Judge weighs challenge to ‘vaccine passport’ ban

Author: Jim Saunders/ The News Service of Florida
Published: Updated:
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A federal judge appeared skeptical Friday of the state’s arguments in a constitutional challenge by Norwegian Cruise Line Holdings to a Florida ban on so-called “vaccine passports.”

U.S. District Judge Kathleen Williams heard more than two hours of arguments on a request by Norwegian for a preliminary injunction against the ban, which has been a priority of Gov. Ron DeSantis. The ban prevents businesses, including Norwegian, from requiring customers to provide documentation that they have been vaccinated against COVID-19.

Williams did not immediately rule on the injunction request, but she suggested that the state is trying to decide how Norwegian can conduct business and pointed to “myriad choices” that cruise customers would have if they didn’t want to provide proof of vaccination to Norwegian.

At one point, the Miami-based judge, who was appointed to the bench by former President Barack Obama, pushed back against the term “vaccine passports.”

“That’s a phrase that doesn’t have any meaning in this legal analysis,” she said.

Norwegian filed the lawsuit July 13, saying the ban would prevent it from carrying out a plan to require passengers to be vaccinated as it returns to sailing after a long shutdown caused by the pandemic. DeSantis in April issued an executive order banning vaccine passports, and the Legislature later placed the ban in state law.

The cruise line’s attorneys contend, in part, that the ban violates the First Amendment and what is known as the dormant Commerce Clause of the U.S. Constitution.

Derek Shaffer, an attorney for Norwegian, said the law regulates speech by preventing the exchange of information. Under the law, he said cruise lines could ask people about whether they are vaccinated but could not require documentation — a scenario that could provide an incentive for people to lie.

“It (the law) is trying to prevent the truthful speech,” Shaffer said.

But Pete Patterson, an attorney for Florida Surgeon General Scott Rivkees, the named defendant in the case, said companies don’t have a right to “extract” personal information from people. He said the Legislature was entitled to make policy decisions aimed at preventing discrimination against customers.

“This is a classic anti-discrimination law,” Peterson said.

But Williams raised questions about evidence that would show a need for the law. Shaffer said lawmakers had not provided such evidence.

“This legislative record is conspicuously bereft of that,” he said.

The cruise industry shut down in March 2020 after high-profile outbreaks of COVID-19 early in the pandemic. DeSantis has pushed for months to resume cruise-ship operations, while more broadly trying to block restrictions such as businesses requiring vaccine passports and schools requiring students to wear masks.

The federal Centers for Disease Control and Prevention in October issued what is known as a “conditional sailing order” that included a phased approach to resuming cruising during the pandemic, with ship operators needing to meet a series of requirements.

Florida Attorney General Ashley Moody, backed by DeSantis, filed a lawsuit challenging the conditional sailing order, arguing that the CDC overstepped its legal authority. Tampa-based U.S. District Judge Steven Merryday sided with the state in June and issued a preliminary injunction against the conditional sailing order.

The Miami-headquartered Norwegian, which is scheduled to resume sailing Aug. 15, said in court documents that it had agreed to meet CDC requirements to resume cruises. As part of that process, it told the CDC that at least 95 percent of passengers and 95 percent of crew members on cruises out of Miami would be fully vaccinated — a promise that it says would be jeopardized by the vaccine passport ban.

But the state has pointed to Merryday’s injunction against the CDC requirements. The CDC has challenged Merryday’s ruling at the 11th U.S. Circuit Court of Appeals.

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