Even though the case threatened to undermine the professionalism that the ACLU sought to build in its formative years and did not involve the defense of political radicals, a number of influential members of the organization felt compelled to appeal the unfavorable ruling from the Court of Special Sessions. According to the historian Leigh Ann Wheeler, select ACLU leaders developed an interest in cases involving the birth control movement, sexual display, and freedom of expression due to their participation in the unconventional bohemian, artistic, and often politically radical communities that surrounded the ACLU’s central offices in New York City’s Greenwich Village. Figures such as Roger Nash Baldwin, Crystal Eastman, Elmer Rice, and Dorothy Kenyon “partook of the sexual experimentation for which Villagers became famous.” In particular, Baldwin, who helped found the ACLU with Eastman, frequently enjoyed going naked while summering at Martha’s Vineyard and on weekend trips to his New Jersey farm, Dell Brook. Like nudists, he hoped that going naked casually and naturally with his children would prevent the development of “a false sense of prudery about the body.”100 As part of the ACLU’s larger commitment to expanding sexual freedom and expression, Lee Hazen represented Vincent Burke free of charge and approached the pending appeals trial as a “test case.”101 Building on Judge Kernochan’s dissent, he appealed the Burke verdict to the New York State Supreme Court, citing the lack of willful and lewd exposure required under New York’s Section 1140a.
The success of Hazen’s appeal depended on the New York courts continuing to take into account the changing social mores of the average person. He pointed out that clothing at beaches had changed considerably over the preceding twenty years; he noted that the New York Supreme Court had just allowed the distribution of James Joyce’s controversial Ulysses and observed that many individuals appreciated the nude in well-respected art galleries across the city.102 As a reflection of these changes and developments, Hazen portrayed nudism as a “genuine effort to overcome what [nudists] regard as the physical and psychic handicaps attendant upon the maintenance of a rigid and unwholesome body taboo.”103 With nudists’ activities carried out without “ribaldry, licentiousness, obscenity or immorality,” he argued that many nudists believed their lifestyle actually led to the “eradication of sex aberrations and eroticism” by eliminating the “disturbing provocations of the partially clad body.”104 In addition, Hazen denied that the Olympian League meeting represented an open and public act. He asserted that his clients performed their acts in the “privacy of a gymnasium.”105 Consequently, “nobody was shocked; nobody’s sense of propriety was invaded; nobody’s sensibilities were offended.”106 The nudists, he asserted, practiced their “clean and moral pursuit” without violating public space.107
On December 24, 1934, the Supreme Court of New York ruled in favor of Burke, Topel, and Maniscalco.108 The majority of the judges found that Judge Kernochan’s original dissent was “based upon a solid foundation.”109 By agreeing with Kernochan’s interpretation of the law, the higher court merely confirmed that the New York State statutes did not apply to the peculiarities of nudist activities, though the judges did not find that Kernochan endorsed nudism. The judges acknowledged that the phrasing of the 1140a penal statute that required “lewd” behavior excluded nudists who did not demonstrate any explicit sexual acts other than being naked. The appellate judges felt that changes needed to be made to state policies and statutes in order to resolve the legal questions that emerged around nudist activities.
The McCall Antinudism Bill
Under New York’s state-centered censorship regime, antiobscenity activists who objected to the Burke decision needed to influence the state legislature to put an end to nudist activities in New York. Three days after the court’s decision, Al Smith, the former governor of New York, 1928 Democratic presidential candidate, and well-known Catholic, wrote a letter calling Governor Herbert Lehman’s attention to the court’s reversal. Speaking for the Catholic Legion of Decency, Smith expressed shock that “anybody could operate a swimming pool in New York where men and women could swim in the one room without clothing.”110 He saw the public tolerance of naked male and female bodies in a gymnasium as an endorsement of sexual contact between the sexes and a complete affront to standards of decency held by the Catholic Church. Smith evoked the safety of children in order to protest the Burke ruling, similar to the way antiobscenity activists had used the perceived vulnerability of the child to justify the censorship of birth control information and pornography and the removal of any material relating to sexual knowledge from the postal system. He asserted that it was “senseless” to even “talk about the effect of anything like [nudism] on young people.”111 Offended by the idea of nudism, Smith knew how to navigate the political process and influence New York’s state-centered obscenity regime.
The emergence of the Catholic Church as a source of moral authority in American society and reform movements proved politically useful for Smith, whose career had been limited by his Catholic background. For most of his time in politics, Smith drew his support from urban ethnic communities that identified with his Catholicism and anti-Prohibition stance.112 Smith’s inability to appeal to rural Protestant voters in the South, due in large part to his Catholic beliefs, limited his national political ambitions. He failed to win the Democratic presidential nomination in 1924, and after gaining the nomination in 1928, Calvin Coolidge soundly defeated him, despite Smith’s support from Franklin and Eleanor Roosevelt. After the election of Roosevelt as president in 1932, Smith had little influence in national politics.
The decline of Protestant antivice societies in the first decades of the twentieth century allowed Smith to use the nudist issue to position himself as a leader of a new democratic antiobscenity coalition while broadening his appeal with voters. The transition to an obscenity regime defined by democratic processes and judged according to the standards of the average person required that antiobscenity proponents build new coalitions that claimed to represent public opinion rather than the interests of elite moral reformers. Stepping into this void, Smith joined forces with an increasingly influential coalition that allied Catholics and Jews striving for respectability and a place in mainstream society with Protestant ministers hoping to continue to regulate public morals.113 Smith’s effort to ban nudism from the state of New York reflected the transition from moral progressive reforms that targeted immigrants to a renewed Catholic-led effort to curb the growing toleration of sexuality and sexual display in magazines, films, and theaters.
Smith pursued his new moral agenda as head of the Catholic Legion of Decency (CLD).114 The group wielded a great deal of influence in the state and the nation, in part because it enlisted the services of several influential figures. The former mayor of New York City John P. O’Brien and the Reverend Edward Moore, who represented Cardinal Patrick Joseph Hayes on the CLD, became strong allies.115 Originally organized to “aid in the drive against objectionable films,” the CLD, referring to nudism, felt it could not ignore the “latest challenge to the enforcement of decency in reality.”116 After a meeting in Smith’s office in the Empire State Building, the CLD dramatically declared that it could not “overlook indecency in substance while condemning it in the shadows.”117 The CLD set out to ban nudism from the state of New York.
The CLD wanted to bar nudism by defining any exposure of the body—whether by a child, among only men or only women, carried out in a private gymnasium, or on a stage—a danger to public morals. The group felt particularly disturbed that the courts found the present penal law inadequate to prevent the “public mingling of naked men and women.” The CLD intended to ask the legislature to amend Section 1140a to stop “indecency such as may be practiced under the guise of nudism.”118 In a bill sent to the president of the state senate and the speaker of the assembly, the CLD sought to remove the provision in the statute requiring “lewd” behavior to successfully prosecute a charge of indecency. Instead, it purposed to make it a misdemeanor to be naked in “any
place, in the presence of two or more persons of the opposite sex.”119 Aware that one of the defendants in the Burke case only rented the venue to the group, the CLD also wanted to make it a crime for any person who “aids or abets any such act, or procures another so to expose his person.”120 It suggested that any owner, manager, lessee, director, promoter, or agent who in “any way hires, leases or permits property ‘to be used for any such purposes’” should be prosecuted under this new amendment.121
Nudists found it “startling[ly] inconsistent” that the former governor would come out strongly against nudist activities, as many considered Smith a “leader of toleration.”122 Smith had defined his political career by opposing Prohibition and asserting that individuals could not be made moral through legislation. Nudists felt unfairly targeted as a source of indecency since there had been no evidence of sexual performance or indiscretion introduced at the Burke trial. In fact, the CLD’s unusual deviation from the regulation of indecent films to campaign against nudism caused many nudists to suspect that the group might be “setting itself up as a blue nosed guardian of public morals.” However, Edward Moore denied an expanded role for the CLD. Instead he restated the group’s original intent to pursue indecent films and maintained that nudism represented a “direct affront” that could not be ignored.123
The democratic system of obscenity regulation in New York allowed nudists and their supporters to voice their opposition to the antinudist bill that was sponsored by state senator John T. McCall. The attempt to pass legislation that banned any display of the body disturbed defenders of civil liberties, who had fought for decades to permit the discussion of sex and sexual expression. Not willing to lose these hard-won victories, civil libertarians, including birth control advocates, religious humanists, and anticensorship groups, came to the defense of nudists. At the public hearing for the antinudism bill, the senate and assembly committees sat before a well-attended committee room where opponents “denounced the bill as ‘freakish’ and ‘dangerous’ in its implications.”124 Mary Ryskind, who represented the National Council of Freedom from Censorship and spoke out in defense of nudists, argued that politicians such as Smith threatened to undermine New York’s system of obscenity regulation. Asserting that the “best judges of obscenity are courts and juries rather than official, politically appointed censors,” Ryskind commended the New York court system for fairly evaluating the activities of nudists while also challenging the legitimacy of the bill and Smith’s authority. Charles Francis Potter, founder of the First Humanist Society of New York, which included Julian Huxley, John Dewey, Albert Einstein, and Thomas Mann on its board, stated that the bill represented an “infringement on human freedom” and classified the measure in the “same class of freak legislation as anti-evolution bills.”125 He felt the bill would make it “illegal to be natural” and “assumes that a person cannot be moral if he is naked.”126 Another group of non-nudist religious leaders released a statement voicing their support for the “honest and sincere people” who consider nakedness “healthy and natural.”127
Opponents also presented the antinudist bill as a violation of personal privacy, in order to persuade the legislature, as well as the public, that its passage would adversely impact all the residents of New York and not just the members of a group who enjoyed going naked in gymnasiums. In New York’s democratic system of obscenity regulation, both antiobscenity and anticensorship proponents sought to make their arguments on behalf of the average person. While only a small minority practiced or endorsed nudism, the antinudist bill’s opponents believed that many New Yorkers would find it troubling that the bill would “pave the way for dangerous invasion[s] of the home by the state.”128 In addition to banning the practice of nudism in “private parks and sanitariums far removed from the public view, where no outsider could possibly be offended,” Ryskind argued that the bill constituted an “encroachment on personal freedom and personal privacy which is not in the public interest.” In a letter signed by the birth control advocate Mary Ware Dennett, Roger Baldwin (director of the ACLU), and Wilton Barrett (director of the National Board of Review of Motion Pictures), the bill was characterized as a “serious violation of personal privacy.”129 The same coalition that had its roots in Greenwich Village and had fought against the restrictions imposed on birth control and sexual knowledge asserted that the vague and broad antinudist bill had the potential to “punish two brothers and a sister for swimming together without bathing suits,” to make it illegal for a mother to bathe her children in her own home or for art classes to use nude models for instruction. Framing opposition to the antinudist bill using the issue of privacy allowed allies of the nudist movement to emphasize the absurdity of the legislation and to claim that they represented the interests of the wider public.
Very few committee members at the hearing took the bill seriously. State senator Elmer Quinn, who presided over the session and stated his distaste of “morbid curiosity-seekers,” had to threaten to clear the room after “laughter rose over at some of the opposition oratory.”130 After the meeting concluded, the committee indicated that it would “sound the death-knell of the measure” since its “provisions were too broad.”131 The bill appeared dead from its inception, with no supporters at the meeting, several vocal opponents, and far-reaching legal implications. The New York State legislature apparently did not agree with the Catholic Legion of Decency that going naked represented an immediate public threat that should be outlawed from the state.
The former governor of New York still had a great deal of political clout in Albany. The following month, the bill “unexpectedly came back to life” when Smith amended his proposal to “prevent its application within the home or in any other private place.”132 The effort to frame the antinudist bill as a threat to all New Yorkers’ right to privacy proved effective and forced Smith to alter the wording of the bill to win the votes of concerned legislators. Under these new provisions, the Senate and Assembly Codes Committee recommended a favorable vote on the measure. For many legislators, the critical role Smith played in ensuring the bill’s survival made it suspect, and opponents argued that the longtime politician did not represent the values of the average person. Assemblyman Oswald Heck of Schenectady, who led the attack on the legislation, asserted that everyone in Albany knew that “there is only one man behind this bill and he is former Governor Smith.”133 As a result, many representatives questioned the motivations behind the influential political figure’s commitment to the bill. Assemblyman Jacob Livingston, a Brooklyn Democrat, found a “blue nosed” Smith odd since he had long stated that lawmakers “could not legislate morals into people.”134 Assemblyman Heck went on to speculate that the once “liberal and tolerant” Smith “must have been mingling with some puritan ideas” in his “late years.”135 Pointing out that Tennessee became known as the Monkey State after it passed its infamous antievolution law, Heck lamented “what New York will be called” if Smith’s antinudist bill became law.136 The mixed responses to the antinudist bill, which depended on Smith’s political influence for survival, reflected a system of obscenity regulation that judged questionable behavior and materials according to the standards of the average person.
Smith, nevertheless, rallied support for the bill by convincing Democratic assemblymen that the average person associated nudism with commercial sexuality. Many Democrats who supported Smith also supported his bill. Assemblyman Daniel McNamara, a Democrat from Brooklyn, worried that the “present law was insufficient to deal with the practice of nudism.”137 Meanwhile, Mr. Killigrew, the Democratic floor leader, declared the bill an “important piece of legislation.”138 Much of their opposition to nudism rested on misrepresented facts. Killigrew felt that action needed to be taken against nudist camps since he had been “told that some of them admit visitors for $1 to watch inmates perform.”139 He then stated, “If that is true it means that the nudists are not sincere.”140 The assemblyman equated nudist activities with the growing number of burlesque hous
es that charged a similar entrance fee and often displayed the naked female body for large audiences of men. The legislators ignored the fact that in the Burke case, the police officers, who gained entry to the nudist gathering after paying a one-dollar entrance fee, posed as interested nudists and refused several requests by members to disrobe and participate. Legislators assumed that the police officers joined an audience that watched nudist activities rather than acknowledging that all men and women normally attended nudist meetings naked. The additional claims by Smith that the interaction of naked men and women endangered the nation’s youth further persuaded the senate to pass the bill 35 to 10,141 and the assembly “snowed under” the antinudist bill 120 to 11.142 Nudists now appeared in danger of being banned from the state of New York.
Nudists relied on anticensorship activists to urge Governor Lehman to veto Smith’s antinudism bill. The cartoonist Will Johnstone in the New York World-Telegram, a liberal New York City newspaper formed in 1931, ridiculed the state legislature with six ridiculous scenarios that might arise under the new law.143 He mocked moralists who desperately clung to clothes with sketches of a rich man and woman on their way to the opera overly dressed to the point of immobility and with his drawings of animals and statues cloaked with clothes. He also directly defended nudists by drawing them draped in cellophane or writing “taxpayer” across a barrel used to cover a nudist running away from an overly aggressive police officer.
Nudists argued that the bill’s support rested with one individual’s political ambitions rather than the values of the average person or the majority of New York citizens. Nudist supporters thought that the limited support behind the bill, which they attributed mainly to Smith’s political efforts and the Catholic Church’s influence, demonstrated that the majority did not share the legislature’s assumption that public nudity endangered public morals. One letter to Governor Lehman accused Smith of pursuing the antinudism bill in order to “get his name in the front page” because he “wants to run for President.”144 The letter writer believed that the legislature had no interest in the bill except that the Catholic Church wanted the measure passed. He advised the governor to veto the bill since Smith had no chance of defeating FDR in the next presidential election. Referring to Smith’s political career, he asserted, “Once your [sic] out, there is no comeback.”145 A nudist went a step further by attacking Smith’s Catholic background, as many southern Protestants had done in past national elections, by pandering to widespread fears that the Vatican planned to infiltrate the nation’s government. He asserted that the bill had no chance of passing until the “long arm of the Catholic Church reached out from Rome.”146 The former governor, he speculated, “told the Democrats in the legislature that the anti-nudist bill must be passed in order to save his political face.”147
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