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Cruise ships, COVID, TikTok and the First Amendment

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  1. First Amendment
A federal judge's recent decision is a pretty by-the-book application of First Amendment doctrine.

On Aug. 8, a federal judge agreed to halt enforcement of a Florida law that prohibits businesses from requiring “patrons or customers to provide any documentation certifying COVID-19 vaccination or post-infection recovery to gain access to, entry upon, or services from the business operations in this state.” The company that owns Norwegian Cruise Line brought the claim, arguing, among other things, that the law violates the First Amendment.

While the case may seem attenuated from both media law and technology, it actually grapples with an emerging issue we’ve been covering — the extent to which nominally “economic” regulations that unduly burden protected speech are constitutional. That question was front-and-center in the Trump administration’s efforts to use emergency economic powers to shutter the communications platforms TikTok and WeChat by effectively prohibiting other businesses from providing them certain services.

The cruise line decision, by Judge Kathleen M. Williams of the U.S. District Court for the Southern District of Florida, is a pretty by-the-book application of First Amendment doctrine. She first determines that the law is “content-based” because businesses are free to require COVID-19 test results and other non-COVID vaccination information, among other things.

She then rejects Florida’s argument that, because the law only prohibits a single act, conditioning service on presenting a vaccine document, it is merely a bar on business-related conduct, not a restriction on speech. As noted, that’s effectively the argument the federal government made in the TikTok case — that prohibiting internet services from, for instance, hosting TikTok content, was merely a business-to-business restriction that did not trigger First Amendment scrutiny. (In our friend-of-the-court brief, we noted that business-to-business transactions, like buying paper or ink, are a matter of survival for media entities.)

Judge Williams then directly addresses exactly that concern — that simply labeling a law as “economic regulation” could permit the state to disfavor certain types of speech, which has always been of significant concern for press rights, particularly in a string of U.S. Supreme Court cases dealing with discriminatory taxation schemes and beginning with the Huey Long-era Grosjean v. American Press Co.

“By characterizing certain laws as regulation of economic conduct,” Judge Williams wrote, “laws that restrict bookstores from selling biographies or prohibit video rental shops from renting documentaries also could evade First Amendment scrutiny under the logic that they merely affect ‘what businesses cannot do’ and ‘not what they may or may not say,’ despite the significant burdens they impose on protected expression.”

That is exactly the concern we identified in the TikTok and WeChat cases, and one that continues to percolate in various proposals to regulate content moderation online.

We’ll continue to follow this one.

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The Technology and Press Freedom Project at the Reporters Committee for Freedom of the Press uses integrated advocacy — combining the law, policy analysis, and public education — to defend and promote press rights on issues at the intersection of technology and press freedom, such as reporter-source confidentiality protections, electronic surveillance law and policy, and content regulation online and in other media. TPFP is directed by Reporters Committee attorney Gabe Rottman. He works with Stanton Foundation National Security/Free Press Legal Fellow Grayson Clary and Technology and Press Freedom Project Legal Fellow Mailyn Fidler.

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