Naked

by Brian S. Hoffman

  Although Judge Kirkland did not object to the display of attractive women, nonwhite bodies, or children’s genitalia, he ultimately squashed the ACLU’s attempt to distance S&H from commercial sexual display when he ruled that the inclusion of full-frontal male and female nudity constituted the main criterion for judging obscenity. He did not oppose artistic, medical, or scientific journals, books, magazines, and literature that showed the “human form merely in the nude and beyond that not revealing the pubic area or the male or female genitalia.” The fact that the nudist movement offered S&H “freely for sale to the general public who are not members of the nudist organization” while also exhibiting photographs “clearly revealing genitals, breasts and other portions of the body normally covered in public” revealed the magazine’s commercial purpose and, according to Kirkland, made it obscene and nonmailable.64

  Roth v. United States

  The ACLU and Boone hoped to reverse the Kirkland decision when the U.S. Supreme Court took up the issue of obscenity in a case involving a notorious smut dealer named Samuel Roth. For decades, the Supreme Court had avoided the issue of obscenity and deferred to lower state-court decisions that addressed postal censorship, questionable literature, or objectionable films. The most important of these decisions came in the early 1930s from the New York Supreme Court, which established that literature dealing with sexual themes and exhibited scholarly merit should not be considered obscene. Yet judges and juries across the country continued to struggle to reach a consensus on the issue of obscenity. For Chief Justice Earl Warren, the problem in the Roth case lay in the subjective nature of the laws regulating questionable materials. He observed that judges determined obscenity based “largely upon the effect that the materials have upon those who receive them,” and as a result, the “line dividing the salacious or pornographic from literature or science is not straight and unwavering” and “may have a different impact, varying according to the part of the community it reached.”65 The lack of a clear national obscenity standard compelled the justices of the U.S. Supreme Court to hear Roth v. United States in 1957.

  Despite Roth’s established pornography business, the ACLU followed the strategy it used to defend S&H, shying away from taking an absolutist position against Post Office censorship. The Post Office considered Samuel Roth “one of the biggest dealers in obscenity in the nation,”66 and in 1956 federal prosecutors arrested him for advertising and selling a publication called American Aphrodite, which contained literary erotica and nude photography. The ACLU, as it had done in its defense of S&H, made arguments implying that certain forms of sexual expression warranted censorship. In its amicus brief, ACLU attorneys contended that the U.S. Supreme Court should not uphold Roth’s arrest since the prosecutors failed to introduce evidence that his publications “will probably and immediately cause anti-social conduct.”67 This argument assumed that the introduction of evidence showing the danger of pornography justified postal censorship.

  In a 6–3 decision, the U.S. Supreme Court upheld Roth’s conviction and instituted a legal test of obscenity that distinguished acceptable representations of sex from “prurient” materials. Writing for the majority, Justice William Brennan stated that the First Amendment did not protect obscenity, which the courts have historically defined as material “utterly without redeeming social importance.” Yet Justice Brennan also used Roth to protect forms of sexual expression that had “redeeming social importance.” Declaring “sex and obscenity are not synonymous,” Brennan echoed the moderate legal strategies used by the ACLU in Roth and its defense of S&H. He believed that the “portrayal of sex, e.g., in art, literature and scientific works is not itself sufficient reason to deny material the constitutional protection of freedom of speech and press.” He asserted that it was “vital that the standards for judging obscenity safeguard the protection of speech and press for material which does not treat sex in a manner appealing to prurient interest.”68 In Roth, the justices of the Supreme Court intended to limit the types of materials considered obscene without granting full First Amendment protection.

  Roth wrote the heteronormative boundaries of sexual liberalism into federal obscenity law by relying on community standards to be the arbiters of decency. Justice Brennan wrote that the courts should determine the obscenity of questionable materials by taking into account “the average person, applying contemporary community standards, the dominant theme of the material, taken as a whole, appeals to prurient interests.”69 By deferring to the shared values and morals of the community, the justices allowed the lower courts to suppress marginal sexualities even as they protected forms of sexual expression that appealed to heterosexual norms. The reliance on community standards to determine obscenity upset the justices on the Supreme Court who took a more absolutist position on free speech and the First Amendment. They feared that the law made it possible for the courts to exclude marginal voices and sexualities from public display, discussion, and debate. Justice William O. Douglas asserted in his dissent that the First Amendment should “allow protests even against the moral code that the standard of the day sets for the community.”70 Justice Douglas as well as fellow New Deal appointee Justice Hugo Black called for a strong First Amendment that protected even offensive forms of speech. Coming after the anticommunist purges of the early Cold War years, these justices recognized the risks of allowing the “majority” to dictate appropriate behaviors and beliefs. A stronger First Amendment would also remove the subjectivity that made federal obscenity law so difficult to apply uniformly across the nation. Even though the Supreme Court took up Roth to clarify federal obscenity law, the reluctance to grant First Amendment protections to illicit forms of speech left the decency or indecency of questionable materials—such as Sunshine and Health—open to interpretation.

  The lower federal courts quickly used Roth to further restrict sexual expression. Boone and the ACLU argued in their appeal in the S&H case that Judge Kirkland violated the First Amendment when he declared many of the pictures in S&H to be obscene and nonmailable. Since Kirkland relied on “community standards” to judge the decency of the images in Sunshine and Health, the case offered an ideal opportunity to apply the test established in Roth. The D.C. Circuit Court of Appeals quickly asserted that the pictures “speak for themselves” and found Kirkland’s “extensive, particularized descriptions of the offending and offensive material” to be “amply sustained.” Pointing to Kirkland’s effort to outline how each photo did or did not violate “community standards,” the appellate judges ruled that S&H dealt with “sex in a manner appealing to prurient interest and hence is obscene, as Roth tells us.”71 Justifying the censorship of S&H by placing nudism firmly outside the heteronormative boundaries of sexual liberalism, the decision by the D.C. Circuit Court of Appeals confirmed the fears of First Amendment advocates such as Justice Douglas and Rev. Boone.

  Only through rulings after Roth—with cases such as Sunshine Book Company v. Summerfield—did the U.S. Supreme Court finally begin to clarify what constituted material with “redeeming social importance.” The justices disapproved of several lower-court decisions that applied a narrow interpretation of what defined community standards and immediately took up a series of cases to clarify their intent. For the justices, the variety of content and images in S&H did not constitute obscenity under the test it established in Roth. Filing a writ of certiorari with the U.S. Supreme Court to review the recent decision issued by the D.C. Circuit Court of Appeals, Boone and the ACLU continued to argue that the display of naked men, women, and children in S&H constituted material with “redeeming social importance.” Just as Boone had done in the Kirkland decision, he supplied the Court with copies of the February 1955 issue of S&H, and on January 13, 1958, in a unanimous decision, the Court granted a writ of certiorari and reversed the ruling of the D.C. Circuit Court of Appeals. Citing only Roth v. United States in its opinion, the Court ordered the lower court to take into account the therapeutic and recreational character of nudism when dec
iding on the decency of the pictures that the movement displayed in its magazine.72 Chief Justice Warren reasoned in his concurring opinion in Roth that “it is not the book that is on trial; it is the person,” and he asserted that the “conduct of the defendant is the central issue.”73 The materials sent through the mail by Samuel Roth, a known publisher of pornography, constituted obscenity. S&H, on the other hand, displayed similar images while also promoting the therapeutic benefits of going naked. The Court’s intervention on behalf of S&H made it clear that it considered nudism to fall within the heteronormative boundaries of sexual liberalism. Yet S&H appealed to the nudist community as well as a variety of sexualities and erotic desires. Unintentionally, the S&H case opened the door to images and materials that exhibited little “socially redeeming” content and would likely clash with contemporary “community standards.” In Sunshine Book Company v. Summerfield, the Supreme Court created a gray area in American obscenity law that undermined the heteronormative boundaries regulating sexual expression.

  Garden of Eden

  The distinction that the Supreme Court made in Roth between prurience and acceptable sexual expression also influenced the way state courts ruled on nudist films. The 1954 release of Garden of Eden drew large audiences across the country. Far from a typical small-scale production destined for adult-only theaters, the film had more than 958 play dates in thirty-six states and foreign countries and was seen by over 1.6 million people.74 Although the American Sunbathing Association lent its seal of approval, the production reaped in profits from an audience that had little interest in the mental and physical benefits of going naked. A 1956 advertisement for the film did not speak to nudists when it guaranteed the “complete and uncut version” that stood apart from the “old, censor-cut Nudist Pictures!”75 In Boston, the movie “pulled lines of males” to a fourteen-hundred-seat theater that made a “‘wham of $15,000’ in just the first week.” In Los Angeles, despite an “adults-only policy,” the film earned around $19,000 on a single screen in its opening week.76 The large male audiences that packed the film’s showings aroused the suspicions of the Board of Regents of the University of the State of New York, which immediately denied the film a license.

  The actions of the Board of Regents of the University of the State of New York against Garden of Eden came at a moment when the film industry’s policy of self-regulation began to crumble in response to legal reforms, tough economic times, and changing consumer preferences in the postwar period. In 1931, Hollywood studios adopted the Hays Production Code to avoid federal censorship by strictly regulating the production and content of their own films. Banning the depiction of sex, including the display of nudity, this industry-wide standard went largely unchallenged for decades. In 1948, the Supreme Court ruled in United States v. Paramount Pictures that the vertical integration of the film industry, which allowed Hollywood studios to control the production, distribution, and screening of their films, violated antitrust laws.77 This ruling resulted in a boom of independent theaters that did not have to uphold the Hays Production Code. To make matters worse for the studio system, the growing popularity of television severely curtailed theater attendance. By the late 1950s, almost one-quarter of the nation’s theaters had closed, and film production decreased from 320 to 189 films a year.78 Films that dealt with controversial content, displayed the body, or had sexual themes, however, continued to attract large audiences to many of the recently opened and unregulated independent theaters. In addition, soldiers who had just returned from war with “girlie magazines” and other literature banned in the United States were a particularly willing audience for controversial postwar films such as A Streetcar Named Desire (1951), Baby Doll (1956), The Man with the Golden Arm (1956), and foreign movies such as the Italian production The Miracle (1952).

  A 1956 advertisement for Garden of Eden did not speak to nudists when it guaranteed the “complete and uncut version” that stood apart from the “old, censor-cut Nudist Pictures!” (Courtesy of the American Civil Liberties Union Archive, 1950–1990, History and Philosophy Library, University of Illinois at Urbana-Champaign)

  The reliance on the exhibition of nudity in Garden of Eden to draw in audiences classified it with other nudist exploitation films that dated back to the 1930s. The exploitation films screened at independently owned art theaters between 1919 and 1959, according to Eric Schaefer, “relied on forbidden spectacle to differentiate themselves from classical Hollywood narrative films and conventional documentaries.”79 Small studios looking to eke out a profit despite subpar sets, inadequate film and sound equipment, and small budgets as well as inexperienced or untalented actors, writers, and directors turned to “titillating images” and “spectacle” to draw in audiences.80 While the genre varied greatly in content and style, the narratives that drove exploitation films generally existed to highlight a shocking event, nude or scantily clad bodies, or the grotesque. In many ways, Walter Bibo’s Garden of Eden resembled the other exploitation films that had come before it. Filmed at the Lake Como Club near Tampa Bay, Florida, starring an attractive actress, and featuring a romantic plotline, the film drew in audiences hoping to see naked bodies. Yet the relatively large investment made in producing the film, its careful display of the body, and the respectability of its main characters set Garden of Eden apart from other exploitation films. Like S&H, Garden of Eden blurred the boundaries between the illicit and the respectable and forced the New York State courts to redefine obscenity statutes that had stood for almost three decades.

  The large investment that Excelsior Pictures producer Walter Bibo made in the production, casting, and filming of Garden of Eden gave the film legitimacy. Exploitation films generally had budgets that ranged from $10,000 to $60,000, were filmed in one or two weeks, and often spliced in scenes and sound to make a full-length feature film. Bibo, who had imported classic foreign films such as The Golem, Barber of Seville, and Skipper Next to God, expended over $300,000 to acquire the “finest cast and production staff” available for his nudist film.81 Max Nosseck, who directed the film, had a “long list of superior Hollywood attractions” including action films such as Dillinger and The Hoodlum as well as family pictures such as Black Beauty and The Return of Rin Tin Tin!82 The cameraman for Garden of Eden, Boris Kaufman, also came with a more-than-reputable résumé. In 1954, he won an Academy Award for his contributions to On the Waterfront.83 Jamie O’Hara, the leading lady who played Susan Lattimore, acted in several roles on television, as did R. G. Armstrong, who played the film’s grouchy father-in-law.

  Furthermore, Garden of Eden distinguished itself by re-creating the domestic ideology featured in S&H through a family-oriented narrative that many critics considered dull and boring. In the 1930s, nudist films such as Elysia relied less heavily on narrative and exhibited far more nudity through a “discrete and integrated approach[] to . . . spectacle” that resembled a documentary film or news clip.84 While Elysia followed a reporter named Mack through a nudist camp to research the recent interest in nudism, Garden of Eden focused on Susan Lattimore, a twenty-five-year-old war widow and mother of a six-year-old daughter hoping for a fresh start far away from her wealthy and overbearing father-in-law. Lattimore conveyed a moral, dignified, and domestic image. She also connoted middle-class status when she escaped her wealthy and domineering father-in-law.

  Garden of Eden’s intricate narrative, with its many scenes and characters, worked to “delay and foster anticipation of the spectacle of the camp scenes” while also positioning nudism within the boundaries of sexual liberalism as a protector of families.85 Early in the film, Susan Lattimore’s car stalls on her way to Miami, where she plans to begin a career in modeling. Fortuitously, a handsome man named Johnny comes to her aid and offers the mother and daughter room and board at the Garden of Eden. A bit of trepidation and skepticism follow Lattimore’s discovery that she has taken refuge at a nudist camp, but her daughter’s enthusiasm for going naked persuades her to try the lifestyle, participate in a club thea
ter production, and become romantically involved with Johnny. Once her father-in-law discovers that she has been staying at a nudist club, he pursues legal action against the camp and attempts to have Susan declared an incompetent mother. When his lawyer informs him that the camp does not violate any local laws, he visits Garden of Eden, only to slowly accept the “absolute cleanly innocence of their [nudist] method of living.”86 By winning over Susan’s father-in-law, nudism mends a broken family. Not only is Lattimore’s daughter reunited with her grandfather, but after her mother’s marriage to Johnny, she gains a new father.

  The heartwarming conclusion of Garden of Eden did little to excite film critics. While newspapers rarely took notice of exploitation films, Garden of Eden exhibited enough merit through its professional production and well-developed narrative to warrant review in several newspapers across the country. The Tampa Daily News, however, cautioned readers against expecting “something sensational” and suggested that they visit the “next exhibit of the Tampa Art Institute and save [their] money.” The New York Daily Mirror added, “it runs 70 minutes but proves that anything can become boring.” The New York Times described the film’s plot as a “limp dramatic ritual with all the flair of a television commercial.”87 According to film critics, the nudist camp provided a remarkably uninteresting vehicle to exhibit the spectacle of nudity in Garden of Eden.

  Walter Bibo attempted to minimize the spectacle of nudity by using the motions and gestures of nudism to desexualize nakedness. According to Linda Williams, hardcore pornography privileges close-ups of particular body parts, overlights easily obscured genitals, and employs sexual positions that favor maximum exposure.88 In contrast to these pornographic conventions, the wide camera angles used in Garden of Eden to capture whole bodies engaging in numerous nonsexual activities relied on suggestion and subtlety to convey a feeling of nakedness. Keeping the genitalia of numerous naked male and female bodies of all ages on the screen hidden required precise and coordinated movements that followed timed patterns. The recreational activities of the nudist camp justified these often awkward and deliberate motions. A swing set, a small lawn, and an expansive lake served as the background for most of the scenes in the film that displayed naked bodies. Here, in synchronized patterns, children moved back and forth on swings, crossed in the foreground on tricycles along designated paths, tossed a large beach ball to one another, and ran toward the lake to dive into the water. Even the passive act of sunbathing could be infused with movement. One scene showed a woman lying in the sun only to turn away from the camera to watch several children splashing at the edge of the lake. Other naked adults walk in pairs away from the camera toward the water, only displaying their bodies from the rear. Although women walk with other women or with men, to avoid any hint of male homoeroticism, the film never shows two naked men walking together, interacting, or sunbathing. Not even motion could mute the eroticism of the naked male body, which had long been associated with homosexuality.89 Rather than thrusting exposed breasts and genitalia onto the screen, Garden of Eden made audiences imagine nakedness by choreographing the movements of the nude body.