Harvard University and The Crimson both filed motions to dismiss a lawsuit brought in federal court by former University employee Eric Clopper over the school’s response to a 2018 performance that he put on at Sanders Theatre and the newspaper’s subsequent coverage of the event.
Harvard and The Crimson — which operate independently — both filed respective motions requesting that U.S. District Judge Richard G. Stearns dismiss the case due to a failure by the plaintiff to state a claim.
Harvard fired Clopper on July 12, 2018, just over two months after he held a performance at Sanders Theatre criticizing the practice of circumcision. During the show, Clopper — who is Jewish — referred to Jewish people as “an unmasked genital mutilation cult” and stripped nude.
In a lawsuit he filed July 20, Clopper — who formerly worked as a systems administrator at the Language Resource Center in Lamont Library — accused Harvard and The Crimson of defamation and libel, violating the Massachusetts Civil Rights Act, and other actions he said justify damages. His complaint also alleged that the University violated his First Amendment rights.
In a memorandum filed Sept. 29, the University wrote that Clopper’s suit “fails to state constitutional, statutory, contractual, or tort claims against Harvard.”
“Clopper’s contention that he had a ‘right’ to engage in live, naked, simulated intercourse with an inflatable doll on Harvard property, and display a still more explicit pornographic video, has no support in the law,” the filing read. “These activities are not ‘free speech’ protected by the First Amendment or any employment contract with the University.”
Clopper also accused the University of breach of the covenant of good faith and fair dealing, breach of the employment agreement and free speech policy, breach of the contract for Sanders Theatre, tortious conversion, and a promissory estoppel claim.
Clopper’s lawsuit also claimed The Crimson’s coverage of the Sanders Theater event “interfered with Clopper’s right to free speech.” The suit claimed that a May 3, 2018 headline published by the newspaper characterizing the show as a “Nude, Anti-Semitic Rant” was “a patent falsehood.”
In a motion filed on Oct. 5, The Crimson wrote that the libel claim “fails.”
“The statements about which plaintiff complains were accurate (he did in fact appear ‘nude’); were statements of opinion (‘anti-Semitic’) based on disclosed true facts, fully protected under the First Amendment and Massachusetts Decl. of Rights Art. XVI; or were both, cloaked in rhetorical hyperbole (‘rant’) that is incapable of being proved true or false,” the filing read.
The Crimson’s President, Aidan F. Ryan ’21, wrote in a statement, “The Crimson is editorially and financially independent from Harvard University. In all of its reporting, The Crimson strives to fulfill its mission of upholding the highest standards of journalistic ethics.”
Clopper, who, according to his LinkedIn profile, now attends Georgetown Law School, did not respond to a request for comment Tuesday evening.
—Staff writer Jasper G. Goodman can be reached at firstname.lastname@example.org. Follow him on Twitter @Jasper_Goodman.