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Florida's vaccine 'passport' ban will be heard in a federal appeals court

The Norwegian Gateway cruise ship is moored at PortMiami on Jan. 7 in Miami.
Joe Raedle
Getty Images
The Norwegian Gateway cruise ship is moored at PortMiami on Jan. 7 in Miami.

On Wednesday, a panel of the 11th U.S. Circuit Court of Appeals will hear arguments in Miami.

Gov. Ron DeSantis and other Republicans took aim at so-called “vaccine passports” as they pushed to end COVID-19 restrictions.

But Norwegian Cruise Line Holdings had other ideas. After the cruise industry had been sidelined by the pandemic, the Miami-based company wanted to require passengers to show documentation they had been vaccinated against COVID-19.

Norwegian filed a federal lawsuit last year that challenged a state law banning vaccine passports. U.S. District Judge Kathleen Williams agreed with the company’s arguments that the ban violated the First Amendment and what is known as the dormant Commerce Clause of the U.S. Constitution and issued a preliminary injunction that applied only to Norwegian.

Williams wrote in August that the law was a “content-based restriction” on speech, as it targeted documentation but allowed businesses to request other information from customers about issues such as vaccinations.

“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.’”

The state took the case to the 11th U.S. Circuit Court of Appeals, and a panel of the court will hear arguments Wednesday in Miami. In a brief filed at the Atlanta-based court, DeSantis administration attorneys wrote that the vaccine-passport law was an “economic regulation that does not implicate” the First Amendment.

“The law simply prohibits businesses from conditioning service on customers providing documentation certifying COVID-19 vaccination,” the brief said. “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. Neither does Florida’s law prevent 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.”