• Ban on vaccine passports doesn’t limit free speech, court says
  • Court reverses judge in challenge by Norwegian Cruise Line

(Reuters) – A divided US appeals court has rejected a challenge by Norwegian Cruise Line Holdings Ltd to a Florida law barring businesses from requiring customers to show documentation proving they received a COVID-19 vaccine.

The 11th US Circuit Court of Appeals in a 2-1 ruling on Thursday said the ban on “vaccine passports” adopted by Florida last year regulates economic conduct and not speech, so it does not violate Norwegian’s free speech rights under the First Amendment of the US Constitution.

The ruling came just days after Norwegian announced that it was dropping the vaccine, testing and mask mandates for passengers that it had adopted last year.

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The court also rejected Norwegian’s claim that Florida’s law violated the Dormant Commerce Clause of the US Constitution, which prohibits laws that unduly burden interstate commerce.

Any negative impact on Norwegian’s business was outweighed by the state’s interest in protecting unvaccinated people from discrimination, the court said.

Norwegian did not immediately respond to a request for comment. Nor did the Florida Attorney General’s office and lawyers from the firm Cooper & Kirk who represented the state.

Florida was one of several Republican-led states to ban companies from requiring customers or workers to show documentation of their COVID-19 vaccination status. A medical practice’s legal challenge to a ban adopted by Montana is pending.

Supporters of the bans said they were necessary to protect individual freedoms and medical privacy.

But Norwegian in its lawsuit filed in Miami federal court last year claimed the ban was adopted to score political points and not to protect the public. The lawsuit only challenged the ban as it applied to Norwegian.

The Florida company claimed’s law would prevent it from ensuring at least 95% of passengers were vaccinated so it could comply with federal health regulations when its cruises resumed in August 2021.

US District Judge Kathleen Williams in Miami blocked Florida from enforcing the ban against Norwegian last year, and the 11th Circuit on Thursday reversed after the state appealed.

Florida’s law does not restrict Norwegian’s speech, because the company can still ask passengers if they are vaccinated without requiring proof, the court said.

The law “affects what Norwegian must do … not what Norwegian may or may not say,” Circuit Judge William Pryor wrote, joined by Circuit Judge Andrew Brasher. Both judges were appointed by Republican presidents.

In a dissenting opinion, Circuit Judge Robin Rosenbaum said the state ban does not promote health or safety and would lead to the spread of COVID-19, so its purpose did not justify the negative impact on Norwegian.

“It’s clear that the heavy burdens the law imposes on commerce far outweigh any minimal benefits in the context of the cruise industry,” wrote Rosenbaum, to appointee of former President Barack Obama, a Democrat.

The case is Norwegian Cruise Line Holdings Ltd v. State Surgeon General, 11th US Circuit Court of Appeals, no. 21-12729.

For Norwegian: Derek Shaffer of Quinn Emanuel Urquhart & Sullivan

For Florida: Peter Patterson of Cooper & Kirk

read more:

Florida bans strict vaccine mandates in schools and businesses

US judge says Florida can’t ban cruise ship’s ‘vaccine passport’ program

Norwegian Cruise Line to eliminate COVID-19 testing, masking requirements

Florida appeals ruling allowing cruise to use ‘vaccine passports’

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Dan Wiessner (@danwiessner) reports on labor and employment and immigration law, including litigation and policy making. He can be reached at daniel.wiessner@thomsonreuters.com.