Bruce Rogow of the Law Office of Bruce S. Rogow in Fort Lauderdale.. Photo: MelanieBell/ALM.

Fort Lauderdale attorney Bruce Rogow was walking from his house to the mailbox looking a bit like "a robber" in a blue-and-white cloth face mask, when it dawned on him that he had technically just broken the law.

For most Floridians, wearing a face mask in public has become an acceptable new norm amid concerns about contracting COVID-19.

But for Rogow, it's an amusing reminder of a Florida Supreme Court case he had won for a Ku Klux Klan member convicted for covering his face with a white hood. It's also a reminder of a current Florida mask statute that the attorney says "theoretically makes us all criminals" amid the coronavirus pandemic.

'Halloween or … holding up a bank'

That law, Florida Statute 876.12, governs criminal anarchy, treason and public order crimes.

It says, "No person or persons over 16 years of age shall, while wearing any mask, hood, or device whereby any portion of the face is so hidden, concealed, or covered as to conceal the identity of the wearer, enter upon, or be or appear upon any lane, walk, alley, street, road, highway, or other public way in this state."

The law used to be broader, blocking anyone from wearing a mask on public property — until Rogow and the American Civil Liberties Union of Florida appealed the conviction of Pensacola Ku Klux Klan member B.W. Robinson in 1980.

Robinson was arrested in 1979 for covering his face at a rally and pleaded no contest so he could appeal. His case went to the Florida Supreme Court, where Rogow challenged the constitutionality of Florida's anti-mask law, arguing it deprived his client of due process and infringed on his First Amendment rights.

"It was one of those cases where, clearly, the statute was overbroad," Rogow said. "Because if it was a cold day in Pensacola, you couldn't have worn a mask. At Halloween, you couldn't have worn a mask. But the statute had a good intention. It was aimed at precluding Klansmen from wearing masks."

Without weighing in on freedom-of-expression and privacy arguments, the Florida Supreme Court reversed Robinson's conviction, finding the law was constitutionally overbroad because it was "susceptible of application to entirely innocent activities."

Rogow recalled the high court was careful not to mention the KKK in its opinion, which drew one dissent from Justice James Elliott Alderman.

"Arthur England, who was one of the justices on the Supreme Court, told me not long afterward, 'Bruce, you really made it hard for us. We had to rule for you,' " Rogow said.

In a weird way, COVID-19 has underscored the stance Rogow took in Robinson v. State.

"Different times make for different views of the same words," Rogow said. "Masks are useful, and when you have a statute that bans them altogether, the authors of the statute don't think about the usefulness of masks, and that just reflects a change in time and a change in situation."

Now that life in Florida has dramatically changed, anti-mask laws could theoretically apply to everyone walking around — though it's highly unlikely they would be, unless the mask-wearer were harassing people or committing a crime.

"In those days, the only times you wore a mask was Halloween or if you were holding up a bank," Rogow said. "How ironic, here we are 40 years later where everybody has to wear a mask."

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