The cruise line challenge to Florida’s ban on vaccine passports is near an end

UPDATE: In a victory for Gov. Ron DeSantis, a sharply divided federal appeals court Thursday rejected arguments by Norwegian Cruise Line Holdings that Florida’s ban on so-called “vaccine passports” is unconstitutional.

More than a year after a federal judge backed Norwegian Cruise Line Holdings in a constitutional challenge to Florida’s ban on so-called “vaccine passports,” the legal battle could be poised to end.

Miami-based Norwegian said in filings this week in federal district court and an appellate court that it has lifted requirements that passengers show proof of vaccination against COVID-19 before boarding ships. As a result, it said the state’s appeal in the case is moot and that a preliminary injunction should be scrapped.

U.S. District Judge Kathleen Williams in August 2021 issued the preliminary injunction, blocking the state from enforcing its vaccine-passport ban against Norwegian. The state appealed Williams’ ruling to the Atlanta-based 11th U.S. Circuit Court of Appeals, where the issue has been pending.

“In light of these updated policies, NCLH (Norwegian Cruise Line Holdings) respectfully suggests that this appeal is likely moot,” attorneys for the company wrote in a document filed Tuesday. “This is an appeal from a preliminary injunction against a statute that prohibits a business practice NCLH is no longer engaging in, for now and the foreseeable future. NCLH recognizes that it cannot claim relief from a statute that is not presently posing injury to NCLH.”

Gov. Ron DeSantis last year made a priority of blocking businesses, including the cruise industry, from requiring proof of vaccinations from customers. He issued an executive order preventing the use of vaccine passports, and the Republican-controlled Legislature later passed a bill that put the ban into law.

Norwegian filed the lawsuit in July 2021, alleging that the law violated First Amendment rights and what is known as the dormant Commerce Clause of the U.S. Constitution. The cruise industry shut down in 2020 after high-profile outbreaks of COVID-19 and also grappled with federal Centers for Disease Control requirements about safely resuming operations.

In granting Norwegian’s request for a preliminary injunction, Williams wrote that the state 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.’”

In appealing Williams’ decision, the DeSantis administration disputed that the law violated the First Amendment.

“The law simply prohibits businesses from conditioning service on customers providing documentation certifying COVID-19 vaccination,” state lawyers wrote in a brief. “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.”

In a news release Monday, Norwegian said it had “updated its global health and safety protocols by removing all COVID-19 testing, masking and vaccination requirements,” with the change taking effect Tuesday.

"Health and safety are always our first priority; in fact, we were the health and safety leaders from the very start of the pandemic," Harry Sommer, president and chief executive officer of Norwegian Cruise Line, said in a prepared statement. "Many travelers have been patiently waiting to take their long-awaited vacation at sea, and we cannot wait to celebrate their return."

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