Naked
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Even after the Great Depression, the market for displaying the body in swimsuits, onstage, and in books continued to grow. The Miss America Pageant reemerged and drew large audiences in 1935, and burlesque theaters took advantage of falling rent prices to move into Times Square. Although the Depression had made it difficult for many publishers to stay in business, nudists found a large audience for illustrated texts such as Jan Gay’s On Going Naked (1932), Maurice Parmelee’s Nudism in Modern Life (1931), Frances and Mason Merrill’s Among the Nudists (1931), and the Merrills’ subsequent volume Nudism Comes to America (1932).56 While nudist publications still had to contend with censors, the financial crisis of the Great Depression influenced many businesses to embrace the exposure of the body as one of the few remaining profitable ventures still available.
Concurrent with the increasing acceptance of feminine sexual display emerged an effort to regulate public sexuality—especially the display of the body. A day before the Miss America Pageant crowned its first winner in 1921, the local police attempted to arrest a female beachgoer for refusing to wear stockings with her one-piece bathing suit.57 In New York City, police periodically targeted venues that housed or displayed naked bodies for violating public decency statutes. Burlesques, many of which sought to increase their flagging sales by introducing suggestive striptease acts that teased audiences with dancers brandishing suggestive tights or briefly flashing audiences, often attracted the attention of police in addition to their audiences.58 Further, Progressive Era bathhouses, many of which functioned as sites for gay men to engage in sexual encounters, occasionally experienced raids from police or vice societies hoping to catch naked men in compromising positions.59
When the police received an anonymous complaint that twenty-four men and women had assembled naked in the “Heart of New York City Gymnasium” on Seventh Avenue, they reacted with the seriousness and swiftness as if someone had reported a particularly suggestive burlesque performance or the location of a bathhouse that catered to a homosexual clientéle.60 To investigate the locked gymnasium, the four policemen climbed up to the roof of an adjacent building and then down a ladder onto the gymnasium’s roof, where they peered into the building’s skylight. After seeing the seventeen men and seven women entirely nude and engaged in physical exercises, the police then proceeded to “break in the door” and arrested them on “charges of nudity.”61 The police considered the meeting a public indecency that warranted the dramatic raid, despite the nudists’ precautions of privacy and seclusion.
In contrast to Chicago’s local censorship system, in which voluntary moral reform organizations pressured the police and politicians to act, New York’s reliance on the courts as well as the legislature to regulate obscenity provided a forum to evaluate and debate the place of the naked body in urban spaces. Rather than condemn the presence of the naked body as illicit and a symbol of the low morals of immigrants, the New York legal system recognized places and circumstances that allowed for the display of the naked body in public urban spaces. George Chauncey has pointed out that the police who raided bathhouses made sure that they arrested “only the men against whom they had specific evidence of homosexual activity,” so as not to further erode public confidence and to avoid the scandal of arresting men for merely bathing in the nude.62 Burlesque, with its mixture of erotic display and ribald humor, negotiated the boundary between the illicit and the benign, as the courts hesitated to shut down a commercial institution that continued to be profitable in the early years of the Great Depression.63 Evaluating the decency of several naked men and women exercising in a gymnasium, Judge Goldstein asked the arresting police officer if he observed “anything else going on outside of the setting up of exercises” and if the officers saw anything of an “indecent character by any of the defendants.”64 One police officer simply responded to the judge’s question with the statement, “Not outside the nude, no, sir.”65 According to the judge, the officers merely described an exercise class in a normal gymnasium that just happened to be occupied by naked, health-conscious men and women.
The absence of “indecent” behavior represented a critical distinction according to the state laws of New York in 1931. Section 1140a of the penal law stated, “A person who willfully and lewdly exposes his person or the private parts thereof in any public place, is guilty of a misdemeanor.”66 The nudists may have willfully exposed their bodies, but Judge Goldstein did not accept that their naked condition alone constituted a lewd exposure. The prosecution had not offered any evidence that the men and women in the gymnasium exposed their bodies to audiences for a fee, nor did they show that those in attendance engaged in any sexual acts that might be considered inappropriate. Recognizing this omission, the judge wanted to avoid the “whole question of nudity” and “whether it is right or not.” While he believed that keeping one’s “trunks put on in the gymnasium . . . would serve much better to keep [one’s] mind on the gymnastics,” he maintained, “I am merely deciding this case on the law as I read it.”67 Since the police officers testified that they had “no sex desires aroused by reason of anything they saw,” he granted the defendants’ motion to dismiss the charges.68 This early favorable decision demonstrated the limits of the law and revealed a willingness to differentiate between lewd and decent forms of nakedness.
The effort to prosecute the seventeen men and women arrested for going naked in a New York City gymnasium also tested the legal definitions of public and private space in an urban setting. The prosecution struggled to convince Judge Goldstein that an “actual outraging of public decency occurred.”69 First, the judge noted that the men and women in attendance participated in the evening’s activities without voicing any objections.70 Second, he observed that no non-nudists had attended the event.71 Nudists did not invite an audience, as the Miss America Pageant did. The men and women in attendance consented to be naked in each other’s presence to better their physical and mental health. On that basis, the judge concluded that nudism constituted a private act and should not be considered a public indecency.
The nudist movement’s early legal success translated into several favorable reports from the media. A 1933 Literary Digest article declared in one of its headlines that nudism constituted an “Educational and Social Force” in the United States.72 Describing the movement as “one of the observable phenomena rising on the American scene, and occupying a paragraph in the daily record,” the article echoed Judge Goldstein’s recognition that conceptions of the body were changing rapidly when it observed that “near-nudism is being practiced on practically every beach in the country.”73 The national magazine included a picture of a Victorian woman wearing a bulky bathing suit that covered her shoulders, head, upper arms, legs, and ankles and included the caption “No Nudism in 1890” to illustrate the dramatic changes in dress styles that had occurred in the preceding few decades.74 The article introduced nudism as an unusual yet harmless reflection of rapidly changing attitudes toward sexuality, the display of the body, and styles of dress. The dramatic emergence of organized nudism in the United States in the 1930s benefited from the popularity of more expressive approaches to sexuality and nudity.
A 1933 Literary Digest article titled “Nudism as Educational and Social Force” emphasized the dramatic changes in bathing attire by displaying a woman wearing a Victorian Era bathing suit with the caption “No Nudism in 1890.”
The positive reports and depictions of nudism that emerged after Judge Goldstein’s early municipal court ruling, however, failed to protect other nudists from arrest and prosecution. On April 3, 1934, two undercover officers, a female and a male, paid one dollar to enter a gymnasium on Broadway Avenue.75 After seeing several men and women naked, taking a tour of the facilities, and observing the group’s exercise routine, the two officers led a raid on the group and arrested Fred Topel, the owner of the gymnasium; Vincent Burke, the director of the Olympian League; and Frank Maniscalco, the exercise instructor.
As the Depression worsened, the econom
ic struggles of men and women strained gender norms and caused city officials to target public expressions of sexuality, such as nudist activities. Throughout the 1930s, men struggled to find jobs, corporations employed women to take advantage of the lower pay scales, and the divorce rate reached unprecedented levels. In this context, the alternative sexualities of gay men represented an intolerable threat that required new laws prohibiting the gathering of homosexuals in restaurants and bars and the banning of homoerotic representations.76 In New York City, the movement of burlesques theaters into Times Square, combined with the perception that these performances catered to unemployed men, further exacerbated sexual anxieties stemming from the Depression. The lack of a female audience, the unrestrained responses of men to strippers and sexual humor, and the inappropriate gestures made toward women on the streets outside burlesque houses all combined to shift attention to disciplining male sexuality.77 The gender crisis occurring during the Depression also produced new concerns about sex crime, best exemplified by the sensational arrest and trial of the child murderer and pedophile Alfred Fish in 1934.78 In response to this apparent decline in public morality, the recently elected Mayor Fiorello LaGuardia promised to clean up New York City and “protect its morals.”79
In New York v. Burke, the prosecutor painted nudists as devious and degenerate threats to the general public, portrayed their activities as a commercial enterprise, and rejected any possibility that nudism might offer therapeutic benefits unrelated to illicit sexuality. He charged Topel, Burke, and Maniscalco with “lewdly exposing their persons,” “maintaining a public nuisance,” “permitting the use of a Building or portion thereof for a public nuisance,” and “Openly Outraging Public Decency.”80 He also accused the defendants of “contriving and wickedly intending” to “debauch and corrupt the morals of persons and to create in their minds inordinate and lustful desires” for their own “lucre and gain.”81
The prosecutor ignored Goldstein’s earlier ruling that nudist activities should be considered private and set out to show that even behind closed doors, the interaction of naked men and women represented a threat to public morality. Vincent Burke wanted to encourage strong attendance to the opening event of “‘Nudism Forward’ month” in order to demonstrate the strength of nudism in light of the “opposition to the nudist movement.” He thought the early spring meeting would provide an “excellent opportunity for those who have not practiced nudism” and suggested that members bring their friends.82 After stumbling on an open invitation to this meeting, the police decided to investigate its activities. According to the prosecution, no members inquired about the two officers’ “relationship,” they made no attempt to ask “why these two people, total strangers,” wanted to attend the meeting, nor did Burke ask for any references or attempt to gauge the reasons for their interest in nudism.83 This lack of caution proved that the “meeting was open to all.”84 The prosecution asserted that the gymnasium opened its doors to the “young as well as the old, to the inexperienced as well as the experienced, to the weaker members of society as well as the strong, to those pruriently curious as well as those, who by chance, might be sincerely interested in the movement.”85 Since anyone could easily enter the gymnasium, it constituted a “public place,” despite the “fact that the door was closed and locked.”86
The prosecution also felt that the exercises undertaken at the gym constituted lewd acts. The male and female officers remained too “bashful” to disrobe and participate in the meeting’s activities despite the persistent urging of several members in attendance. This did not stop them from staying and observing the exercise routine of the Olympian League.87 Sitting in chairs, officers Barr and Brady voyeuristically watched as Maniscalco directed the more than a dozen naked men and women to stretch and exercise their bodies. The officers recalled how the instructor asked the participants to “cross their legs over and to raise on their shoulder blades,” to “kick their legs back and forth in a sort of scissor stroke,” to open and close their legs while they “lay on their backs,” and to “stoop over and to touch the tips of their fingers to the toes of their feet.”88 Although on cross-examination, one officer admitted he had not seen any exercises that would be “improper if they had their clothes on,”89 the prosecution believed that to the normal “bystander,” this “exhibition was lewd.”90 The police officer’s description of naked men and women crossing and kicking their legs in scissor-like motions while bending over with their breasts exposed recalled the same movements of a performer on a burlesque or cabaret stage. The officers’ repeated focus on the motion of the legs rather than exercises that emphasized the upper extremities also revealed their shock at seeing the exercising nudists’ genitalia, which even burlesque performers hesitated to display onstage. The prosecution asserted that the potential non-nudist audience would find it sexually arousing and pleaded with the court to recognize the danger that nudist exercise routines posed in a densely populated urban area.
In addition, the prosecution argued that the profit obtained from these gatherings added to the unwholesomeness of the event. Topel testified that he charged Burke five dollars for each Tuesday evening and seven dollars for every Thursday evening that the nudists used his facilities.91 Burke explained that the monthly dues for the club amounted to four dollars a month for individuals and married couples. He added that members who “cannot afford to pay four dollars at one time” had the option to pay weekly.92 Twenty members attended the April 3 meeting and paid one dollar to exercise. Nevertheless, the prosecutor thought the Olympian League’s profits of fifteen dollars at the height of the Great Depression was “respectable.”93 In 1931, the Minsky chain of New York burlesque houses charged a similar rate of seventy-five cents to one dollar and fifty cents for tickets to a single show.94 Comparing the costs of nudist meetings and burlesque theaters gained further credence since the latter had prospered during the Depression by appealing to middle-class patrons with increasingly provocative shows that relied heavily on salacious performances culminating in the undressing of female performers. Yet, unlike burlesque audiences that purchased tickets to see a show, nudists paid an admittance fee to participate in exercise routines. Despite this difference, the prosecutor dismissed Burke’s claim that the evening’s profits contributed to the group’s efforts to build a nudist club outside the city’s limits.
On June 11, 1934, the Court of Special Sessions, presided over by three judges, convicted Topel, Burke, and Maniscalco on all counts. In contrast to Judge Goldstein’s ruling, the three judges saw nudist activities as public, commercial, and lewd. The prosecution emphasized the public accessibility and profits of nudist gatherings in order to argue that nudism represented a clear case of commercial sexual display that resembled the stock burlesque performances that also prospered in the early years of the Great Depression. The majority of judges on the Court of Special Sessions, eager for a way to establish a precedent that could be used to prosecute public sexual display, responded favorably to this conflation and used their sentencing power to show that they would not stand for “that kind of conduct.”95 One judge felt that the defendants should have been fined five hundred dollars or sentenced to thirty days in jail, even though none of the defendants could afford the imposed fine of fifty dollars, in order to demonstrate that efforts to go naked would be “punished.”96 Rather than defining nudism as a harmless sign of the times, the Court of Special Sessions deemed nudist activities a danger to society that needed to be expunged from the city.
The law, however, had not changed to match the rapidly shifting attitudes toward nudism, nudity, and sexual display. One judge dissented based on his interpretation of the law and a continuing recognition that nakedness was not inherently indecent. As in the Goldstein ruling, New York’s Section 1140a required that exposure of the body be both willful and lewd to be considered a crime. While no one could deny that the Olympian League participants willfully disrobed, the lewdness of their activities lacked the same certainty. The trial fa
iled to offer any testimony that documented lewd acts, such as sexual contact between men and women, homosexual activity, or salacious performance. Patrolman Barr admitted that the exercises he witnessed resembled those at any other gymnasium. As a result, Justice Frederic Kernochan did not feel that the “law at present” was “sufficiently broad enough to render a conviction on this evidence.”97 The contradictory connotations of the naked body as both healthy and erotic made the nudist activities difficult to prosecute under indecency laws that required explicitly lewd conduct. The dissenting judge went on to assert that gender also played a defining role in establishing the illicit character of the meeting. Just as Suominen assumed that separating men from women would make his sunbathing enclosure equivalent to public municipal baths, the judge reasoned that the event would have gone unnoticed if the group had “one day for men and one for women.”98 According to Judge Kernochan, “Should the Legislature see fit to stop [nudism],” it needed to expand the law to equate all forms of nudity with indecency.99