Naked
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“A Prudish Legal Strategy”
The ACLU understood S&H to be the official publication of a social movement and considered the Post Office’s seizure of the magazine an attack on freedom of speech and the press. Roger Baldwin, a central figure involved in the founding of the ACLU and a moderate voice within the organization, saw the defense of nudist magazines as a way to avoid associations of the organization with communism during the Cold War. Rather than trumpet his own interest in going naked, Baldwin claimed that he did not “sponsor or endorse the beliefs of nudists.” Not wanting to link the ACLU to radical ideologies or the politics of sexual liberation that had once been voiced in Greenwich Village, Baldwin limited his support of nudists to their “right to pursue their health ideas.”22 He devised a legal strategy that built on the nudist movement’s contention that “commonplace nudity, far from stimulating immorality, . . . serves to diminish prurience” and approached the seizure of S&H as a “freedom of press issue . . . far different from that raised by a nude calendar or an entertainment magazine.”23 Baldwin believed that “a certain amount of prudishness” would remove the magazine from the “terms of the statutes and the court decisions and thus free it in the mails.”24
To highlight the absence of commercial sexual display and the movement’s commitment to health and sexual frankness, Baldwin solicited the opinion of several hundred expert witnesses including doctors, academics, publishers, and businessmen. He asked if they thought the images in S&H “incite the average person to lustfulness or thought of sexual impurity” and requested that the witnesses compare these representations to the “lurid photographs in tabloid newspapers, and suggestive advertisements and illustrations widely seen today.”25
In this survey, Baldwin wanted to link the opinions of respected religious leaders, career professionals, and entrepreneurs to S&H while also highlighting the moral and aesthetic characteristics that separated the magazine from more provocative materials. Robert Searle, writing on behalf of the Protestant Council of the City of New York, found the issue of S&H to be “natural and without suggestive implication,”26 Evans Clark, the director of the Twentieth Century Fund, did not see any “indication of lustful or impure intent,”27 and according to Cecig Corwin of the Young Men’s Christian Association (YMCA), the magazine presented the “convictions of nudists clearly and in a thoroughly wholesome manner.”28 Other respondents found the magazine’s aesthetics unpleasant. James Truslow Adams, a leading historian, stated, “I have never seen such a collection of ugly women and they certainly do not excite me in the slightest”;29 Dorothy Kenyon, a liberal attorney active in the ACLU, thought most of the figures to be “definitely unattractive to put it charitably.”30 John Marquand, a prominent American novelist, added that the sight of these “ugly, ungainly people in the nude would cause the average person . . . to rush to the nearest clothing store.”31 According to these observers, S&H’s display of nudist principles stood apart from an emerging market of youth magazines that relied on sexual titillation to draw in their readers.
Legal absolutists within the ACLU along with nudist leaders took issue with Baldwin’s strategy to distance nudism from sexually explicit material. Rev. Boone wanted a “definite gauge of obscenity as clear and distinct as a yard stick that would end the ‘constant and unbearable litigation.’”32 He believed that tolerating the censorship of certain indecent materials would leave nudists vulnerable to future censorship. Elmer Rice, a playwright and free speech activist in the ACLU, objected to Baldwin’s strategy on different grounds. He feared that it set up standards of “propriety and impropriety” when the ACLU should be striving to defeat all standards of obscenity. He asserted that it was “completely out of line with ACLU policy” to tolerate the censorship of lustfulness. He did not like the “prudishness” of this strategy and urged Baldwin to approach the issue of freedom of speech and the press with the “same objectivity” that they did “all others.”33
Boone employed a more confrontational approach that furthered the movement’s commitment to sexual frankness and challenged the racial assumptions behind censorship. Although most Americans violently opposed the intimate interaction of blacks and whites, and many nudists voiced fears about admitting African Americans into nudist clubs, Boone used images of the indigenous nonwhite body to argue that the censorship policies of the Post Office discriminated against white nudist representations. When the Post Office seized the March 1947 issue of S&H, it announced a policy that “the breasts of white women but not the breasts of colored women” should be censored from the mails.34 The assumed illicit sexuality of nonwhite bodies had long given license to discussions and depictions of sex. According to Catherine Lutz and Jane Collins, colonial racial assumptions combined with National Geographic magazine’s scientific and literary prestige to make it one of the “few mass culture venues where Americans could see women’s breasts.”35 In protest, Boone juxtaposed the images of a white topless woman next to a similarly naked African American woman and asserted that National Geographic had “published thousands of breasts of colored women without the slightest objection on the part of the post office.”36 Boone explained in the African American newspaper the New York Amsterdam News that he published the two photos to “force a showdown from the department” that would ultimately free his magazine from the obscenity statutes.37 Boone’s dramatic display of white and nonwhite bodies clashed with Baldwin’s effort to distinguish nudist images from commercial sexual display.
Many other advocates of civil liberties supported Boone’s use of racial liberalism to argue against the restrictions placed on what could and could not be seen in modern Western society. Anthropologists argued that incorporating the way other societies, cultures, and races viewed the body demonstrated the need to take into account relativity in American obscenity law. In trials dating back to the early 1930s, nudists had attempted to escape charges of public indecency or obscenity by gesturing toward indigenous forms of nudity. Attorneys regularly referenced the works of social Darwinists, such as William Graham Sumner’s Folkways, to compare the different taboos toward nudity and to rationalize American nudism.38 In 1955, Weston LaBarre, who received his Ph.D. in anthropology from Yale and taught at Duke University, echoed nudist arguments in an article titled “Obscenity: An Anthropological Appraisal.”39 He thought that American society at midcentury remained “ambivalent” toward the exposure of the naked body just like many other societies around the world. Referencing the practices of ancient Greeks and Peruvians as well as Muslim women in Africa, women in India, Samoans, Chinese, Eskimos, and Canary Islanders, he justified the need for relativity by describing a range of cultural approaches to regulating the body that varied from the draconian to the permissive. He found that the “ultimate obscenity has been the display of male genitals” and that the United States’ prohibition of the breast appeared odd since the “total or partial nudity of the female body is quite . . . commonplace among people of the world.”40 Arguing that nakedness should be tolerated in American society by highlighting the subjective experience of nudity among different cultures and races, LaBarre called for a reevaluation of American attitudes toward nudism and implicitly demanded that the courts treat all people equally under the law.
When the Post Office seized the March 1947 issue of S&H, it announced a policy that “the breasts of white women but not the breasts of colored women” should be censored from the mails. In protest, Boone juxtaposed the image of a white topless woman next to the image of a similarly naked African American woman and asserted that National Geographic magazine had “published thousands of breasts of colored women without the slightest objection on the part of the post office.” (Sunshine and Health, July 1947, 14–15; courtesy of the Sunshine and Health Publishing Company)
“It Is Filthy, It Is Foul, It Is Obscene”
The ACLU’s strategy to distance S&H from pornography initially proved successful for a time. Since 1947, the Post Office had seized issues of S&H at random points of
delivery and relied on local hearings administered by its own trial examiners to avoid formal legal proceedings with Boone. The growth of the paperback industry and the mail-order trade in the postwar period heightened the anxieties of postal officials, who lamented the increasing amount “pornographic filth in the family mailbox.”41 In 1953, the local post office in Mays Landing, New Jersey, where Boone published and distributed S&H, hoped to reverse this trend by stopping the mailing of the magazine at the point of origin. This allowed Boone to seek an injunction against the Post Office in the D.C. federal district court. At trial, Boone and the ACLU argued that the pictures in S&H showed “people practicing nudism in a normal and healthy environment and in the happy enjoyment of thoroughly innocent activities” and were the “antithesis of anything suggestive or pornographic.”42 On June 23, 1953, the majority decision in the D.C. district court stated that the magazines “were not likely to promote lustful feelings or excite sexual passions” and granted a permanent injunction blocking the Post Office from seizing S&H from the mails.43 The Post Office feared that this decision would limit the powers that Congress had granted it in order to censor materials under the 1873 Comstock act. It immediately appealed the decision, asserting that the lower court “incorrectly substituted its own opinion for the determination of the postmaster general.”44 Boone and the ACLU argued before the D.C. Circuit Court of Appeals that the Post Office’s seizure of S&H constituted a “prior restraint upon the freedom of the press” and, as a result, violated the First and Fourth Amendments of the Constitution. On December 16, 1954, the majority of judges affirmed the lower court’s injunction because the actions of the Post Office posed “grave constitutional questions.”45 The New York Times encapsulated the significance of the decision in its 1959 headline “Post Office Power as Censor Curbed.”46
The Post Office reacted to the D.C. Circuit Court of Appeals decision by defying it immediately. On December 23, 1954, only a week after the decision, the postmaster at the Mays Landing Post Office seized four hundred copies of the February 1955 issue of S&H. Boone and the ACLU, confident that the courts would once again rule in their favor and bolster the legal status of S&H, filed a civil suit against the Post Office in the D.C. district court. Judge James Kirkland, who presided over the trial, saw the seizure of S&H as an issue of obscenity rather than a challenge to the First or Fourth Amendments. Kirkland intended to establish “what is art on the one hand, pornography on the other; what is decent on the one hand as against what is indecent on the other.”47 Kirkland’s detailed written opinion provided the legal precedent that the U.S. Supreme Court used to clarify its ambiguous 1957 Roth decision and its intent to reshape modern American obscenity law.
Kirkland rejected Boone’s argument that the nudist movement’s commitment to sexual frankness legitimated the display of the naked body in S&H. He particularly objected to images that attempted to represent the “normal, natural person and reveals her as she was in fact.” One “unusual picture,” taken “within 12 feet of the camera,” displayed two women in their “late twenties or early thirties,” one of whom stood five foot seven and weighed “in the neighborhood of 250 pounds” and whom Kirkland described as “exceedingly obese” with “elephantine breasts that hang from her shoulder to her waist” and thighs that were also “very obese.”48 The effort to frankly show a range of body types in S&H challenged the increasingly dominant preference for the slender female body in the early twentieth century. The transition from the moral maternalism of the Victorian period to a modern conception of womanhood that emphasized sensuality and consumerism resulted, as the historian Peter Stearns has argued, in a “misogynist” emphasis on the thin female form, achieved through rigorous dieting regimens designed to constrain the indulgences of the new woman.49 Reflecting these aesthetic assumptions and prejudices, Judge Kirkland considered nudist representations that did not conform to the idealized white, slim female body to be indecent.
The February 1955 cover, conversely, did not warrant censorship despite displaying a woman wearing heels with wind blowing in her hair, with a wide smile and chest propelled outward, and positioned against a rocky, gray background that made her soft, pale skin stand out. Although the ACLU attempted to distinguish S&H from similar examples of commercial sexual display, Kirkland saw no reason to object to the photo because it did not show the “pubic area and there is no show of the genitalia by the angle at which the picture is shot.” He acknowledged that the photographer used “shadowing on her chest” to create the effect of a “bosom larger by far than normal” and saw that it was “shot at such an angle as to elongate and make quite massive the breast as distinguished from the very small nipple,” but he reasoned that the “plunging neckline has been accepted in the mores of the people” and that the “revealing of the breast would not in itself be obscene.”50 According to the historian Joan Jacobs Brumberg, the breasts represented a “particular preoccupation of Americans in the years after World War II”; movie stars known for their bust line, such as Jayne Mansfield, Jane Russell, and Marilyn Monroe, dominated the 1950s box office.51 Similarly, naked female images in S&H that pleased the male heterosexual gaze posed little threat to public decency.
The effort to frankly show a range of body types in S&H challenged the increasingly dominant preference for the slender female body in the twentieth century. (Sunshine and Health, February 1955, 29; courtesy of the Sunshine and Health Publishing Company)
Judge Kirkland also did not object to the exposure of the nude nonwhite body. At trial, Boone again objected to obscenity laws that permitted the display of nonwhite naked bodies in publications such as National Geographic and wondered if the judicial system had “grown up enough” not to “draw a distinction because the picture happens to be of a white person rather than a Negro.”52 In response, the Post Office asserted, “we are a clothed people,” and the practices of indigenous people in “Africa or some other foreign country in some other time is not the standard by which we should judge these pictures.”53 Judge Kirkland agreed with the Post Office and rejected the nudists’ attempts to make comparisons to a documentary film titled La Tuka. The nudists’ attorneys argued that it should not make “any difference” that the film showed life in an African tribe rather than everyday Americans, only to have Judge Kirkland retort that “people . . . living on the tropical belts would not be relevant.”54 In his final written decision, Judge Kirkland made the racial politics of obscenity clear when he found nothing indecent about a “suggestive picture” of what appeared to be a “woman of Mexican birth, a very dark complexioned woman.”55 Entrenched racial stereotypes of nonwhite bodies as primitive, accessible, and hypersexual permitted the exhibition of the naked racial other. Since naked indigenous bodies likely aroused audiences just as much as those in S&H, the racial arguments made by nudist advocates did little to mute the magazine’s eroticism.
Judge Kirkland reasoned that the “plunging neckline has been accepted in the mores of the people” and that the “revealing of the breast would not in itself be obscene.” (Sunshine and Health, February 1955, cover; courtesy of the Sunshine and Health Publishing Company)
Judge Kirkland, however, ruled unequivocally that any photos that showed the penis “obviously [have] no place even in illustrating the principles of nudism.”56 Kirkland likely considered the images of naked men to be directed toward gay male readers since many so-called beefcake photos in the postwar period masked their homoerotic content by embracing a rhetoric of health or bodybuilding that resembled the nudist movement’s promotion of health and fitness.57 In addition, the “representation of the male nude since the nineteenth century,” according to Thomas Waugh, had become closely linked with the “homosexual artist” and homoeroticism.58 In assessing one image, Kirkland described the “corona” of the penis in the photo as “clearly discernible,” to the point that one could see that the “man is circumcised,” and despite the very small size of the man in the photo, Kirkland strongly condemned the image, decrying, �
�it is filthy, it is foul, it is obscene, and the Court will hold such as a matter of fact.”59 Although small, captured from a distance, and not the main focus of the camera, the penis stood out as an exceptionally offensive image since it potentially signaled a source of homosexual desire.
Judge Kirkland, Rev. Boone, and the ACLU did reach a consensus regarding the decency of naked children’s bodies. Kirkland ruled that children “photographed in a frontal view which reveals the diminutive and underdeveloped genitalia” should not be considered obscene “by virtue of their age of innocence.” He supported this decision by stating that “such a view” represented the “common acceptance of the American people.”60 Evaluating an image of a young, naked girl sitting on a swing, with her “labia majora” clearly discernible, Kirkland asserted that one would have to be “prudish to hold that was an obscene picture.”61 Kirkland’s permissive policy toward the display of children reflected an emerging effort by child psychologists to encourage a nonrepressive attitude toward the child’s body. Many postwar parenting guides relied on Freudian psychoanalysis to recommend a permissive response to childhood sexuality. In the “Facts of Life” section of the best-selling The Common Sense Book of Baby and Child Care (1957), Dr. Benjamin Spock addressed the topic of nudity in the home by recognizing that the “excessive modesty” of the Victorian period had given way to “today’s casual attitude that is a lot healthier.”62 The effort to avoid psychological maladjustment caused by the repression of childhood nudity influenced Kirkland to allow the display of naked children.63
Despite the very small size of the man in the photo, Judge Kirkland strongly condemned images displaying the penis, decrying, “it is filthy, it is foul, it is obscene, and the Court will hold such as a matter of fact.” (Sunshine and Health, February 1955, 9; courtesy of the Sunshine and Health Publishing Company)