50 F.4th 1126
11th Cir.2022Background
- Florida enacted Fla. Stat. § 381.00316(1) (effective July 1, 2021), banning businesses from requiring patrons to provide documentation certifying COVID-19 vaccination or post-infection recovery as a condition of access; violations carry fines up to $5,000.
- Norwegian Cruise Line (headquartered in Florida) requires all passengers and crew to be vaccinated and to present documentary proof; it sued Florida’s Surgeon General seeking a preliminary injunction as-applied.
- The district court granted a preliminary injunction, holding the statute likely violated the First Amendment and the dormant Commerce Clause.
- On appeal, the Eleventh Circuit majority vacated the preliminary injunction: it treated the statute as a regulation of non‑expressive economic conduct that only incidentally burdens speech, and upheld the statute under Pike balancing as a nondiscriminatory law advancing substantial state interests (anti‑discrimination and medical privacy).
- Judge Rosenbaum dissented (in full), arguing the statute, as applied to cruise lines, meaningfully harms public health and foreign/interstate commerce, that Florida’s asserted benefits are illusory or marginal in this context, and that the district court properly enjoined enforcement as applied to Norwegian.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether § 381.00316(1) is a content‑based speech restriction | Norwegian: statute targets documentary communications and thus restricts speech (First Amendment) | Surgeon General: statute regulates economic, non‑expressive conduct (anti‑discrimination), so First Amendment not implicated | Held: statute regulates non‑expressive conduct with only incidental speech burden; no First Amendment problem (rational‑basis review applies) |
| Whether § 381.00316(1) facially or as‑applied burdens Norwegian’s ability to require vaccine proof for international sailings (Dormant Commerce Clause) | Norwegian: statute unduly burdens interstate and foreign commerce by preventing documentary verification needed for foreign ports and safe operations | Surgeon General: statute is even‑handed, advances legitimate local interests (preventing discrimination; protecting medical privacy), and burdens are not clearly excessive | Held: statute is nondiscriminatory and—under Pike—its incidental burdens do not clearly exceed its legitimate local benefits; preliminary injunction vacated |
| Proper standard for reviewing incidental burdens on speech caused by economic regulation | Norwegian: heightened scrutiny because statute restricts communication of vaccination status | Surgeon General: conduct regulation, so no heightened First Amendment scrutiny | Held: conduct regulation controlling exclusion/entry, not speech content; only incidental speech burden, so no heightened scrutiny required |
| Whether foreign‑commerce impacts require greater scrutiny here | Norwegian: because cruises implicate foreign commerce and public‑health risks, stronger (searching) scrutiny and closer balancing required | Surgeon General: statute addresses local safety/privacy/discrimination interests historically within state police power; incidental foreign effects permissible | Held: majority treated interests as traditionally local and not illusory; held burdens on foreign commerce not clearly excessive (rejecting heightened foreign‑commerce rule in this context); dissent strongly disagreed |
Key Cases Cited
- Sorrell v. IMS Health Inc., 564 U.S. 552 (2011) (content‑based regulation of speech requires heightened scrutiny)
- Reed v. Town of Gilbert, 576 U.S. 155 (2015) (definition and analysis of content‑based speech restrictions)
- Rumsfeld v. Forum for Academic & Institutional Rights, Inc., 547 U.S. 47 (2006) (statute regulating access/conduct, not speech, upheld)
- O'Brien v. United States, 391 U.S. 367 (1968) (tests for when conduct that incidentally involves speech may be regulated)
- Pike v. Bruce Church, Inc., 397 U.S. 137 (1970) (balancing test for nondiscriminatory state laws that incidentally burden interstate commerce)
- Clover Leaf Creamery Co. v. Commissioner, 449 U.S. 456 (1981) (dormant Commerce Clause balancing; deference to legitimate state interests when burdens are minor)
- Kassel v. Consolidated Freightways Corp., 450 U.S. 662 (1981) (greater scrutiny where state safety justifications are illusory; interstate‑commerce burdens)
- Wollschlaeger v. Governor, 848 F.3d 1293 (11th Cir. en banc 2017) (regulation of non‑expressive conduct that incidentally burdens speech does not trigger First Amendment scrutiny)