Florida Prohibition on Proof of COVID Vaccination Upheld by Divided Court

A Florida statute which prohibits all businesses operating in the state from requiring customers to provide documentary proof that they are vaccinated against COVID-19 does not violate the Free Speech and Commerce Clauses of the Constitution, a sharply divided Eleventh Circuit panel held in Norwegian Cruise Line Holdings Ltd. v. State Surgeon General, 2022 U.S. App. LEXIS 27997 (11th Cir. Oct. 6, 2022).

In 2021, the Florida Legislature enacted a statute, Florida Statute § 381.00316, which provides that “any business operating in [Florida] . . . may not require patrons or customers to provide any documentation certifying COVID-19 vaccination or postinfection recovery to gain access to, entry upon, or service from the business operations in [Florida.]” Norwegian Cruise Line, a cruise line operator, planned to resume its previously paused sailing operations and desired to confirm passenger and crew vaccination status through documentation. When the Florida Legislature passed Florida Statute § 381.00316, Norwegian sued the Surgeon General of Florida in his official capacity and moved for preliminary and permanent injunctive relief preventing the Surgeon General from enforcing the statute against Norwegian. Norwegian also asked for a declaration that the statute is unlawful as applied to Norwegian. Norwegian argued that the statute blocks communications between a business and its customers in violation of the First Amendment and disrupts the flow of interstate and international commerce without advancing any substantial state interest, in violation of the Dormant Commerce Clause.

The district court enjoined the Surgeon General from enforcing Florida Statute § 381.00316 after finding that Norwegian had a substantial likelihood of success on the merits of its constitutional claims; that Norwegian would suffer irreparable injury absent an injunction; and that the equities and public interest weigh in favor of an injunction. For the First Amendment claim, the district court held that Florida Statute § 381.00316 was a content-based restriction which failed to survive heightened scrutiny. On the Dormant Commerce Clause claim, it ruled that the Surgeon General failed to articulate how the goals of medical privacy and anti-discrimination are fulfilled by the express terms of the statute, and that the burdens on interstate commerce are likely to be clearly excessive in relation to the putative local benefits of the statute.

In an opinion written by Chief Judge William Pryor and joined by Judge Brasher, the Eleventh Circuit vacated the injunction. The court first turned to the First Amendment claim and held that it was not a content-based restriction of speech subject to heightened scrutiny but instead a regulation of economic conduct that only incidentally burdens speech. The court characterized the statute as an “anti-discrimination statute” and held that such statutes ordinarily regulate non-expressive conduct because the focal point of those statutes is on the act of discriminating against individuals, not speech. The statute, the court held, protects conduct for those who either cannot or desire not to comply with the vaccination requirements of private businesses and restricts no communications between customers and businesses. Instead, the court held, the statute only prohibits businesses from closing their doors to customers who decline to present private medical documentation.

For the Dormant Commerce Clause claim, the court explained that the Dormant Commerce Clause prohibits regulatory measures designed to benefit in-state economic interests by burdening out-of-state competitors. The court held that the proper test is whether the burden of the regulation is clearly excessive in relation to its putative local benefits. The court held that the Surgeon General had asserted a legitimate state interest in protecting residents from economic discrimination, which it explained was derived from the state’s traditional police powers. In sum, the court held that “Florida has a substantial interest in protecting its residents from economic ostracism based on their hesitancy to divulge to businesses private medical information.” And, because Florida’s substantial interests are in matters traditionally of state concern, the court held that the burdens of the statute do not clearly exceed its putative local benefits. Because the court held that Norwegian was not likely to be successful on the merits, it vacated the preliminary injunction.

Judge Rosenbaum penned a 68-page dissent. Judge Rosenbaum opined that a state statute purporting to be for the health and safety of the state only receives strong deference for Dormant Commerce Clause purposes from federal courts where the law actually touches upon safety. Florida Statute § 381.00316, Judge Rosenbaum wrote, “wallop[s]” safety instead. Judge Rosenbaum also criticized the majority for not assessing whether Florida Statute § 381.00316 actually furthered Florida’s claimed interest as required by the Supreme Court, choosing instead to only analyze Florida’s claimed interests in the abstract.

In addition, Judge Rosenbaum pointed out that Florida itself requires proof of vaccination against many other infectious and potentially deadly and debilitating diseases to attend school and partake in other government services, which the majority opinion ignores. Judge Rosenbaum characterized the majority opinion as “half-done” because it failed to correctly evaluate the local benefits of the statute when applied to the cruise industry and balance those benefits against the burdens that it inflicts on both interstate and foreign commerce. When that analysis is performed, Judge Rosenbaum argued, it is clear that the heavy burdens of the law far outweigh any minimal benefits in the context of the cruise industry.

Posted by Rebekah Whittington.

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