Florida argues its blocked ‘vaccine passport' ban is ‘economic regulation'

Florida’s enjoined ban on businesses requiring workers and patrons to show proof of vaccination is a form of “economic regulation” that does not violate any individual constitutional rights and should be allowed to go into effect, state attorneys argue in their challenge of a federal judge’s ruling that stayed its implementation.

Florida formally filed arguments with the 11th U.S. Circuit Court of Appeals in Atlanta, fulfilling Gov. Ron DeSantis’ pledge to appeal U.S. District Judge Kathleen Williams’ Aug. 9 ruling granting Norwegian Cruise Line a stay of Senate Bill 2006, which bans businesses, including cruise ships, from requiring vaccination proof or face $5,000 fines for each violation.

Norwegian, the state’s largest cruise operator, filed a 19-page lawsuit on July 13 challenging the constitutionality of an April executive order issued by Gov. Ron DeSantis and the subsequently adopted SB 2006.

The law infringes on the First Amendment, Norwegian contends while the state argues SB 2006 prevents discrimination against the unvaccinated and, in its 69-page brief filed with the 11th Circuit, that the new law is an “economic regulation” without constitutional implications.

The state’s brief asks the appellate court to lift the stay and allow SB 2006 to be in effect while Norwegian’s case is heard in court.

“The law simply prohibits businesses from conditioning service on customers providing documentation certifying COVID-19 vaccination,” the state argues. “Norwegian may still request that documentation from its customers, its customers may voluntarily provide it, and both parties are free to discuss the topic. What Norwegian may not do is deny service to customers who fail to provide that documentation.”

In her 59-page ruling, Williams wrote SB 2006 poses “content-based restriction” on First Amendment speech by targeting documentation, or “passports.”

“While companies cannot require customers to verify their vaccination status with ‘documentation,’ the statute does not prohibit businesses from verifying vaccination status in other ways (e.g., orally),” Williams wrote. “Accordingly, under (the law), businesses could still ‘discriminate’ against unvaccinated individuals by adopting a vaccination requirement, which they could enforce by requiring oral verification of vaccination status before entry or by deterring unvaccinated patrons from entering by putting up signs that read ‘vaccinated customers only’ and ‘unvaccinated patrons are not allowed.’”

State attorneys argue SB 2006 passes First Amendment muster because it does not inhibit “the free flow of information or prevent Norwegian and its customers from communicating. Again, Norwegian can discuss COVID-19 vaccination status with its customers to whatever extent it wishes and request documentation of vaccination status. Norwegian simply cannot deny service to customers if they do not provide that documentation.”

Williams also determined because cruise ships are federally regulated, Florida cannot enforce SB 2006 on their workers and patrons.

Her ruling followed July’s decision by a three-judge 11th Circuit panel that repealed and then reinstated U.S. District Judge Steven Merryday’s ruling that cruise-line regulations outlined by the federal Centers for Disease Control & Prevention’s (CDC) “conditional sail order” cannot be enforced on Florida’s $8.1 billion cruise industry.

Norwegian and other cruise operators maintain their customer base is demanding assurances their crews are vaccinated and ships safe and have the right to voluntarily comply with CDC regulations.

Without requiring proof of vaccinations, the suit maintains Norwegian “will not be able to sail as it has assured its passengers (who overwhelmingly support vaccination and documentation of same) it is otherwise poised to do. The result would be a devastating, unrecoverable loss for everyone – not only for (Norwegian) but also for tens of thousands of passengers, employees and stakeholders who all benefit from (Norwegian) resuming safe operations as planned.”