On Sunday, District Court Judge Kathleen Williams issued a preliminary injunction that blocks the state of Florida from enforcing a law that would have blocked cruise lines from requiring their passengers provide COVID-19 vaccine records.
While this is a temporary injunction that only applies to a single company, the ruling indicates that the law violates two separate constitutional protections, and provides a roadmap for any other company that is interested in contesting it. In addition, the same legal logic may apply to many similar statutes and executive orders adopted elsewhere in the US.
Norwegian vs. the sunshine state
If a Sunday ruling seems unusual, it’s because of the case’s tight timeline. Norwegian Cruise Line Holdings, which runs a number of cruise ships out of Florida, is planning on starting a cruise next weekend. The company has promised its customers that everyone—all fellow passengers and the crew—will have been vaccinated, and the company will confirm their status. While in keeping with CDC guidance and requirements at a number of locations the cruise will visit, that approach runs afoul of Florida law, specifically a statute called Section 381.00316.
That law says a business “may not require patrons or customers to provide any documentation certifying COVID-19 vaccination or post-infection recovery to gain access to, entry upon, or service from the business operations in this state.” Violations could cost Norwegian up to $5,000 per instance. With a ship full of passengers, that could add up fast.
So, the company sued Florida and asked for a preliminary injunction to block enforcement of the law until the full case can be heard. In order to receive one, Norwegian had to show two things: that it was likely to prevail when the case goes to trial, and that it would suffer irreparable harm if the law was enforced against it in the meantime.
With a cruise nearly set to depart, the “irreparable harm” aspect of the case would seem to be relatively simple. As the judge noted, the company guaranteed its customers a cruise with enhanced safety due to total vaccination. If it can’t deliver or starts the cruise only to have an outbreak occur onboard, the company’s reputation may suffer lasting damage that goes well beyond this one set of passengers. The alternative of not starting cruises at all has already cost the company $6 billion.
Vaccination records as speech
Norwegian made two legal arguments about why the law was invalid, both focusing on constitutional issues: the First Amendment right to free speech, and the clause of the Constitution that prevents states from interfering with interstate commerce. Judge Williams found that the company is likely to prevail on both of these arguments.
The attorneys representing Florida argued that Section 381.00316 is simply an economic regulation, and so it shouldn’t be subject to First Amendment review. But the court didn’t consider that persuasive, finding that communicating vaccination status is a form of speech. In addition, the ruling noted that Florida’s statute allowed vaccine status to be communicated as long as it wasn’t done via formal documents, and for Norwegian to ask for vaccine documentation for many other illnesses. Thus, Section 381.00316 regulates the content and form of speech. And, as Judge Williams writes, “It is well-established that a law may constitute a speech-based restriction by burdening or limiting speech on a particular topic.”
Based on Supreme Court precedent, that’s still acceptable if the infringement of speech called for by Florida were incidental to the goals of the regulation. But for Section 381.00316, limiting the content of the speech is the entire point of the law.
Florida attempted to provide two justifications for the restriction on speech: avoiding discrimination against the unvaccinated, and protecting medical privacy. But the state presented no evidence that these were actual problems its citizens were facing. The ruling suggests that, if discrimination were a real issue, then the state wouldn’t allow vaccine status to be conveyed through other means, or to allow Norwegian to require that its crew be vaccinated. Both of these could still allow the loss of medical privacy, as would the huge numbers of COVID tests that might be needed if vaccinations aren’t used to control the virus.
So, in sum, the court found Florida’s justification for the law feeble and poorly supported, and it saw clear First Amendment issues. “There is no evidence in the record to demonstrate that Florida considered obvious, alternative policies that could advance the stated objectives without restricting speech,” Williams concluded.
Unconstitutional not once, but twice
The other issue at play is the Interstate Commerce Clause of the Constitution, which gives the federal government the right to regulate commerce among states and between the US and foreign countries and prohibits the states from interfering with that. Given that Norwegain’s cruise has an itinerary that includes visiting ports in US territories and foreign countries, it definitely includes aspects that fall under this clause.
Beyond that generality, Norwegian has made an agreement with the CDC in order to have approval to restart its cruise business that included vaccination plans. Many of the locations its cruises will be visiting also have entry requirements that include vaccination as an alternative to lengthy quarantines. So there are specific aspects of Norwegian’s national and international business that Section 381.00316 would interfere with.
That can still be constitutional if the law were to provide in-state benefits that outweighed the interference. But, as noted above, Williams was not persuaded that the Section 381.00316 provided any benefits, and the judge specifically indicated that the purported benefits offered by the state weren’t legitimate, as described just above.
As currently written, the decision applies to this one Florida law and only in regards to its enforcement against a single company. But it’s difficult to ignore that Williams has outlined major constitutional issues that are likely to be applicable to any of the growing number of laws passed by a variety of states. In describing her application of relevant precedents, the judge provided any other company or institution that wanted to challenge these laws with a roadmap on how to do so.
That doesn’t mean that a better prepared team of state attorneys couldn’t identify other precedents that might be construed as supporting these laws. But they’re all going to be faced with the same difficulties that Florida’s attorney’s faced: the laws are pretty much impossible to defend by claiming they provide a benefit to the state’s occupants, and there are many precedents for requiring vaccine records in other contexts.