Did you know that in Florida it is a criminal offense to wear "a mask or hood" in a variety of settings? Don't panic, read on. It is really not a problem for most. The prohibitions include "on a public way," section 876.12, Fla. Stat. ("lane, walk, alley, street, road, highway, or other public way")(but only if you are over 16 years old), "on public property," section 876.13, Fla. Stat, and "on the property of another," section 876.14, Fla. Stat. (but again only if you are over 16 years old).
Masks became of interest to us all when the Centers for Disease Control recently recommended that Americans begin wearing face masks amid COVID-19: "CDC recommends wearing cloth face coverings in public settings where other social distancing measures are difficult to maintain."
The first quarter of 2020 brought the COVID-19/Wuhan/SARS-CoV-2 virus to our collective consciousness. Some perceived it as a threat earlier than others. Some reactions have been more stringent than others. But for the first three months of the year, the advice was reasonably consistent as regards face masks - no need unless you are ill. Some have been critical of those who denied the need for masks in the general public. The widely-held contention among the scientists was that wearing a mask (other than a high-quality N95) would not provide significant protection from the virus. There are still those who maintain this contention.
Be that as it may, we are now encouraged, one and all, to wear fabric face masks when we leave the home. People are making them in their spare time. Admittedly, I have made a few myself (mine cover the nose and mouth, but are not easy on the eyes). I had a medical-professional acquaintance this week greet me with "Where is your mask?" Then, followed up by volunteering "I feel naked without mine now." People are indeed getting used to masks, though I persistently forget mine. A recent news story suggests that wearing masks in your personal automobile is not necessary and could be dangerous.
Thus, we find ourselves amid a "century" threat. None of us will likely live to see such a threat twice in our lives (hopefully). I recall when someone told me similarly after Hurricane Ivan, that it was my "century storm" and I would not see another (then Dennis hit the next summer and then Katrina, etc. You get the picture). There is some chance our "century" pandemic may not be our last experience.
Returning to masks then. In Nicol v. State, 939 So. 2d 231 (Fla. 5th DCA 2006), the issue of mask-wearing became an issue. There, some individuals were arrested wearing bandannas (a bandanna is one of the options specifically mentioned by the CDC). One of the defendants was convicted of conspiracy, and an appeal followed. The presence of bandannas was an issue as it had been mentioned in the probable cause for the arrest, and thus became a topic in the appeal.
The court noted that "Men wearing masks at 5 a.m. in the morning, acting furtively and watching a 7–7-Eleven store would appear to furnish probable cause." The Court noted that wearing a mask is a misdemeanor in Florida, citing sections 876.12, 876.13, and 876.14. It noted that all of these mask and hood prohibitions date to the 1950s and "were apparently aimed at the Ku Klux Klan."
Notably, however, the Nicol Court reminded that "the Florida Supreme Court found one of these statutes unconstitutional (public property - section 876.13). Robinson v. State, 393 So. 2d 1076 (Fla.1980). That rationale was based on the statute being overbroad. The Supreme Court held "It is susceptible of being applied to create prohibitions that completely lack any rational basis."
The Supreme Court's analysis of section 876.13 in Robinson is consistent with classic overbreadth analysis under our Constitution. Overbreadth is a problem in our system of due process when some generalized prohibition impairs both appropriate and inappropriate behavior, without providing distinction, explanation, or exception. It has been said of overbreadth that "it paints with too broad a brush." Its simplicity is an arbitrariness that we find offensive to due process. There is an expectation that laws will prohibit detriment with minimal imposition on broad individual rights.
According to the Court in Nicol, the Supreme Court decision in Robinson led the Florida Legislature to pass section 876.155, Florida Statutes. The Court noted this section "limits the application of these statutes." The District Court also concluded in Nicol that the 1981 efforts in section 876.155 are directed at "cure(ing) these problems" with "limits (to) the application of these statutes."
Section 876.155 explains that these mask prohibitions only apply in instances where bad intent accompanies the wearing. An "intent to deprive any person or class of persons of the equal protection of the laws," or an "intent, by force or threat of force, to injure, intimidate, or interfere with any person," or "intent to intimidate, threaten, abuse, or harass any other person."
Thus, when you venture out onto Florida's "lane(s), walk(s), alley(s), street(s), road(s), highway(s), or other public way(s)," you are likely fine to wear your face mask and protect yourself to the extent possible from this viral threat. However, there remains the potential that in some settings ("5 a.m., acting furtively and watching a 7-Eleven store"; driving in your personal automobile) it may be best to forego the mask. Or, perhaps just forego the surveillance of the convenience store and go back home and get some rest?
