Requiring Vaccine Verification Likely Violates the First Amendment

So a federal court concludes, in a decision about cruise lines but using reasoning that likely applies to other businesses as well.


In yesterday's Norwegian Cruise Line Holdings, Ltd. v. Rivkees, Judge Kathleen M. Williams (S.D. Fla.) issued a preliminary injunction against Florida's ban on businesses requiring proof of vaccination.

[1.] Judge Williams held that the law likely violated the First Amendment, because it was a content-based restriction on the speech that businesses can demand from customers:

Section 381.00316 is a content-based restriction because, on its face, it draws distinctions based on the message of speech. In other words, it is apparent from the text of the law that speech is regulated differently because of its subject matter and content. 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" to protect public health, business entities are expressly permitted to require this type of documentation, including COVID-19 test results, other vaccine documentation, and other types of medical information. Under Section 381.00316, the only documentation businesses cannot demand is COVID-19 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.

Nor could this restriction be defended as being a facet of a general ban on discrimination against the unvaccinated, because apparently no such ban exists:

The reasoning in the case Dana's R.R. Supply v. Attorney General further illustrates why the Statute is not merely an economic regulation, but a restriction on speech. In Dana, the Eleventh Circuit considered a First Amendment challenge to Florida's "no-surcharge law," which made it a second-degree misdemeanor for merchants to impose a "surcharge" for credit card purchases, but allowed them to offer "a discount for the purpose of inducing payment by cash." At first blush, the law appeared to prohibit "dual-pricing" conduct (i.e., "charging different prices to different customers depending on whether payment is made in cash or by credit card"). However, the court noted that the law did not actually accomplish this objective because merchants could still offer discounts for cash payments, as expressly authorized by the Statute.

Instead, the court found that the law was a restriction on speech because it allowed merchants to engage in dual-pricing, as long as the cost difference was described as a "cash discount" and not a "credit card surcharge." The Eleventh Circuit explained, "[i]n order to violate the statute, a defendant must communicate the price difference to a customer and that communication must denote the relevant price difference as a credit-card surcharge," as opposed to a cash discount. As such, the court held that the law was a content-based restriction because it penalized the "wrong choice" of "equally plausible alternative descriptions of an objective reality." [The U.S. Supreme Court adopted very similar reasoning in Expressions Hair Design v. Schneiderman (2017).]

Similar to the law in Dana's R.R. Supply, at first blush, Section 381.00316 appears to prohibit businesses from requiring patrons to verify their vaccination status for entry or services. However, a review of the text shows that nothing in the statute forbids businesses from doing so. Instead, the Statute only disallows businesses from requiring customers to verify their vaccination status with "documentation certifying COVID-19 vaccination or post-transmission recovery." Accordingly, businesses could still require customers to provide oral verification as to whether they have received a COVID-19 vaccination….

[2.] Judge Williams also held that the statute violates the Dormant Commerce Clause as applied to cruise lines; unlike the First Amendment analysis, this part of the decision wouldn't generally apply to other kinds of business:

The dormant Commerce Clause … limits the authority of states to enact laws that indirectly affect—that substantially burden—interstate commerce…. [W]hen a state statute "regulates even-handedly to effectuate a legitimate local public interest, and its effects on interstate commerce are only incidental, it will be upheld unless the burden imposed on such commerce is clearly excessive in relation to the putative local benefits." …

[T]he Court presumes that Florida's decision to enact Section 381.00316 reflects the state's desire to safeguard its residents' rights to medical privacy and prevent "discrimination" against unvaccinated residents.

Outside of conclusory characterizations of Florida's commitment to these concepts as local purposes, Defendant fails to articulate why they are legitimate local purposes or how they weigh against any burdens that the Statute imposes on interstate commerce. Defendant's mere assertion of protecting medical privacy and preventing "discriminating" against unvaccinated persons, without more, fails to satisfy the dictates of Pike and its progeny. And … Defendant cites to no relevant authority to support his claim that these objectives constitute legitimate state interests.

Furthermore, Section 381.00316 does not actually advance the objectives of protecting "medical privacy" and "discrimination" against unvaccinated individuals in any meaningful way. Among other reasons …, Florida's failure to regulate employers, COVID-19 test results, and other medical documentation—including documentary proof-of-vaccination requirements for schoolchildren—conflicts with its purported desire to protect medical privacy. The statute also does not actually protect against the "discrimination" of unvaccinated individuals. As explained, cruise lines have adopted measures and practices that differentiate between vaccinated and unvaccinated passengers. {Additionally, there is no record evidence that Plaintiffs intend to maintain or store COVID-19 vaccination documentation for any period of time. Plaintiffs stated at oral argument that they use documentary proof of vaccination for verification purposes only and do not at all maintain, store, or transmit this type of information.}

[And] Plaintiffs are likely to succeed on the merits in showing that Section 381.00316 imposes substantial burdens on interstate commerce that will directly affect their abilities to operate the Norwegian Gem and other vessels. Plaintiffs contend that, because "NCLH's vessels reach international waters and sail to interstate and foreign ports, many of which require proof of vaccination to enter without testing …. [Section 381.00316] has the effect of blocking or hampering the operation of cruise lines in and out of Florida …. excessively burden[ing] the free flow of commerce between States and between Nations." … Amid myriad, rapidly-changing requirements regarding quarantining and testing, there is one constant that facilitates cruise line customers' access to advertised ports of call: documentary proof of vaccination will expedite passengers' entry into virtually every single country and port where Plaintiffs intend to sail….

Section 381.00316 presents an impediment to commerce analogous to an Illinois law that required trucks to use curved mudguards. See Bibb v. Navajo Freight Lines, Inc., 359 U.S. 520 (1959). In Bibb, the Supreme Court held that an Illinois law unconstitutionally burdened interstate commerce in part because trucks traveling through Illinois from other states could not reasonably comply with the state's law requiring curved mudguards when Arkansas required, and nearly every other state permitted, trucks to use straight mudguards. The Supreme Court stated that "[a] State which insists on a design out of line with the requirements of almost all the other States may sometimes place a great burden of delay and inconvenience on those interstate motor carriers entering or crossing its territory." And while such a design "may be so compelling that the innovating State need not be the one to give way," the Supreme Court determined that Illinois had not met that showing when balanced against "the clear burden on commerce." … If Plaintiffs abandon their plan to require all passengers to present documentary proof of vaccination (see DE 3-1, at ¶¶ 13–15), and passengers must instead be subjected to an array of diverse quarantining and testing requirements, it will impede the ability of Plaintiffs to manage the business of vessels at foreign and interstate ports and lead to incalculable and unpredictable delays in travel….

[3.] Judge Williams didn't decide whether the state law is preempted by federal safety regulations, because the other arguments were sufficient to justify the preliminary injunction against the law. But the court stated that "Plaintiffs have raised compelling arguments" supporting such preemption," which "[t]he Court will address these arguments at a later stage of the proceeding."