"A man or a mother": the women and invasions of Florida's most profound lawsuit

A fun, dramatized excerpt from my book-in-progress about the Marjorie Kinnan Rawlings invasion of privacy lawsuit and World War II Florida.

A Man or a Mother is my book-in-progress about the Zelma Cason/Marjorie Kinnan Rawlings invasion of privacy lawsuit. Some of my close readers and history friends will know that my great aunt Kate Walton Engelken and great grandfather J.V. Walton represented the plaintiff Zelma Cason in that almost famous case.

The excerpt I’m sharing today, about the 1946 trial, is a fun, quick, dramatized courtroom read, if I may say so humbly. It’s how I’m planning to start the book, which you should look for in, say, 2022. LOL.

I suspect most of us — in most of our factions — can use a little diversion from COVID turkey, Rudy Giuliani’s flop sweat hair dye rivulets, and whatever else un-unseeable thing this year-of-Hieronymous Bosch can conjure.

Whether that’s you, or not, I hope sharing a little of my creative work demonstrates that I won’t always write about schools or “did the politician or powerful person earn his or her sandwich” here. I have basically endless interests; and I’ll be foisting them on you, dear readers and subscribers, in many different forms, in the hope that you come to adopt some of my interests as your own. So…

A Man or a Mother is a sequel in multiple ways to my first book, Age of Barbarity: the Forgotten Fight for the Soul of Florida: in its chronology, its themes, its setting, many of its characters (including Kate and J.V. Walton) and its peculiar approach to historical storytelling. 

Like its pre-cursor, Age of Barbarity: the Forgotten Fight for the Soul of Florida, this book  combines straight history, fiction, memoir, and any other technique I can conjure to tell a story I consider vital to the character of my peculiar and restless native state, which is vital to the character of my peculiar and restless country. 

The Cross Creek case itself is a linear progression of legal actions and outcomes already reasonably well established in historiography of Florida. But it’s so much more than that, too.

Somehow, a trivial personal spat became a profound and all-encompassing legal manifestation of life and power and struggle and change in World War II American Florida – before, during, and after the war. The lawsuit lasted from 1942-47; but its human story stretches from the 1920s until today.

That’s why I’m going bigger in my telling of it than other historians and writers have, at least in my view.

Indeed, the more I dug into the Cross Creek suit because of my ancestors, the more I saw everything. Everything. Its ideas and bloody moral battlefields still animate the troubled American project today. My book aims to explore the non-linear, frustrating, and inspiring humanity of the characters that created and lived that struggle.

With that in mind, I think it’s helpful to outline the basics of the case up front. 

In 1942, Marjorie Kinnan Rawlings followed up her Pulitzer Prize-winning The Yearling with Cross Creek, a best-selling, pseudo-autobiographical collection of portraits of life in the rural central Florida neighborhood associated with Orange Lake and Lochloosa and the marshy creek that connects them. 

Marjorie wrote about her actual neighbors, friends, and acquaintances, using their real names.

One of them, Zelma Cason, objected to her portrayal in a chapter dubbed “The Census.” She particularly resented this passage:

Zelma is an ageless spinster resembling an angry and efficient canary. She manages her orange grove and as much of the village and country as needs management or will submit to it. I cannot decide whether she should have been a man or a mother. She combines the more violent characteristics of both and those who ask for or accept her manifold ministrations think nothing of being cursed loudly at the very instant of being tenderly fed, clothed, nursed or guided though their troubles.

“You have made a hussy out of me,” Zelma told Marjorie after publication. 

At the time Marjorie published Cross Creek, Kate Lee Walton was a 29-year-old lawyer working in the well-known firm of her father, my great-grandfather, Judge Vertrees (J.V.) Walton, in my hometown of Palatka. She was desperate to somehow officially join the US war effort, as a lawyer or anything else. She was continually thwarted.  

Dr. T.Z. Cason, Zelma’s brother, was Marjorie’s personal physician. Dr. Cason was also Kate Walton’s doctor – or at least treated her from time to time.  

Dr. Cason’s role in both women’s lives connected Zelma’s grievance to Kate’s ambition. Debate, which I will not be able to resolve, remains as to which most drove the plaintiff’s case. But Kate and J.V. Walton officially took up Zelma’s case on Dec. 18, 1942. One count alleged libel; three counts focused on a more novel, and ultimately more successful accusation: invasion of privacy.

Distilled to its essence, the invasion of privacy doctrine meant that Marjorie did not have the right to publish any description of Zelma Cason, who was not a public figure, without her permission. The suit demanded $100,000 in compensatory and punitive damages for the harm done to Zelma’s reputation and well-being by the unflattering portrayal.

Judge John Murphree dismissed the case without trial on Sept. 1, 1943. Kate Walton wrote a stirring appeal, which led the Florida Supreme Court to establish a right of privacy in Florida’s common law as an outgrowth of the Florida state constitution. The justices ordered a trial, which occurred in May 1946, just months after the final victory over the Japanese in World War II.

The jury handed Kate and J.V. Walton a humiliating defeat after a theatrical and intellectually sophisticated trial, transcripts of which read like a podcast on art and morality and intimacy and power.   

Judge Murphree, in the Walton view, woefully mismanaged the case and the law, turning the trial into a circus of celebrity. Kate, with J.V.’s support, appealed again to the Supreme Court. They won again, in a sense. Roughly a year after the trial, in May 1947, the Supreme Court ruled in that Murphree had erred repeatedly and should have ordered a directed verdict that the publication of Cross Creek invaded Zelma’s privacy 

Damages were a different question, one that proved very different to disentangle from the invasion itself at all levels. And on this, the Supreme Court largely sided with Marjorie, capping damages at a nominal amount -- $1, plus attorneys fees. The Supreme Court essentially said Marjorie had wronged Zelma without harming her. 

It was a rather Solomonic decision, from which neither side took much vindication. Kate Walton’s fury at the trial was so consuming that she refused to speak about it in public for the rest of her life. “That trial was a Roman circus,” she told a reporter once, as an old woman, before hanging up the phone with no more comment. And if she spoke about it in private, even to my father, who was her law partner, I don’t know it. I never even knew the case existed until after her death. 

Every quoted word in what you’re about to read comes directly, verbatim, from the official transcript of Florida’s Cross Creek invasion of privacy trial, known in law as Cason v. Baskin. According to the court reporter, each character spoke those exact phrases. 

The written representation of unspoken thoughts and feelings, by contrast, are my creations. They come from my research, extrapolation, and imagination. I am responsible for their accuracies and their errors, which you probably can’t prove or disprove anyway. 

But you should know that a much older Kate Walton played a profound role in my life that had nothing to do with lawyering. As a 6-year-old boy, she was the Aunt Katie who spent every Saturday morning showering me with the type of girding love that every child deserves. I snatched my first fish from the St. Johns River with her help from her dock with her cane pole. We roamed her then-wild riverfront property in a golf cart that she taught me to drive. My first experience with grief was her death when I was 14. And I wrote my first serious essay about it when I was 17.       

I carry all of that into the courtroom with a Kate Walton I did not know but have repeatedly recognized within myself as I’ve studied her. If you think I can possibly be disloyal to her, you are mistaken. But loyalty and honesty need not be at war.

So here’s the opening of A Man or a Mother. It starts with a few epigrams important to the story, then moves into the scene. I hope you like it.  

“You mention about having ideas of what to do after the war. I am glad of it. It is going to be folks like you … and your generation to carry on. They won’t pay any attention to your father and me and I am getting to the point that is O.K. with me, and maybe it will be better if you youngsters don’t bother with us in the reconstruction. I have never heard of a reconstruction that was not a mess. Your generation can’t do worse than has been done in the past. Reconstruction is a pattern of reform. I am not a reformer and am too old to learn new tricks. Katie let’s make a deal. I will plan winning the war and you plan a new world. Is it a deal? I believe my part is the easier of the two.”  -- Harold Adams Henderson, wartime lawyer for the U.S Department of Justice, in a letter to Kate Walton, June 24, 1942

“Women’s pride in their men being brave is a strange thing – prehistoric, somehow – full of nobility – and as much to blame for the continuance of war as any factor. I am terribly proud of you for what you have done, even while rebelling against it with every fibre, and while feeling that this war, while plainly as “necessary” as any war can be, is in the last analysis asinine, and no sacrifice toward it makes sense. Yet I have nothing to say to you about your decision, for it is so intimate a thing that it is yours alone. And I understand how you feel.” – Marjorie Kinnan Rawlings Baskin, letter to husband Norton Baskin, after his enlistment in the American Field Service, May 28, 1943 

“It is peculiarly fitting that the right of privacy should have been first recognized and integrated as an actionable right under the common law in the United States, for this right is a necessary corollary from the principles of individual sovereignty and of maximum personal freedom under laws which are corner stones of our theory of government; and it is not inappropriate that this cause should come before this Court in a year of war when the very status of man is in issue, for it is with the dignity of man as a free-willed individual that the law of privacy concerns itself, and, in the last analysis, we were constrained to wage this war, not for numbered freedoms, not to assert the superiority of one form of government over another, but by an urgent need to maintain our concept of the equality of man and his status as a free individual… – Kate Walton, from page 5 of her 1st appeal to Florida Supreme Court, filed October 1943 

“…The third and fourth sentences [of the Cross Creek passage about Zelma Cason] charge plaintiff with having the more violent characteristics of a man, and it should be borne in mind that a masculine woman is regarded with the same species of ridicule and obloquy that is bestowed upon an “effeminate” man. It is neither natural nor desirable for a woman to have “the more violent characteristics” of a man…” – Kate Walton, from page 42 of her 1stappeal to Florida Supreme Court, filed October 1943 

May 24, 1946, Gainesville, Florida

“I ask you to turn to Chapter 5, to the characterization that you say was written in 1941, and interpret it as it was written in your mind and heart.”

Marjorie Kinnan Rawlings Baskin started to answer her lawyer: “I had to stop and think — how do you describe Zelma…”

Kate Walton interrupted. “Object to the question,” said the 33-year-old co-counsel for the plaintiff. She remained seated; but her voice commanded the room to her.

“A written instrument is its own best evidence as to what she meant or intended. If she uses words she is presumed to intend a reasonable meaning of those words, and to vary the terms of that description by her own testimony would not be proper.”

Kate Walton had written millions of words in preparation and litigation; and millions more were still to come. But those were the only 50 she would ever say in Marjorie Rawlings’ direction during the Cross Creek invasion of privacy trial. 

Circuit Judge John Murphree waved them away with casual economy.  “Objection overruled.” 

Marjorie continued: “As I said, I had to sit down and think, now how do you describe Zelma? What is she?” 

Marjorie still couldn’t believe she was here, in a Gainesville courtroom, explaining and defending her work as a Pulitzer Prize-winning chronicler of rural North Florida. Under oath and pain of perjury. Cross-examined by that short, pot-bellied, fake cracker aristocrat J.V. Walton, who wore a goddamn pith helmet to court. 

Her love for Zelma Cason interrogated — in front of all their friends and acquaintances.

No other major American writer of 20th century ever endured such a thing.

“So help me God,” she had sworn, little hand raised, half-choking on incredulity with a composed smile.

(Still image of Marjorie Kinnan Rawlings on the stand from film footage of the trial)

All this fuss and disruption and suffering because of four stupid sentences – and one stray word. In an unnecessary chapter; from a book Marjorie just wanted to finish for a payday. A 16-year-old scene. A Census ride in the cracker backwoods around Gainesville in 1930. A little nest of “pickaninnies”, a smattering of mud-stained crackers. Lots of trees. And horses. That was it, really. Dear God. If only Max Perkins hadn’t liked it; she might have cut it.

Zelma is an ageless spinster resembling an angry and efficient canary. She manages her orange grove and as much of the village and country as needs management or will submit to it. I cannot decide whether she should have been a man or a mother. She combines the more violent characteristics of both and those who ask for or accept her manifold ministrations think nothing of being cursed loudly at the very instant of being tenderly fed, clothed, nursed or guided though their troubles.

Was that really so awful? Life-changing? Damaging? 

Of course not: it’s loving, affectionate. Sisterly. Yes, she also called Zelma “profane” in the chapter. Because Zelma was profane. Is profane. She would cuss a minister in prayer, as everyone sitting here knew. Including Zelma. Writers are in the business of truth. And Marjorie was a writer, before anything else. Before she was a citrus grower, a hostess, or even a wife.

All Gainesville had gathered to watch lawyers examine and cross examine the existence of Zelma Cason’s cursing. They might as well cross examine gravity. Marjorie laughed at the absurdity. It helped to fight the endless churn in her gut. Petulant Zelma. She knows how sick she has made me. It pleases her. Petulant Zelma. Profane Zelma. 

Marjorie took great pleasure in how Judge Murphree flicked away the snarling little Walton daughter’s outburst. Kate would, indeed, cross examine gravity, if given the chance. And Marjorie thought she sensed an allied annoyance from the affable judge. You can only be badgered and appealed so many times as a judge before your humanity takes over.  

It had occurred to Marjorie over the course of litigation and trial that Kate Walton looked on her like Marjorie looked on her own wretched mother. As if I deserve that —from you, dear girl, who wants to be me. I’ve done what you can only imagine. And you would punish me for it. And when you’ve ruined me, who else will you look to, with that sharp childish mind of yours? Who else will show you the possibilities of a life beyond Daddy? You own mother?

Marjorie’s father did not plant Marjorie’s oranges — or purchase and publish her words. And now, this entitled girl wanted to confiscate that accomplishment. Indeed, she sought to call it illegal, fraudulently earned — an invasion of privacy. Whatever the hell that meant. 

Imagine Hemingway, under oath, answering for his Scott Fitzgerald cruelties. No man would sue another man for this. No man would ever have to answer for the truth told about another. And the truth Marjorie wrote about Zelma was a love letter, not a cruelty.

Kate knew the trial was lost long before Marjorie ever took the stand. It had become a contest of likability – of whom the assembled most enjoyed. A giggling ratification of power and celebrity. Seething at the plaintiff’s table, she had been crafting the appeal in her head since Judge Murphree let Marjorie’s lawyer bore into Zelma’s personality.

Craft the appeal was all Kate could do. Even in a case brought, prepared, and bled for on both sides largely by women, concerning what it meant to be a woman, a lady lawyer operating in front of an all-male Florida jury dared question only ladies deemed incidental to the case. 

Indeed, the newspaper writers that swarmed Gainesville for the trial hardly noticed Kate Walton at all. As the Miami Herald put it:

“Some of the principal characters in the legal battle are as colorful as are those of whom they argue. Both J.V. Walton of Palatka, who is the leading ball carrier for Miss Cason and Phillip May of Jacksonville, head of the defense staff, are small fellows physically but not mentally.

“Walton’s mannerisms are as back country as a dish of collard greens, grits, and side meat. But so have been the mannerisms of some very smart attorneys – the great Clarence Darrow among them…

“Walton’s associates are his daughter Kate, a law graduate from Florida, and A.E. Clayton, of Gainesville.”

Kate’s objection shocked the gallery like someone dropping a heavy book. And it had earned the rare sharp glance from her father. She was willing to bear it. Impotent silence hurt that much.

As Kate was tallying Murphree’s errors of law, J.V. Walton’s cross-examination of Marjorie devolved into Socratic vaudeville, much to the delight of most everyone not at the plaintiff’s table. 

It reached crescendo as J.V. interrogated how Rawlings told the story in Cross Creek of her brother’s armed assault on the living quarters of her black maid and her handyman lover. 

Kate Walton knew what it was like, as did her father, to have armed men wrapped in power invade the sovereignty of home in the middle of the night. She did not know what it felt like to simply endure it, without recourse, as Marjorie’s negro employees did. It’s why the Black Shadows chapter of Cross Creek drove the moral energy of J.V.’s questioning.

Didn’t Marjorie think it was “improper” for her brother to storm into the tenant house in the middle of the night to roust the sleeping workers for their partying?

Yes, but…,Marjorie answered, and then she asked a question of her own.

“May I inquire what is the law when you own the tenant house on your own property and the negroes are working for you and you pay them their weekly wages and they pay no rent on the house?” Marjorie asked. 

J.V. Walton answered first: “And you provide them the house to live in?”

“Yes. I mean what is the law?”

“I would say the law is –.”

Marjorie’s lawyer, Phil May, interrupted him: “Your honor please, I think this has gone too far and it is obviously argument and I object.”

Kate knew what her father was going to say before he said it. And she registered her own silent objection. Don’t do it, Daddy. They’re laughing at you, not her. They’re laughing at us. At our client. At her powerlessness. 

“It is the witness’ question he is objecting to,” Walton retorted, with a twinkling exasperation. The laughter of the crowd grew. 

Murphree picked up the routine in perfect time. “I think we have this backward.”

The laughter broke like a wave in the distance, indelible in Kate’s hippocampus for the rest of her life. 

That the father Kate revered more than any other person had worked Murphree into the bit and played along…well, some things you don’t ever reckon with. But J.V. Walton, as a father, had earned the right to unwittingly trivialize his daughter’s ideas and case at trial without open consequence between them. History and record and love matters. Kate focused on the judge instead.

Twenty years earlier, in 1926, Kate and J.V. had endured and confronted mortal danger together, as father and daughter, in protection of their home. Now they endured humiliation together, as father and daughter. That a judge would participate in it, especially this judge with this name, enraged her. 

Go ahead and laugh, you damn son of a coward. Make a mockery of law like your father did. I will tear your errors limb from limb. Just like I did before, when you thought we weren’t entitled to a trial. Wait until it’s just you and me – and the law. And ask Max Perkins how it feels to have me question you without a laughing mob to back you up. 

Judge Murphree reveled in his timing. 

“I think we have this backwards” was a pretty obvious line, if one followed the mangled structure of the cross-examination; but the judge delivered it in sublime rhythm. 

Everybody laughed. The crowd laughed. Marjorie laughed. Even the elder Walton laughed. 

Good humor was John Murphree’s reputation. And this trial was nothing if not funny. In the earliest moments of his career as a judge, fortune had delivered Murphree a countrified Thurber story to oversee. He doubted he would ever top it; and he couldn’t resist writing himself into it. 

Yes, the judge had punch-lined a cross-examination going badly for the plaintiffs; and maybe the judicial canon or the Supreme Court would frown on that from the distance of a transcript. That notion did flash through the mirth. It tempered his expression into a slight, wry grin.

But honestly, the stakes of this case were so low; and the entertainment value so high. A moment of judicial indulgence seemed not just forgivable, but somehow appropriate. Indulgence defined this entire exercise. 

It was all so high-mindedly academic in abstraction; and so hilariously petty in person. Nobody had died. Nobody would die. The war was over. The power of American good humor and law had redeemed the millions of pounds of flesh that melted into the sacred earth of Europe and the East and the depths of Pearl Harbor. 

The entire Cross Creek case embodied the spoils of victory for Murphree. It was everything that was right about the American way of life he had been taught to revere. Here was the post-war world. The best women that America and Florida can offer bickering and gawking and fighting, consuming energy and resources and time because triumphant American freedom allows them to. 

Indeed, everywhere he looked from the throne of the bench, Murphree saw women. He had never seen so many in one place at one time — except maybe one of his law speeches to the Women’s Club. But that didn’t really count.

Grand dames of university society commanded the front row. Their mother-of-the-bride dresses shone like bunting on a baseball grandstand. Most of them had known and worshiped Judge Murphree’s late lamented father, Arthur Murphree, the president who built the University of Florida into a true university.

Most had read Marjorie Kinnan Rawlings’ books, in which she served as a personal tour guide into the comedy and poignancy of the backwoods that sprawled around the learned oasis of their majestic university homes. When they visited her Cross Creek house, black servants cooked and fussed over them while Marjorie talked national politics and literature — not country living. 

Pretty college girls — or young wives — sat clustered behind the countesses, or on the window sills radiating curiosity and possibility. Some jabbed at notebooks dutifully.

(Image from video footage of the trial)

But they did not matter to the outcome as much as the country neighbors who filled out the humanity of the gallery. And they were laughing and spitting their way through the show. They were rooting for their pal Marjorie.

As the laughter from Murphree’s successful joke subsided, Marjorie started again, in her best humble hostess voice. 

“May I inquire of your Honor, I ask in all sincerity what is the law in a case like this?”

Murphree answered by beckoning to J.V. Walton: “Maybe you would like to finish one subject.”

“I don’t mind stopping if your Honor wants to answer that question.” 

“Suppose you answer it,” Murphree responded. 

“My conception of the law is that when people are furnished a house to live in that house becomes their castle,” J.V. said, and then returned to questioning Marjorie. “Did you consider the negroes at all?”

“I did, as I wrote,” Marjorie answered, “but my brother simply became unduly alarmed for me and was protecting what he thought was the very life of his sister.”

Murphree agreed that Marjorie needed no protection, except maybe from Kate Walton. And he found that a small shame. He genuinely enjoyed the inscrutable machinations of all these brilliant and vindictive women. So much alike. They should like each other, work in clubs and churches together. Imagine what they could do, together, to advance the lives of the people in Marjorie’s books in this world so full of American promise. He wondered, with a flush of sentimentality, what his father would think of all this. 

Kate Walton erased all that with her eyes. 

They bore into Murphree from atop hands folded as if in prayer, pressed with strain into her lips and the bottom of her nose. He looked away quickly. No woman had ever stared at him with open loathing before, as if she planned to do something about it, promptly, perhaps violently. 

This was new. And unsettling. Maybe this was also the post war world.