553 F.Supp.3d 1143
S.D. Fla.2021Background:
- Plaintiffs: Norwegian Cruise Line Holdings and affiliated cruise companies plan to resume sailings from Florida with a policy requiring all passengers be fully vaccinated and to provide documentary proof before boarding.
- Florida enacted Fla. Stat. §381.00316, prohibiting businesses from requiring customers to provide documentation certifying COVID-19 vaccination or post-infection recovery (effective July 1, 2021).
- NCLH sued Florida Surgeon General Rivkees seeking a preliminary injunction to enjoin enforcement of §381.00316 as applied to NCLH; oral argument held August 6, 2021.
- The court found §381.00316 is a content-based restriction on speech (it singles out vaccine documentation), subjected it to First Amendment scrutiny, and concluded plaintiffs were likely to prevail on First Amendment and dormant Commerce Clause claims.
- The court enjoined enforcement of §381.00316 as applied to NCLH, finding irreparable injury (First Amendment injury, reputational and unrecoverable monetary loss) and that the equities/public interest favored an injunction.
Issues:
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether §381.00316 is a content-based restriction on speech (First Amendment) | Statute singles out documentary proof of COVID-19 vaccination; exchange of vaccination documentation is protected speech | Statute regulates economic conduct (conditioning service), not speech; exchange may be voluntary | Court: statute is content-based regulation of speech; First Amendment applies and Florida fails to justify it under applicable scrutiny |
| If commercial-speech doctrine applies, does §381.00316 survive Central Hudson? | Even if commercial, statute fails Central Hudson because it does not materially advance asserted interests and is overbroad | Statute advances medical privacy and anti-discrimination interests | Court: even under Central Hudson, Florida cannot justify statute; plaintiffs likely to prevail |
| Dormant Commerce Clause (Pike balancing) — does the statute impermissibly burden interstate/international commerce? | Statute imposes substantial, practical burdens on cruise operations and foreign port entry (many ports require documentary proof), creating heavy interstate/international commerce burdens | Plaintiffs can rely on testing/quarantine alternatives; statute is nondiscriminatory and applies evenly in-state/out-of-state | Court: as applied to NCLH, statute likely fails Pike balancing — burdens on interstate/international commerce outweigh local benefits |
| Preemption by CDC Conditional Sailing Order (CSO) and related instructions | State law conflicts with CDC framework and impairs ability to meet CSO/attestation (e.g., verifying 95% vaccinated passengers) | CDC orders may be unlawful; state law stands | Court: did not resolve preemption at PI stage; court found plaintiffs’ preemption arguments compelling and will address later |
Key Cases Cited
- Reed v. Town of Gilbert, 576 U.S. 155 (content-based speech regulations are presumptively unconstitutional)
- Sorrell v. IMS Health Inc., 564 U.S. 552 (laws that target speech based on content or speaker require heightened scrutiny)
- Cent. Hudson Gas & Electric Corp. v. Pub. Serv. Comm’n, 447 U.S. 557 (commercial-speech intermediate-scrutiny test)
- Edenfield v. Fane, 507 U.S. 761 (government must show regulation materially advances interest to restrict commercial speech)
- Pike v. Bruce Church, Inc., 397 U.S. 137 (dormant Commerce Clause balancing test for even-handed regulations)
- Bibb v. Navajo Freight Lines, Inc., 359 U.S. 520 (state safety/regulatory requirements may unduly burden interstate commerce)
- Healy v. Beer Inst., 491 U.S. 324 (dormant Commerce Clause prohibits laws that control commerce beyond state borders)
- Jacobson v. Massachusetts, 197 U.S. 11 (state police power to mandate vaccination historically analyzed)
- Dana's R.R. Supply v. Att'y Gen., Fla., 807 F.3d 1235 (11th Cir.) (regulation that disfavors particular communicative descriptions is content-based)
- Otto v. City of Boca Raton, 981 F.3d 854 (11th Cir.) (defining when a law compels examination of message/content)
- Wollschlaeger v. Governor, State of Fla., 848 F.3d 1293 (11th Cir.) (law that directly targets speech triggers First Amendment review)
- FF Cosms. FL, Inc. v. City of Miami Beach, 866 F.3d 1290 (11th Cir.) (application of Central Hudson and tailoring requirement for commercial-speech restrictions)
- Barr v. Am. Ass'n of Pol. Consultants, Inc., 140 S. Ct. 2335 (content- and speaker-based distinctions trigger strict scrutiny)