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District Court Judge Kathleen Williams on Sunday issued a preliminary injunction preventing the state of Florida from enforcing a law that would have prevented cruise lines from requiring their passengers to provide vaccination records against the COVID-19.
While this is a temporary injunction that only applies to a single company, the ruling says the law violates two separate constitutional protections and provides a roadmap for any other company interested in challenging it. Further, the same legal logic can apply to many similar laws and decrees enacted elsewhere in the United States.
Norwegian against the state of the sun
If a Sunday decision seems unusual, it’s because of the tight timeline of the case. Norwegian Cruise Line Holdings, which operates a number of Florida cruise ships, plans to start a cruise next weekend. The company has promised its customers that everyone – all other passengers and crew – will have been vaccinated, and the company will confirm their status. While complying with CDC guidelines and requirements in a number of places the cruise will visit, this approach violates Florida law, specifically a law called Section 381.00316.
This law states that a business “may not require customers or customers to provide documents certifying COVID-19 vaccination or post-infection recovery to access, enter or serve business operations in this state.” Violations could cost Norwegian up to $ 5,000 per proceeding. With a ship full of passengers, that could add up quickly.
So the company sued Florida and sought a preliminary injunction to block law enforcement until the whole case could be heard. To receive one, Norwegian had to show two things: that he was likely to win when the case went to trial, and that he would suffer irreparable harm if the law were enforced in the meantime.
With a cruise about to depart, the “irreparable damage” aspect of the matter seems relatively straightforward. As the judge noted, the company guaranteed its customers a cruise with enhanced security thanks to a total vaccination. If it cannot deliver or begins the cruise just for an outbreak to occur on board, the company’s reputation can suffer lasting damage that goes far beyond this single group of passengers. The alternative of not starting cruises at all has already cost the company $ 6 billion.
Vaccination records in the form of speeches
Norwegian made two legal arguments as to why the law was invalid, both of which focused on constitutional issues: the First Amendment right to free speech and the Constitution clause that prevents states from interfering with interstate commerce. Judge Williams ruled that society would likely prevail over both of these arguments.
Lawyers representing Florida argued that Section 381.00316 is simply economic regulation and therefore should not be subject to First Amendment review. But the court did not find this convincing, considering that the communication of vaccination status is a form of speech. In addition, the ruling noted that Florida law allows disclosure of immunization status as long as it is not through formal documents, and for Norwegian to request vaccine documentation for many other diseases. Thus, article 381.00316 regulates the content and form of speech. And, as Williams J. writes, “It is well established that a law can constitute a restriction based on speech by overloading or limiting speech on a particular subject.”
Based on Supreme Court precedents, this remains acceptable if the violation of the word requested by Florida was incidental to the objectives of the settlement. But for article 381.00316, limiting the content of speech is in the interest of the law.
Florida has attempted to provide two justifications for restricting speech: avoiding discrimination against the unvaccinated, and protecting the privacy of physicians. But the state has presented no evidence that these are real issues facing its citizens. The ruling suggests that, if discrimination were a real problem, the state would not allow transmission of vaccination status by other means, or allow Norwegian to require its crew to be vaccinated. Both could still allow for the loss of medical confidentiality, as could the large number of COVID tests that could be required if vaccinations are not used to control the virus.
So, in sum, the court found Florida’s rationale for the law weak and poorly supported, and saw clear First Amendment problems. “There is no evidence on the record to show that Florida has considered obvious alternative policies that could advance stated goals without restricting speech,” Williams concluded.
Unconstitutional not once, but twice
The other issue at stake is the Constitution’s Interstate Commerce Clause, which gives the federal government the right to regulate interstate and U.S.-to-foreign commerce and prohibits states from interfering with that. . Since the Norwegain cruise has an itinerary that includes visiting ports in U.S. Territories and foreign countries, it certainly includes aspects that fall under this clause.
Beyond this generality, Norwegian reached an agreement with the CDC to obtain authorization to restart its cruise business which included vaccination plans. Many places her cruises will visit also have entry requirements that include vaccination as an alternative to long quarantines. There are therefore specific aspects of Norwegian’s domestic and international business that Section 381.00316 would interfere with.
It can still be constitutional if the law were to provide benefits in the state that outweighed the interference. But, as stated above, Williams was not convinced that Section 381.00316 offered any benefits, and the judge specifically stated that the purported benefits offered by the state were not legitimate, as described just above.
Big implications
As currently drafted, the ruling applies to that Florida law alone and only with respect to its enforcement against a single company. But it’s hard to ignore that Williams pointed out the main constitutional issues that may be applicable to one of the growing number of laws passed by various states. By outlining his application of relevant precedents, the judge provided any other business or institution that wished to challenge these laws with a roadmap on how to do so.
This does not mean that a better prepared team of prosecutors could not identify other precedents that could be interpreted as supporting these laws. But they are all going to face the same difficulties that the Florida attorney faced: the laws are virtually impossible to defend by claiming that they provide a benefit to the occupiers of the state, and there are many precedents for requiring lawsuits. immunization records in other settings.
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