Abstract
Beginning in the early 1930s, US citizens made a concerted effort to ban lawsuits for breach of promise, seduction, criminal conversation, and alienation of affection. By 1940, ten states had outlawed so-called heart balm torts. Yet there is no empirical evidence that rates of heart balm lawsuits were increasing. This article analyzes 1930s media representations to show how the movement against heart balm grew from “tort tales” about allegedly outrageous lawsuits. Heart balm narratives drew from stylized representations of “gold diggers” found in popular culture, and they reflected divisions around gender and social class exacerbated by the Great Depression.
In September 1934, a typist named Frances Singer sued acclaimed crooner and radio star Rudy Vallee for $250,000 dollars. Her lawsuit accused Vallee of “breach of promise,” alleging that Vallee agreed to marry her but later broke his pledge. Singer claimed that, through his songs, Vallee used a “musical code system assuring her of his undying love and matrimonial intentions.” 1 Vallee told reporters that he had never met Singer and called the suit “crank” litigation. 2 He said that Singer “alleged the obviously absurd charge that I made love to her over the radio.” 3 The suit, which was ultimately unsuccessful, garnered national press coverage. 4 Although the details of the suit were unusual, litigation for “heart balm” (breach of promise, seduction, alienation of affection, and criminal conversation) received vigorous media coverage in the Depression-era United States. Reports about the lawsuit against Vallee coincided with a movement in various states to eradicate heart balm lawsuits.
By the mid-1930s several states moved to ban the so-called heart balm laws, state statutes that allowed for lawsuits to be launched against individuals who disrupted or betrayed a romantic relationship. Following the lead of Indiana and New York, several states outlawed tortious action for breach of promise, seduction, criminal conversation, and alienation of affection. Yet there is no evidence that rates of heart balm lawsuits were either abused or increasing in frequency. According to historian Julie Berebitsky, “Historians have found nothing to substantiate the claim that heart balm cases were especially disposed to extortion or invention, and legal records show a diversity of plaintiffs. Substantiation is also lacking for reformers’ assertion that juries handed down excessive awards to pretty plaintiffs playing innocent.” 5 In fact, historical evidence suggests that heart balm suits declined substantially from the end of the nineteenth century. 6 Moreover, threats faced by women in public life, like sexual violence, exploitation, and workplace discrimination and harassment, received far less public attention compared to the cries about heart balm and the so-called gold diggers. As Angus McLaren notes, “The press was not interested in the everyday complaints of the new army of shop girls and typists who fought off the sexual overtures of their employers.” 7 What explains the heightened and disproportionate concern about heart balm laws during the 1930s? This article will show that the crusade against heart balm developed in tandem with “tort tales” about allegedly outrageous lawsuits.
This article examines the public and legislative push against heart balm lawsuits. First, this article discusses the tort tale concept as it has been developed and elaborated by Haltom and McCann. 8 I suggest that, rather than being a specific reaction to a particular set of post–World War II historical conditions, tort tales have a wider historical legacy than has been suggested by the originators of the tort tale concept. Next, I offer an overview of heart balm torts as they developed in the early twentieth century, and I examine the public reaction to heart balm laws that developed during the Great Depression. Following the discussion of the characterization of heart balm in news media and popular culture, the article traces how public outrage fueled by the “gold digger” stereotype galvanized legislative action against heart balm torts in Indiana and New York. I suggest how tort tales about heart balm lawsuits were created in the context of a backlash to first wave feminism and a class-based conflict within Depression-era feminism. This article concludes with a reflection on how the crusade against heart balm suggests the historical range of the tort tale concept, one that has usefulness beyond the post-1970s context wherein it is normally deployed.
Rethinking the Historical Scope of Tort Tales
Tort tales are exaggerated stories of lawsuits that work to epitomize and symbolize dysfunctions in the realm of civil law. The term was coined in 1987 by Fred Strasser, and the concept was elaborated by William Haltom and McCann in their 2004 book Distorting the Law. Haltom and McCann define tort tales as “moralistic parables that refocus general dissatisfaction with civil justice into particularized outrages or injustices.” 9 Tort tales are circulated through mass media and popular entertainment and thereby become a source of information about the civil justice system. Tort tales seek to tap into a constructed notion of “common sense,” and they prompt the story’s consumer to reflect on the alleged injustice of frivolous lawsuits, the broken civil justice system, and the stupidity and greed of their fellow citizens.
The bite-sized stories characteristic of tort tales create an image of out-of-control civil litigation. Popular tort tales in the late twentieth century include a woman who sued a hospital because a brain scan destroyed her psychic abilities and a man who sued the dairy industry because he had health problems due to an addiction to milk. 10 In both of these accounts, media reports and tort reform advocates stripped the lawsuits of details that would have given the cases more credibility among the general public, removing specifics about the case or the outcome that would have made them appear less absurd. For Haltom and McCann, a lawsuit over a spilled cup of McDonald’s coffee is the “quintessential tort tale.” 11
Tort tales have several core elements. First, they involve reports of large monetary awards. The Pennsylvania woman who sued because of her lost psychic abilities was allegedly awarded $1 million in damages. 12 News media stated that Stella Liebeck was awarded $2.9 million for spilling a cup of McDonald’s coffee (the final amount was substantially reduced and news stories about the case rarely, if ever, mentioned her hospitalization and expensive medical bills). Haltom and McCann term this essential component of the tort tale the “holler of the dollar.” 13 Second, tort tales are communicated through simplistic and easy to understand narratives, and they describe situations where “extraordinary occurrences symbolize ordinary outcomes.” 14 Accordingly, tort tales have a family resemblance to moral panics insofar as both are exaggerated responses to perceived social problems. Tort tales arise from a distorted perception of, and panic about, an acceleration of baseless lawsuits in the United States. 15 Both tort tales and moral panics create a narrative with an identifiable villain or scapegoat, and they leverage preexisting cultural stereotypes. Third, the rise of tort tales is (allegedly) a historically specific phenomenon. Haltom and McCann locate a growing public perception of frivolous lawsuits, and the concomitant production of tort tales, in the final decades of the twentieth century. Legal scholars identify the tort tale trend as a relatively recent phenomenon, and they point to “important changes wrought in tort law practice in the post–World War II America.” 16 Haltom and McCann see the rise of tort tales and tort reform as “one facet of a broader jeremiad bitterly contesting the rights-based politics that arose in the 1960s.” 17 Analysis of the popular outrage against heart balm show how tort tales circulated and influenced public policy well before the 1960s.
The anti-heart balm movement drew strength from tort tales about outrageous lawsuits. Heart balm narratives from the 1930s share several core features that epitomize the tort tale concept. The stories that received the greatest amount of media coverage involved celebrities and large monetary awards. Heart balm stories were also communicated through popular tropes and narratives. In particular, the figure of the “gold digger”—a stylized representation of avaricious women suing men for money—stands as the central scapegoat of the Depression-era heart balm panic. Gold diggers were a staple of 1930s popular culture, appearing in song lyrics, film, magazines, and newspapers. Also, like the role of tort tales in the post-1960s “culture wars,” the heart balm issue became a focal point for different cultural conflicts aggravated by the Great Depression. Without denying the unique salience of tort tales in the latter part of the twentieth century, the evidence presented in this article suggests that tort tales have a longer history than perhaps previously recognized. Haltom and McCann’s useful elaboration of the tort tale concept has a wide historical and conceptual reach beyond the time period wherein it is typically discussed.
Heart Balm in the Early Twentieth Century
Heart balm refers to four categories of law: criminal conversation, alienation of affection, seduction, and breach of promise. Both criminal conversation and alienation of affection were lawsuits levied against outsiders accused of disrupting a marriage. Criminal conversation suits were usually initiated by a husband against his wife’s lover. Like criminal conversation, alienation of affection suits was often, but not necessarily, triggered by adultery. Plaintiffs pursued alienation of affection suits against individuals who disrupted a valued personal relationship. Sometimes they were launched against a meddlesome in-law but, more often than not, they were used against romantic rivals. Seduction and breach of promise lawsuits centered on betrayals and false promises during the process of courtship. The legal category of seduction described a situation where a man promises to marry a woman, she has sex with him based on that promise, and then he refuses to marry her. Seduction was one of the most popular forms of civil litigation in the nineteenth century. 18 Seduction suits were also included in the criminal statutes of several states, and they were used to prosecute instances of sexual violence that fell short of the strict requirements of first-degree rape. 19 Breach of promise actions, where a woman sues a man for backing out on a promise to marry her, was a product of English common law and a staple of nineteenth-century civil litigation in the United States. Breach of promise was similar to seduction because both hinged on the denial of the man to make good on a proposed marriage. Unlike breach of promise, however, seduction was contingent on the women’s prior virginity.
During the nineteenth-century United States, several high-profile heart balm cases captured the nation’s attention. In 1875, Theodore Tilton filed charges of criminal conversation and alienation of affection against Reverend Henry Ward Beecher for having an affair with Tilton’s wife. According to Nicola Beisel, the six-month trial, “was one of the major moral dramas of the nineteenth century, spawning a public reexamination of the meaning of ‘love’ and its bounds within marriage.” 20 Laura Korobkin notes the blurred boundaries between sentimental fiction and discourse in the trial. The internal dynamics of the trial were driven less by formal legal logic and more by publicly available cultural scripts, a pattern that repeats itself in early twentieth-century heart balm cases.
Agitation around the marital torts reflected changing ideas of marriage and consortium in the late nineteenth and early twentieth centuries. According to Beisel, the Beecher scandal solidified “public support of moral and social restrictions.” 21 At the same time, however, developments in case law around heart balm suits also allowed for the articulation of new affective and monetary rights for women. Historian Kimberley Reilly has shown how courts, by ruling that women could initiate some heart balm actions like criminal conversation, recognized a form of equality in marriage that clashed with common law conceptions of marital consortium. 22 Courts ruled that women had a kind of property right in their husbands’ companionship. Early twentieth-century rulings on criminal conversation and alienation of affections emphasized the mutual obligations of marriage and its affective dimensions. 23 In her analysis of sentimentality and affect in nineteenth-century marital torts, Korobkin argues that the Married Women’s Property Acts, and the elimination of coverture, was essential for the legal changes to heart balm. 24 Reilly’s careful analysis of American case law demonstrates that the Acts were a necessary, but insufficient, cause of the change. Both Reilly and Korobkin show how marital torts in the early twentieth century reflected new understandings of the emotional obligations of husbands and wives.
Public Outrage against Heart Balm
The High Stakes of Broken Hearts
Typical of tort tales in general, stories about heart balm suits emphasized their frequency and expense. During the anti-heart balm movement of the 1930s, breach of promise cases took center stage. Theodore Apstein, Secretary of the National Divorce Reform League, described an explosion of such lawsuits: “There was a rising market in wounded affections, and thousands of love-letters were taken from safe boxes. A new profession was created, and men started to pay large sums to keep their clandestine dalliances from the courts.” 25 He declared, “One began to read almost daily of a new breach of promise suit.” 26 Newspapers during the Great Depression regaled the public with accounts of heart balm suits filed against the rich and famous, and they published headlines highlighting the large awards sought after or gained. 27 The plaintiffs and defendants were often in the entertainment industry, and the lawsuits entailed high-money stakes. Heart balm stories invoked the “holler of the dollar,” a central characteristic of tort tales. 28
Newspapers frequently published stories of high-profile heart balm defendants during the 1930s. 29 For example, a woman named Lilian Mendal sued Frederic Gimble, co-owner of Gimbles Department store, for breach of promise for two million dollars, which resulted in a $250,000 verdict. 30 Rhoda Tanner Doubleday, divorced wife of publishing giant Felix Doubleday, brought a $1.5 million dollar breach of promise suit against Chicago multimillionaire Harry F. McCormick in 1935. Her suit settled out of court for $65,000 although early press reports erroneously stated that the amount was close to $100,000. 31 Colette Francois, who sued movie mogul Arthur Loew for $100,000, was less effective. A jury of twelve men decided the case in Loew’s favor. 32 Film producer Harry Joe Brown, who was best known for producing Errol Flynn’s first film, married actor Sally Eilers in the early 1930s. He wrote love letters to another woman, Marjorie Gay, who later levied a $100,000 breach of promise action against him. The jury, after seven hours of deliberation, awarded Gay $5,000. 33
The breach of promise lawsuit against violinist David Rubinoff drew wide press coverage, including an article in Life magazine. 34 Rubinoff made his radio debut in 1931 (with Rudy Vallee as his introducer), became a popular radio performer, and headlined a free concert in Chicago’s Grant Park for an audience of tens of thousands. 35 A woman named Peggy Garcia sued him for $100,000 dollars because he purportedly broke a marriage promise. Garcia, one journalist commented, “served in the ranks of the large army of New York’s amusement blondes,” by working as a hat check girl at The Cotton Club and taxi dancer at the Blue Bird Hall. 36 Rubinoff’s attorney successfully fought the lawsuit by investigating Garcia’s past and proving that she was married to two men. The breach of promise suit was thrown out of court, and Peggy Garcia was imprisoned on charged with bigamy. 37 Rubinoff’s attorney successfully fought the lawsuit by investigating Garcia’s past and proving that she was married to a tombstone salesperson from Astoria named Michael La Rocca. La Rocca’s wife testified in New York City’s Court of General Sessions, and Peggy Garcia was charged with bigamy. 38
The African American press also published accounts of costly breach of promise lawsuits. As in the white mainstream press, these narratives invoked themes of class mobility and respectability. A 1930 case in Newark New Jersey alleged that William Henry Washington, a “wealthy and prominent” physician, promised to wed twenty-three year-old Ethel Cannon. 39 He told Cannon that he would marry her after his wife died but, instead, he married a white woman. The court awarded her $20,000 of the $75,000 she originally sought. In another case, Alice Piper, a twenty-two-year-old white nurse from Iowa, sued Alvin Jefferson, an African American doctor, for $10,000 in a breach of promise suit. A writer for the Chicago Defender hailed Jefferson’s character by describing him as “mild mannered” and “showing every evidence of culture and refinement.” 40 Piper’s respectability, however, was jeopardized by her lawsuit. Although her former employer described her as “extremely refined,” noting that she “read only the best books and was never out once after 9:30 at night.” 41 Jefferson’s defense attorney called her “unsophisticated” and stated “Alice Piper’s motive was to get more money.” 42 Jefferson called her “eccentric and queer,” and said, “I doubt if she will ever be able to find work again in Des Moines or the state of Iowa.” 43 The jury deliberated for eight hours before deciding to award Alice Piper only one dollar in damages. Piper’s attorney, an African American man, decried the decision. He said that she would have received from $500 to $5,000 if Jefferson was a white man. 44 Social class and gender constitute the dominant themes of heart balm torts, but the actions against William Henry Washington and Alvin Jefferson demonstrate that race sometimes played a direct role in heart balm narratives.
Popular Culture and the Gold Digger
Tort tales require cultural vehicles where stories of extreme litigiousness can be forged, disseminated, and intensified. Accounts of the McDonald’s coffee spill case, for example, found a receptive television audience as hosts of late night variety shows used the Leibeck case as source of jokes. 45 Preexisting cultural forms (talk shows and late night television) became an amplifier of late twentieth-century tort tales. In the 1930s, the gold digger stereotype provided a ready-made structure for anti-heart balm storytelling. “Gold digger” is a slang term that developed among chorus girls in the late-1910s and 1920s to refer to women who used their sexual charms to ensnare wealthy men. 46 The gold digger figure was an established template for the public to understand heart balm. For example, the fictional Lorelei Lee in Anita Loos’s 1926 novella Gentlemen Prefer Blondes saved letters from one of her wealthy suitors in order to blackmail him with a potential breach of promise suit. Legal scholar Mary Coombs observes, “Lorelei apparently was considered representative of real plaintiffs by various critics.” 47 The gold digger figure was a staple of 1930s film, music, and fiction and thus was part of a preexisting cultural understanding into which heart balm critics could tap. 48
Similar to accounts of alimony abuses during the late 1920s, stories of heart balm suits often raised the specter of Ziegfeld Follies performers bilking respectable men out of their hard-earned money. 49 One story recalled Evan-Burrows Fontaine, former Follies dancer, unsuccessfully suing Cornelius Vanderbilt Whitney for one million dollars in a breach of promise action. 50 Another Follies dancer, Betty Kaege, sued actor Alan Dinehart for $250,000 after he married another woman, but the suit was settled out of court. 51 Journalist Mary Day Winn held out Follies performers for particular contempt: “bachelors had best be on their guard when they feel the urge to send effusive epistles to secretaries clerks, cloak models, widows or most dangerous of all, fair alumnae of the Follies Chorus.” 52 Apstein speculated that “Girls of the theatre” initiated 80 percent of the breach of promise suits in the United States. 53 He described the efforts of Follies performer Judy O’Day, a woman who sued a man for breach of promise because he went against the suggestion of an astrology report that predicted their compatibility: “To the astonished court she brought data on Pisces and Virgo as well as other constellations to substantiate her claim of breach of promise.” 54 Like the suit against Rudy Valle, this story of outrageous litigation, this tort tale, highlighted the absurdity of the lawsuit and suggested that men were vulnerable to conniving women.
In the early 1930s, the press and public increasingly portrayed heart balm suits as a “racket” or form of blackmail. Some estimated that 90 percent of heart balm cases were settled before trial because the threat of having love letters read aloud in open court incentivized men to pay outrageous amounts of money. 55 A writer for the American Weekly argued that men will pay high sums in order to “buy back mortifying love-letters or pictures which they know will be exhibited in court and shame them regardless of whether the jury awards any damages or not.” 56 A writer for the Charleston Daily Mail noted that letters that might say something negative about a man’s family or employer “can make the scion of an old and respected family of wealth shell out a neat bag of hush money.” 57 A journalist in Madison, Wisconsin, satirized the efforts of women to earn heart balm by touting a fictitious “Institute of Applied Heartbalmry,” a school that promised to teach women “How to appear intelligent. How to make an octogenarian propose. How to make men write passionate love letters. How to preserve them for use at the trial.” 58 Mary Day Winn, a writer for the Billings Gazette, cautioned that men were vulnerable at every stage of love and romance. A woman can sue a man for breach of promise if he changes his mind about marriage during the engagement phase. If he obtains a divorce, he faces “alimony or a debtor’s jail.” 59 Finally, if the man seeks to remarry, his first wife can sue his second wife for alienation of affection. 60
Critics used the language of gold digging and gold diggers to portray breach of promise suits as a national menace. Winn warned against the “large army of American gold diggers” using breach of promise suits. 61 In 1935, Frank A. Garbutt, a wealthy Los Angeles industrialist, advocated “adequate protection for poor weak susceptible man from the wiles of designing alimony and heart-balm gold diggers.” 62 Writing about the move to “outlaw gold digger suits for heart balm” in Illinois, the editorial page of the Chicago Tribune stated, “Suits for alienation of affection and breach of promise of marriage have become a stench in the nostrils of everyone except gold diggers and unscrupulous lawyers who supported themselves on this kind of practice.” 63
Like the role of sentimental fiction in providing a template and discursive strategy in nineteenth-century heart balm trials, heart balm trials in the 1930s had a synergistic relationship with popular movies. Hollywood films amplified the link between gold diggers and heart balm abuses. By the 1930s, Hollywood produced a flood of movies about young women increasing their class status through strategic relationships. 64 Sociologist Stephen Sharot notes, “Most of the heroines in the cross-class romance films are virtuous, but the sexually empowered woman who manipulates men, who came to be known from about 1915 as a ‘gold digger,’ appears frequently in the films of the early 1930s.” 65 According to Roger Dooley, the gold digger is one of the most prevalent of the “stock company of stereotypes that continually recurred in 1930s films.” 66 Some of the brightest stars of 1930s Hollywood, like Jean Harlow, May West, Joan Blondell, and Marion Davies, made their mark portraying gold diggers.
Typical of the Hollywood characterization of heart balm lawsuits was the 1932 Warner Brothers film Lawyer Man. The film chronicles the corruption and eventual redemption of a New York City lawyer. He begins his career working with an Eastside legal charity clinic but is soon drawn to the large sums of money he can make working heart balm cases. Early in the film, he meets a woman in a bar who laments the demise of her relationship with a doctor. She reminisces, “It was such a sweet penthouse apartment” and presents the lawyer with a satchel of love letters the doctor has written to her. He declares that the love letters “are letters of credit” and uses them for a successful breach of promise suit. Later in the film, the lawyer is shown handing a woman a check in his office. She complains “but it’s only for 15,000!” He asks, “What’s your usual rake off for breach of promise?” and she maintains that she normally earns over 25,000. The scenes in Lawyer Man are suggestive, not only of occasional heart balm abuses but of a well-oiled racket between professional gold diggers and deceitful lawyers. Likewise, the 1933 film Havana Widows focuses on the adventures of two chorus girls who travel to Havana to meet a corrupt lawyer who engineers breach of promise lawsuits. Other popular films of the early 1930s, like I’m No Angel (which featured Mae West serving as both the plaintiff and her own attorney in a breach of promise trial) and Red-Headed Woman (which trumpeted the threat of sexual blackmail) prominently tied the gold digger trope to the threat of heart balm lawsuits.
Heart Balm, Gender, and the Great Depression
Amplified by fictional portrayals, the movement against heart balm lawsuits in the 1930s represents different reactions to the gains women made during first-wave feminism and the struggles they faced during the Great Depression. On the one level, the anti-heart balm movement was driven by an anti-feminist backlash. The crusade against heart balm lawsuits channeled a mix of misogyny and economic anxiety toward the abolition of laws designed to protect women from financial hardship. On another level, efforts to end heart balm represent class-based divisions and contradictions within the early twentieth-century women’s movement. The leaders of the anti-heart balm crusade were often prominent women, women who drew a misrecognized class-based boundary against plaintiffs who used heart balm lawsuits as tawdry instruments of class mobility.
During the 1930s, women endured intense public opposition for taking positions in the working world that would otherwise go to men, even though they were primarily employed in fields that were the exclusive domain of women, like nursing and teaching. As historian Elaine S. Abelson explains, “They lost jobs at a higher rate than did men in the early years of the collapse, were often unable to find other sources of income, and were routinely discriminated against in public employment.” 67 State and federal lawmakers moved to limit married women’s opportunities in government. Moreover, insurance, banking, and other white-collar industries practiced stark discrimination against married women and limited the number of women they hired. Historian Susan Ware explained that the Depression strained the institution of marriage, and “women’s roles at the center of the family took on even greater significance.” 68 The Great Depression marked a retrenchment of domesticity and a reassertion of older gender ideologies that the Roaring Twenties partially toppled.
Scholars have noted how the efforts to end heart balm torts reflected an anti-feminist backlash. According to Julie Berebitsky, members of the anti-heart balm movement “harbored a deep, abiding suspicion of women.” 69 For Linda Hirshman and Jane Larson, “Repealing the heart-balm actions was a way to scale back women’s bargaining power.” 70 Larissa Werhnyak offers a more nuanced analysis. While noting that the anti-heart balm push was a way to reconstitute male authority, she locates the reaction in the context of strained middle-class norms of masculinity. The efforts to abolish heart balm laws form part of a response to a crisis of masculinity engendered by economic calamity. 71
Accordingly, some of the rhetoric about gold-digging heart balm plaintiffs echoed simple misogyny: women were deemed malicious. Depression-era heart balm critic Theodore Apstein contended, “Sensitive and refined women hesitate to sue for breach of promise because the defense is permitted to attack their characters and often their motives. Designing and vicious parties seldom have such qualms.” 72 Writing in 1935, a law professor at the University of Wisconsin observed that heart balm laws drew criticism because the nineteenth-century presumption that the plaintiff was always “a person of refined sensibilities and irreproachable character” was increasingly untrue. 73 Roi Ottley, one of the most well-known African American writers and journalists of the first half of the twentieth century, stated in a 1934 article about heart balm, “Women, in the main, are parasites.” He said, “I am not the man to say that all women should go back to the home, but do say the majority are fitted for no better.” 74 Ottley’s language mirrored the description of heart balm used in one of the most popular films of the early 1930s, Gold Diggers of 1933. In the film, a lawyer for a wealthy family suspects a chorus girl is engineering a breach of promise suit against his client’s brother. He warns an associate: “I know these show girls. They’re just little parasites, little gold diggers.” 75 The characterization of women heart balm plaintiffs as parasites in both cinematic depictions of gold diggers and public discussions of law suggests the permeability—and reinforcing nature—of legal and cultural spheres.
A version of a widespread anti-heart balm argument emphasized women’s political and economic gains. In this framing, heart balm critics attacked the laws as failing to keep pace with women’s emancipation. The problem was not, as Ottley contended, that women parasitic and unsuited outside the domestic sphere. Rather, women’s well-deserved social progress made heart balm laws antiquated and symbolic of a time when women were little more than chattel. A 1935 editorial in the Christian Science Monitor observed, “Women now have the legal right to collect their own wages, enter into business contracts, own property in their own name and in general to provide for themselves independently of men. One way they can prove their equality is by not asking for the kind of protection breach of promise laws are meant to give.” 76 Theodore Apstein noted the common law roots of heart balm and that heart balm laws were designed to prevent women from becoming public charges once their marriageability was destroyed by seduction or a broken marriage promise. Heart balm actions rested on the premise that women were defenseless and that their station in life depended on the good graces of their male suitors. “Now,” Apstein wrote, “the times have changed, thus making the old reasoning inapplicable. The adoption of universal suffrage; the entrance of women in important places in the professions, in business, in industry, and, more lately, into high public offices, has altered their status from that of the weak dependent into the independent and self-sufficient equal of man.” 77 Chicago Daily Tribune columnist Doris Blake stated that breach of promise suits always had a “most distasteful tang.” 78 “It simply does not belong in an era in which women work alongside men as competitors,” she concluded. 79 Heart balm came under attack from misogynist critics who thought women had too much freedom (like Roi Ottley) as well as critics who championed women’s rights and regarded heart balm as an undignified throwback to a repressive era (like Apstein and Blake).
Common arguments against heart balm asserted that women did not deserve legal rights because they were parasites or, conversely, they had maximal rights due to gains made by first-wave feminism. Another layer of anti-heart balm agitation stemmed from the gendered politics of respectability. As Friedman notes, “[W]hatever their station in life, breach of promise was definitely only for respectable women.” 80 The option to engage the civil justice system when a romantic bond was damaged or betrayed gave (primarily) white middle- and upper-class women a mechanism to restore their status. In the context of the Great Depression, however, the idea that working-class women could use heart balm lawsuits as a survival strategy, as a “racket,” alarmed reformers. Although it was once a tool to preserve middle- and upper-class respectability, critics reframed heart balm as an instrument of blackmail and malevolence. This argument about heart balm, one that drove many prominent women to support heart balm reform, did not stem from an opposition to the past of future gains of feminism. Rather, it stemmed from class division and concomitant respectability politics within sectors of the Depression-era women’s movement.
The Political Campaign against Heart Balm
Fueled from anger from multiple directions, public sentiment turned sharply against heart balm laws in the 1930s. The political campaigns against heart balm laws accelerated in 1934, the same year the Hays Office fully enforced the Hollywood Production Code and removed depictions of gold diggers from the silver screen. In 1935, feminists and clubwomen urged heart balm reform as part of a broad progressive social policy to lead the country out of the Great Depression. The National Women’s Party (NWP), for example, counted among the advocates of heart balm reform. The NWP was formed in 1916 and, after the passage of women’s suffrage, turned their efforts to other aspects of women’s equality. In 1935, leaders in the NWP stated that heart balm suits “should be laughed out of court.” 81 They grouped heart balm reform with equal pay for equal work and women’s equal opportunity for employment and property. Grace Hudson, president of the Los Angeles District of the California Federation of Women’s Clubs, speculated that the majority of women in the General Federation of Women’s Clubs supported heart balm reform. She said in 1935, “it is high time that the American woman, who is steadily winning the equality she deserves, stopped racketeering.” 82 John Coontz, a journalist for the Charleston Daily Mail, observed in 1935, “Headed by women’s clubs and female legislators throughout the United States, the war against the unscrupulous members of the fairer sex is coming cut into the open and woe is the breach of promise suit.” 83 He conjectured, “So widespread is the feminine assault that prediction is made breach of promise suits will, before long, be as extinct as the dodo.” 84 A drawing titled “Heart Balm Off the Gold Standard” accompanied his article. The illustration showed a bobbed-haired woman with love letters in one hand and a rolled-up piece of paper with “Breach of Promise Suit” in the other hand. She appeared angry and ready to assault a man clutching a money bag labeled “gold.” While Coontz was wrong about the ultimate fate of breach of promise laws on a national level, he correctly assessed the role of women politicians in several statewide efforts to repeal heart balm legislation.
Roberta West Nicholson, the sole Congresswoman from Indiana, proposed the first anti-heart balm bill in the country. The governor signed it into law in March 1935. 85 The legislation outlawed breach of promise, seduction, alienation of affection, and criminal conversation torts. The law also prohibited litigants from naming any correspondents—third parties implicated in the adultery or seduction—except from a direct order of the court. Nicholson gave a passionate speech for her new law. Newspaper accounts commented on the novelty of a woman speaking before the Indiana legislature, her modest dress, and how she began to deliver her remarks softly and slowly but assumed “more confidence as she continued to talk.” 86 News coverage worked to establish her femininity and respectability in contrast to the gold diggers who exploited their sex appeal for monetary purposes.
Roberta West Nicholson made various arguments against heart balm in her remarks before the Indiana legislature. She stated that half of heart balm suits never reached the courts. As such, these suits functioned as tools of blackmail, allowing women to compel men to pay large sums of money lest embarrassing love letters are read aloud in open court. 87 She said, “I am convinced most actions for breach of promise and seduction have extortion as their chief motive. This I seek to prevent through adoption of this bill.” 88 Nicholson also assailed heart balm suits for damaging public morals. She said that she wanted young people to understand that “marriage is a divine sacrament, not a commercial agreement.” 89 “Love and respect and affections,” she continued, “are not transferable, negotiable commodities.” 90 Nicholson maintained that the understanding of romance in crass economic terms, an understanding induced by heart balm laws, summoned “a sordid and vulgar conception of marital affairs in the minds of the immature.” 91 “I am not a professional moralist,” she said, “but I have attempted to set up a deterrent to irregular relationships by removing the prospect of pecuniary profit from them.” 92
Nicholson’s remarks before the Indiana legislature also played on the class-based politics undergirding anti-heart balm agitation. She described her bill as “progressive legislation, in keeping with the times.” 93 “As I see my bill,” she said, “it is symbolic of a change in attitude toward women. We don’t want to see inferior women pull down our sex.” 94 Feminist supporters of heart balm reform drew a firm boundary against allegedly disrespectable women—like Peggy Garcia and other “amusement blondes”—who engaged in litigation against their lovers and suitors. For example, novelist Kathleen Norris gave enthusiastic support for Nicholson’s bill. In 1935, she wrote, “When we pick up our morning newspapers and see the injured woman, when we study her vapid face and her permanent wave, we know perfectly well that not a natural tear has ever fallen from those bright calculating eyes, that the thick lacquer of that soft, characterless mouth has never been jeopardized by a tremble.” 95 Norris focused on the hair and makeup of the allegedly typical heart balm plaintiff as markers of frivolity and dishonesty. She lamented, “It is humiliating to balanced women to read, day after day, of the Peaches and Rhodas and Peggys whose fantastic affairs of the heart are spread so lavishly over the front pages of the morning paper.” 96 She observed, “Not the most desperate poverty would force a woman of any fineness to such a step.” 97 Norris aligned herself with Nicholson and prominent clubwomen as a way to distinguish herself and her achievements from women wearing marcel-waved hair, “vapid” faces, and other hallmarks of the gold digger. For heart balm critics, what was once an acceptable method of maintaining class and gender respectability became a tool of debasement and blackmail among working-class women, chorus girls, and others trying to marry above their social position. Heart balm reform represented a way to block gold diggers from abusing the civil justice system.
The success of her bill brought Nicholson a small amount of popularity. She gave a talk to an organization of professional women in Chicago a few weeks after the passage of her bill titled “Aching Hearts of Itching Palms.” 98 In her speech she exclaimed, “It seems to me that we should say to these gold diggers and shyster lawyers, as did the Queen in ‘Alice in Wonderland,’ ‘Off with their heads!’” 99 Nicholson regarded her crusade as the biggest thrill of her political career, and news reports indicated that she planned “to extend her crusade against ‘gold diggers’ to the remainder of the nation.” 100 Indeed, American Weekly referred to Nicholson’s bill as the “mother of all others,” noting that other states had considered heart balm reform.
Nicholson’s bill received support from newspaper editorialists and politicians across the country, but the new law came under fire from other quarters. Some believed an unfounded rumor that Nicholson instigated her bill because her father-in-law, a well-known Indiana novelist, was involved in a heart balm suit. Others attacked the law on legal grounds. Bernard Sandier acted as legal counsel for Colette Francois, a twenty-two-year-old woman who sued movie mogul Arthur Loew. Sandier described heart balm actions as a “fundamental right” and ventured that, without access the courts, aggrieved parties would use the “unwritten law” to resolve their conflicts. The “unwritten law” was a legal norm that excused men and women from attacking or killing adulterers who interfered in their marriages. 101
Despite her critics, Nicholson’s bill served as a model for other states. In New York, John McNaboe designed a bill based on Nicholson’s legislation in Indiana. McNaboe was a forty-two-year-old attorney who was elected into the New York State Senate after serving as an Assistant District Attorney for three years. Soon after his arrival onto the State Senate, McNaboe served as a member of the Hofstadter Committee, which examined corruption in the police and courts of New York City. He framed the heart balm bill as a method to sweep away corruption, claiming that the legislation “marks a new era in social justice” 102 McNaboe stated that his law took aim at “a tribute of $10,000,000 paid annually by New York men to gold-diggers and blackmailers.” 103 New York’s heart balm bill attracted many supporters, including Eleanor Roosevelt, but it also faced stout opposition.
In contrast to the ready acceptance of Indiana’s heart balm legislation, New York’s legislature engaged in a fierce debate that lasted over an hour. 104 Rhoda Fox Graves, the only woman member of the State Senate, voted against the bill but did not give a reason for her vote. Elmer Quinn, a representative of the Lower East Side and best known for cosponsoring groundbreaking antidiscrimination legislation in the 1940s, opposed the bill. He said that the new law would unfairly protect the “coal-oil Johnnies, the rich philanderers, the stuffed shirts” and that heart balm torts allowed wronged women to hit a man “where it hurts most, in the pocketbook.” 105 New York lawyer Bernard Sandler warned that women who favor the law “will realize before long they are cheating themselves of the rights and remedies they have had for 300 years. They will regret it, especially when they see all the old satyrs stalking their daughters. The satyrs will have an open field. It will be an open season for the hunters.” 106 The bill eventually passed on a 36–39 vote that crossed party lines. Governor Lehman signed bill on March 29, 1935, promising to end “a fruitful source of coercion, extortion, and blackmail.” 107
Legal challenges to New York’s 1935 law echoed the popular representation of heart balm as sexual blackmail. In the first case, a nurse named Catherine Fearon levied a $25,000 suit against Charles Treanor, a retired insurance broker, for breach of promise and seduction. Fearon’s attorney argued that New York’s heart balm law was unconstitutional because it interfered with a protected right to make contracts. In 1936, the New York State Appellate Court upheld the law. The court noted the state’s interest in regulating marriage: “From time immemorial the State has exercised fullest control over the marriage relation, justly believing that happy, successful marriages constitute the fundamental basis of the general welfare of the people.” 108 They cited, “Thoughtful people who have given attention to the matter have long realized that the scandals growing out of the actions to recover damages for breach of promise to marry constitutes a reflection upon the courts and a menace to the marriage institution, and thereby a danger to the state.” 109 The reference to “the scandals” reflects the Court’s consideration of the public image of heart balm laws, not simply their analysis of doctrinal issues related to contracts and institutions. 110 The State Supreme Court affirmed the ruling and, on appeal, the US Supreme Court refused to consider the case because it did not involve a substantial question of federal interest. 111
A second case in 1937 specifically took aim at the ban on alienation of affection suits. Lawrence Hanfgarn charged George Mark with alienating his wife’s affection. Echoing Senator Quinn’s testimony against the law two years earlier, Hanfgarn’s attorney stated that the ultimate purpose of the law was “to protect a few rich defendants from newspaper publicity.” 112 The trial court denied the motion to dismiss the husband’s alienation of affection action. The state court upheld Hanfgarn’s right to sue and struck down the constitutionality of New York’s anti-heart balm law. 113 The dissenting opinion argued that heart balm actions “are in the main founded on fraud,” that “General knowledge and public opinion support this view,” and, therefore, the New York Legislature has a reasonable basis for barring such lawsuits. 114 On appeal, the decision was reversed. Irving Hubbs, writing for the unanimous opinion of the Court of Appeals, reaffirmed the state’s power to regulate and control marriage. Hubbs deployed the critique of heart balm used by Kathleen Norris, Roberta West Nicholson, and others. He stated that the laws were out of step with the “almost unlimited extension of the rights of married women brought about by statutory enactments and social advancement.” 115 The court reasoned that heart balm laws, rooted in men’s property rights over their wives, were inconsistent with the new reality of marriage relations. In this manner, the court’s reasoning paralleled public discussions about the abuses of heart balm and the changing roles of women.
Other states followed Indiana and New York by introducing legislation to reform or eliminate heart balm. By 1940, ten states across the country had passed legislation to eliminate or restrict such suits. 116 Iowa’s anti-heart balm bill included a provision that imposed a fine from $100 to $1,000 for merely threatening to sue. 117 The image of the gold digger held a prominent place in the rhetoric leading to the creation of these laws and, as in Indiana, upper-class women took a leading role in promoting them. For example, Maryland’s only female senator, Mary Risteau, introduced a heart balm bill in March 1935. 118 Alma Smith and Blanch Hower from Ohio introduced a bill modeled after Nicholson’s legislation. As Werhnyak’s analysis shows, female legislators who proposed heart balm reform came from the upper-class, and their elite social positions seeped into their narratives and analysis. 119 For example, Hower related a story to the Mansfield News Journal about a rich man unjustly targeted with a heart balm lawsuit. 120 She described, “a refined young woman, a graduate of Wellesley, who had a cocktail party” where a male guest allegedly hugged her and gave her a light kiss, which prompted her husband to sue the man for $20,000 due to alienation of affection. In April 1937, Eudochia Bell Smith from Denver sponsored a heart balm bill in the Colorado legislature. When it passed, she said, “That’s the end of the gold-digger in Colorado courts.” 121 The following month, Democratic Congresswoman Katherine Foley from Lawrence Massachusetts introduced an anti-heart balm bill in her state, declaring that such lawsuits were nothing but a “gold digging racket.” 122
Conclusion
The rush to outlaw heart balm laws was not a consequence of a sudden increase in such suits, a rash of impoverishment cause d by breach of promise actions or a result of women abusing the courts. Some scholars have attributed the anti-heart balm movement to shifting notions of gender, sexuality, and the family. 123 In particular, the decline of the Victorian feminine ideal and the rise of new modes and intensities of sexual expression in the 1920s and 1930s strained the legitimacy of breach of promise actions. 124 In this way, the anti-heart balm movement is rooted in the modernization of gender and sexuality. The layers of argument against heart balm—simple anti-feminist backlash, the embrace of women’s rights, and the complicated spaces in between these two poles—reflect how the Great Depression heightened the precarious position of women’s paid labor and strained the role of marriage as a way to avoid poverty.
Explaining the timing of the agitation against heart balm by reference to changing gender norms, however, only provides part of the picture. The shift in gender ideology and sexual mores was well underway by the 1920s, and the rejection of sexual Victorianism began to occur—at least in major US cities—by the 1910s. The linkage between gender ideology and legal change is important and essential but insufficient to explain the timing of the heart balm backlash in the early 1930s. The public’s momentum against heart balm, which reached a crescendo in the middle and late 1930s, was driven by the proximity of law and culture. Culturally, the gold digger trope, represented in so many movies and magazine articles, provided a vocabulary of motive for the alleged problems of women abusing the court system for economic security. The anti-heart balm campaign drew strength from popular representations of gold diggers, and gold digger narratives created a ready-made scapegoat through which the public could understand the heart balm debate.
The confluence of the cultural and legal underpinnings of the anti-heart balm movement found expression in tort tales about greedy gold diggers abusing the civil justice system. Newspaper accounts of heart balm abuses during the 1930s shared all of the core characteristics of tort tales: they involved reports of exorbitant monetary rewards, they connected with and drew rhetorical power from established cultural narratives, and they reflected and responded to a specific set of historical circumstances. Unlike the original formulation of the concept developed by Haltom and McCann, heart balm tort tales did not originate from late twentieth-century culture wars. They were grounded in cultural conflict and tensions incubating during the first two decades of the twentieth century and heightened by the Great Depression: a growth in women’s political and social power on the one hand and a backlash and retrenchment of gender norms on the other hand; legal tools to buffer failed economic/romantic relationships poised against class-based standards of respectability; notions of women’s autonomy set against the reality of patriarchy. Analysis of the anti-heart balm movement addresses Haltom and McCann’s hope that their study of tort tales “might serve as a template or at least catalyst to other studies about the production of legal knowledge and narratives that figure prominently in various cultural contexts.” 125 Indeed, the reaction to heart balm laws during the 1930s reveals the long historical legacy and deep impact of tort tales in the twentieth-century United States.
Footnotes
Declaration of Conflicting Interests
The author declared no potential conflicts of interest with respect to the research, authorship, and/or publication of this article.
Funding
The author received no financial support for the research, authorship, and/or publication of this article.
