CONTEXT: Florida has tasked the Department of Health to fine businesses / government requiring proof of vaccination to be fined $5K:

The Florida Department of Health will begin enforcing the state’s ban on vaccine passports on Sept. 16.


Said news article indicates: Last month, a federal judge sided with Norwegian Cruise Line in its case challenging the Florida law prohibiting cruise companies from demanding passengers show proof of vaccination before boarding a ship.

Judge Kathleen Williams said the ban is unconstitutional on grounds of free speech.

“The First Amendment, applicable to the States through the Fourteenth Amendment, prohibits the enactment of laws ‘abridging the freedom of speech’… Pursuant to this clause, a state ‘has no power to restrict expression because of its message, its ideas, its subject matter, or its content,’” her ruling stated.

Why is this unconstitutional?

Isn't the real issue whether businesses and other organizations can selectively choose who can / can not enter? There are obvious forms of selection (i.e. based on race) that are unconstitutional: where is the 'bright line'?


2 Answers 2


Section 381.00316 is unconstitutional because it is an unjustifiable content-based restriction on speech, in violation of the First Amendment.

The law is unconstitutional because private businesses and their owners have a First Amendment right to demand that their customers engage in speech as a condition of doing business.

If you've watched Showtime at the Apollo or America's Got Talent, you understand the concept that a business owner can make decisions -- objectively or subjectively -- about what kinds of speech they want to host. If you want to make it through your performance, it's incumbent on you to satisfy the predilections of the business owner.

And this doesn't just apply to TV. If you went to a poetry slam at your local coffee shop, the owners could boot you if talked through the performances, making it difficult for other customers to enjoy the show. Likewise, they could boot you if you went to the mic and started spouting racist nonsense, or if you just stood at the mic and said nothing at all.

In the Florida case, Norwegian is doing the same thing -- just not for artistic reasons. Beyond requiring customers to pay for a ticket, it is requiring its customers to communicate the message that they are vaccinated, and they are requiring them to communicate using written documentation. In other words, Norwegian is demanding that customers engage in speech ("I am vaccinated") in a certain way (written proof of vaccination), and that kind of exchange falls within the protections of the First Amendment.

That speech is subject to regulation because of its vaccination-related content of that speech, making Section 381.00316 a content-based restriction on speech, which subjects it to strict scrutiny, meaning that the state cannot enforce the law unless it furthers a compelling governmental interest and is narrowly tailored to advance that interest.

The state argued that the law furthered compelling governmental interests in protecting medical privacy and preventing discrimination, but the court wasn't buying it:

Here, Defendant has presented no evidence to demonstrate that his asserted interests are in response to real problems that Florida residents are actually facing. There is no evidentiary support to show that residents have experienced intrusions on their medical privacy or discrimination because some businesses, including cruise lines, have required COVID-19 vaccination documentation. The legislative record cited by Defendant is bereft of any facts or data underpinning the Statute’s purported purpose. In light of the absence of any appropriate data, reports, or even anecdotal evidence on this issue, the Court cannot conclude that Defendant’s articulated interests are based on a problem that exists in fact.

And even if these were compelling interests, the state failed to prove that the law was actually advancing them. Because the law outlawed the exchange of written communication rather than outlawing the vaccination requirements themselves, businesses remained free to demand information about vaccination status (through oral statements, for instance), and to discriminate against who they knew or believed to be unvaccinated.

(N.B.: For procedural reasons, they court actually applied intermediate scrutiny, but the law ends up invalid for basically the same reasons.)

Section 381.00316 is unconstitutional because it substantially burdens interstate commerce in violation of the Dormant Commerce Clause.

The law was also struck down because it intrudes on the federal government's authority to regulate interstate (and international) commerce.

When a law is challenged under the Dormant Commerce Clause, courts ask two questions: (1) Does the state law favor in-state economic interests; and (2) Does the state law's burden on interstate commerce outweigh the legitimate local benefits to the state?

A "yes" answer to either will invalidate the law. Here, the court held that the law did not directly favor in-state economic interests, but that the burdens on commerce outweighed the local benefits. Because the law did not meaningfully advance any of the local interests it had invoked (as discussed above), but it did impose a substantial burden on interstate commerce because Norwegian's ships travel to additional ports where proof of vaccination is required:

Section 381.00316 will prevent NCLH and other cruise lines from possessing verified information necessary to effectively and efficiently process landing and disembarking at various, preferred domestic and international ports where documentary proof of vaccination is required. This affects not only opportunities for vacation activities like sightseeing, but also responses to mechanical and medical emergencies, or even geopolitical crises. Depriving cruise lines of corroboration of passengers’ vaccination status impedes their ability to prepare and address these eventualities.

Either the First Amendment violation or the Commerce Clause violation would have been independently enough to invalidate the statute. Norwegian also argued that the statute was preempted by the CDC's Conditional Sailing Order and related orders, but the court declined to address that argument.

  • The First Amendment allows an individual or company to engage in speech, I've never heard that it allows them to demand speech of customers.
    – Barmar
    Commented Sep 4, 2021 at 21:28
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    The commerce clause makes much more sense.
    – Barmar
    Commented Sep 4, 2021 at 21:28
  • 2
    Yes, the Commerce Clause argument is definitely much more straightforward, but there's not much reason to think the First Amendment wouldn't allow an individual to demand speech. You are free to contract only with business that show rainbow colors on their logos for Pride Month, and Norwegian is free to contract only with customers who show vaccination cards when boarding.
    – bdb484
    Commented Sep 4, 2021 at 22:49
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    To clarify, though, the principle is not that the First Amendment authorizes the demand of speech, but rather that it forbids government regulations of the topic of our speech. If the government wants to pass a law that lets you talk about the smallpox vaccine but not the COVID-19 vaccine, it has to clear some really high hurdles, which it couldn't do here.
    – bdb484
    Commented Sep 4, 2021 at 23:00
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    Protected: You don’t have a Constitutional right to carry SARS-CoV-19 and variants (maybe you could make the frivolous argument that you carry it as a means of biological ware fare or arms 😂) or that you don’t take a vaccine against its infections. Especially now, that the government found it safe from 12 and up approved its use, it would be a high bar. Maybe they could achieve a right to be served outside for public commodities especially those with previously diagnosed Guillain-Barré-syndrome, children under 12 etc. & maybe there should be a duty imposed on public commodities biz, but […]
    – kisspuska
    Commented Sep 4, 2021 at 23:22

State governments, in general, have very broad legislative authority. Surely, a state legislature can pass a law prohibiting a private business or local government agency from requiring a vaccine passport, so long as it is not pre-empted by federal law or federal regulations.

It is very unlikely to be unconstitutional under the federal constitution. Conceivably, there is a freedom of association concern, but state government has virtually absolute federal constitutional authority over local governments. And, precedents for similarly intrusive regulations of businesses engaged in general retail sales to the public are there, even though for non-businesses or businesses that are not "public accommodations" that serve the general public, there might be a freedom of association concern.

It is also unlikely that the regulation would offend the state constitution, although it is barely possible that the Florida state constitution might have some intrastate federalism type provision that prohibited state government from imposing this kind of order on a local government.

This doesn't mean that the Department of Health actually has the authority to issue these kinds of regulations. Its regulatory power is to issue emergency mandates to prevent the spread of disease, not to take actions with no medical or public health basis that impairs the ability to fight infectious diseases. This regulation very likely exceeds the agency's authority under Florida statutes, and furthermore, it probably doesn't even pass a rational basis test analysis as a regulation passed under that authority (even if it might pass a rational basis test if enacted by the state legislature).

I'm not aware of any current conflict with a federal statute or regulation. For the most part this kind of rule is not contemplated and federal law is silent on them. But, the CDC almost surely has the authority to enact a regulation which would prohibit Florida from imposing an anti-vaccination passport requirement on private businesses (although, for federalism reasons, it might very well not be able to do so in the case of state and local governments, although it could condition grants on not having such a regulation).

As a famous justice once said, the constitution does not prohibit passing stupid laws, even though it does impose some limitations on the kinds of laws that may be enacted.

  • Good insightful comments, especially with freedom of association and rational basis test analysis
    – gatorback
    Commented Sep 4, 2021 at 12:01
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    Isn't this a bit dismissive of the constitutional arguments? An appeal is pending, naturally, but the law has, in fact, already been ruled unconstitutional on at least two grounds.
    – bdb484
    Commented Sep 4, 2021 at 20:52
  • @bdb484 Giving it my honest cold take. If someone rules otherwise, I won't be disappointed and bad laws encourage judges to take weak constitutional arguments more seriously. I don't see it as either a free speech or a dormant commerce clause issue, but it is definitely a wacky law that shouldn't be on the books.
    – ohwilleke
    Commented Sep 5, 2021 at 0:00
  • We're definitely in agreement on the last point, at least.
    – bdb484
    Commented Sep 5, 2021 at 0:05
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    @Fizz Legal authority and ability to get people to follow lawful orders that are absurd are two different things.
    – ohwilleke
    Commented Sep 8, 2021 at 3:32

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