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`In the
`United States Court of Appeals
`For the Eleventh Circuit
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`____________________
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`No. 21-12729
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`NORWEGIAN CRUISE LINE HOLDINGS LTD,
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`a Bermuda Company,
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`NCL (BAHAMAS), LTD.,
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`a Bermuda Company agent of Norwegian Cruise Line,
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`SEVEN SEAS CRUISES S. DE R.L. LLC,
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`d.b.a. Regent Seven Seas Cruises,
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`OCEANIA CRUISES S. DE R.L.,
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`d.b.a. Oceania Cruises,
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` Plaintiffs-Appellees,
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`versus
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`STATE SURGEON GENERAL,
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`Florida Department of Health, in his official capacity,
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`In the
`United States Court of Appeals
`For the Eleventh Circuit
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`____________________
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`No. 21-12729
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`____________________
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`NORWEGIAN CRUISE LINE HOLDINGS LTD,
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`a Bermuda Company,
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`NCL (BAHAMAS), LTD.,
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`a Bermuda Company agent of Norwegian Cruise Line,
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`SEVEN SEAS CRUISES S. DE R.L. LLC,
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`d.b.a. Regent Seven Seas Cruises,
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`OCEANIA CRUISES S. DE R.L.,
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`d.b.a. Oceania Cruises,
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` Plaintiffs-Appellees,
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`versus
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`STATE SURGEON GENERAL,
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`Florida Department of Health, in his official capacity,
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`Opinion of the Court
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`21-12729
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` Defendant-Appellant.
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`____________________
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`Appeal from the United States District Court
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`for the Southern District of Florida
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`D.C. Docket No. 1:21-cv-22492-KMW
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`____________________
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`Before WILLIAM PRYOR, Chief Judge, ROSENBAUM, and BRASHER,
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`Circuit Judges.
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`WILLIAM PRYOR, Chief Judge:
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`This appeal concerns whether a Florida statute that prohib-
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`its all businesses operating in the state from requiring customers to
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`provide documentary proof that they are vaccinated against
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`COVID-19 violates the Free Speech and Commerce Clauses of the
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`Constitution. Norwegian Cruise Line Holdings Ltd., a corporation
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`headquartered in Florida, operates cruise ships that travel around
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`the world. Norwegian requires everyone on board its ships to be
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`vaccinated against COVID-19. To enforce that policy, Norwegian
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`requires its customers to provide proof of vaccination. Florida
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`sought to protect its residents from that kind of discrimination by
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`enacting a statute that prohibits businesses from “requir[ing] pa-
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`trons or customers to provide any documentation certifying
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`COVID-19 vaccination or postinfection recovery to gain access to,
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`entry upon, or service from the business operations in [Florida].”
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`21-12729
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`Opinion of the Court
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`FLA. STAT. ANN. § 381.00316(1). Norwegian sued Florida’s Surgeon
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`General and moved for a preliminary injunction. The district court
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`entered a preliminary injunction on the grounds that the statute
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`likely violates Norwegian’s right to speak freely, see U.S. CONST.
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`amends. I, XIV, and likely unduly burdens interstate commerce,
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`see U.S. CONST. art. I, § 8, cl. 3.
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`We vacate the preliminary injunction. Florida’s statute is a
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`regulation of economic conduct that only incidentally burdens
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`speech, which does not implicate the First Amendment. And its
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`burdens on interstate commerce do not exceed the benefits of fur-
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`thering Florida’s substantial interests in protecting its residents
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`from discrimination and invasions of privacy.
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`I. BACKGROUND
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`After March 2020, the COVID-19 pandemic took a substan-
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`tial toll on the cruise industry. Although some cruise lines volun-
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`tarily suspended operations, not all did. See 85 FED. REG. 16628,
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`16631 (Mar. 24, 2020). As a result, the federal government pub-
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`lished a No Sail Order and generally prohibited cruise-ship opera-
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`tions. Id. For more than a year, Norwegian’s “entire 28-vessel fleet
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`was docked and inactive” because of the pandemic. And the halt of
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`operations in that time allegedly cost Norwegian more than $6 bil-
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`lion.
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`Later that year, the Centers for Disease Control and Preven-
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`tion published another order that “establishe[d] a framework for a
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`phased approach to resuming cruise ship passenger operations in
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`Opinion of the Court
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`21-12729
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`U.S. waters.” 85 FED. REG. 70153, 70153 (Nov. 4, 2020). The condi-
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`tional sailing order included the “[e]stablishment of laboratory test-
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`ing of crew onboard cruise ships in U.S. waters”; “simulated voy-
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`ages designed to test a cruise ship operators’ ability to mitigate
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`COVID-19 onboard cruise ships”; “a certification process”; and “a
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`return to passenger voyages in a manner that mitigates the risk of
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`COVID-19 introduction, transmission, or spread among passen-
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`gers and crew onboard ships and ashore to communities.” Id. And
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`the order “contain[ed] requirements for . . . [s]horeside COVID-19
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`laboratory screening testing of all crew”; “onboard diagnostic test-
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`ing capabilities for symptomatic travelers”; “shoreside COVID-19
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`laboratory screening testing of all newly embarking crew”; and
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`“continued compliance with complete, accurate, and acknowl-
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`edged, No Sail Order Response Plans.” Id.
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`In April 2021, the Centers sent a letter to “Cruise Industry
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`Colleagues.” The letter included updates for fully vaccinated pas-
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`sengers and crew. “In lieu of conducting a simulated voyage” as
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`announced in the phased approach, cruise ship operators could
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`“submit to [the Centers] a clear and specific vaccination plan and
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`timeline to limit cruise ship sailings to 95 percent of passengers who
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`have been verified by the cruise ship operator as fully vaccinated
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`prior to sailing.”
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`The State of Florida sued the Centers and moved for a pre-
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`liminary injunction on the ground that the conditional sailing order
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`and the later instructions were unlawful. See Florida v. Becerra, 544
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`F. Supp. 3d 1241, 1246–47 (M.D. Fla. 2021). The district court
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`Opinion of the Court
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`preliminarily enjoined the Centers “from enforcing against a cruise
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`ship arriving in, within, or departing from a port in Florida the con-
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`ditional sailing order and the later measures.” Id. at 1305. The Cen-
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`ters appealed to this Court and requested a stay of the injunction.
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`After we first granted that request, we sua sponte vacated our ini-
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`tial order and denied the Centers’ request for a stay. See Florida v.
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`Sec’y, Dep’t of Health & Hum. Servs., No. 21-12243 (11th Cir. July
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`23, 2021). This year, the Centers moved to voluntarily dismiss the
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`appeal and we granted that motion. So, the conditional sailing or-
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`der and later instructions are now non-binding guidelines, but all
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`cruise lines operating in Florida have voluntarily complied.
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`Norwegian planned to resume sailing from Florida for the
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`first time “aboard the Norwegian Gem.” On July 9, 2021, the Cen-
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`ters approved Norwegian’s application for a conditional sailing cer-
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`tificate. Norwegian “attested to [the Centers] . . . that at least 95%
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`of passengers and 95% of its crew on its upcoming cruise will be
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`confirmed as fully vaccinated prior to sailing.” (Internal quotation
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`marks omitted.) When Norwegian submitted its attestation, it
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`“planned—and continues to plan—to ‘confirm[]’ passengers’ and
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`the crews’ COVID-19 vaccination status through documentation,
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`which [it] understand[s] to be the only reliable way of confirming
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`vaccination status in this context.”
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`Florida acted to discourage and prohibit businesses from re-
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`quiring vaccination documents as a condition of service. Governor
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`Ron DeSantis issued an executive order declaring that “[b]usinesses
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`in Florida are prohibited from requiring patrons or customers to
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`21-12729
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`provide any documentation certifying COVID-19 vaccination or
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`post-transmission recovery to gain access to, entry upon, or service
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`from the business.” Fla. Exec. Order No. 21-81 § 2 (Apr. 2, 2021).
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`The order required that businesses comply “to be eligible for grants
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`or contracts funded through state revenue.” Id. § 4. The Governor
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`explained that “many Floridians have not yet had the opportunity
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`to obtain a COVID-19 vaccination, some have infection-acquired
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`immunity, and others may be unable to obtain a COVID-19 vac-
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`cination due to health, religious, or other reasons.” Id. at 1. The
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`order also stated that “individual COVID-19 vaccination records
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`are private health information which should not be shared by man-
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`date” and that “COVID-19 vaccine passports reduce individual
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`freedom and will harm patient privacy.” Id.
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`The next month, the Florida Legislature enacted a statute
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`that is substantively identical to section 2 of the executive order.
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`The statute prohibits vaccine-documentation requirements as fol-
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`lows:
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`[A]ny business operating in this state . . . may not re-
`quire patrons or customers to provide any documen-
`tation certifying COVID-19 vaccination or postinfec-
`tion recovery to gain access to, entry upon, or service
`from the business operations in this state. This sub-
`section does not otherwise restrict businesses from in-
`stituting screening protocols consistent with authori-
`tative or controlling government-issued guidance to
`protect public health.
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`Opinion of the Court
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`FLA. STAT. ANN. § 381.00316(1). The statute further declares that
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`the State “may impose a fine not to exceed $5,000 per violation.”
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`Id. § 381.00316(4). The statute became effective on July 1, 2021.
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`The proponents of the legislation based their support on rea-
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`sons like those of the Governor. In the House, Representative Tom
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`Leek—the sponsor of the bill and the chairman of the Pandemics
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`Committee—reasoned that the statute would protect a substantial
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`minority population from discrimination:
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`We must recognize that vaccine hesitancy is real and
`understandable. Don’t get me wrong: . . . get vac-
`cinated. Please! Get vaccinated; let’s return to nor-
`mal. But recognize that it is fair for certain segments
`of our community to be hesitant about getting the
`vaccine, and that it is absolutely true that the largest
`segment of our community that is vaccination-hesi-
`tant is our minority population. It was not anti-free-
`dom nor wrong when the State stepped in and said
`that employers could not discriminate on the basis of
`race. It was not anti-freedom nor wrong when the
`State told landlords that they could not discriminate
`against people with disabilities. And it is right today
`for the State to tell businesses that they may not—
`may not—enact policies that unfairly and disparately
`discriminate against our minority populations.
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`House Session, FLA. HOUSE OF REPRESENTATIVES, at 2:28:28–
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`2:29:37 (Apr. 28, 2021), https://www.flsenate.gov/media/Video-
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`Player?EventID=1_2usodgs8-202104281030&Redirect=true. Rep-
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`resentative Leek also explained that the “bill protects the rights of
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`a material portion of our minority population who remains vaccine
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`hesitant.” Id. at 2:30:45–2:30:56. Representative Mike Beltran ex-
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`plained that news reports confirmed the existence of discrimination
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`against people based on vaccination status and concluded that “we
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`have people discriminating against you if you’re not vaccinated.
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`Why are we doing this?” Id. at 2:24:25–2:24:59.
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`In the Senate, Senator Danny Burgess reasoned along simi-
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`lar lines. He explained that the Legislature was “making sure
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`there’s not a chilling effect for those who . . . have religious reasons
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`for not getting [the vaccine] or health reasons for not wanting to
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`get it.” Senate Session, FLA. SENATE, at 6:24:00–6:24:10, (Apr. 29,
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`2021),
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`https://www.flsenate.gov/media/VideoPlayer?Even-
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`tID=1_3wpkrnbb-202104291000&Redirect=true. He added that
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`the “vaccine is not mandated and we have exemptions already
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`when it comes to religious beliefs, so I think that we’re just in line
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`with . . . those policies.” Id. at 6:24:08–6:24:19. And when asked
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`“about . . . cruise ship[s]” specifically, Senator Burgess explained
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`that “we’re making a public policy call here in Florida that . . . if
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`you operate a business here in Florida you cannot require one to
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`have a vaccine . . . to gain entry.” Id. at 6:30:36–6:30:57.
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`The cruise industry did not uniformly adopt a vaccination
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`requirement for all passengers. Carnival Cruise Line, Royal Carib-
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`bean International, Celebrity Cruises, and MSC Cruises each “al-
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`lowed at least some unvaccinated passengers to sail, although the
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`policy regarding the number of unvaccinated passengers permitted
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`to sail on each ship varies by company.” Some of these cruise lines
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`Opinion of the Court
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`“required vessels to sail with at least 95 percent of their passengers
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`fully vaccinated” and required “[v]accinated passengers” to provide
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`proof of their vaccination status at the terminal. “Other companies,
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`such as MSC, have not required ships to sail with a set percentage
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`of vaccinated guests.” Norwegian took a more restrictive approach
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`that would exclude all unvaccinated persons from their cruises. In-
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`deed, Norwegian “promised its passengers 100% vaccinated cruises
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`before [the statute] was enacted on May 3, 2021, and before it took
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`effect on July 1, 2021.” (Emphasis added.)
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`Norwegian and several of its wholly owned subsidiaries
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`sued the Surgeon General of Florida in his official capacity and
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`moved for “[p]reliminary and permanent injunctive relief prevent-
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`ing [the Surgeon General] from enforcing Florida Statute
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`§ 381.00316 against [Norwegian], including any subsidiaries, oper-
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`ators or agents” and a “declaration that [the statute] is unlawful as
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`applied to” Norwegian. Norwegian complained that “[w]hile [it]
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`[intended to] require documentation confirming that its passengers
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`have been vaccinated,” the State “enacted a law . . . that expressly
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`prohibits [Norwegian] from requiring such documentation.” Nor-
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`wegian asserted that the statute “blocks communications between
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`a business and its customers . . . in violation of the First Amend-
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`ment” and “profoundly disrupts the proper flow of interstate and
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`international commerce without advancing any substantial state
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`interest . . . in violation of the Dormant Commerce Clause.”
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`To support its claims, Norwegian alleged that its ships “sail
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`to interstate and foreign ports” and that “[m]any such ports require
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`proof of vaccination to enter, proof of vaccination to enter without
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`a mandatory quarantine, or proof of vaccination to enter without
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`testing.” Norwegian “scheduled several upcoming voyages to for-
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`eign ports that require proof of vaccination to enter without test-
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`ing, including Belize, Bahamas, British Virgin Islands, and Hondu-
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`ras.” (Emphasis added.) “As such, [Norwegian] . . . planned cruises
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`requiring proof that 100% of passengers and crew have been vac-
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`cinated against COVID-19.” Norwegian alleged that it “cannot ver-
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`ify its passengers’ COVID-19 vaccination status unless it can re-
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`quire passengers to show documentation certifying that they are
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`fully vaccinated” because “[t]here is no adequate substitute for doc-
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`umentary proof when it comes to confirming vaccination status.”
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`Because “the only way for [Norwegian] to require vaccine docu-
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`mentation . . . would be by eschewing operations in Florida,” Nor-
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`wegian alleged that its “operations will be impaired and it will lose
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`substantial revenue.” It alleged that “Florida’s [statute] threatens to
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`disrupt and even shut down the interstate and foreign cruise oper-
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`ations of [Norwegian].” And the statute allegedly burdens Norwe-
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`gian’s speech because it “restricts the transmission of information
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`based on its content, as it expressly prohibits transmission only of
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`documentation ‘certifying COVID-19 vaccination or postinfection
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`recovery.’” (Quoting FLA. STAT. ANN. § 381.00316(1).)
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`In an affidavit Norwegian filed in the district court, Dr. Ste-
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`phen Ostroff explained that “[r]equiring that all passengers and
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`crew be fully vaccinated is the single best way to guard against
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`COVID-19 transmission on cruise ships.” He added that “cruise
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`Opinion of the Court
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`lines [cannot] effectively implement passenger and crew vaccina-
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`tion requirements” without “an adequate way to verify vaccination
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`status” because “it is not uncommon for individuals to attempt to
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`evade public health screening protocols.”
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`Norwegian’s Chief Executive Officer, Frank J. Del Rio, ex-
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`plained in an affidavit that “80% of cruise passengers would prefer
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`fully vaccinated voyages” and that “[t]he maintenance of consumer
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`confidence and goodwill is essential for sustainable business suc-
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`cess in the cruise industry.” He also explained that “requiring full
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`vaccination for 100% of passengers and crew is consistent with the
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`vaccination protocols required by many foreign ports where [Nor-
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`wegian] ships are scheduled to visit.” He reported that “[n]o other
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`jurisdiction that [Norwegian] operates in around the world prohib-
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`its documenting passengers’ vaccination status as Florida now
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`does.” And he attested that “[t]he loss of revenue caused by the
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`[statute] in calendar year 2021 could exceed $100 million and could
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`also result in a loss or diminishment of employment for [Norwe-
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`gian] employees in South Florida.”
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`Norwegian moved for a preliminary injunction, which the
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`district court granted. The district court enjoined the Surgeon Gen-
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`eral “from enforcing [s]ection 381.00316 against [Norwegian] pend-
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`ing resolution of the merits of this case.” It “f[ound] that [Norwe-
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`gian] [was] entitled to a preliminary injunction because [it] ha[d]
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`shown: (1) a substantial likelihood of success on the merits of [its]
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`First Amendment and [D]ormant Commerce Clause claims; (2)
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`that [it] would suffer irreparable injury absent an injunction; and
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`(3) that the equities and public interest weigh in favor of an injunc-
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`tion.” On the First Amendment claim, the district court ruled that
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`section 381.00316 is a content-based restriction; it rejected the ar-
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`gument that section 381.00316 is an economic regulation of con-
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`duct that only incidentally burdens speech; and it held that the stat-
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`ute fails to survive heightened scrutiny. On the Dormant Com-
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`merce Clause claim, it ruled that section 381.00316 “does not di-
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`rectly regulate, or affirmatively discriminate against, interstate
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`commerce” and that the “[s]tatute is applicable to both out-of-state
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`and in-state business entities that operate in the State of Florida.”
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`The district court concluded—and the parties agreed—that the
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`statute “does not implicate concerns about local economic protec-
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`tionism raised by courts that” enjoin statutes that do. applied the
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`balancing test of Pike v. Bruce Church, Inc., 397 U.S. 137 (1970). It
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`ruled that the Surgeon General “failed to articulate how the goals
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`of medical privacy and antidiscrimination are fulfilled by the ex-
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`press terms of the [s]tatute.” And it ruled that the burdens on inter-
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`state commerce are likely to be clearly excessive in relation to the
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`putative local benefits of the statute.
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`After the Surgeon General filed this appeal, Norwegian iden-
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`tified two destinations that had since required all passengers aged
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`12 and older to be fully vaccinated for ships to enter port—the Ba-
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`hamas and the United States Virgin Islands. But before oral argu-
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`ment, the Surgeon General notified this Court that the govern-
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`ments of those destinations now allow unvaccinated persons to en-
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`ter with negative COVID-19 tests. See Emergency Powers (Covid-
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`19 Pandemic) (Management and Recovery) (No.2) (Amendment)
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`(No. 8) Order, 2021, at 2–3, PRIME MINISTER OF THE BAHAMAS (Aug.
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`19, 2021) (specifying that the order is “[e]ffective the 3rd day of Sep-
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`tember, 2021 until the 1st day of November, 2021”); Travel Proto-
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`cols, THE BAHAMAS (Apr. 2, 2022), https://travel.gov.bs/file/trav-
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`elProtocols; Thirty-Fifth Supplemental Executive Order and Proc-
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`lamation by the Governor of the United States Virgin Islands § 4,
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`at 7–8, OFFICE OF THE GOVERNOR (Feb. 28, 2022).
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`II. STANDARD OF REVIEW
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`“We review a district court’s grant of a preliminary injunc-
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`tion for abuse of discretion.” Fed. Trade Comm’n v. On Point Cap.
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`Partners LLC, 17 F.4th 1066, 1077 (11th Cir. 2021). “We review the
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`preliminary injunction’s underlying legal conclusions de novo and
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`its findings of fact for clear error.” Id. at 1078.
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`III. DISCUSSION
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`“A preliminary injunction is an extraordinary remedy never
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`awarded as of right,” id. at 1077 (internal quotation marks omitted),
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`and the party seeking that remedy must satisfy a four-part test,
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`Otto v. City of Boca Raton, 981 F.3d 854, 860 (11th Cir. 2020). First,
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`it must prove that “it has a substantial likelihood of success on the
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`merits.” Id. (internal quotation marks omitted). Second, it must
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`prove that it will suffer irreparable injury unless the injunction is-
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`sues. Id. Third, it must prove that the injury that threatens it “out-
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`weighs whatever damage the proposed injunction may cause the
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`opposing party.” Id. (internal quotation marks omitted). Finally, it
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`must prove that “the injunction would not be adverse to the public
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`interest” if issued. Id. (internal quotation marks omitted).
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`We divide our discussion in two parts. First, we explain that
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`Norwegian is unlikely to succeed on the merits of its First Amend-
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`ment claim. Second, we explain that Norwegian is unlikely to suc-
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`ceed on the merits of its Dormant Commerce Clause claim.
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`A. Norwegian Is Unlikely to Succeed on the Merits of Its First
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`Amendment Claim.
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`“The First Amendment, applicable to the States through the
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`Fourteenth Amendment,” Reed v. Town of Gilbert, 576 U.S. 155,
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`163 (2015), provides that governments “shall make no law
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`. . . abridging the freedom of speech,” U.S. CONST. amend. I. That
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`command generally removes from governments the “power to re-
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`strict expression because of its message, its ideas, its subject matter,
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`or its content.” Reed, 576 U.S. at 163 (internal quotation marks
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`omitted). Statutes “that target speech based on its communicative
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`content” are “presumptively unconstitutional and may be justified
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`only if the government proves that they are narrowly tailored to
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`serve compelling state interests.” Id. And “regulation[s] of speech
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`[are] content based if [they] appl[y] to particular speech because of
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`the topic discussed or the idea or message expressed.” Id.
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`The parties disagree about whether section 381.00316(1) is a
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`content-based restriction of speech subject to heightened scrutiny.
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`The Surgeon General argues that the statute is not subject to the
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`First Amendment because it is a regulation of economic conduct
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`Opinion of the Court
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`15
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`that only incidentally burdens speech. Norwegian argues that the
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`statute is a content-based restriction of speech that cannot survive
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`strict or intermediate scrutiny.
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`We agree with the Surgeon General. “In cases at the margin,
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`it may sometimes be difficult to figure out what constitutes speech
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`protected by the First Amendment. But this is not a hard case in
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`that respect.” See Wollschlaeger v. Governor, Fla., 848 F.3d 1293,
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`1307 (11th Cir. 2017) (en banc).
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`Statutes that regulate non-expressive conduct do “not impli-
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`cate the First Amendment at all” even if they incidentally burden
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`speech. See Otto, 981 F.3d at 861, 865. “[R]estrictions on protected
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`expression are distinct from restrictions on economic activity or,
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`more generally, on nonexpressive conduct.” Sorrell v. IMS Health
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`Inc., 564 U.S. 552, 567 (2011). “[T]he First Amendment does not
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`prevent restrictions directed at commerce or conduct from impos-
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`ing incidental burdens on speech.” Id. The Supreme Court has long
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`acknowledged that making “a course of conduct illegal” is not “an
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`abridgment of freedom of speech . . . merely because the conduct
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`was in part initiated, evidenced, or carried out by means of lan-
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`guage, either spoken, written, or printed.” Ohralik v. Ohio State
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`Bar Ass’n, 436 U.S. 447, 456 (1978) (quoting Giboney v. Empire
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`Storage & Ice Co., 336 U.S. 490, 502 (1949)). It has affirmed that
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`“the State does not lose its power to regulate commercial activity
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`deemed harmful to the public whenever speech is a component of
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`the activity.” Id. And it has rejected the contention “that the con-
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`stitutional freedom for speech . . . extends its immunity to speech
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`or writing used as an integral part of conduct in violation of a valid
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`criminal statute.” Giboney, 336 U.S. at 498. That “expansive inter-
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`pretation” of the First Amendment “would make it practically im-
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`possible ever to enforce laws against agreements in restraint of
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`trade as well as many other agreements and conspiracies deemed
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`injurious to society.” Id. at 502. So, if section 381.00316 regulates
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`non-expressive economic conduct that only incidentally burdens
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`speech, then it does “not implicate the First Amendment at all.” See
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`Otto, 981 F.3d at 861, 865.
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`Anti-discrimination statutes ordinarily regulate non-expres-
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`sive conduct. The “focal point” for their prohibitions is “on the act
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`of discriminating against individuals in the provision of publicly
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`available goods, privileges, and services on the proscribed
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`grounds.” Hurley v. Irish-Am. Gay, Lesbian & Bisexual Grp. of
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`Bos., Inc., 515 U.S. 557, 572 (1995) (emphasis added). Enacting anti-
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`discrimination statutes is “well within the State’s usual power . . .
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`when a legislature has reason to believe that a given group is the
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`target of discrimination, and . . . do[es] not, as a general matter, vi-
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`olate the First or Fourteenth Amendments.” Id. For that reason,
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`“philosophical objections” do not generally “allow business owners
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`and other actors in the economy and in society to deny protected
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`persons equal access to goods and services under a neutral and gen-
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`erally applicable public accommodations
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`law.” Masterpiece
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`Cakeshop, Ltd. v. Colo. Civ. Rts. Comm’n, 138 S. Ct. 1719, 1727
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`(2018). “Where the government does not target conduct on the ba-
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`sis of its expressive content, acts are not shielded from regulation
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`merely because they express a discriminatory idea or philosophy.”
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`R.A.V. v. City of St. Paul, 505 U.S. 377, 390 (1992). And the Su-
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`preme Court has repeatedly applied these principles in rejecting
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`First Amendment challenges to anti-discrimination statutes. See,
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`e.g., Wisconsin v. Mitchell, 508 U.S. 476, 487 (1993); Hishon v. King
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`& Spalding, 467 U.S. 69, 78 (1984) (rejecting the argument “that ap-
`
`plication of Title VII . . . would infringe constitutional rights of ex-
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`pression” because “invidious private discrimination . . . has never
`
`been accorded affirmative constitutional protections” (alteration
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`adopted) (internal quotation marks omitted)); Runyon v. McCrary,
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`427 U.S. 160, 176 (1976) (explaining that although “parents have a
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`First Amendment right to send their children to educational insti-
`
`tutions that promote the belief that racial segregation is desirable,
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`. . . it does not follow that the practice of excluding racial minorities
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`from such institutions is also protected”).
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`Section 381.00316 is an anti-discrimination statute that reg-
`
`ulates non-expressive economic conduct. The statute prohibits
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`“any business operating in” Florida from “requir[ing] patrons or
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`customers to provide any documentation certifying COVID-19
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`vaccination or postinfection recovery to gain access to, entry upon,
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`or service from the business operations in [Florida].” FLA. STAT.
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`ANN. § 381.00316(1). A “requirement” is “[t]he act of establishing
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`something as a need or necessity.” See Requirement, BLACK’S LAW
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`DICTIONARY (11th ed. 2019) (emphasis added). The plain meaning
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`of the statute prohibits the same action as any run-of-the-mill anti-
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`discrimination statute: closing the business’s doors to a class of
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`persons based “on . . . proscribed grounds.” See Hurley, 515 U.S. at
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`572. A business violates section 381.00316 when it commits the
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`“act,” see id., of “deny[ing]” patrons or customers “access to goods
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`and services,” Masterpiece, 138 S. Ct. at 1727, based on their failure
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`to prove that they are not members of the protected class. See FLA.
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`STAT. ANN. § 381.00316(1). It prohibits businesses from discriminat-
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`ing by “treat[ing] differently” vaccinated and unvaccinated persons
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`based on a condition that members of only one class can satisfy.
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`See Wollschlaeger, 848 F.3d at 1317. And it protects conduct for
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`those who either cannot or desire not to comply with the pro-
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`scribed condition. See FLA. STAT. ANN. § 381.00316(1). So, section
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`381.00316(1) targets “the practice of excluding [persons] from”
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`businesses and prohibits their exclusion. See Runyon, 427 U.S. at
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`176.
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`Section 381.00316(1) does “not implicate the First Amend-
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`ment at all.” See Otto, 981 F.3d at 861. Section 381.00316(1)
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`“appl[ies] to non-expressive conduct such as failing to,” see Woll-
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`schlaeger, 848 F.3d at 1317, grant persons who are unwilling or un-
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`able to verify their vaccination status “access to, entry upon, or ser-
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`vice from the business operations,” FLA. STAT. ANN. § 381.00316(1).
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`And when the statute regulates non-expressive conduct in that
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`way, “there is no First Amendment problem.” Wollschlaeger, 848
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`F.3d at 1317.
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`Norwegian argues that the statute regulates communica-
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`tions between businesses and customers. It argues that “Florida’s
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`[b]an restricts the free flow of vital, potentially life-saving
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`information by targeting only one type of written information ex-
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`change.” It adopts the view of the district court that section
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`381.00316 “regulates speech because it restricts the free flow of in-
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`formation by rendering the exchange permissible in some circum-
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`stances but impermissible in others.” And it maintains that “[t]he
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`[b]an is triggered by a specific mode (documentary) of conveying
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`specific information (vaccination against COVID-19) between a
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`specific speaker and audience (customer to business)” because
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`“[o]nly if a business first engages in this communicative exchange
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`can its ensuing conduct (restricting access) violate the [b]an.” We
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`disagree.
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`Section 381.00316(1) limits no communications between
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`customers and businesses. Norwegian concedes that the statute
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`does not prohibit businesses from asking customers about their
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`vaccination status. See Greater Phila. Chamber of Com. v. City of
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`Phila., 949 F.3d 116, 135–36 (3d Cir. 2020) (holding that a provision
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`“clearly regulate[d] speech because it prevent[ed] employers from
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`asking potential applicants specific questions” about wage history
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`but holding that a provision that prohibits “the act of relying on
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`wage history to set a salary” regulated conduct). And the statute
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`does not prohibit customers from responding—orally or in writ-
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`ing—with that information and proof. Cf. Wollschlaeger, 848 F.3d
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`at 1307 (holding that provisions “trigger[ed] First Amendment scru-
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`tiny” because they “expressly limit[ed] the ability of certain speak-
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`ers—doctors and medical professionals—to write and speak about
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`a certain topic—the ownership of firearms—and thereby re-
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`strict[ed] their ability to communicate and/or convey a message”).
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`What businesses may not do is close their doors to custom-
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`ers who decline to present private medical documentation. See
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`FLA. STAT. ANN. 381.00316(1). The act of closing the doors to those
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`persons is prohibited, not any comm
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