CopyPublished | Court of Appeals for the Eleventh Circuit
...ry to gain access to,
entry upon, or service from the business operations in [Florida].”
USCA11 Case: 21-12729 Date Filed: 10/06/2022 Page: 3 of 123
21-12729 Opinion of the Court 3
FLA. STAT. ANN. § 381.00316(1)....
...i-
tative or controlling government-issued guidance to
protect public health.
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21-12729 Opinion of the Court 7
FLA. STAT. ANN. § 381.00316(1). The statute further declares that
the State “may impose a fine not to exceed $5,000 per violation.”
Id. § 381.00316(4)....
...Norwegian and several of its wholly owned subsidiaries
sued the Surgeon General of Florida in his official capacity and
moved for “[p]reliminary and permanent injunctive relief prevent-
ing [the Surgeon General] from enforcing Florida Statute
§ 381.00316 against [Norwegian], including any subsidiaries, oper-
ators or agents” and a “declaration that [the statute] is unlawful as
applied to” Norwegian....
...gian’s speech because it “restricts the transmission of information
based on its content, as it expressly prohibits transmission only of
documentation ‘certifying COVID-19 vaccination or postinfection
recovery.’” (Quoting FLA. STAT. ANN. § 381.00316(1).)
In an affidavit Norwegian filed in the district court, Dr....
...also result in a loss or diminishment of employment for [Norwe-
gian] employees in South Florida.”
Norwegian moved for a preliminary injunction, which the
district court granted. The district court enjoined the Surgeon Gen-
eral “from enforcing [s]ection 381.00316 against [Norwegian] pend-
ing resolution of the merits of this case.” It “f[ound] that [Norwe-
gian] [was] entitled to a preliminary injunction because [it] ha[d]
shown: (1) a substantial likelihood of success on the merits of [its]...
...: 10/06/2022 Page: 12 of 123
12 Opinion of the Court 21-12729
(3) that the equities and public interest weigh in favor of an injunc-
tion.” On the First Amendment claim, the district court ruled that
section 381.00316 is a content-based restriction; it rejected the ar-
gument that section 381.00316 is an economic regulation of con-
duct that only incidentally burdens speech; and it held that the stat-
ute fails to survive heightened scrutiny. On the Dormant Com-
merce Clause claim, it ruled that section 381.00316 “does not di-
rectly regulate, or affirmatively discriminate against, interstate
commerce” and that the “[s]tatute is applicable to both out-of-state
and in-state business entities that operate in the State of Florida.”...
...serve compelling state interests.” Id. And “regulation[s] of speech
[are] content based if [they] appl[y] to particular speech because of
the topic discussed or the idea or message expressed.” Id.
The parties disagree about whether section 381.00316(1) is a
content-based restriction of speech subject to heightened scrutiny.
The Surgeon General argues that the statute is not subject to the
First Amendment because it is a regulation of economic conduct
USCA11 Case: 21-12729...
...That “expansive inter-
pretation” of the First Amendment “would make it practically im-
possible ever to enforce laws against agreements in restraint of
trade as well as many other agreements and conspiracies deemed
injurious to society.” Id. at 502. So, if section
381.00316 regulates
non-expressive economic conduct that only incidentally burdens
speech, then it does “not implicate the First Amendment at all.” See
Otto,
981 F.3d at 861, 865.
Anti-discrimination statutes ordinarily regulate non-expres-
sive conduct....
...First Amendment right to send their children to educational insti-
tutions that promote the belief that racial segregation is desirable,
. . . it does not follow that the practice of excluding racial minorities
from such institutions is also protected”).
Section 381.00316 is an anti-discrimination statute that reg-
ulates non-expressive economic conduct....
...The statute prohibits
“any business operating in” Florida from “requir[ing] 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 [Florida].” FLA. STAT.
ANN. § 381.00316(1)....
... USCA11 Case: 21-12729 Date Filed: 10/06/2022 Page: 18 of 123
18 Opinion of the Court 21-12729
persons based “on . . . proscribed grounds.” See Hurley,
515 U.S. at
572. A business violates section
381.00316 when it commits the
“act,” see id., of “deny[ing]” patrons or customers “access to goods
and services,” Masterpiece,
138 S. Ct. at 1727, based on their failure
to prove that they are not members of the protected class. See FLA.
STAT. ANN. §
381.00316(1)....
...inated persons
based on a condition that members of only one class can satisfy.
See Wollschlaeger,
848 F.3d at 1317. And it protects conduct for
those who either cannot or desire not to comply with the pro-
scribed condition. See FLA. STAT. ANN. §
381.00316(1). So, section
381.00316(1) targets “the practice of excluding [persons] from”
businesses and prohibits their exclusion. See Runyon,
427 U.S. at
176.
Section
381.00316(1) does “not implicate the First Amend-
ment at all.” See Otto,
981 F.3d at 861. Section
381.00316(1)
“appl[ies] to non-expressive conduct such as failing to,” see Woll-
schlaeger,
848 F.3d at 1317, grant persons who are unwilling or un-
able to verify their vaccination status “access to, entry upon, or ser-
vice from the business operations,” FLA. STAT. ANN. §
381.00316(1).
And when the statute regulates non-expressive conduct in that
way, “there is no First Amendment problem.” Wollschlaeger,
848
F.3d at 1317.
Norwegian argues that the statute regulates communica-
tions between businesses and customers....
... USCA11 Case: 21-12729 Date Filed: 10/06/2022 Page: 19 of 123
21-12729 Opinion of the Court 19
information by targeting only one type of written information ex-
change.” It adopts the view of the district court that section
381.00316 “regulates speech because it restricts the free flow of in-
formation by rendering the exchange permissible in some circum-
stances but impermissible in others.” And it maintains that “[t]he
[b]an is triggered by a specifi...
...nst COVID-19) between a
specific speaker and audience (customer to business)” because
“[o]nly if a business first engages in this communicative exchange
can its ensuing conduct (restricting access) violate the [b]an.” We
disagree.
Section 381.00316(1) limits no communications between
customers and businesses....
...a certain topic—the ownership of firearms—and thereby re-
strict[ed] their ability to communicate and/or convey a message”).
What businesses may not do is close their doors to custom-
ers who decline to present private medical documentation. See
FLA. STAT. ANN.
381.00316(1). 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.” See Hurley,
515 U.S. at 572.
Section
381.00316(1) is distinguishable from “speaker-focused and
content-based restrictions on speech” that “limit a category of peo-
ple—[such as businesses]—from communicating a particular mes-
sage.” Cf....
...content-based restrictions because they expressly restricted thera-
pists “from communicating a particular message”).
To be sure, Norwegian correctly asserts that the statute does
not prohibit requiring oral verification of vaccination status, see
FLA. STAT. ANN. § 381.00316(1), but that fact means only that the
statute does not prohibit all conceivable discriminatory conduct
against unvaccinated and privacy-concerned persons....
...evils at the same time, and that reform may take one step at a time,
addressing itself to the phase of the problem which seems most
acute to the legislative mind.” (citations and internal quotation
marks omitted)).
The only speech that section 381.00316(1) burdens is inci-
dental to its direct prohibition of the discriminatory conduct of ex-
cluding persons the statute protects....
...And they can also give offense if the regu-
lated conduct is, as Norwegian argues here, expressive.
USCA11 Case: 21-12729 Date Filed: 10/06/2022 Page: 23 of 123
21-12729 Opinion of the Court 23
Section 381.00316(1) does not burden speech or expressive
conduct in those forbidden ways....
...(“If com-
bining speech and conduct were enough to create expressive con-
duct, a regulated party could always transform conduct into
‘speech’ simply by talking about it.”). The “objections” Norwegian
has and can publicly announce consistent with section 381.00316(1)
“do not allow [it] ....
...O’Brien,
391 U.S. 367, 376 (1968).
USCA11 Case: 21-12729 Date Filed: 10/06/2022 Page: 24 of 123
24 Opinion of the Court 21-12729
Supreme Court precedent confirms our conclusion that sec-
tion
381.00316(1) regulates economic conduct....
...at 54 (al-
teration adopted) (internal quotation marks omitted). Law schools
that sought to exclude for political reasons military recruiters from
their campuses argued that the statute violates the First Amend-
ment. Id. at 52–53. The Supreme Court rejected that contention.
Like section 381.00316(1) in relation to businesses, the Supreme
Court explained that the statute in FAIR “neither limits what law
schools may say nor requires them to say anything.” See id....
...chools must do—afford
equal access to military recruiters—not what they may or may not
say.” Id. And it likened the statute to permissible anti-discrimina-
tion statutes that regulate conduct. Id. at 62. The same reasoning
establishes that section 381.00316(1) does not implicate the First
Amendment: it affects what Norwegian “must do—afford equal ac-
cess to” those who cannot or do not disclose their own private
medical documentation—“not what [Norwegian] may or may not
say.” See id. at 60.
USCA11 Case: 21-12729 Date Filed: 10/06/2022 Page: 25 of 123
21-12729 Opinion of the Court 25
Our en banc decision in Wollschlaeger v. Governor also es-
tablishes that section 381.00316(1) regulates non-expressive con-
duct....
...sages, charging more for the same services, declining reasonable
appointment times, not providing test results on a timely basis, or
delaying treatment because a patient (or a parent of a patient) owns
firearms.” Id. And we can similarly uphold section 381.00316(1) be-
cause it regulates non-expressive conduct such as “failing to” admit
someone who lacks vaccination documentation on board a cruise
ship....
...IMS Health Inc.,
564 U.S.
552, and Expressions Hair Design v. Schneiderman,
137 S. Ct. 1144
(2017), is unavailing. Both decisions involved statutes that prohib-
ited speakers from conveying information in particular ways. And
neither is on point because section
381.00316(1) includes no similar
prohibition.
In Sorrell, the Supreme Court invalidated a state statute that
prohibited “pharmacies, health insurers, and similar entities from
selling prescriber-identifying information ....
...And the Supreme
Court confronted “a case in which the government [had] pro-
hibit[ed] a speaker from conveying information that the speaker al-
ready possesse[d],” a prohibition that “implicated” “[a]n individ-
ual’s right to speak.” Id. at 568 (emphasis added) (internal quotation
marks omitted).
Section 381.00316(1), by contrast, does not prohibit the con-
veyance of any information in either direction, and it in no way
subjects to any restraints the communication of any information
already in Norwegian’s or its customers’ possession....
...A seller could communicate that the
price is $10.30, with a $0.30 cash discount, but could not communi-
cate that the price is $10.00, plus $0.30 for credit card users. Id. “In
regulating the communication of prices rather than prices them-
selves, [the statute] regulate[d] speech.” Id. Section 381.00316(1),
by contrast, does not tell businesses how they may describe per-
missible conduct to customers....
...2015) (“Calling [a Florida stat-
ute] a ‘no-surcharge law,’ then, is something of a misnomer. The
statute targets expression alone. More accurately, it should be a
‘surcharges-are-fine-just-don’t-call-them-that law.’”).
We conclude that section
381.00316(1) does “not implicate
the First Amendment at all,” see Otto,
981 F.3d at 861, because it
regulates non-expressive economic conduct....
...“It is enough that there is an
evil at hand for correction, and that it might be thought that the
particular legislative measure was a rational way to correct it.” Wil-
liamson v. Lee Optical of Okla., Inc.,
348 U.S. 483, 488 (1955). Sec-
tion
381.00316(1) bears a rational relationship to the State’s
USCA11 Case: 21-12729 Date Filed: 10/06/2022 Page: 28 of 123
28 Opinion of the Court 21-12729
substantial interests in protecting its...
...Second, “if the law or regulation advances a legit-
imate local interest and has only indirect effects on interstate com-
merce, we apply the balancing test from Pike.” Id. at 1244 (internal
quotation marks omitted).
The district court correctly ruled that section
381.00316(1)
neither directly nor indirectly discriminates against interstate com-
merce. Accord Dissenting Op. at 13 n.20. Indeed, the statute ex-
pressly regulates all and only “business[es] operating in [Florida]”—
both local and out-of-state—for their “business operations in [Flor-
ida].” See FLA. STAT. ANN. §
381.00316(1). And the parties agree
that the statute survives this test.
The sole question then is whether section
381.00316(1) sat-
isfies Pike’s balancing test: “Where the statute regulates even-hand-
edly to effectuate a legitimate local public interest, and its effects
on interstate commerce are only incidental, it will be upheld unless
the burden imposed on such commerce is clearly excessive in rela-
tion to the putative local benefits.” Pike,
397 U.S. at 142. Under this
test, we must first determine whether “a legitimate local purpose”
for section
381.00316 exists. See id. If the State has a legitimate local
purpose in enacting section
381.00316(1), we weigh the local bene-
fits of enforcing the statute against the burdens imposed on inter-
state commerce. Id. Only if the burdens on interstate commerce
USCA11 Case: 21-12729 Date Filed: 10/06/2022 Page: 30 of 123
30 Opinion of the Court 21-12729
clearly exceed the local benefits of section
381.00316 will we inval-
idate that statute....
...ives
possible—grocery stores, restaurants, fitness gyms, clothing stores,
barber shops and hair salons, and even pharmacies. After all, the
statute covers “any business operating in [Florida],” not just luxury
ocean liners. FLA. STAT. ANN. § 381.00316(1)....
...from economic ostracism based on their hesitancy to divulge to
businesses private medical information. And that weighty state in-
terest is dispositive here.
Because Florida’s substantial interests are in matters tradi-
tionally of state concern, the burdens section 381.00316(1) imposes
on interstate commerce do not clearly exceed its putative local ben-
efits....
...also cannot “second guess the legislature’s judgment as to the rela-
tive importance of [those] justifications versus any burdens im-
posed on interstate commerce.” Locke v. Shore,
634 F.3d 1185,
1194–95 (11th Cir. 2011).
The dissent attempts to evade the fact that section
381.00316(1) is a traditional well-being regulation by implicitly re-
lying on the false premise that such a regulation would have to pro-
mote residents’ physical health and safety....
...and Clover
Leaf Creamery make clear that we owe strong deference to the
Florida Legislature when it exercises its traditional police powers
to promote traditional local interests based on justifications that are
not illusory. And the State’s justifications are not illusory if apply-
ing section
381.00316(1) “as written” would “rationally contribute
to [the State’s] purported local benefits.” See Fla. Transp. Servs.,
703 F.3d at 1260. Section
381.00316(1) clears that low bar.
Our dissenting colleague argues that Clover Leaf does not
govern because there “the Court didn’t need to engage in further
analysis of the local-benefits side of Pike’s balance” because fur...
...Locke v. Shore,
634 F.3d 1185, 1194–95 (11th Cir. 2011)
(citing Kassel,
450 U.S. at 670)).
USCA11 Case: 21-12729 Date Filed: 10/06/2022 Page: 38 of 123
38 Opinion of the Court 21-12729
Applying section
381.00316(1) as written would rationally
contribute to the State’s purported local benefits....
...against the unvaccinated, indirectly discriminate against minority
communities that are disproportionately vaccine-hesitant, and re-
quire all residents—vaccinated or not—to disclose to businesses
their private medical records.
These “point[s] w[ere] stressed by [section 381.00316(1)’s]
proponents in the legislature,” evidencing that they were among
“the legislature’s major concerns.” Clover Leaf Creamery Co., 449
U.S....
...mining that the state’s justifications are not illusory.
The district court also second-guessed Florida’s legitimate
justifications. Like the trial court in Clover Leaf Creamery Co.,
449
U.S. at 460, the district court found that “the record” establishes
that section
381.00316(1) “is materially [in]effective at” advancing
the State’s interests....
...and that
businesses like Norwegian “cannot verify [their] [customers’]
COVID-19 vaccination status unless [they] can require passengers
to show documentation certifying that they are fully vaccinated.”
If so, it is rational to suppose that section 381.00316(1) would dis-
courage businesses from engaging in what Norwegian concedes
are exercises in futility....
...of the kinds of evils it targeted and that its prohibition would dis-
courage or eliminate other species in addition. And as for the con-
duct the statute directly prohibits, it is incontrovertible that it will
succeed at reducing or eliminating that conduct. Without section
381.00316(1), some businesses would indeed discriminate as Nor-
wegian itself did.
USCA11 Case: 21-12729 Date Filed: 10/06/2022 Page: 43 of 123
21-12729 Opinion of the Court 43
Florida is on firmer ground than Minnesota was in Clover
Leaf Creamery Co. Although Minnesota’s putative benefits de-
pended on the truth of empirical claims, such as whether a partic-
ular ban would conserve energy, id. at 459–60, Norwegian con-
cedes that section 381.00316(1) would stop businesses like Norwe-
gian from requiring vaccine documentation as a condition of ser-
vice....
...medical documen-
tation that would otherwise occur. Contra Dissenting Op. at 17 (re-
lying on a decision in which the State’s asserted physical-safety in-
terests were subject to empirical disconfirmation).
The dissent insinuates that section 381.00316(1) is not a true
antidiscrimination statute because discrimination based on vac-
cination status “contrasts sharply” with the “‘invidious discrimina-
tion’ that ‘frequently occurs along ethnic lines.’” Id....
...44 Opinion of the Court 21-12729
statute protects only unvaccinated people against discrimination.”
Id. at 40. But the state need not protect vaccinated and unvac-
cinated people from discrimination equally. After all, Section
381.00316(1) does not involve a constitutionally protected class or
anything like selective protection of one such class over others....
...reason, the Constitution affords state legislatures great deference
in this area. Clover Leaf Creamery Co.,
449 U.S. at 466.
The dissent’s dismissal of Florida’s substantial interest in
protecting privacy is similarly unpersuasive. The dissent concludes
that section
381.00316(1) “does not meaningfully promote pri-
vacy.” Id. at 53. The dissent reasons that “the state itself requires
Floridians to present proof of vaccination against diseases other
than COVID-19 to attend schools at the very same time that Sec-
tion
381.00316(1) prohibits cruise lines from requiring documenta-
tion of COVID-19 vaccination.” Id....
...And that a legislature might weigh health
benefits against privacy interests differently for different diseases
does not mean that it advances privacy interests “trivially” when it
prohibits compelled disclosures whenever it decides that the pri-
vacy side of the scale is weightier.
We conclude that applying section 381.00316(1) “as written”
would “rationally contribute to [the State’s] purported local bene-
fits.” See Fla....
...ture’s judgment as to the relative importance of [those] justifica-
tions versus any burdens imposed on interstate commerce.” Locke,
634 F.3d at 1194–95. So, at the very least, Norwegian “must over-
come a strong presumption of validity” that favors section
381.00316(1). See Kassel,
450 U.S. at 670 (internal quotation marks
omitted).
Despite the evidence that it will suffer economically if it
complies with section
381.00316(1), Norwegian cannot overcome
that strong presumption of validity....
...And Norwegian’s Chief Executive Officer
testified that Norwegian “plann[ed] to require that passengers . . .
test negative for COVID-19 before boarding [its] cruises” in any
event. Even so, Norwegian relies on evidence that compliance with
section 381.00316(1) would burden its operations....
...“burden on commerce [that] has been declared to be virtually per
se illegal,” id. at 145. Because the State’s interests here are substan-
tial and long recognized, the statute can subject some businesses to
prohibitive or burdensome regulations.
Section 381.00316(1) also does not unduly burden out-of-
state firms any more than domestic ones....
... USCA11 Case: 21-12729 Date Filed: 10/06/2022 Page: 51 of 123
21-12729 Opinion of the Court 51
Norwegian also may choose to “eschew[] operations in Flor-
ida” if it is forced to comply with section 381.00316(1), but that
choice would not establish a burden that is clearly excessive in re-
lation to the State’s substantial interests....
...r.” Exxon,
437
U.S. at 127. The district court acknowledged that some cruise lines
do not impose the kind of requirement that Norwegian would like
to impose. And those other cruise lines that maintain operations in
Florida may, consistent with section
381.00316(1), continue to re-
quire compliance with other restrictions for the unvaccinated, such
as COVID-19 testing.
Finally, neither the district court nor Norwegian has identi-
fied a less burdensome regulation that would “promote[] as well”
the State’s substantial interests....
...and services, such as international cruises.” (Internal quotation
marks omitted.) The district court used the same examples and rea-
soned that the State’s “failure to adopt a less restrictive alternative
. . . undermine[s] the survival of [s]ection 381.00316 when applying
the Pike balancing test.” But there is no reason to believe that any
less burdensome alternatives would have promoted the State’s in-
terest “as well” as section 381.00316(1)....
...promotes those interests by extending the ban to employer-em-
ployee relationships.
Norwegian and the district court “have suggested several al-
ternative statutory schemes, but these alternatives are either more
burdensome on commerce than [section 381.00316(1)] (as, for ex-
ample, banning all [vaccination requirements]) or less likely to be
effective (as, for example, providing” exemptions)....
...“foreign intercourse and trade,” contexts in which “the people of
the United States act through a single government with unified and
adequate national power.” Japan Line, Ltd.,
441 U.S. at 448 (inter-
nal quotation marks omitted).
By contrast, any burdens imposed by section
381.00316(1)
result incidentally from matters traditionally of local concern. As
we have explained, section
381.00316(1) is a “regulation of health
and safety,” “matters [that are] primarily, and historically, ....
...Page: 56 of 123
21-12729 ROSENBAUM, J., Dissenting 1
ROSENBAUM, Circuit Judge, Dissenting:
Today the Majority Opinion validates an unconstitutional
Florida law—Florida Statutes Section 381.00316(1), which prohib-
its businesses from requiring patrons to show proof of vaccination
to receive services—as that law applies to the cruise industry.1 It
does so by effectively applying only half of the dormant Commerce
Clause...
...When the
burdens clearly exceed the benefits, the law violates the dormant
Commerce Clause. Four major mistakes plague the Majority
Opinion’s application of the dormant Commerce Clause test.
First, the Majority Opinion shortcuts the balancing process
by mislabeling Section 381.00316(1) a health and safety regulation.
1 Plaintiffs-Appellants Norwegian Entities “br[ought] this [case as an] as-ap-
plied constitutional challenge,” and the district court enjoined Florida “from
enforcing Section 381.00316 against Plaintiffs [Norwegian entities]” only....
...analysis only if it actually “touch[es] upon safety,” Maj. Op. at 34
(quoting Kassel v. Consol. Freightways Corp.,
450 U.S. 662, 670
(1981) (plurality opinion)), and meaningfully advances the state’s
interest in promoting health and safety. Here, though, the only
way Section
381.00316(1) “touch[es] upon safety” is to wallop it.
Indeed, Florida’s law is the exact opposite of a law that
meaningfully promotes health and safety: it will facilitate the
spread of COVID-19 onboard cruise ships by deprivi...
...De R.L., d/b/a Oceania Cruises.
USCA11 Case: 21-12729 Date Filed: 10/06/2022 Page: 58 of 123
21-12729 ROSENBAUM, J., Dissenting 3
Second, contrary to Supreme Court precedent, the Majority
Opinion does not assess whether (and, if so, to what extent) apply-
ing Section 381.00316(1) to the cruise industry actually furthers
Florida’s claimed interests....
...As the Supreme Court has explained, a
state’s interest is “illusory” when the law “further[s]” the state’s
claimed interest only “marginally,” Kassel,
450 U.S. at 670 (plurality
opinion); see also id. at 691 (Rehnquist, J., dissenting). But the Ma-
jority Opinion never determines whether applying Section
381.00316(1) to the cruise industry actually furthers Florida’s
claimed interests....
...its side of the balance
so that validation of Florida’s law under the Commerce Clause is a
foregone (but false) conclusion. And then, for good measure, the
Majority Opinion makes its fourth major error, all but ignoring the
substantial burdens Section 381.00316(1) imposes on interstate and
foreign commerce by facilitating the spread of COVID-19 aboard
cruise ships and worldwide—burdens that damage the supply
chain and significantly affect commerce otherwise.
The Majority Opini...
...ring yourself
to be formally attired. For everyone’s sake, neither should occur.
Instead of the Majority’s half-dressed analysis, we must cor-
rectly evaluate the local benefits—that is, we must discern the pre-
cise interests that Section 381.00316(1) furthers when applied to the
cruise industry....
...we must balance those local benefits against the burdens the law
inflicts on both interstate and foreign commerce. When we do
that, it’s clear that the heavy burdens the law imposes on com-
merce far outweigh any minimal benefits in the context of the
cruise industry. So Section 381.00316(1) violates the Commerce
Clause as applied to Plaintiff-Appellant Norwegian. And the dis-
trict court did not abuse its discretion in preliminarily enjoining the
law.
I begin my analysis in Section I where the Majority Opinion
left off: by noting the heavy burdens Section 381.00316(1) imposes
on interstate and foreign commerce because of its significant role
in the particular context of the cruise industry in facilitating and
spreading COVID-19 around the globe....
...Section V
weighs any local benefits of the law against the substantial burden
it inflicts on interstate and foreign commerce and shows that Nor-
wegian is likely to succeed on the merits.3 And Section VI shows
why Norwegian meets the remaining requirements for a prelimi-
nary injunction.
3Because Section 381.00316(1) is unconstitutional under the dormant Com-
merce Clause, I do not consider whether it is also unconstitutional under the
First Amendment.
USCA11 Case: 21-12729 Date Filed: 10/06/2022 Page: 61 of 123
6 ROSENBAUM, J., Dissenting 21-12729
I. COVID-19 has exacted and continues to exact a heavy toll
on commerce, which Section 381.00316(1) significantly ex-
acerbates by facilitating the spread of COVID-19 on cruise
ships and around the world.
The damage COVID-19 has wrought did not end with the
tragic deaths of more than 6-and-a-half m...
...the obvious and hefty costs to economic output. Just consider the
harm the pandemic has caused to the supply chain.19 When we
view COVID-19 through this lens, it is undeniable that more cases
of COVID-19 mean even more damage to commerce.
Yet Section 381.00316(1) prohibits almost all businesses, in-
cluding cruise lines like Norwegian, from, before serving patrons,
requiring them to show proof that they are vaccinated....
...VID-19
than vaccinated people, especially in a cruise setting. The district
court found that obtaining proof of vaccination from passengers is
the most important safeguard to prevent the spread of COVID-19
through cruises.
But because of Section 381.00316(1), cruise lines can’t do
that....
...n.12 (quoting Schiavo ex rel. Schindler v. Schiavo,
403 F.3d 1223,
1232 (11th Cir. 2005)).
III. The Dormant Commerce Clause
This deferential standard of review governs our considera-
tion of the district court’s conclusion that Section
381.00316(1), as
applied to the cruise industry, violates the Commerce Clause....
...Transp. Servs.,
Inc. v. Miami-Dade Cnty.,
703 F.3d 1230, 1243 (11th Cir. 2012). So we gener-
ally use a “two-tiered analysis” to evaluate state action challenged under the
dormant Commerce Clause. Id. Here, though, I agree with the Majority that
Section
381.00316(1) survives scrutiny under the first tier of that analysis—the
statute does not discriminate against out-of-state commerce. See Maj. Op. at
29. For that reason, I limit my discussion to the second tier, which focuses on
whether Section
381.00316(1) unduly burdens interstate commerce....
...oreign and interstate
“commerce is clearly excessive in relation to the putative local ben-
efits.” Id. at 142.
To state the obvious, the Pike balancing test is a balancing
test. So it’s worth emphasizing that, in evaluating whether Section
381.00316(1) survives that test, we must balance the burden that
the law imposes on interstate and foreign commerce against the
local benefits the law yields to further the State’s asserted interests.
Even if the state had a rational ba...
...v.
USCA11 Case: 21-12729 Date Filed: 10/06/2022 Page: 76 of 123
21-12729 ROSENBAUM, J., Dissenting 21
Wunnicke,
467 U.S. 82, 101 (1984). Here, as I’ve explained, see su-
pra Section I, there’s no question that Section
381.00316(1) burdens
foreign commerce and relations.
Even the Majority Opinion concedes that this rule of scru-
tiny applies to “restraint[s] on imports and exports.” Maj. Op. at
53. And of course, the cruise industry exports tourism when it an-
nually takes millions of passengers from the United States to ports
and cities around the world.22 Section
381.00316(1) restrains that
export by requiring cruise ships to carry unvaccinated passengers.
As I’ve mentioned, that restraint is incredibly burdensome: cruises
must, for example, allocate additional resources to their onboard
medical...
...removing workers from the supply chain and consumers from the
market. For these reasons, we must subject Florida’s law “to a
more rigorous and searching scrutiny.” Wunnicke,
467 U.S. at 101.
When we do that, as I explain in Sections IV and V, we must
conclude that Section
381.00316(1) cannot survive dormant Com-
merce Clause scrutiny under the Pike balancing test.
IV. The local benefits Section
381.00316(1) delivers are minimal
at best in the context of the cruise industry.
In defense of its law, Florida asserts as the law’s purposes (1)
“preventing discrimination” against and (2) “promoting privacy”
for those who wish not to disclose their COVID-19 vaccine docu-
ments. Fla.’s Initial Br. at 29. On that basis, both Florida and the
Majority Opinion describe Section
381.00316(1) as a regulation of
“health and safety.” Fla.’s Initial Br....
...at 42.
USCA11 Case: 21-12729 Date Filed: 10/06/2022 Page: 78 of 123
21-12729 ROSENBAUM, J., Dissenting 23
That approach is backwards. As I explain in Subsection A,
we grant state laws “strong deference” only when they actually
promote health and safety. Section 381.00316(1) does no such
thing....
...And while
Florida’s asserted interests in preventing discrimination and pro-
tecting privacy are legitimate state interests in theory, they are both
illusory on this record as applied to the cruise industry, which I ex-
plain in Subsections B and C, respectively.
A. Although Florida describes Section 381.00316(1) as an exercise
of police power to safeguard the public health and safety, it is
not a law that furthers genuine health and safety interests, as
the law yields no safety benefits, but meaningfully increases
hazards...
...law as a regulation of health and safety, a status it then uses to cloak
the law with the “strong deference” that we ordinarily reserve for
laws that actually promote public health and safety. Yet even the
Majority Opinion knows it can’t reasonably characterize Section
381.00316(1)—which facilitates the spread of COVID-19—as a reg-
ulation that furthers health and safety. See Maj. Op. at 34–35 (im-
plicitly conceding that Section 381.00316(1) does not further “phys-
ical health and safety”). So after granting Section 381.00316(1)
“strong deference” as if that law furthers a genuine interest in pro-
moting health and safety, the Majority Opinion then promptly dis-
owns any safety-and-health purpose attributable to Florida’s law.
USCA11 Case: 21-1...
...health and safety. And that illegitimate move proves outcome-de-
terminative for the Majority Opinion’s analysis.
To be sure, the Majority Opinion later acknowledges “the
evidence” that Norwegian “will suffer economically if it complies
with section 381.00316(1).” Maj....
...ny conceiva-
ble way, Kassel,
450 U.S. at 670, contradicts the Supreme Court’s
distinction between a state’s interests in meaningfully promoting
health and safety and in promoting different types of economic
well-being. So even assuming that Section
381.00316(1) furthers
Floridians’ economic well-being, it does not follow that “strong
deference” attaches to that law unless it meaningfully advances
health and safety.
And regardless of whether we view the distinction betw...
...surrenders
to the state.
ii. Florida’s law does not warrant strong deference because it
does not meaningfully advance health or safety and in fact
harms them.
That said, both Florida and the Majority Opinion describe
Section 381.00316(1) as an exercise of the state’s “traditional police
power” to safeguard both the “public health and safety and the eco-
nomic well-being of its citizens,” meaning that we must analyze
both interests under Pike....
...at 1, 40; see also Maj.
Op. at 35. They make this move, it seems, because the Supreme
Court “has been most reluctant to invalidate” “regulations that
touch upon safety,” id. at 34 (quoting Kassel,
450 U.S. at 670); see
also Fla.’s Initial Br. at 40. But Section
381.00316(1) is no safety
regulation.
As I’ve noted, Pike requires that we scrutinize the legisla-
ture’s actual interest—not simply accept its stated interest at face
USCA11 Case: 21-12729 Date Filed: 10/06/2022 Page: 85 of 123
30 ROSENBAUM, J., Dissenting 21-12729
value. Clover Leaf Creamery Co.,
449 U.S. at 463 n.7. And no one
can seriously contend that Section
381.00316(1) furthers the pub-
lic’s health or safety....
...el Rio Aff. ¶ 27.
So, he said, “verifying the vaccination status of cruise passengers”
is the best safeguard against COVID-19 transmission aboard the
company’s cruises.24 Del Rio Aff. ¶ 26. By removing this tool from
the cruise industry, Section 381.00316(1) ensures more transmis-
sion of COVID-19 and decreases public safety.
We, of course, owe deference to the district court’s factual
findings....
...: 86 of 123
21-12729 ROSENBAUM, J., Dissenting 31
Plus, here, the legislative history confirms that Florida nei-
ther consulted with medical experts nor reviewed scientific evi-
dence when it enacted Section 381.00316(1). For example, during
floor debates, Florida Senator Danny Burgess, who introduced the
amendment that ultimately became Section 381.00316(1), see S.B.
2006, Amendment 330036, 2021 Leg....
...way-safety regulation because “a massive array of evidence” dis-
proved “the State’s assertion that the regulations ma[d]e some con-
tribution to highway safety.”
434 U.S. at 444. In an even more
extreme way, the evidence here shows that Section
381.00316(1)
does not safeguard the public health and safety but rather jeopard-
izes it.
But Section
381.00316(1)’s violation of the dormant Com-
merce Clause is even more obvious than that of the law at issue in
Raymond Motor Transportation....
...There, Wisconsin’s asserted in-
terest was “promot[ing] highway safety.” Id. at 442. And as the
Supreme Court explained, there is “no field” where “deference to
state regulation has been greater than that of highway safety regu-
lation.” Id. at 443. Section 381.00316(1), though, is not a health-
and-safety regulation—let alone a highway-safety regulation. So it
is entitled to less deference than the “safety regulation” in Ray-
mond Motor Transportation.
Even if we assumed that same deference attached to Section
381.00316(1), though, a “massive array of evidence” still
USCA11 Case: 21-12729 Date Filed: 10/06/2022 Page: 88 of 123
21-12729 ROSENBAUM, J., Dissenting 33
“disprove[s] the State’s assertion that the regulations make some
contribution” to health and safety. Instead, Section 381.00316(1)
undermines public health and safety. Id. at 444. So Section
381.00316(1) cannot seriously be described as a “bona fide safety
regulation[.]” Kassel, 450 U.S....
...at 670 (plurality opinion). And Flor-
ida’s asserted interest in “safeguarding public health and safety,”
Fla.’s Initial Br. at 1, is therefore “illusory,” Kassel,
450 U.S. at 671
(plurality opinion); see also id. at 691 (Rehnquist, J., dissenting).
B. Section
381.00316(1) does not prevent discrimination.
I next turn to Florida’s first of two asserted interests in pro-
moting the economic well-being of its citizens....
...That evidence, on which Florida and the Majority Opinion
rely exclusively, is a single comment Representative Tom Leek
made on the legislature’s floor on April 28, 2021. Aside from that
remark, the legislative history lacks any evidence that the state in-
tended Section 381.00316(1) as antidiscrimination legislation to
protect Florida’s “minority populations.” No other representative
or senator made comments to that effect. Nor do any one of the
USCA11 Case: 21-12729 Date Filed: 10/06/2022 Page: 91 of 123
36 ROSENBAUM, J., Dissenting 21-12729
six analyses of SB 2006 (the bill that became Section 381.00316)
from the Florida Senate’s Committees on Rules, Appropriations,
and Military and Veterans Affairs, Space, and Domestic Security
say the first thing about protecting Florida’s “minority popula-
tions,” even though many of those analyses discuss the bill’s pur-
ported intent.
And Representative Leek disavowed any such legislative in-
tent the day before he made the statement on which Florida and
the Majority Opinion rely as proof that Florida enacted Section
381.00316(1) to protect its minority populations. During the
House session on April 27, 2021, the following exchange occurred
when Representative Michael Grieco asked Representative Leek
about the provision that eventually became Section 381.00316(1):
Grieco: Chair Leek, are you familiar with what is a pro-
tected class for purposes of private businesses
being unable to discriminate against them?
Leek: ....
...In
fact, Representative Leek said, “That’s outside the scope of this
bill,” “We’re pretty far afield from what’s in this bill,” and “That is
not addressed in this bill.” Three times Representative Leek de-
clined to link what became Section 381.00316(1) with protecting
“minority populations.” But see Maj....
...On the contrary, he explained that recognizing a new pro-
tected class beyond federal law was “not addressed in this bill,” and the Major-
ity Opinion twice concedes as much. Id. at 40 (“[T]he creation of a new pro-
tected class is not addressed in the bill[.]”); id. at 44 (“Section 381.00316(1) does
not involve a constitutionally protected class[.]”)....
...Even so, even assuming (contrary to
USCA11 Case: 21-12729 Date Filed: 10/06/2022 Page: 93 of 123
38 ROSENBAUM, J., Dissenting 21-12729
To reiterate, then, the contention that Florida enacted Sec-
tion 381.00316(1) as civil-rights legislation to protect “minority
populations” relies exclusively on Representative Leek’s statement,
which he made the day after disavowing any link between Florida’s
law and discrimination based on age, disability, gender, race, or re-
ligion....
...l
protects “minority populations.” There’s certainly nothing wrong
with that.
But Representative Leek’s individual revelation doesn’t
make protecting “minority populations” the intent of the Florida
legislature in enacting Section 381.00316(1)....
...pinion’s ef-
forts to identify the Florida legislature’s intent based solely on one
of two contradictory statements a single representative made on
the floor.
At bottom, there is no evidence that the legislature’s intent
in enacting Section 381.00316(1) was to prevent discrimination
against Florida’s minority populations.
ii....
...ext of a cruise ship.
See Norwegian,
553 F. Supp. 3d at 1150.
Ignoring the reason behind Norwegian’s distinction be-
tween vaccinated and unvaccinated passengers, the Majority Opin-
ion appears to incorrectly suggest that Florida enacted Section
381.00316(1) to protect against invidious discrimination against un-
vaccinated people....
...efits side of the balance. And it’s simply reality that Norwegian’s
use of vaccination status to make scientifically supported, health-
based decisions is just not the same thing at all as invidious ethnic
or racial discrimination. So the use of Section 381.00316(1) to pre-
vent Norwegian from requiring proof of vaccination to board a
multi-day cruise to foreign ports is not entitled to the same weight
on the local-benefits side of the analysis as a state law that prohibits
invidious dis...
...at 43 (de-
fending this false equivalence).
iii. Even assuming that Florida’s law remedies non-pejorative
discrimination, that interest is trivial at best.
That brings us back to the first, non-pejorative definition of
discrimination: at best, Section 381.00316(1) remedies the “intel-
lectual faculty of noting differences and similarities,” Discrimina-
tion, Black’s Law Dictionary, supra (definition 1), by preventing
businesses from denying services to unvaccinated people, see Maj.
Op....
...And because we must evaluate the nature of the interest the
state claims, it’s important to identify that interest precisely. See
Pike,
397 U.S. at 145–146 (evaluating the state’s interest as the law
applied to the company that sued in that case). Although Section
381.00316(1) seems on its face like it protects both vaccinated and
unvaccinated people from discrimination for failure to produce
documentation of vaccination, that’s not so....
...Only
unvaccinated people cannot produce documentation that they are
vaccinated. And in any case, the statute punishes businesses only
for requiring customers to provide “documentation certifying
COVID-19 vaccination or postinfection recovery”—not for requir-
ing proof that customers are unvaccinated. Fla. Stat. §
381.00316(1).
In fact, the Florida Legislature even voted against an amend-
ment that would have protected vaccinated people from discrimi-
nation. During the debate on the bill that became Section
381.00316(1), Senator Jason Pizzo voiced concerns about this kind
of discrimination....
...ssenting 49
reveals that Florida’s interest is not “a substantial interest [that is]
weightier than a ‘legitimate local’ one.” Id. at 31.
That’s especially so when we consider that Norwegian chal-
lenges Section 381.00316(1) only as it applies to cruise ships....
...In short, they do not present the same infectious-disease-
transmission problems that cruises do. Yet even Florida has recog-
nized that infectious-disease-transmission issues as they relate to
COVID-19 are not the same in all business contexts. See Section
381.00316(5) (excepting “health care provider[s]” from complying
with Section 381.00316(1))....
...2022 Page: 105 of 123
50 ROSENBAUM, J., Dissenting 21-12729
The Majority Opinion’s refusal to address the challenge that
is actually before the Court betrays its lack of confidence that Sec-
tion 381.00316(1) survives dormant Commerce Clause analysis as
applied to the cruise industry.
iv....
...tify burdening interstate and foreign commerce “will of course de-
pend on the nature of the local interest involved,” Pike,
397 U.S. at
142. And in considering the nature of that interest, we must also
remember that this is an as-applied challenge that seeks to enjoin
Section
381.00316(1) only as it applies to the cruise industry.
To that end, there’s no question that Florida’s law furthers
its interest in preventing discrimination (if at all) only marginally.
And that’s the death knell for Florid...
...Many of those passengers remain
in Florida for only the time necessary to get to and board the cruise
ship, before leaving Florida, often sailing to international destina-
tions, and then, right after their cruises, returning to their homes
outside the state. So any local benefits from Section 381.00316(1)’s
application to the cruise-ship industry are minimal and short-lived.
Second, those benefits, minimal as they are to begin with,
vanish soon after the cruise leaves port....
...a state’s law is “invalid” under the Commerce Clause when “the
practical effect of the regulation is to control conduct beyond the
boundaries of the State.” Healy v. Beer Inst., Inc.,
491 U.S. 324, 336
(1989).
As applied to the cruise industry, then, Section
381.00316(1)
protects unvaccinated Floridians from the “intellectual faculty of
noting differences and similarities” only at the time of boarding and
disembarking....
...And of
course, it would not prevent COVID-19 cases from overrunning the medical
services onboard and obstructing medical care for other illnesses and condi-
tions. So such a practice would not avoid the great burdens on interstate and
foreign commerce that Section 381.00316(1) imposes.
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21-12729 ROSENBAUM, J., Dissenting 53
To all that, the Majority Opinion’s only retort is to accuse
me of “artificially limit[ing] the State’s interest” by focusing only
on Section 381.00316(1)’s application to “luxury ocean liners.” Maj.
Op. at 32. But focusing on Section 381.00316(1)’s application to
“luxury ocean liners” is precisely what Pike requires....
...at 144 (disregarding Arizona’s asserted interest because “appli-
cation of the act” to the farming-company plaintiff had “a far differ-
ent impact, and quite a different purpose.”); see also Norwegian,
553 F. Supp. 3d at 1180 (enjoining Florida “from enforcing Section
381.00316 against [Norwegian]” only). And adhering to Pike re-
veals that Florida’s interest in preventing discrimination is, to
quote the Majority, “artificial[]” because it is illusory. Maj. Op. at
32.
C. Section
381.00316(1) does not meaningfully promote privacy.
Florida’s final asserted justification for the statute is one in
“promoting privacy” for those who wish not to disclose their
COVID-19 vaccine documents....
...There is no doubt that protecting
privacy is a legitimate state interest.
But Florida has indicated that that privacy interest is signifi-
cantly less substantial in the context of requiring proof of vaccina-
tion against deadly diseases. As Senator Tina Polsky pointed out
during the bill’s floor debates, Section 381.00316 prohibits busi-
nesses and schools from requiring proof of vaccination for COVID-
19—even though businesses and schools can require, for instance,
proof of vaccination for measles, mumps, and rubella....
...Floridians’ privacy by contradicting that interest. Florida contra-
dicted its privacy interest because the state itself requires Floridians
to present proof of vaccination against diseases other than COVID-
19 to attend schools at the very same time that Section 381.00316(1)
prohibits cruise lines from requiring documentation of COVID-19
vaccination....
...29
rational-basis scrutiny on the local-benefits side of the equation.32
Perhaps that explains the Majority Opinion’s choice to retcon
dormant Commerce Clause cases to support its mistaken applica-
tion of rational-basis review when analyzing Section 381.00316(1)’s
local benefits....
...tion that courts engage in rational-basis review when analyzing the
local-benefits side of the scale under Pike.
The Majority Opinion first revises Florida Transportation
Services to support the proposition that Florida’s “justifications are
not illusory if applying section 381.00316(1) ‘as written’ would ‘ra-
tionally contribute to [Florida’s] purported local benefits.’” Maj.
Op....
...For that
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62 ROSENBAUM, J., Dissenting 21-12729
reason, Florida’s asserted privacy interest warrants less weight on
the local-benefits side of the Pike balancing scale.
V. The substantial burden Section 381.00316(1) imposes on do-
mestic and foreign commerce clearly exceeds any local ben-
efits the law bestows.
As Section IV of this dissent shows, Florida’s justifications
for Section 381.00316(1) are illusory. But even if we assume Sec-
tion 381.00316(1) could “rationally” further the interests Florida
claims, again, a “determination that a state law is a rational safety
measure does not end the Commerce Clause inquiry.” Kassell, 450
U.S....
...at 670 (plurality
opinion); Raymond Motor Transp.,
434 U.S. at 443. Rather, even
a safety measure may be “rational” and still fail under Pike if it
yields demonstrably trivial safety benefits while imposing a mean-
ingful burden on commerce. And Section
381.00316(1) goes a step
beyond that—it imposes substantial burdens on commerce.
As is clear by now, the law makes the spread of COVID-19
significantly more likely—especially in the cruise setting, where, as
the district court...
...COVID-19 when other countries allow cruise passengers to disem-
bark. Del Rio Aff. ¶ 19. “[M]any of these populations lack the ac-
cess to healthcare and other resources,” so they “may be badly
damaged and they may understandably blame [Norwegian] for it.”
Id.
But Section 381.00316(1) doesn’t just increase COVID-19
cases onboard and in foreign ports....
...terstate commerce
by killing and temporarily (and permanently, in many cases) disa-
bling millions of people, keeping them out of work, school, and
leisure activity and gravely affecting the economy.
By exacerbating the COVID-19 problem, Section
381.00316(1) appreciably increases these harms nationwide (and
worldwide) while bestowing negligible (if any) local benefits....
...And less than 100% vaccination
virtually ensures more COVID-19 cases and all the ill effects on
safety, hygiene, and comfort that come with that. Florida also dis-
regards that Norwegian sold at least some of its tickets for 100%-
vaccinated cruises before the legislature enacted Section
381.00316(1).
Beyond these harms, Norwegian would suffer monetary
losses that it couldn’t recover from the state because of its sover-
eign immunity, thus rendering the harm suffered irreparable....
...And Florida does not deny that “the public interest is
served when constitutional rights are protected.” Democratic
Exec. Comm. of Fla. v. Lee,
915 F.3d 1312, 1327 (11th Cir. 2019).
In sum, the district court did not abuse its discretion in pre-
liminarily enjoining the operation of Section
381.00316(1) as ap-
plied to Norwegian.
VII. Conclusion
For all these reasons, I would affirm the district court’s order
granting a preliminary injunction of Section
381.00316(1) as applied
to Norwegian....
