Florida Can Bar Businesses From Requiring Proof of COVID-19 Vaccination: Appeals Court

Florida Surgeon General Dr. Joseph Ladapo speaks during a press conference at the University of Miami Health System Don Soffer Clinical Research Center in Miami, Fla., on May 17, 2022. Joe Raedle/Getty Images

Florida’s law barring businesses from requiring proof of COVID-19 vaccination is likely legal, a federal appeals court has ruled.

The law, passed in 2021, says that a business “may not require patrons or customers to provide any documentation certifying COVID-19 vaccination or postinfection recovery to gain access to, entry upon, or service from the business operations in this state.”

“Florida’s statute is a regulation of economic conduct that only incidentally burdens speech, which does not implicate the First Amendment,” U.S. Circuit Judge William Pryor wrote for the majority of a U.S. Court of Appeals for the 11th Circuit panel on Oct. 6. “And its burdens on interstate commerce do not exceed the benefits of furthering Florida’s substantial interests in protecting its residents from discrimination and invasions of privacy.”

The court vacated a preliminary injunction, which was entered after a lower court concluded the law likely violates Norwegian Cruise Line Holdings’ right to free speech.

U.S. District Judge Kathleen Williams, an Obama appointee, had said that the prohibition of vaccine proof was a restriction on speech in addition to an economic regulation, and that defendants did not offer adequate evidence of their statement that the burden on speech was incidental.

The appeals court panel disagreed.

“What businesses may not do is close their doors to customers who decline to present private medical documentation. The act of closing the doors to those persons is prohibited, not any communicative exchange between them and the businesses that would like to discriminate against them ‘on the proscribed grounds,’” the majority opinion stated.

Norwegian’s argument that the law does not bar requiring oral verification of vaccination status is correct “but that fact means only that the statute does not prohibit all conceivable discriminatory conduct against unvaccinated and privacy-concerned persons,” Pryor said.

Pryor, a George W. Bush appointee, was joined by U.S. Circuit Judge Andrew Brasher, a Trump appointee.

“No one should be forced into making a medical decision – like taking the COVID vaccine – to keep their job or visit a business otherwise open to the public. We appreciate this ruling from the court and will continue fighting to keep Florida free of vaccine passports,” Bryan Griffin, a spokesman for Florida Gov. Ron DeSantis, told The Epoch Times in an email.

“As we informed the courts on Tuesday, because we are no longer requiring COVID-19 vaccination to board our vessels, we believe the preliminary injunction granted in August 2021 was moot and therefore appropriate to be lifted,” a Norwegian spokesperson told The Epoch Times via email.

Norwegian Cruise Line's Norwegian Pearl cruise ship is docked at the Port of Jacksonville amid the CCP virus outbreak, in Jacksonville, Fla., on March 27, 2020. Sam Greenwood/Getty Images

Dissent

U.S. Circuit Judge Robin Rosenbaum, an Obama appointee and the other member of the panel, dissented.

Rosenbaum said the law in question is unconstitutional, claiming that it only applies to cruise ships when it actually is for any private business operating in the state.

The law “will facilitate the spread of COVID-19 onboard cruise ships by depriving cruise lines of the ability to verify passengers’ vaccination statuses, a resource Norwegian’s Chief Executive Officer has described as the company’s most valuable tool for preventing the spread of COVID-19 onboard,” Rosenbaum wrote. ‘The Majority Opinion doesn’t let that pesky little fact stop it from treating Florida’s law like it promotes health and safety, though, so the law can benefit from (undeserved) ’strong deference.’”

COVID-19 vaccines provide little defense against infection and virtually no protection against transmission since the emergence of the Omicron virus variant, according to health authorities and studies. The Centers for Disease Control and Prevention said in its updated COVID-19 guidance that its prevention recommendations “no longer differentiate based on a person’s vaccination status” partly because many people who are not vaccinated have protection from prior illness.

Rosenbaum also criticized how the majority highlighted a need to protect privacy in its ruling, noting that Florida requires proof of vaccination against many other diseases.

Pryor responded to the criticism in his opinion, saying the state, not the court, “has the constitutional authority to determine what is and is not a ’reasonable distinction' between its citizens and what qualifies as discrimination worth remedying.”

“The dissent’s approach would flip the script and allow Article III judges to decide which of Florida’s citizens deserve protection. And that approach would threaten the state’s authority to protect its citizens from various forms of discrimination. We decline the dissent’s invitation to put these policy decisions in the hands of unelected federal judges. The states are in a better position to make ’reasonable distinctions’ between their citizens and to secure their civil rights. For that reason, the Constitution affords state legislatures great deference in this area,” he added.

Pryor acknowledged that Florida does require vaccination against other diseases but said the dissent “rests on an unstated and false premise that legislatures must treat all diseases as though they are equal,” and noted that the legislature considered the vaccination requirements when approving the law.