Could obscure law doom protesters?
1880s Ohio legislation targeted White Caps
In the late 1800s, a group of vigilantes called the White Caps terrorized abusers, gamblers, alcoholics and “fast women.” They burned down saloons, threatened white men living with Black women and whipped anyone who didn’t abide by their moral code.
Ohio’s leaders were desperate for a solution.
“The state intends to use all its power to suppress these so-called White Caps,” Ohio Attorney General David R. Watson said in a Democratic Northwest article from Dec. 6, 1888. “The governor is fully determined upon this, and we do not intend to permit these outrages to continue, to the disgrace of the state and injury to the good name of our citizens.”
Rep. Lewis Laylin, Rhuron County, introduced a bill to penalize “riotous conspiracy,” which he defined as three or more people who commit a misdemeanor while wearing “white caps, masks or other disguise.” The punishment was between two and 10 years in prison and a fine of up to $2,000 − the equivalent of about $70,000 in 2024.
More than 135 years later, Ohio Attorney General Dave Yost, a Republican, is warning university presidents that pro-palestine protesters on college campuses could run afoul of that same obscure law, turning minor trespassing violations into career-altering felonies.
That admonition almost came to fruition on May 11 when a Xavier University student and a recent graduate were arrested outside commencement while wearing medical face masks. A grand jury ultimately decided not to charge them with felonies.
But Yost said the law exists to penalize people who commit crimes while concealing their identities, deterring accountability and encouraging bad behavior.
“When I was a kid, the bad guys wore a mask in the Westerns,” Yost told the USA TODAY Network Ohio Bureau. “Why did they wear a mask? Because if you knew who the bandit was, there was going to be consequences for it.”
Who were the White Caps?
After the Civil War, several disenfranchised groups decided to take justice into their own hands. In Missouri, they were called the Bald Knobbers. In Indiana and later Ohio, they were the White Caps.
The Ohio White Caps were described as bands of marauders and outlaws. Politicians equated them to domestic terrorists. Members would wear white caps and disguises while doling out their vigilante justice, which included tar and feathering, whipping, arson and drowning.
One of the group’s victims was James Slick, of Leipsic, who was given a “horrible threshing for abusing his wife and starving his family. Slick’s back was terribly lacerated by the cruel cowhide,” according to a Dec. 10, 1888 report in the Dayton Herald.
The White Caps warned others to change their ways or face similar penalties − leaving Ohioans shaking in fear, according to news reports from 1888. “At Findlay, wife beaters, gamblers and fast women have been requested to make themselves scarce,” according to the Dayton Herald report.
A Nov. 24, 1888 account in the Columbus Evening Dispatch detailed White Caps’ warning notices that threatened “vengeance to any person or persons who may try to use their energy or influence against them or their order. Things are at white heat in all that part of the country and the citizens are almost demoralized.”
The White Caps’ vigilante justice also included racist threats. According to a Democratic Northwest report from Dec. 6, 1888, Ripley’s police chief received a postcard from the White Caps about “a white man who lives with a colored woman, that they were onto them.”
In December 1888, Gov. Joseph B. Foraker learned the names of many White Caps, and the group agreed to disband rather than be outed to their neighbors, according to a New York Times report. Some Ohioans were enraged that Foraker didn’t do more to punish the White Caps.
In March 1889, Laylin introduced his bill “to prevent further outbreaks of White Caps, should that band of outlaws conclude to reorganize for operations in Ohio,” according to the Elmore Independent. The bill had unanimous support and passed quickly through the Ohio Legislature.
Yost was surprised to learn that the law wasn’t passed in 1953 to curb the Ku Klux Klan. “That’s news to me,” he said. “I won’t screw with you. I haven’t gone back to look at it.”
Was the Ohio law used against the KKK?
The White Caps’ tactics were similar to the KKK’S, and there’s at least some evidence that the Ohio law was later used to charge Klan members. Clarence Brandenberg, 48, was arrested for advocating criminal syndicalism and violating the state anti-mask law in 1964.
A self-described proud imperial officer of the national KKK, Brandenberg gave a speech at a KKK rally at a Hamilton County farm, saying: “We’re not a revengent organization, but if our President, our Congress, our Supreme Court, continues to suppress the white, Caucasian race, it’s possible that there might have to be some revengeance taken,” Brandenberg said.
The U.S. Supreme Court would later overturn Brandenberg’s conviction and invalidate Ohio’s criminal syndicalism law. The court unanimously ruled that the law violated Brandenberg’s First and 14th Amendment rights because his language would not lead to imminent lawless action.
How common are anti-mask penalties?
More than a dozen states have laws against wearing masks while committing crimes. New York passed the first antimask law in 1845 in response to a tenant farmer rebellion that turned violent. The farmers dressed like Native Americans to conceal their identities.
Between the 1920s and 1950s, several states passed anti-mask laws to penalize the Ku Klux Klan, whose members often wore masks and robes. Most laws have exceptions for costumes, medical masks and religious garments.
Anti-mask laws were used to penalize Occupy Wall Street protesters donning Guy Fawkes masks. Fawkes, who tried to blow up Britain’s House of Lords in 1605, was memorialized in the movie “V for Vendetta.”
Yost believes he first learned about the Ohio law when a sheriff asked for his advice about passing legislation to punish masked Occupy protesters. Yost then learned Ohio already had an antimask law on the books.
Yost didn’t know how often the law had been used − if at all − during the Occupy, Black Lives Matter, ANTI-COVID-19 and neo-nazi protests. The violation is now a fourth-degree felony, punishable by up to 18 months in prison and a $5,000 fine. The Ohio Prosecuting Attorneys Association’s Lou Tobin said the law is obscure and not something his organization tracks.
During the pandemic, cities and sometimes the state had mask requirements that might have protected wearers from the anti-disguise law, Yost said. “I don’t think that those cases would have worked, even if someone had brought them.”
Should anti-disguise laws be used against today’s protesters?
Opponents of these anti-disguise laws say anonymity protects protesters from harassment.
“We have free speech in this country and not being willing to identify yourself is not necessarily a disqualifier,” said Ken Paulson, director of the Free Speech Center at Middle Tennessee State University.
Opponents point to a U.S. Supreme Court decision that ruled the NAACP didn’t need to turn over its membership list to Alabama officials. Another court decided that Texas Tech University’s Union of Iranian Students could protest against the Shah of Iran while masked.
Others, including the KKK, have had less success challenging these laws because they couldn’t prove they were intimidated by the backlash they received, Paulson said.
“By and large, courts are likely to uphold these laws, but those challenging them have some good arguments, including the need to be free of intimidation when they speak,” Paulson said.
“There’s a good argument that one’s speech is chilled if you face a high likelihood of future harassment.”
Yost said Ohio’s law is different because it only punishes masked protesters if they commit a crime.
“The lionization of criminals who are disrupting other people’s rights is off base,” he said.
Jessie Balmert is a reporter for the USA TODAY Network Ohio Bureau, which serves the Columbus Dispatch, Cincinnati Enquirer, Akron Beacon Journal and 18 other affiliated news organizations across Ohio