Feminist Plaintiffs Withdraw From Cape Cod Nudity Case

Feminist Plaintiffs Withdraw
From Cape Cod Nudity Case

We the undersigned, six* of the eleven plaintiffs in the class action civil suit filed on December l6, l986 against the Cape Cod National Seashore seeking to prevent the discrimination of women by the Seashore's anti-nudity regulation, have serious objections to numerous strategies used in our case (Craft vs. Hodel): strategies perpetrated by Lee Baxandall, president of The Naturist Society (TNS) and primary funding source for the lawsuit; the attorney hired by Baxandall [1]; and John Kyff, legal coordinator for the Nudist/Naturist Leadership Council (NNLC). Our objections are as follows:
     First and foremost, we object to the emphasis on first amendment rights for nudists and naturists, with gender equality presented as a lesser concern or disregarded altogether.
     The Cape Cod National Seashore's anti-nudity regulation treats women differently than men by requiring us to keep our chests covered. This unmistakable gender discrimination, based on male-defined mores and a sexist definition of "nudity," is the issue that our demonstrations were meant to challenge, and the predominate concern we had hoped our case would address.
     However, Lee Baxandall, John Kyff and the attorney have presented primarily first amendment-based arguments, insisting that the case could not be won on the grounds of equal protection. The emphasis is evident in the attorney's appeal: twenty-three pages are devoted to asserting first amendment protection for nudists, with only four pages halfheartedly given to equal protection.
     Some of us have come to realize that shirt-free rights for women and first amendment rights for nudists are incompatible legal strategies when used in the same case. In a case where the plaintiffs are shirt-free women, a first amendment challenge must begin by accepting the presumption that a barechested woman is "nude," but the logic of gender equality rejects this sexist principle. If a bare-chested man is not "nude" then neither is a bare-chested woman. A case argued on first amendment grounds, as this case was, should include both women and men, all totally unclothed and all equally "nude."
     The emphasis on first amendment rights is developed further in the extensive articles written about the case by John Kyff in his role as legal coordinator for the Nudist/Naturist Leadership Council (NNLC). The articles, illustrated with photos from our shirt-free rights demonstrations, advocate first amendment-directed legal strategies almost exclusively. Thus Kyff, speaking on behalf of nudists and naturists, and as an "official functionary" of naturism, has become the voice of the Cape Cod civil case: it is his opinions in the press, but our bodies and principles on the line [*2].
     Considering the documented history of Kyff's numerous political differences with nudist and naturist women, his inability to comprehend that women are a socially, economically and politically oppressed class (except when it is convenient to his contrived assertion that "Nudists" are also "oppressed"), his surprisingly reactionary attitudes towards feminists, his pro-pornography position, and his expressed opposition to our political activism (the shirt-free rights movement in particular), it is doubly insulting that both Clothed with the Sun3 and The Event have falsely and inextricably aligned us with Kyff in this way. It is difficult to know who we should consider to be more our enemy, John Kyff or U.S. District Judge Douglas Woodlock. Woodlock, who ruled against us in the original trial, does not presume to speak for us when he undermines our work: he is our acknowledged adversary.
     The Cape Cod case was filed in behalf of eleven women, ten of whom are feminists, and most of whom are involved in the shirt-free rights movement. Some of us may define ourselves as "naturists," and all of us have been and continue to be committed public advocates for access to clothing-optional beaches; however, none of us are "Nudists." But in a twenty-one page article published on the Cape Cod case in Clothed with the Sun (issue 8.1) Kyff uses "Nudist" dozens of times, while using the words "feminism" or "feminist" not at all, and mentioning women's rights almost as an afterthought.
     Until it was diluted by a so-called "winnable" legal strategy, our case was about equal rights and body acceptance. Our case was not, as Kyff argues, mostly about the "fundamental rights" of the "oppressed class" of "Nudists," and their struggle to be free from "apartheid" on their beaches. Had the case not been so resolutely manipulated by nudist and naturist men pursuing their own agenda, we would be pleased for almost everyone -- nudists and naturists particularly --to benefit from any legal precedent based on our efforts.
     Instead, we feel that we have been sold down the river. Kyff's interpretation of the Cape Cod case relies on an appropriation of women's bodies and a cooptation of feminism. It exploits the risks and work of feminists for a nudist/naturist agenda. These first amendment arguments will win even more rights for the commercial exploiters of sex, for proprietors of topless bars, for pornographers and perhaps, at some point, even nudists and naturists, but it is highly unlikely that women as a class will benefit.
     But women are not the only oppressed class exploited by Kyff's writings. Kyff wrongly maintains that "Nudists" are "oppressed," a "people...with a true class identity," just like "Negroes," "women," "amputees or any other minority group you may care to name." He further colonializes the language of oppression by calling "Nudists" the victims of Judge Woodlock's "fascism" and "totalitarian views," as if the repression of nudity on beaches could be equated with the many genuine fascist horrors.
     Within the pages of the same article by Kyff (CwS 8.l), The Naturist Society positioned nine ads that clearly speak to a large and privileged sector of Naturist Society subscribers: those who travel frequently, and often to "third world" nations where people are truly oppressed (and oppressed there by these same tourists and jet setting "internationalists"). We find ads for four U.S. nudist resorts, a Florida houseboat rental agency, two international clothing-optional travel agencies advertising for trips to St. Martin and Bonaire, one adventure travel tour from Jamaica and one ad for clothing-optional cruises to San Juan and Canada. To provide this absurd political defense to these priviledged people, many of whom simply enjoy nude bathing and do not espouse "Nudism," is at best politically ignorant, and at worst maliciously arrogant. We want no part of it.
     But Kyff, not content with pontificating about the case, also maintains a right to "control" the legal strategies. The following transcription documents a conversation between Kyff and Baxandall during a strategy meeting at the l988 Eastern Naturist Gathering. Morley Schloss had been emphasizing that naturist organizers must target the case as a crucial one that will have an effect on all other nudist/naturist cases. John Kyff interrupted:

Kyff: "Well, one question I have, a very basic one, Lee, on the Cape Cod case. Who controls that case?"

Baxandall: "In terms of legal strategy [our lawyer] does."

Kyff: "I'm talking -- uh I'm talking the plaintiffs."

Baxandall: "It's controlled by The Naturist Society. There are the main plaintiffs, but they have been inactive in terms of controlling it."

Kyff: "So now, we in effect -- we meaning The Naturist Society -- control that case and make the decisions of how that case is going to be argued."

Baxandall: "Yes."

Kyff: "Fine" [Long Pause] "Fine."

[The meeting closes immediately after this is resolved]

We the plaintiffs, however, do not find everything to be fine. We wish to make it clear that Lee Baxandall, The Naturist Society and John Kyff do not control the Cape Cod case; and they don't control the plaintiffs either.
     Our concerns about this case and its cooptation go beyond Kyff; in particular, they extend to Lee Baxandall, publisher and editor of Clothed with the Sun (CwS), and sole owner of The Naturist Society, Inc.
     Baxandall's personal interest in the Cape Cod case, apart from his political concerns as a naturist leader , includes paying tens of thousands of dollars in legal fees to the attorney. With that investment made and the plaintiff's names attached, he confidently assumed the role of primary decision maker, directing (with the attorney) the legal strategy of the case, as well as writing press releases, all without the input of the plaintiffs. This, together with disagreements over the chosen legal strategy, was part (but not all) of the reason for the "inactivity " of several of the plaintiffs: women who had at one time been enthusiastically involved in the strategy and planning of protests against the Cape Cod National Seashore.
     Five years ago Baxandall began providing editorial space for feminists in CwS, hoping thereby to attract more women to the naturist lifestyle. Baxandall's initiative forged an uneasy alliance between feminists and naturists for the first time in the history of both groups. Despite feminist frustration over his occasional and irresponsible use of images exploiting the nudity of women, the alliance appeared to be healthy.
     Whatever trust had developed, however, was shattered by the controversy surrounding issue 7.1 (summer, l987). Baxandall published a color centerspread entitled "Memories of Summer" that displayed eleven snapshots of an eighteen-year-old woman with partially shaved pubic hair coyly playing to the camera. The same issue contained numerous other images offensive to many feminists: images of headless women, of women laid out on rocks and displayed as "landscape." In the aftermath of heavy flak from anti-feminist men attacking issue 6.2 for its anti-exploitation / anti-pornography position, we believe issue 7.l was Baxandall's way of assuring his troubled male readers that they could still depend on CwS to "deliver."
     Melinda Vadas, a feminist but not a naturist, wrote an angry critique of the issue. "The young woman in these centerfold photographs," argued Vadas, "is displayed in demeaning, sexualized poses, fetishized and fuckable." Declaring Baxandall to be a "pornographer," Vadas also objected to other photographs which presented "objectified and fetishized portraits of women." Concurrently, Michelle Handler, a lifelong naturist, former employee of The Naturist Society, and one of the movement's most effective organizers, wrote a feminist critique declaring the centerspread to be exploitation: not pornography , but still an insult to women and feminist values, and a betrayal of feminist naturists.
     After Baxandall refused to publish the Vadas letter, as he had quietly refused to publish several previous letters critical of his editorial decisions, Handler mailed copies of both letters to many naturist/nudist leaders. Under pressure, Baxandall then published the letters in unusually small type, sandwiched between his editorial comments in the last pages of the magazine.
     In the past, Baxandall had carefully orchestrated controversy to provoke discussion. But when CwS became the object of controversy, rather than the forum for it, his background orchestration and general amiability dissolved into a rancorous chorus of defensiveness, hostility, and vindictiveness. It was his inability to accept feminist criticism (or any criticism for that matter) and his inability to admit to error (any error) that was, beyond the centerspread, his irrevocable betrayal of feminists.
During the ensuing controversy, Baxandall and Kyff carefully engineered the forced removal of Handler from her position [*4] as Executive Director of the Naturist Leadership Council, and Baxandall attempted to isolate her by censoring most of the letters that supported her and/or her position. He spitefully published her address under the name "Puri-tans" in CwS, and he continues to use photographs of her despite her formal withdrawal of all support for TNS and CwS, and despite her written revocation of permission to use photographs both of her and by her. This use of a woman's nude photographs, against her will, regardless of an editor's prerogatives, legal or otherwise, is fundamentally anti-feminist and an unethical violation of personal rights in general. [*5]
     Then, in August of 1988, Nikki Craft was fired from her staff position at The Naturist Society and evicted from the apartment she had shared with Baxandall for four years. Baxandall's reasons are documented in writing: Craft was fired because she is a "radical feminist," because she "colluded with Michelle Handler," and because she vigorously opposed The Naturist Society's intent to write an amicus (friend of the court) brief on behalf of the defendant in a Massachusetts child pornography case (Massachusetts vs. Oakes).
     The defendant, Douglas Oakes, photographed his l4-year-old stepdaughter posed "Playboy-style" on a bar, wearing only bikini pants and a scarf, her breasts uncovered. The photographs were taken without the knowledge or consent of the child's mother. When the girl saw the prints she ripped them up and buried them, but Oakes forced her to dig them up. The girl then told her mother, who filed charges against Oakes under a Massachusetts law intended to ban child pornography. She also filed for divorce. Oakes was convicted and given a ten year sentence, but the conviction was overturned by the Massachusetts Supreme Judicial Court. The case is currently under appeal to the U.S. Supreme Court.
     The American Civil Liberties Union, determined to weaken and ultimately overturn all child pornography laws, asked The Naturist Society and the American Sunbathing Association (ASA) to submit an amicus brief for the appeal. The ASA, the largest and most established nudist organization in the United States, has spent $15,000 on a friend of the court brief challenging the Massachusetts law. Until intense arguments with Craft, Baxandall was enthusiastically prepared to join in the ASA brief or submit one of his own. Lawrence Stanley advised the ASA in authoring the amicus brief and other cases as well.
     We concur with the majority opinion of the Massachusetts Supreme Judicial Court: the law is "unconstitutionally overbroad" and begs for misinterpretation by overzealous prosecutors. But we also agree with the dissenters when they argue that the defendant's conduct "constituted the abuse, exploitation and degradation of a child" rather than the exercise of free speech.
     The Oakes case is not primarily about nudism and naturism, but rather first amendment protection for men's right of access to and power over women and children. It will ultimately benefit the exploiters of women and children more than nudists or naturists.
     If the ASA and The Naturist Society wanted to challenge the Massachusetts law, they should have found another case, or initiated one: a case that clearly made the distinction between the legitimate rights of nudists and the unjust interests of exploitative men (who often hide behind a professed belief in "nudism" that is nothing more than a legal smokescreen for their pornographic exploits). Instead, the ASA and The Naturist Society pressed ahead with remarkable insensitivity to the women and children who are the victims of male pornography and exploitation.
     It is clear that the agenda of naturists is often in conflict with that of feminists: not the ideals of the naturist agenda, but the practice. The naturist movement can no longer have it both ways. It cannot support and shelter pornographers (both child pornographers and those who exploit adult women) and expect the support of feminists. It cannot merchandise women in its publications, nor can it discount, attack, ridicule, snub, fire and/or oust women who express valid feminist concerns about the direction of naturism, while continuing to call itself "pro-woman." Naturist men must realize that feminists and feminist values will not be controlled, diluted and/or co-opted for a male-defined nudist/naturist agenda.
     The plaintiffs, who have been aware of these issues, had, except for privately expressed disagreements, remained in the shadows attempting to avoid a public challenge to the handling of the case. Because of The Naturist Society's investment, financial and otherwise, we had hoped that by allowing the case to proceed for nearly two years, an affirmative precedent might be established. However, the circumstances detailed above have made the case too great a political burden and personal embarrassment for the plaintiffs. We wish to make it clear that our withdrawal does not constitute any support for the Seashore's anti-nudity regulation. Craft vs. Hodel has failed to speak on our behalf and address our concerns, and for that reason we can no longer remain silent.
Therefore, with our names, and in behalf of ourselves and women as a class, we withdraw from the suit funded by The Naturist Society against the Cape Cod National Seashore:

Signed: Nikki Craft, Michelle Handler, Laurel Brooke, Gabriel Brooke, Maureen O'Connor, Diana Fabbri

(*1a) Carol Agate, an attorney, joins us in name but wishes it to be known that she has been uninvolved in the case since the beginning and is unaware of the specifics mentioned in this document. She has been profoundly responsible for developing the argument against the first amendment defense and strongly agrees with ending the case as it has been set up by TNS.
Another plaintiff joins us but prefers that her name not be used publicly because she, a union organizer, believes naturism and shirt-free rights to be "irrelevant in the grand scheme of things."
Carolyn Manheim, Diane F. Kennedy and Melissa Farley remained as plaintiffs until Lee Baxandall succumed to pressure from the attorney and the other plaintiffs who refused to continue the case.

Footnotes:
1. There has been no misrepresentation by the attorney who felt, from the beginning, though we disagree with him, that the best hope for "overturning the regulation lay in stressing the first amendment nature of [our] actions."

2. It is rather like a southern bigot contending that "the south shall rise again," with photographs of black radicals used to illustrate how the battle can best be waged.

3. All attempts to dissuade Lee Baxandall, before publication, from using our photographs to illustrate Kyff's article, as well as insistent requests to move away from the primary first amendment focus, went unheeded by him.

4. To receive copies of the censored letters Iconoclast Vol. 1 #1 send a $3.00 donation to cover duplication, handling and postage.

5. With this statement we serve notice that any use of our photographs in CwS, even if they are used under the guise of news, will be without our permission. Some of us are profoundly regretful that Baxandall may use our photos without our permission.. We urge other naturists to remain watchful of how we are treated. If Baxandall prints our photographs without our permission be aware that your photos could be next. [Nikki Craft's note: Baxandall did reprint photos of Michelle Handler even after her clear denunciation of Baxandall and his magazine.]

Dissention Rips Nudists, Feministsby Lisbeth Lipari
Ex-pageant protester quits Cape Cod nudity fightBy Allison Blake

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