The Harvard Crimson, Inc.;
No. 1:20-cv-11363 (Hon. Richard G. Stearns)
Brief of Appellant
6 South St., Suite 203
Morristown, NJ 07960
STATEMENT IN SUPPORT OF ORAL ARGUMENT
This is an important case that involves whether Harvard University, one of the world’s greatest educational institutions, can encourage free speech and promise to protect employees who engage in it from retaliation, propose that the Plaintiff perform an edgy Play, approve every word and action in the Play, advertise it, recommend Harvard’s theater as the venue for it, profit from it, and then terminate him and vilify him when he performed the well-received Play, expressing his sincerely held beliefs in his capacity as a private individual.
The Complaint is 40 pages long and contains 10 counts alleging interrelated tortious behavior by Harvard for failing to follow its own policies and promises in good faith, and by its student newspaper for assisting Harvard in doing so. It will assist the Court to hear oral argument about the facts, the counts at issue on appeal, and the applicable law.
The District Court had jurisdiction under 28 U.S.C. § 1332(a) because Clopper is a resident of Washington, DC, all defendants are incorporated and do business in Massachusetts, and the amount in controversy exceeds $75,000. JA11–12.
This Court has jurisdiction under 28 U.S.C. § 1291. This appeal is from a final order from the United States District Court for the District of Massachusetts wherein all Plaintiff’s claims were dismissed in three separate docket entries, on the merits, with prejudice. ADD1–4.
This appeal is timely because notice of appeal was due December 7, 2020, and Plaintiff filed notice on December 1, 2020. JA9. This brief was due March 23, 2021, and Clopper filed it prior.
STATEMENT OF THE ISSUES
- The District Court dismissed Clopper’s claims against Harvard in one day, with prejudice, without benefit of an opposing brief. The judge also stated that he had “reviewed plaintiff’s explanation” for being one day late filing his brief in opposition (depression, COVID and brain fog), when he had not, because the explanation would have been submitted under a motion to seal that the Court did not allow. Whether the District Court erred in dismissing the case with prejudice and denying Clopper a fair hearing on the merits?
- Clopper’s boss, Clopper’s dean, Harvard faculty, Sanders Theatre staff, Harvard’s free speech policy, and two Harvard presidents promised Clopper that he could perform his “adult-only” play without censorship or retaliation. Whether the District Court erred in dismissing the breach of employment contract and promissory estoppel claims against Harvard for terminating Clopper, notwithstanding Clopper relied on Harvard’s policy and promises?
- Clopper’s standing-ovation, anti-circumcision performance ended in a wordless naked dance. Hence his Play cannot truthfully be described as a “Nude, Anti-Semitic Rant.” Whether the District Court erred in dismissing Clopper’s defamation claim against The Crimson reasoning that the body of an article with an allegedly libelous headline “indisputably dispels any defamatory interpretation,” where principles of tort law say otherwise?
- Harvard “investigated” Clopper for 69 days following his Play. During this “investigation,” Harvard interfered with Clopper’s contractual relations and procured the stolen “adult-only” parts of his Play, and then shared it with his friends and colleagues (and eventually with the federal judiciary). Clopper alleged this was a breach of the covenant of good faith and fair dealing. Whether the District Court erred in dismissing Clopper’s related claim against Harvard on the merits without discussing the claim at all?
- Harvard threatened Clopper’s boss and dean, whom he cared about deeply, with loss of their jobs unless they fired Clopper. Clopper’s boss, facing termination and ruin, committed suicide before submitting to Harvard’s threats. Whether the District Court erred in dismissing Plaintiff’s claim that Harvard had engaged in threatening behavior to deprive Clopper of his rights, in one sentence, calling the claim “implausible”?
The Plaintiff, Eric Clopper, a once idealistic 25-year-old Harvard employee, relied on Harvard’s many written and oral promises that he would be free to put on his controversial, adult-only play about penis functions called “SEX & CIRCUMCISION: An American Love Story” (the “Play”) without retaliation, specifically losing his job. See Statement of the Case, Part A, infra. Plaintiff’s boss approved every word and action in the Play. JA13 ⁋ 12, JA141 n.6. Other Harvard officers, including the dean, also promised Clopper that Harvard would honor its free speech policy, JA15 ⁋⁋ 16–17, JA141 n.4–8, which states that the proper response to “disagreeable” ideas is “reason and speech.” JA147.
On May 1, 2018 Clopper gave his well-received anti-circumcision performance that concluded with a wordless naked dance and, after Harvard shut down the Play, a masturbation slideshow. JA16–18 ⁋⁋ 19–23. The next day, Harvard’s student newspaper—co-Defendant “The Crimson”—reported that Clopper went on a “Nude, Anti-Semitic Rant in Sanders Theatre.” JA18 ⁋ 24–25. The Crimson’s reporter had not seen the Play. Id. He published the article because a “Benjamin” from Harvard’s Hillel community told him to. JA167. Clopper, who is Jewish and anti-circumcision, was forevermore labeled anti-Semitic.
Not surprisingly, chaos ensued. Alumni kept senior deans “up all night” complaining about Clopper, JA168. Smart enough to know that it could not outright fire Clopper without overtly breaking its many promises to him, Harvard began an “investigation” instead. JA19–20 ⁋⁋ 27–30. Harvard desperately sought any pretext to terminate Clopper. Id. Almost immediately, Clopper caught Harvard stealing his play, the tort of copyright theft, and the tort of interfering with his contractual relations. JA21–22 ⁋⁋ 32–34. This prolonged the “investigation,” id., as it would be much harder now for Harvard to argue that it was terminating Clopper in “good faith,” as it is legally obligated to do.
Clopper’s colleagues and friends organized a protest to show their support for him during this “investigation,” JA23 ⁋ 40, but the dean of the college had decided to terminate Clopper “whatever the cost.” JA24–25 ⁋ 37. Harvard threatened to terminate Clopper’s boss and friend Thomas Hammond (“Hammond”) unless he supported terminating Clopper on a pretextual ground. JA24–25 ⁋⁋ 43–46. Hammond refused. Id. Moving up the chain, Harvard pressured Clopper’s dean and friend Robert Doyle (“Doyle,”) who had given Clopper a bonus just seven days before the Play, JA23 ⁋ 39, to terminate him. With his 40-year career at Harvard at stake, Doyle reluctantly complied, and mumbled under his breath to Clopper “in a barely audible voice” the termination letter Harvard’s attorneys had prepared. JA22 ⁋ 35.
Not content with terminating Clopper, Harvard turned its guns on his boss, Hammond, who had approved every word and action in the Play. A Harvard alumnus, brilliant linguist, and long-time employee, JA25 ⁋ 48, Hammond had mentored Clopper for many years. In 2016, Clopper perceived that Hammond’s obesity would soon take him. So, Clopper mentored Hammond at Harvard’s gym every day for two years to help him lose 140 pounds so that he would not succumb to his obesity-related illnesses, compounded by depression. By 2018, Hammond had contracted terminal cancer, and both Clopper and Harvard knew it. JA25 ⁋ 47.
Unlike Doyle, Harvard had no leverage over Hammond, who under no circumstances would betray Clopper. So, Harvard hired Hammond’s replacement, forced Hammond to train her, JA24–25 ⁋ 44, and issued Hammond a “Final Written Warning” for remaining unapologetically proud in his support of Clopper. JA25–26 ⁋ 48.
Hammond had been at Harvard for two decades; he knew what followed the letter. Before Harvard could terminate Hammond — a pillar of the Harvard community, a friend to all, and a good man — he committed suicide on September 24, 2018. JA26 ⁋ 49–50. Clopper, his life already shattered for relying on Harvard’s promises and being publicly reviled as an anti-Semite, suffered his deepest wound: finding Hammond dead. Id.
Clopper enrolled at Georgetown Law in September 2019, JA28 ⁋ 55, and sued Harvard in July 2020. JA3. Notwithstanding Clopper’s plausible allegations, the District Court dismissed all Clopper’s claims against Harvard on the first day it could, with prejudice. JA5.
STATEMENT OF THE CASE
A. Harvard Promised Clopper to Respect His Right to Free Expression Without Fear of Retaliation; i.e., Losing His Job.
Clopper had worked on-and-off at Harvard since he was 18 years old. JA11 ⁋ 2. In July 2017, he accepted the full-time position of “Systems Administrator” in Harvard’s Language Resource Center (“LRC”). Id. Clopper accepted the position because it would pay for 90% of his tuition at Harvard’s School of Engineering & Applied Sciences (“SEAS”). JA27 ⁋ 52. Clopper expected to be accepted there because he began working at SEAS at age 18, JA11 ⁋ 2; he had near-perfect physics and standardized test scores, JA27 ⁋⁋ 53–54; moreover, faculty invited him to apply. Id.
Clopper, who was born to a Jewish father, is an anti-circumcision activist who advocates for children’s right to bodily integrity. JA12 ⁋⁋ 7–8. As a logical corollary, Clopper believes that parents should not irreversibly sever part of their child’s penis. Id. In October 2017, Cornell University invited Clopper to speak on “how circumcision damages the penis for both masturbatory and sexual purposes.” JA13 ⁋⁋ 9–11. Harvard then invited Clopper to redeliver his graphic Cornell circumcision presentation at Harvard on campus. Id.
- Promises from Senior Faculty.
Clopper showed a videotape of his Cornell lecture to Professor Michael Bronski of Harvard’s Women, Gender, and Sexuality Department. Id. Bronski then invited Clopper to re-deliver his message at Harvard in the form of an edgy play about “sex” and “circumcision.” Id. Clopper expressed concern that Harvard might not honor its Free Speech policy, despite its emphatic promises it does, but Bronski forcefully promised Clopper:
your speech -- as rousing as it may be – is a form of political activism. As such, no matter what you [sic] employment position is at Harvard, it is protected speech … This seems to be a simple case of employment policy and I am sure HR will stand by you.
JA141 n.7 (emphasis added).
Clopper relied on Harvard Faculty’s promises.
- Promises from his Boss.
Clopper shared Bronski’s invitation to put on an adult-only play about sex and circumcision with his boss at the LRC, Hammond. JA13 ⁋ 12. Hammond enthusiastically supported Clopper in putting on the Play; he approved every word and every action in the Play, id.; and Hammond even directed Clopper to include a sexually explicit dance and masturbation slideshow at the end of his Play to take full advantage of what “protected speech” entails in front of a willing adult audience. JA15 ⁋ 17, JA141 n.6.
Clopper followed his boss’s directives and relied on his many promises.
- Promises from his Dean.
Dean Doyle also promised Clopper that he would be free to engage in protected speech without retaliation, and assured Clopper that “provocative plays are welcome at Harvard” and that “your play is conservative in comparison.” JA141 n.5 (emphasis added).
Clopper relied on his dean’s promises and assurances that his Play would not even register at Harvard, and that his show was conservative.
- Promises, Behavior, and a Contract from Sanders Theatre Staff
Harvard offered its Sanders Theatre (the “Theatre”) to Clopper for his show. JA14 ⁋ 13. After carefully reading every word in the contract Harvard provided Clopper, Clopper paid $4,020 on March 1, 2018 to reserve the Theatre for his May 1, 2018 Play. Id. Clopper signed the contract in his legal capacity as an officer of an unaffiliated nonprofit (Foregen), ADD9, and he performed the Play as a private individual. JA18 ⁋ 23. Thus, the Play had nothing to do with his job. Id. Clopper’s superiors all promised him that he had the right to engage in protected speech during his Play, and Clopper signed the contract in reliance upon those promises. Harvard never provided Clopper with any document supplementary to the contract. JA14 ¶ 13, JA143. The contract that Clopper signed did not mention a dress code or prohibit nudity. ADD6–10. Had it done so, Clopper would have chosen another venue. JA14 ⁋ 13.
Moreover, Harvard promoted the Play by hosting advertisements of it showing Clopper naked and pointing to his genitals, with “EXPLICIT CONTENT” warnings obscuring them. ADD5, JA14 ¶ 13. Harvard collected the ticket sales from these nude ads of Clopper for six weeks prior to the show without complaint. JA15 ¶ 16. And, six days prior to the show, the staff of the Theatre reassured Clopper and promised him “we don’t intend to censor things.” JA 141 n.4.
Clopper relied on the promises of Harvard Theatre staff that Harvard would not censor his show.
- Harvard’s Free Speech Policy
All of these promises—including promises reasonably inferred from Harvard presidents Faust and Bacow, JA15 ¶ 16—revolved around one document: Harvard’s Free Speech Policy. Harvard’s written free speech policy, which has not changed since 1990, promised all members of the university community, including Clopper, that “[s]peech is privileged in the University community”; that “[w]e do not permit the censorship of noxious ideas”; that “reason and speech provide the correct response to a disagreeable idea”; and that free speech disputes will be resolved “consistent with established First Amendment standards” (emphasis added). Harvard “assign[s] such a high priority to free speech” because it fulfills Harvard’s “primary function of discovering and disseminating ideas.” Id. (emphasis added).
B. In Reliance on “Harvard’s Promises,” Clopper Invested His Life’s Savings ($40,000) in Advertising, Jointly with Harvard, an Explicit, Partly Nude, Adult-Only Play.
Clopper was a 25-year-old employee. He “massively relied” on the totality of Harvard’s foregoing express and implied written, oral, and by-behavior contractual promises. Specifically, Clopper relied upon promises from (i) senior faculty; (ii) his boss; (iii) his dean; (iv) Theatre staff; (v) the Theatre contract; (vi) two Harvard presidents; and (vii) Harvard’s free speech policy, that Clopper could perform his Play without retaliation; hereinafter, collectively referred to as “Harvard’s Promises.” Clopper then spent the fifty-eight (58) days after signing of the contract investing his life savings and all the money he could gather, $40,000, into co-advertising, alongside Harvard, his naked, explicit, adult-only Play about circumcision and penises. JA 15 ⁋ 17.
C. On the Eve of the Performance, An Unrevealed Officer Demanded that Clopper Abstain from Performing Part of the Play Nude, as Advertised, Which Would Have Left Clopper with a $40,000 Loss.
Three (3) days before the Play, an anonymous source of unknown authority became uncomfortable with the Play’s subject matter and then “relayed” to Clopper that his adult-only performance about penises could no longer include the sight of a penis, citing an entertainment ordinance Harvard purported to be bound by. ADD12 (“I’ve been asked to let you know [by an unknown source] … The May 1 event may well not include nudity.”) The contract allowed Harvard to cancel at any time, and for any reason, and “in no event” be liable for Clopper’s $40,000 investment. ADD8, provision 15. Clopper had already spent the $40,000. JA15 ⁋ 17. The “pre-event publicity previewed the nude performance.” JA92. The audience members had seen Harvard’s ads of a naked Clopper, ADD5, and they had paid Harvard to see a show that would very likely contain nudity and frank depictions of the penis and its functions. JA14–16. Clopper, who had relied on Harvard’s Promises and could not change the Play on such short notice, replied that he would remain “within the bounds of propriety.” JA16, ADD11.
D. Clopper Performs His Play as Agreed.
Clopper submitted the entire video of the 140-minute Play to the Court. Sealed Ex. A, hereinafter “Clopper’s Play.” Harvard, falsely claiming that it was providing the Court with a “complete, accurate record of what Clopper said and did,” JA56 n.1, instead submitted twenty-four (24) carefully edited seconds of Clopper’s 4-minute naked dance. Sealed Ex’s C & D.
Hundreds of audience members received the Play well. See Clopper’s Play. They laughed, clapped, and some even cried. Id. Clopper’s 130-minute monologue concluded with a call to protect children’s right to bodily integrity. Id. The audience gave Clopper a prolonged standing ovation, id., which Harvard misleadingly depicts as, “Clopper bowed and exited the stage.” JA60. A Harvard student showered the stage with $100 bills showing support for Clopper’s message that children should have the human right to be protected from genital mutilation. Harvard, by contrast, falsely claims its students were applauding an “anti-Semitic diatribe followed by an obscene performance.” Compare Clopper’s Play at 2:09–2:10, with JA62.
As the standing ovation continued, Clopper left the stage. Clopper’s Play at 2:10–2:15. After a brief interlude, Clopper returned on stage completely naked with an inflatable love doll. Id. Clopper then performed a wordless dance with a couple of erotic moves to the pop song Toxic by Britney Spears. Id. The vast majority of the audience sat through the entire dance, eventually decided to clap along, and then gave Clopper rousing applause at the end. Id. Some gave him another standing ovation. Id. Harvard misleadingly describes the applauding crowd as the “unwitting public audience.” JA60.
Harvard shut down the Play after the dance. JA17 ⁋ 21. Clopper alleged this was a breach of contract. JA37 ⁋ 79. Regardless, after Harvard ended the Play, the Play’s queued-up video continued in the background as the audience began to depart. JA17 ⁋ 22.
Unbeknownst to Clopper, the third-party events vendor “Baystate,” whom Clopper hired upon Harvard’s request, was making an unauthorized screen capture of this final video to please Harvard. JA21 ⁋ 32. In other words, Baystate stole Clopper’s intellectual property to remain a “preferred events vendor,” so Harvard would continue to offer it lucrative contracts with Theatre performers. See Sealed Ex. B, hereinafter “Harvard’s Stolen Slideshow.”
Drawing from other plays at the Paris Opera, Clopper—at the behest of his boss, JA159 n.1—ended his adult-only play about penis functions with a masturbation slideshow, artfully synchronized to Comptine D’un Autre Été: L’après-Midi. Clopper’s commentary on this culture’s baby-mutilating sexual norms concluded with what is this culture’s most common conclusory act in adult-only performances: an ejaculation on the face of the receptive partner – in Clopper’s commentary, not a human, but an inflatable love doll. See, e.g., Aggression and Sexual Behavior in Best-Selling Pornography Videos: A Content Analysis Update at 1074, (finding in a large analysis of best-selling, adult-only performances, 62.5% of scenes ended with an ejaculation on the receptive partner’s face or mouth); see also JA137. As evidence indisputably shows, not only were audience members not offended by the masturbation slideshow, they were jockeying among each other to get pictures with Clopper as it aired. Clopper’s Play at 2:18–2:21.
In the final frame, Clopper posed with the love doll as his “final message” aired, which was a plea to the broader public for help for what he predicted would be forceful retaliation from Harvard’s “powerful [alumni] interests” for his anti-circumcision performance, which is exactly what happened. See Harvard’s Stolen Slideshow at 0:10 (showing Clopper’s “final message”); JA17–18 ¶ 22.
E. Harvard’s Retaliation Following the Play.
Harvard informed Hammond that a member of Harvard’s Hillel Community named “Benjamin” wrote a hit piece against Clopper to discredit his standing-ovation anti-circumcision performance. JA167. The next day, on May 2, 2018, this “Benjamin” recruited two student-Gentile reporters to affix their names to his hit piece and publish it in The Crimson, even though these “reporters” had neither seen the Play nor spoken with Clopper about it. Id. Notwithstanding “Benjamin” giving the Crimson “reporters” cell phone footage showing that Clopper gave a wordless, naked dance, they published the false headline that Clopper went on a “Nude, Anti-Semitic Rant,” ADD13. JA167. As would be expected, this headline incensed Harvard’s alumni, who complained to Harvard’s most senior administrators, keeping them “up all night.” JA168. These complaints resulted in Harvard beginning an “investigation” into Clopper and his Play. Id.
After opponents at Harvard destroyed his reputation, they targeted his career. On May 4, 2018, The Crimson published its next hit piece: “Employee Planned Show Containing Anti-Semitism, Nudity in Harvard Workplace During Work Hours.” ADD17. This falsely communicated that Clopper had abused Harvard’s time and resources to produce his Play. JA44–45 ⁋ 105.
Harvard then interrogated Clopper, trying to persuade him to “admit” to a work policy violation, as the Crimson’s latest article claimed. JA19–22 ⁋⁋ 27–34. Clopper did no such thing, and his boss Hammond confirmed it, so Harvard needed to find a different justification to terminate him, so it expanded the scope of its “investigation.” Id. Harvard’s expansion hit unlawful territory when Harvard, in concert and conspiracy with Baystate, stole a recording of his Play and began sharing—around Harvard (and eventually with the federal judiciary)—the masturbation portion, which Clopper intended be shown only to the adult audience during the Play. Id. Clopper told Harvard that he knew it was doing this, but that he would forgive Harvard if it just honored its non-retaliation policy and promises and let him return to work. Id. Caught red-handed with Harvard’s Stolen Slideshow, Harvard then had to reconsider how to justify terminating him, id., so “[o]ver the next few months, Harvard conducted an extensive investigation.” JA62.
Even though Harvard promised to protect free speech, approved every word and action in the Play, advertised that it would contain nudity and adult content, profited off those adult ads, and offered its Theatre as the venue for it, Harvard claimed — after the fact — that the Play was not conservative enough, and it terminated his employment, even though he had performed the Play in his individual capacity and not as a Harvard employee. ADD20. Harvard also ended Clopper’s otherwise stellar career by falsely claiming that he had made misleading comments and abused Harvard’s time and resources, Id., ignoring the insistence of Clopper’s boss Hammond, the only person in a position to judge the accusation, that it was groundless. JA24–26 ⁋⁋ 43–50.
Harvard, to please certain of its alumni, then began to retaliate against Hammond for his refusal to help Harvard terminate Clopper on pretextual grounds. Id. Hammond preempted Harvard’s retaliatory termination by committing suicide. Id. One year later, Clopper matriculated at law school, JA28 ⁋ 55, and sued Harvard.
F. Procedural Posture.
On July 20, 2020, Clopper filed a Complaint against Harvard, its student newspaper “The Crimson,” and ten Doe defendants (“John Does 1–10”), alleging a web of tortious behavior, broken contracts, and broken promises (Counts 1–10) that culminated in Clopper’s termination. JA2.
Plaintiff assented to five extensions of time to either Harvard or The Crimson so they could compose their responses. JA4. Defendants filed their respective motions to dismiss on September 28, 2020 and October 5, 2020. JA4–5.
In the midst of a pandemic and unbeknownst to Plaintiff, his lead counsel was bedridden — suffering from diagnosed depression, compounded by COVID with “brain fog,” a common symptom, JA118–120 — and he missed the deadline to ask for Clopper’s first extension to file his Opposition to Harvard’s Motion to Dismiss by one day. JA175. The next day, on October 14, 2020, without benefit of a brief from the Plaintiff arguing why the Complaint should not be dismissed, the District Court not only granted Harvard’s Motion to Dismiss all claims, but did so with prejudice. JA5–6.
Plaintiff filed: (1) a Motion to Vacate a Final Judgment on October 16, 2020 for excusable neglect, JA120–125; and (2) an assented to motion to submit affidavit of counsel under seal so Plaintiff’s lead counsel could “provide sensitive medical information that is not appropriate for filing on the public docket.” JA118. On October 19, 2020, Plaintiff filed a revised Motion to Vacate a Final Judgment, together with an attached “Opposition to Harvard’s Motion to Dismiss.” JA126–153.
Only a few hours later, on the same day, the District Court ruled that Plaintiff’s motion to seal was moot, JA7, stating that it had “reviewed plaintiff’s explanation for his failure to comply with the court’s deadline.” ADD2. Insofar as the Court did not allow the motion to submit the reasons under seal, however, the court did not in fact review plaintiff’s explanation, so it could not possibly have determined whether the circumstances constituted “excusable neglect” in the midst of a pandemic.
The Court reasoned that it would uphold its original dismissal with prejudice because “plaintiff has failed to raise any meritorious argument against dismissal” in his attached opposition, ADD2, foreclosing Clopper’s opportunity to amend the Complaint.
Plaintiff timely filed his Opposition to The Crimson’s Motion to Dismiss on November 3, 2020. JA154–176. Two days later, the District Court granted The Crimson’s motion to dismiss, again with prejudice. ADD3.
Plaintiff timely filed his Notice of Appeal on December 1, 2020, JA9, and now respectfully brings his case to the First Circuit Court of Appeals to challenge the District Court’s dismissal and the correctness of its application of the standard of review at the motion-to-dismiss stage.
SUMMARY OF ARGUMENT
Plaintiff has meritorious and important claims against Harvard and The Crimson. At the motion-to-dismiss stage, the District Court was required to accept all pleadings as true and draw all inferences in Plaintiff’s favor, but it erred in failing to do so. It drew all inferences in Defendants’ favor, and dismissed all of Plaintiff’s claims with prejudice, and as soon as it possibly could, without benefit of an opposing memorandum of law, suggesting a predisposition to rule against the Plaintiff. The District Court also erred in not addressing many of his arguments and, at other times, dismissing claims as “implausible” without further discussion.
Plaintiff contends that his allegations are all verifiably true and that he has provided the Court with enough information in his Complaint—which must be a brief statement of the facts and counts—that there was considerable unlawful behavior among the Defendants resulting in actionable harm to Plaintiff.
Clopper’s boss and his dean—both dear friends of Clopper—did not independently decide to terminate him for his Play. And it was an insult to the integrity of our system to rule on the pleadings—in the face of overwhelming evidence—that it is “implausible” that Harvard did not acquiesce to alumni pressure to terminate him.
It is manifestly plausible that Harvard, via Dean of the College Michael Smith, threatened Clopper’s boss and dean with their jobs to “play along” with Harvard’s fictitious narrative. Unfortunately for Smith, and the alumni he sought to please, Clopper’s boss went to his grave before he gave Harvard an inch.
Harvard itself adopted the written policy that the only proper response to a novel idea that some might find noxious, such as Clopper’s, is rational discourse on the merits. The academy should not be allowed to: (1) promise to protect free speech; (2) reaffirm the promise (e.g., Harvard’s Promises to Clopper); and thereby (3) induce reliance (as Clopper relied); but when it suits Harvard (4) vilify the speaker, thereby incensing alumni, and (5) terminate him, in violation of its promises and of Harvard’s mission and standards.
The academy must be held to its policy and promises. Paraphrasing Professor Bronski, it is “simple employment policy” to honor its members’ right to free expression without retaliation. It is immaterial whether that member is a Professor Emeritus or a Systems Administrator at the Language Resource Center. To try to wriggle out of its many promises to Plaintiff, Harvard, in bad faith, intentionally misstates the rules it promised to honor for protected speech by classifying Clopper’s highly regarded, 2+ hour, tour de force Play as an “unquestionably obscene” “live sex show,” citing 24 carefully edited seconds and a slideshow recording it unlawfully stole via conspiracy with a third party.
It cannot be countenanced that so long as Harvard’s legion of attorneys can articulate any reason, no matter (1) how many promises it breaks; (2) how many employees it threatens; (3) how many verified torts it commits; and (4) even how many alumni and/or employees kill themselves, it can always rely on the courts to uncritically accept what it says and rule in its favor, as the District Court did.
Or, this great First Circuit Court of Appeals could treat Harvard like any other litigant. Employers are bound by implied terms, even in the at-will context, and Harvard promised Clopper many times, in many ways, expressly and impliedly, that it would follow its free expression policy without retaliation. Contrary to its principles, policies, and promises, pressured by alumni, Harvard then engaged in an epic retaliation campaign against Clopper in concert with its allies: The Crimson and Baystate. If Harvard needed to cow or dispose of Clopper’s allies along the way, it did not hesitate.
Clopper respectfully requests from this Court a remand, to discover whether any and all of his well-pled counts are, in fact, justiciable.
I. Standard of Review
This Court reviews the grant of a motion to dismiss under Rule 12(b)(6) de novo. Ruivo v. Wells Fargo Bank, N.A., 766 F.3d 87, 90 (1st Cir. 2014). In assessing a plaintiff’s complaint, this Court (1) accepts the Complaint’s factual allegations as true; (2) construes allegations in the light most favorable to the plaintiff; and (3) draws all reasonable inferences in plaintiff’s favor.” Id. If, after doing so, Plaintiff’s claims are “plausible on its face,” then the Complaint must survive the 12(b)(6) motion. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
II. Harvard Threatened the Vulnerable Hammond to Dissuade Clopper from Filing this Lawsuit, and These Threats’ Coercive Effect on Clopper Constitute a Plausible Violation of the Massachusetts Civil Rights Act (“MCRA”) (Count II).
To establish a claim under the MCRA, “a plaintiff must prove that (1) the exercise or enjoyment of some constitutional or statutory right; (2) has been interfered with, or attempted to be interfered with; and (3) such interference was by threats, intimidation, or coercion.” Currier v. Nat’l Bd. of Med. Exam’rs, 462 Mass. 1, 12 (2012) (enumerating the elements to prevail on a claim under M.G.L.A. c. 12 § 11I). Threatening behavior directed towards a third party should be considered in any conduct that forms the basis of an MCRA claim. Haufler v. Zotos, 446 Mass. 489, 503–504 (2006). As a civil rights statute, the act is “entitled to liberal construction of its terms,” applying a reasonable person standard. See Id. at 505. A “threat” is the “intentional exertion of pressure to make another fearful or apprehensive of injury or harm,” id., and threats “need not be directed at the plaintiff.” Id. at 504. In the context of the statute, “threats” are not confined to “actual or threatened physical acts.” Buster v George W. Moore, Inc., 438 Mass. 635, 647–648 (2003). “Coercion,” which may be economic, involves “the application to another of such force, either physical or moral, as to constrain him to do [something] against his will.” Id. at 646 (emphasis in original).
Clopper has the constitutional right “to petition the Government for a redress of grievances.” U.S. Const. Amend I. Harvard attempted to—and for a time did—interfere with this right by threatening the “third party” Hammond with his job and housing if Clopper filed this lawsuit. JA25–26, JA139–140. Harvard knew Clopper would be apprised of the threat. JA25 ⁋ 47.
An “objective, reasonable person” who is dying of terminal cancer may feel “threatened” if his employer is ignoring his legitimate Title IX complaints that it is legally obligated to investigate appropriately, and instead is threatening loss of his job—his lifeline—to prevent Clopper from suing. Indeed, Hammond did feel “threatened.” JA25. It is plausible that Clopper, who spent the last two years of his life keeping Hammond alive, would feel “morally constrained” from suing Harvard because he knew the “unraveling” and “increasingly frantic” Hammond would suffer grievous harm if Harvard followed through on its threats. JA25. Thus, Harvard’s threats to deprive Hammond of his job and his Harvard housing—all for refusing to betray his conscience and “play along” with Harvard alumni’s false, self-serving narrative in his dying days—achieved Harvard’s intended coercive effect on Clopper.
Yet, the District Court erroneously held without explanation that plaintiff “does not plausibly suggest that Harvard used threats, intimidation, or coercion to achieve any alleged interference with his rights, as required by the [MCRA].” ADD1. The District Court then affirmed its dismissal “on the merits”, without addressing Plaintiff’s arguments. ADD2.
It is more than plausible that Harvard threatened, intimidated, and/or coerced Hammond because he supported Clopper. In response to Harvard’s threats, Hammond put a plastic bag over his head and filled it with helium to kill himself. JA26. Regardless, the Court used the wrong standards in dismissing Count II, and Plaintiff respectfully suggests more fact-finding is required.
III. Clopper Has Viable Claims for Breach of his Employment Contract (Count IV); and Promissory Estoppel (Count VI).
Clopper argued below that a reasonable jury could conclude that an implied-in-fact contract existed between Clopper and Harvard whereby Harvard would honor its free expression policy without retaliation. JA142. Harvard responded that it “could terminate [Clopper] at any time and for any reason,” including for the contents of his Play, JA73, evidently unbound by its free expression policy. The District Court agreed: Harvard has no legal duty to protect free expression, notwithstanding its written policy and its many promises to honor that policy. ADD1 (“even if premised on the content of his performance … Plaintiff, after all, was an at-will employee and … could be terminated at any time ‘for almost any reason or for no reason at all.’” citing (Jackson v. Action for Bos. Cmty. Dev., Inc., 403 Mass. 8, 9 (1988))).
A. Harvard’s Free Speech Policy, and Its Many Promises to Clopper That It Would Respect That Policy, Created An Implied-In-Fact Contract.
The District Court stopped short in its citation of Jackson as grounds for dismissing Count IV. JA140. The Jackson court continued that if a jury could reasonably conclude that an implied-in-fact contract existed from the “conduct and relations of the parties,” then breach of said contract can support an actionable claim for wrongful termination, even in the employment-at-will context. See Jackson, 403 Mass. at 9.
Here, Harvard made an “offer” to Clopper to put on his graphic Play, at the Theatre, about circumcision’s deleterious effects on the penis and masturbation. JA13. Clopper “accepted” this “offer” and shared his well-received idea that we should protect children from genital mutilation. See Clopper’s Play. Harvard “breached” this contract by retaliating against him, despite its many emphatic promises it would not. Statement of the Case, Part A, supra. A reasonable jury could follow that line of reasoning and find this fact.
The “terms” of this “agreement” included that if Harvard—and in this case some of its alumni—found Clopper’s Play “noxious,” the “correct response” was one rooted in “reason and speech.” Statement of the Case, Part A.v, supra. Harvard’s actual response was to (1) misstate the rules for what constitutes “protected speech”; (2) apply its misstated rules to Clopper’s Play to posture that it was unprotected; (3) terminate Clopper for his protected speech in violation of its policies; and, finally, (4) bully Hammond into an early grave for refusing to help terminate Clopper.
B. Clopper Reasonably Relied on Hammond’s Representations that His Play Was “Protected Speech” Per Harvard’s Policy and Promises, Because It Was.
A party to a contract can reasonably rely on another’s assertion as to what an imperfectly defined term entails—here “protected speech”—when the asserter either: (a) stands in a “relation of trust and confidence” to the person relying on the assertion; or (b) the asserter has special skill or judgment with respect to the subject matter. See Restatement (Second) of Contracts § 169(a), 169(b) (Am. Law. Inst. 2020). If a third person can reasonably believe that a principal has authority to make representations for its agent, then the agent is bound to those representations. See Hudson v. Mass. Prop. Ins. Underwriting Assn., 386 Mass. 450, 457 (1982).
Hammond suggested and directed Clopper to conclude his Play with a naked dance and an explicit slideshow to take full advantage of what “protected speech” encompasses in front of a willing and forewarned adult audience. JA 15 ⁋ 17. As Clopper’s boss and mentor, Hammond stood in a special “relation of trust and confidence” to Clopper; indeed, Clopper trusted and revered Hammond. JA148. Furthermore, notwithstanding Harvard describing Hammond as an “LRC employee,” JA73, he was a Harvard-trained linguist, and the longstanding Director of its Language Center. JA24. So, the linguist Hammond did possess “special skill and judgment” in matters of language, most pertinently what constitutes “protected speech.” Importantly, because it was reasonable for Clopper to rely on the Harvard principal’s [Hammond’s] assertion to him that his Play was “protected speech” under Harvard’s policy, then it is immaterial whether his Play was “protected” or not. Moreover, Clopper’s reliance on Hammond’s assertion that his Play was “protected speech” was unassailably reasonable because Hammond was correct. Clopper’s Play, when “taken as a whole,” clearly qualifies as protected speech.
The performance was a highly regarded, 2+ hour long presentation, built on a lecture at Cornell, that incorporated scholarly analysis, raw passion, humor, less than four minutes of a dance involving nudity, and, after Harvard stopped the play, a physical demonstration. Clopper’s Play. As a whole, the performance conveyed its ultimate point: which is that circumcision, an ancient religious ritual that was introduced to the United States in an attempt to prevent masturbation and hence to suppress sexuality, is a harmful practice that causes deleterious effects (physical and otherwise) to boys and men, and that should be stopped. Id.
Yet, Harvard evades its many promises that it would respect Clopper’s right to engage in protected speech without retaliation by omitting, in bad faith, the relevant obscenity tests in its argument. JA66. The District Court appears to follow suit. ADD1.
As courts understand, and so does Harvard, not all adult or sexual material constitutes unprotected “obscenity.” For a performance to be deemed obscene and thus “unprotected,” all three of the following conditions must be met: (1) The entire performance, taken as a whole, must appeal to the prurient interests (as defined by contemporary community standards); (2) It must depict or describe, in a patently offensive way, sexual conduct specifically defined by applicable state law; and (3) Taken as a whole, the performance must lack serious literary, artistic, political, or scientific value. Miller v. California, 413 U.S. 15, 24–25 (1973).
Not once does Harvard mention the obscenity test; it just offers legal conclusions, without the required relevant analysis. JA66. Harvard’s misleading effort to label Clopper’s Play as a “live sex show” nine times in its Motion to Dismiss, JA54–71, does not make it one, much less make it obscene. That is a question for the fact finder. See Miller, 413 U.S. at 24. Regardless, when construed in the light most favorable to the Plaintiff, it can be reasonably inferred that hundreds of audience members clapped in unison to a “nude, expressive dance,” not to a “live sex show” between a human and a balloon.
In another maneuver to avoid the “taken as a whole” mandate in two prongs of the Miller test that Harvard promised to honor, Harvard then arbitrarily divides Clopper’s Play into “parts.” JA66–67 (labeling Clopper’s naked dance and explicit slideshow as the “encore.”) Harvard then argues the “encore” “part” “added nothing to speech that Clopper already delivered.” Id. But this argument fails too.
Clopper challenged the socio-sexual norms of the culture, as Harvard’s own “contemporary community standards” routinely encourage doing. Clopper’s four minutes of nudity out of a 140-minute play, or less than 3% of the runtime, was more “proper” because it did not take place in public, but rather was limited to an enclosed theatre where the only observers had paid Harvard to attend, knowing from Harvard’s advertisements that the play would contain nudity and sexual content.
So too with the explicit slideshow, Clopper’s “final message” not only emphasized his previous discussion on masturbation, but also accurately predicted the retaliation that would follow his Play. See Harvard’s Stolen Slideshow at 0:10, predicting that “powerful interests” would retaliate. Alumni, who are de facto “powerful”, kept senior deans “up all night” goading them to get rid of Clopper. JA168. Thus, this explicit slideshow also added to his serious political and educational message while highlighting Clopper’s foresight, and thus was protected speech both in isolated “parts” and certainly when “taken as a whole.”
In discussing the critical point as to whether a good faith analysis yields the inevitable conclusion that Clopper’s Play is “protected speech,” and thus enjoys protection via Harvard’s policy and its many promises to Clopper to honor that policy, the District Court, yet again, defers to Harvard. By abandoning clear and repeated Supreme Court precedent to take a work “as a whole,” the District Court instead “doubts” that Clopper’s naked dance was protected. ADD1. The law on obscenity does not permit a piecemeal analysis on discrete “portions” (or “seconds”) of the Play. It requires considering the Play “as a whole.”
Clopper’s Play, taken as a whole, contends that children should be protected from genital mutilation. Thus, it has the requisite “literary, artistic, political, or scientific value”; hence the performance could not possibly have been obscene.
C. Terminating Clopper for his Protected Speech Breached his Employment Contract (Count IV).
A reasonable jury could conclude that all the elements of an implied-in-fact contract existed between Clopper and Harvard in his employment contract. That is, Harvard made many definite “offers” that it would respect its free expression policy, and thus respect Clopper’s right to perform without retaliation his adult-only Play about penis functions. Clopper “accepted” those offers and relied upon them by putting on a provocative, yet protected adult-only Play. Clopper fulfilled his end of this implied-in-fact contract by offering his “novel idea,” thus fulfilling Harvard’s “primary function” of “disseminating ideas.” It is plausible that Harvard breached this implied-in-fact contract by: (1) intentionally misstating the applicable rules regarding protected speech it promised to honor; so that it could (2) classify Clopper’s Play as obscene “without question,” JA66; and then (3) terminate Clopper for it. This plausible breach constitutes an actionable claim for Clopper’s breach of employment contract (Count IV).
D. The Sanders Theatre Contract Did Not Prohibit Nudity.
When construing the terms of an express contract—such as the contract Clopper signed with Harvard in his non-employee capacity—the Court must “consider the circumstances surrounding the making of the contract, its subject, the situation and relation of the parties, and the sense in which, taking these things into account, the words would be commonly understood.” Jackson, 403 Mass at 13; see also Restatement (Second) of Contracts § 202(1) (Am. Law. Inst. 2020) (“if the principal purpose of the parties is ascertainable it is given great weight.”); Restatement (Second) of Contracts § 5 cmt. a (Am. Law. Inst. 2020) (“The terms of a promise or agreement are those expressed in the language of the parties or implied in fact from other conduct”) (emphasis added).
The “principal purpose” of the contract was to provide Clopper a venue to fulfill Harvard’s “primary function of discovering and disseminating [in this instance, Clopper’s] ideas.” Statement of the Case, Part A.v, supra. Harvard promised that Clopper would be free to express his ideas “consistent with established First Amendment standards,” id., which in Massachusetts, the entertainment ordinance notwithstanding, includes the right to nude, expressive dance. See Showtime Entertainment, LLC v. Town of Mendon, 769 F.3d 61, 80 (1st Cir. 2014) (citing Cabaret Enters., Inc. v. Alcoholic Beverages Control Comm’n, 393 Mass. 13, 17 (1984)). This right to dance nude “draws no distinction” between erotic dances (if you can call Clopper’s dance that) and their “less prurient expressive counterparts.” Id.
Clopper reasonably and “commonly understood” that the contract included his right to engage in “protected speech” (i.e., nude, expressive dance), and Clopper had no reason to believe otherwise. If the Court “considers the circumstances surrounding the making of the contract,” all weigh in Clopper’s favor.
The contract mentions no dress code, ADD6–10, and Harvard never provided Clopper with a “Sanders Theater Policy Book” containing a “no-nudity” provision. JA14, JA143. On the contrary, Harvard placed nude ads of Clopper—ADD5—on its website and in the Theatre itself for six weeks leading up to the Play, profiting from ticket sales without complaint. JA14 ⁋ 14, JA 15 ⁋ 16. Harvard therefore led Clopper to understand that he could perform nude at Sanders Theatre. Thus, it was perfectly reasonable for Clopper to rely on the express terms of the contract and Harvard’s implied-in-fact conduct to invest $40,000 into co-advertising alongside Harvard a performance with a brief nude scene.
- An Anonymous, Unconscionable, and Unconstitutional Threat on the Eve of the Performance does not Constitute a Legally Binding Modification to the Sanders Theatre Contract
There is a covenant of good faith and fair dealing implied in every contract. Weiler v. PortfolioScope, Inc., 469 Mass. 75, 82 (2014). When one party threatens not to perform its contractual obligations, and instead attempts to extort a modification to the contract without a legitimate reason, the extorted modification is a violation of that duty of good faith. See Restatement (Second) of Contracts § 176(1)(d) cmt. e (Am. Law. Inst. 2020).
Fifty-eight (58) days and $40,000 after forming the Theatre contract and three (3) days before its performance, an unknown purported authority caused to be “relayed” to Clopper that his adult-only play, about penises, could no longer show a penis, citing Harvard’s purported requirement to comply with an entertainment ordinance. Statement of the Case, Part C, supra; see also ADD12.
Complying with an unconstitutional entertainment ordinance, JA138–139, is not a “legitimate reason.” And Harvard’s last-minute threat to refuse to perform its contractual obligations and cancel Clopper’s Play—invoking provision 15 of the contract, ADD8—was impermissible extortion. Clopper did not cave to this last-minute $40,000 threat, ADD11, and Harvard suffered no damages from his brief nude dance. Had the Play not included nudity, the audience would have been defrauded by the advertisements showing Clopper nude pointing to his genitals.
In defense of its violation of its duty of good faith and fair dealing, Harvard belittles 25-year-old Clopper. JA59 (“Clopper felt that he had invested too much time and money in his pet project, decided it was ‘too late to change the Play,’ and believed he had a ‘right’ [to include nudity].”) Yes, exactly: this was reasonable reliance on the express terms and the implied-in-fact terms of a contract. Clopper had a Constitutional right to perform a naked dance, even an overtly sexual one. Even Harvard is bound to basic principles of contract law: it promised Clopper he could perform nude at Harvard’s theatre, and Clopper relied on the promise; Harvard did not have the right to modify that most essential term of contract at the last minute by prohibiting nudity.
- The District Court Incorrectly Construed Ambiguities about the Contract’s Terms in a Light most Favorable to Defendants, not Plaintiff.
The District Court held that an anonymous agent at Harvard could introduce a nudity ban after Clopper had spent 58 days and $40,000 advertising (with Harvard too) a nude performance. ADD1. The District Court did not explain why. Id.
Clopper pled that Harvard did not provide any indication that nudity was banned when he signed the contract, JA14, nor did it provide him with a “Sanders Theatre Policy Book,” (“Policy Book”) that purportedly prohibits nudity. JA143. Therefore, a reasonable factfinder could determine that the parties agreed to be bound by the 25 express provisions in the contract, and by Harvard's Promises that he could perform nude and without censorship at the theatre, and not by any of the many provisions of the Policy Book, which Harvard never produced, and especially not by its undisclosed no nudity provision, which Clopper never would have agreed to.
It is outlandish that Harvard could advertise Clopper nude and sell ticket stubs with an image of Clopper nude, ADD5, and then feign outrage that the Play contained nudity and use nudity as an excuse to fire him. In any event, Clopper’s claim that Harvard’s reason was pretextual must be accepted as true at the motion to dismiss stage.
Regardless, courts must not lose sight of the forest for one naked tree. Harvard does not give a damn about the nudity. As pled, JA16 ⁋ 18, Harvard (1) routinely allows public nudity; (2) excuses even belligerent nudity when it is politically expedient to do so; and (3) considers sexual art to be an important “issue of freedom of speech.” Yet now, when some alumni were offended, this imperious institution declares that Clopper’s Play is “not art,” instead of admitting that Dean Smith lacked the spine to resist pressure from above. JA23 ⁋ 37.
E. Clopper states a Plausible Promissory Estoppel Claim (Count VI).
To state an actionable promissory estoppel claim, a plaintiff must show that: (1) the Defendant made a representation to the Plaintiff; and that (2) the Plaintiff reasonably relies on that representation; (3) to his detriment. Sullivan v. Chief Justice for Admin. and Mgt. of the Trial Court, 448 Mass. 15, 27–28 (2006). Promissory estoppel claims are identical to contract claims, except reliance can replace consideration. See Rhode Island Hosp. Trust Nat. Bank v. Varadian, 419 Mass. 841, 850 (1995). Thus, all of Clopper’s arguments above in Sections III.A–III.C, supra, in support of his breach of contract claim apply here.
(1) Harvard forcefully promised Clopper many times that it would respect his right to engage in “protected speech.” Statement of the Case, Part A, supra. Clopper’s Play is “protected speech.” Part III.B, supra. (2) Clopper reasonably relied on all Harvard’s Promises. (3) As to detriment, he lost his job, JA22, his Harvard graduate school plans, JA27, and his best friend, Hammond, JA26.
In rejecting this straightforward breach of promise claim, the District Court overlooks all Harvard’s Promises and, without explanation, accepts that an unknown agent’s last-minute extortion regarding a contract Clopper signed in his non-employee capacity is sufficient reason to crucify Clopper. ADD1.
Harvard waited 69 days to terminate Clopper because it had nothing, so it labelled his naked dance a “live sex show.” However, Clopper already had at least one tort claim (interference with contractual relations, conspiracy, theft of copyright) against Harvard. Section VI, infra.
Plaintiff implores this Court hold Harvard to its many substantive promises. Otherwise, so long as Harvard can articulate any pretext, no matter how attenuated or immaterial, no matter how many torts it commits, and no matter how many careers and lives it takes, it can without repercussion throw its express, written, oral, and implied promises in the trash whenever convenient and rely on courts to rule, “nothing to see here, folks.”
IV. Harvard Breached the Covenant of Good Faith and Fair Dealing Implied in Every Massachusetts Employment Contract (Count V).
Clopper alleged that Harvard’s various tortious and bad-faith acts violated the implied covenant of good faith and fair dealing in both his employment contract and the Theatre contract. JA39. Harvard argued that Clopper failed to allege specific facts that supported his “conclusory legal allegation” so the count should be dismissed. JA74. Clopper then enumerated Harvard’s specific bad-faith acts that would sustain a plausible breach of this covenant. JA146. The District Court dismissed this count on the merits, but without discussing Clopper’s specific allegations of bad faith, ADD2, which the Court was required to accept as true.
It is well established under Massachusetts law that every employment contract contains an implied covenant of good faith and fair dealing. Fortune v. Nat’l Cash Register Co., 373 Mass. 96, 104 (1977). “[U]nfair, deceptive, or bad faith conduct” can be a basis for a breach of this implied covenant. See Zapatha v. Dairy Mart, Inc., 381 Mass. 284, 300 (1980). “The scope of the covenant is only as broad as the [in this case, employment,] contract governs,” and terminating an employee in “bad faith” can sustain an action, even for at-will employment. See Ayash v. Dana-Farber Cancer Institute, 443 Mass. 367, 385 (2005). When an employer fails to follow its own policies, a reasonable jury could find that an employer has breached this covenant. Id. at 387 (explaining that when a hospital violates its own bylaws, that can constitute a breach).
In other contexts, a plaintiff need not allege “bad faith,” but merely the absence of “good faith,” and this absence “can be inferred from the totality of the circumstances.” Weiler, 469 Mass. at 82 (citations omitted). Other supporting factors include when “one party violates the reasonable expectations of the other” to deprive him from “enjoy[ing] the fruits of the contract.” See Chokel v. Genzyme Corp., 449 Mass. 272, 276 (2007). “Eva[ding] the spirit of the bargain,” or veering from the fidelity of an “agreed common purpose” can also constitute bad faith. See Restatement (Second) of Contracts § 205 cmt. a, cmt. d (Am. Law. Inst. 2020).
Starting an aimless and endless “investigation” to find a pretext to terminate Clopper, as alleged, clearly “evades the spirit” of Harvard’s Promises. JA19–21. Notwithstanding the District Court’s one-sentence dismissal of Clopper’s conspiracy claims, ADD1 ⁋ 6, Harvard did conspire with Baystate to steal Clopper’s intellectual property to find a pretext to terminate him on; that is a fact. Part VI, infra. This unlawful “deception” is compelling prima facie evidence that Harvard did not deal with Clopper in good faith.
As multiple Harvard principals promised Clopper, “the scope of this covenant [Harvard’s free speech policy],” per Ayash, applied to his Play. Statement of the Case, Part A, supra. Clopper sought to “enjoy the fruits [of this policy],” per Chokel, by engaging in “protected speech.” Part III.B, supra. Clopper “reasonably expected” that Harvard would honor its free expression policy and glide like a swan above any resulting controversy, too noble to ruffle its feathers over a piece of performance art.
In any event, the “totality of the circumstances” strongly suggest “bad faith.” Clopper “reasonably expected” that Harvard (1) would not terminate him for being an activist in his individual capacity, as promised, Statement of the Case, Part A, supra; (2) would not through extortion try to impose last-minute contractual modifications to his contract for the Theatre, Part III.D, supra; (3) would not treat his nude art inconsistently from all other nude incidents, Id.; (4) would not try to escape its promise to protect free speech by misstating the rules of protected speech (cynically and deceptively labeling his Play as an “obscene live sex show”), Part III.B, supra; (5) would not with threats pressure his boss to terminate Clopper, and ultimately into an early grave when he refused to submit to that pressure, Part II, supra; (6) would not pressure his dean to terminate him, Introduction, supra; and (7) would not share secret information with The Crimson and claim that Harvard and The Crimson acted independently, Part V.C, infra. In summary, Clopper reasonably expected that Harvard would be true to its word and it would either do nothing or encourage rational discourse about Clopper’s message.
Had Harvard honored its word, perhaps Clopper and his community would not have suffered the sudden, violent loss of Hammond: a good man who made his last stand for his principles and for his friends. Indeed, Clopper observed his friends and former colleagues heaving with grief, as Clopper wept in Dean Doyle’s arms over their fallen brother.
This evil was “the cost” Dean Smith paid to satiate Harvard’s alumni. JA23 ⁋ 37. Or, you can believe Harvard’s fiction as the District Court does. ADD1. I.e., Dean Bob Doyle “simply sought to comply” with “the [patently unconstitutional] applicable rules against [performance] public nudity.” JA65.
A jury could conclude there was “bad faith” on Harvard’s part (Count V). To rule otherwise, especially prior to discovery, would give Harvard almost infinite leeway to breach such covenants. The District Court erroneously ruled that Plaintiff’s claims fail on the merits, without addressing the merits of those claims. ADD2.
V. The Crimson’s Headlines Depicting Clopper’s Play as a “Nude, Anti-Semitic Rant” Improperly Prepared during Work Hours are False, and Thus Give Rise to an Actionable Defamation Claim (Count VII).
To succeed on a defamation claim, a plaintiff must prove (1) the publication of a (2) false statement (3) of and concerning the plaintiff which was (4) capable of damaging his or her reputation in the community and which (5) either caused economic loss or is actionable without proof of economic loss. Stanton v. Metro, 438 F.3d 119, 124 (1st Cir. 2006). If Clopper is a public figure, to succeed on such a claim he must plead the additional element (6) of actual malice as well. Scholz v. Delp, 473 Mass. 242, 249 n.8 (2015). Plaintiff pled all six elements with specificity. JA161–168.
The Crimson argued that Clopper’s defamation claim should fail because there was no malice, JA96–98, nor falsity. JA90–96. But Clopper pled exceptional malice, JA166–168, and the District Court did not address this element. ADD3. The Crimson employed a novel legal argument to contend that its headline was true: parse the truth of a statement word by word in isolation, ignoring context: “Nude,” “Anti-Semitic,” and “Rant.” JA91–96 (“When one examines the three allegedly objectionable statements in turn [one by one, word by word], it is apparent that none of the allegedly defamatory statements rise to the level of an actionable tort.”). The District Court agreed that it is appropriate to dismiss a defamation count on the pleadings by assessing the truth of a statement “word” “by” “word,” in isolation. ADD3 (“Portions [individual words] of the third statement [“Nude, Anti-Semitic Rant”] are also demonstrably true.”) (explaining the “nude” “portion” is true in paragraph 3 and the “rant or anti-Semitic” “portions” are unactionable opinions in paragraph 4) (emphasis added).
- A Reasonable Reader Could Have Interpreted and Did Interpret the Crimson’s Headline to Mean that Clopper Went on a Naked, Anti-Semitic Rant, Which is Libelous Because He Did Not.
The District Court ruled that the allegedly libelous headline is not “reasonably capable of the defamatory meaning.” ADD3 (opining, without citation, defamation’s “threshold question [as a matter of law]” of “whether [the] communication is reasonably susceptible of a defamatory meaning,” from Stanton, 438 F.3d at 124–125). The District Court explained, “[s]tatements must be read in their context . . . and here, the context of the referenced headline indisputably dispels any defamatory interpretation.” ADD3 (emphasis added).
Despite the clear import of the headline, the lower court thus ruled The Crimson was immune to the defamation claims: “The first line of the article, after all, explicitly clarifies that ‘Harvard is ‘reviewing’ reports that University employee Eric Clopper made anti-Semitic comments and stripped to the nude during a public performance he gave in Sanders Theatre.’” ADD3 (emphasis in original). The logic is difficult to follow.
Because the Crimson stated that Clopper “made anti-Semitic comments” and that he “stripped to the nude” in the “first line,” that somehow “explicitly clarifies” that he did not go on a “nude, anti-Semitic rant”? And, furthermore, this analysis is “indisputable”?
Even if “[t]he first line of the article, after all,” somehow functioned as a disclaimer (which is doubtful), “words may be libelous . . . unless they are incapable of a defamatory meaning.” King v. Globe Newspaper Co., 400 Mass. 705, 717–718 (1987). In assessing the mere susceptibility of a defamatory meaning, “it is not dispositive that a numerical majority of its audience would arrive at a non-defamatory interpretation,” but rather whether “‘a considerable and respectable segment of the community’ would nevertheless read article as discrediting plaintiff.” Stanton, 438 F.3d at 127 (citing King, 400 Mass. at 718).
Contrary to the District Court’s conclusion, hundreds of compassionate people from Harvard’s community in fact “disputed” the veracity of these hit pieces, including Harvard’s own eminently qualified “Professor of Media & Activism” Michael Bronski. JA43 ⁋ 101(c) (“the title implies you are nude though [sic, through] the entire show, which is not true - and gives the casual reader a TOTALLY inappropriate and inflammatory description of the event.”); JA42 ⁋ 101(a) (given that hundreds of Harvard’s liberal community members gave the Play a prolonged standing ovation, it can reasonably be inferred that the Play was not a “naked, anti-Semitic rant”); JA44 (hundreds of “overwhelming critical comments” “disputing” the veracity of the Crimson’s article with thoughtful and scathing rebuttals of its false description of the event); JA159 (thousands of viewers writing Clopper as to how the Play has expanded their perspectives and “changed their lives”). Had the District Court accepted Clopper’s pleadings as true for purposes of the Motion to Dismiss, it would know of this fervent (and ongoing) “dispute,” instead of curtly asserting that Clopper’s allegations are “implausible.”
Instead of interpreting the truth of a statement “word” “by” “word” in isolation, as The Crimson suggests, without legal authority, and as the District Court ruled contrary to principles of tort law, the appropriate inquiry is whether “one reasonable interpretation of the juxtaposition of [the article’s contents]” is defamatory. Stanton, 438 F.3d at 131 (holding that placing a picture of a teenage girl next to a suggestive headline met the burden of a defamatory insinuation at the motion-to-dismiss stage). As in Stanton, if placing a picture adjacent to a suggestive headline is a close enough juxtaposition to constitute libel, then surely the juxtaposing phrase, “Nude, Anti-Semitic Rant” as a headline is “reasonably capable,” per King, of communicating to a “respectable segment of the population” that Clopper went on a naked, anti-Semitic rant.
Clopper gave a clothed, impassioned, and well-received critique of neonatal genital mutilation, and then he did a wordless, naked dance with a balloon doll (to a receptive audience). Defendant Crimson has not met its burden of showing that its headline is not susceptible to a defamatory meaning.
It is plausible that a “respectable segment” of the Harvard community read the Crimson’s headline (and only its headline), “reasonably interpreted” it as communicating that Clopper went on a naked, anti-Semitic rant, and then “discredited him for it,” as The Crimson intended. Thus, Clopper has the right to proceed to discovery on his defamation count (VII) against The Crimson.
- The Crimson Communicated that Clopper Abused Harvard’s Time and Resources to Make his Play, and Harvard Relied on These Falsities to Terminate Clopper.
Clopper alleged that the Crimson falsely accused him of wrongdoing by working on the Play occasionally at work, JA45 ⁋ 105, even though Clopper was an exempt-level employee [judged by responsibilities, not hours], ADD18, a “leading performer in every respect,” JA23 ⁋ 41, and had his manager’s permission and encouragement to do what little he did for the Play while in the office. JA13 ⁋ 12.
To dismiss this allegation, the District Court held, before any discovery or admission of evidence, that the statement that “Clopper ‘improperly worked on the play during work hours’ . . . is not reasonably capable of a defamatory meaning because it is demonstrably true.” (emphasis added.) ADD3 ⁋ 2. The District Court reasoned that the Crimson “reveals no mention of the propriety of any work he did on his play during work hours.” Id. (emphasis in original).
Again, the trial court ruled an alleged and disputed fact “demonstrably true” based solely on pleadings, based on no evidence.
In addition, the District Court ignored Plaintiff’s cited authority. Specifically, “a defendant in an action for libel is liable for what is insinuated as well as for what is explicitly stated.” See, e.g., Poland v. Post Pub. Co., 330 Mass. 701, 704 (1953); see also JA43–44 ⁋⁋ 101(c)–103 (Media Professor Bronski and others “reasonably interpreted” the Crimson’s “insinuations” to be defamatory).
So, although the Crimson’s May 4, 2018 headline “Employee Planned Show Containing Anti-Semitism, Nudity in Harvard Workplace During Work Hours,” ADD17, does not explicitly state that these were “improper work hours,” the insinuation could not be louder or clearer. Indeed, Harvard was determined to “hear” these insinuations over the many protests of Clopper’s colleagues who supported Clopper, at great risk to themselves—most notably Clopper’s sole manager Hammond—by citing Clopper’s “excessive use of resources” in his termination letter. Compare JA22–24 ⁋ 37–42, with ADD20 (Harvard [falsely] claiming it terminated Clopper for abusing Harvard’s resources.)
Whether Clopper abused Harvard’s resources to make the Play, as the Crimson published, is an unresolved question of fact. The District Court was obliged to, but did not, draw the reasonable inference in Plaintiff’s favor that the headline’s purpose was to communicate that Clopper was a malfeasant employee who flouted the rules of work and should be terminated for that reason. Because these defamatory insinuations plausibly led to his job loss, and it is an unresolved question of fact whether these defamatory insinuations were true, the defamation count (VII) against the Crimson must proceed to discovery.
- Harvard Plausibly Acted in Concert with the Crimson; Thus, the Defamation Claim (Count VII) should Proceed against Harvard, and the Conspiracy to Defame Claim (Count X) Should Proceed Against Both Defendants.
The District Court held that even if the Crimson’s statements could be attributed to Harvard, they were either true or expressed unactionable opinions. ADD1 ⁋ 5 (assessing the truth of a headline word by word, in isolation). In any event, the District Court held that Plaintiff (not given leave to amend) did not adequately allege Harvard’s malice. Id.
However, the Crimson’s statements were defamatory. Part V.A–B, supra. Also, as pled, the Crimson “reporter,” who had not seen the show, admitted on an audio recording that he had published a “one-sided story,” because “[o]ur cover[age] is mostly around the Harvard angle. Where Harvard is standing regarding your performance.” JA18 ⁋ 25. This plausibly implicates Harvard as wanting The Crimson to publish its angle, and not letting Clopper rebut the accusations. Harvard also knew who the true, secret authors of the hit pieces were. JA167. Harvard relayed this information to Hammond while it was still operating under its mistaken belief that Hammond would cooperate to pretextually terminate Clopper to save his job. Id.
Harvard points the finger at The Crimson. JA56. The Crimson points the finger at Harvard. JA18. Both claim they are “independent.” JA56, JA87. Yet, they shared secret information with one another. JA167. This must constitute the “plausibility” standard at the motion-to-dismiss stage to allow discovery to determine whether the Crimson was acting as an agent of Harvard (sustaining Count VII against Harvard), and thus sustaining the conspiracy to defame claim against both defendants (Count X).
- Because the Defamation Claim Should Proceed Against the Crimson, So Too Should the Tortious Interference with Employment Relations (Count IX)
Clopper alleges that the purpose of The Crimson’s articles was to assist Harvard in terminating him on a pretext. JA48 ⁋ 116. An actionable defamation claim is the key element— “improper means or motive”—to sustain this count. JA171-173. The Crimson argued there was no defamation. JA102. The District Court agreed, holding that this “claim fail[s] because [it] depend[s] on the viability of the nonactionable defamation claim.” ADD3 ⁋ 5. However, if after de novo review, this Court holds that the defamation claim should proceed, so too must the tortious interference with employment contract claim (Count IX).
VI. Harvard Pressured Baystate to Steal Clopper’s Intellectual Property, and This Constitutes a Tort (Count VIII) and a Conspiracy to Commit that Tort (Count X).
Clopper pled Harvard engaged in a premeditated conspiracy to steal his intellectual property (“IP”). JA49. The District Court did not accept this pleading as true and dismissed Clopper’s conspiracy claim as implausible. ADD1 (“And as to his conspiracy claim (Count X), he fails to establish the existence of an underlying tort or plead any facts supporting his conclusory allegation of any common plan or scheme.”).
However, Clopper’s claim that Harvard entered into a conspiracy to steal his IP is manifestly plausible, if not a verified fact. Harvard submitted Clopper’s stolen IP to the Court to support its bad-faith argument that his play was obscene. See generally Harvard’s Stolen Slideshow. Thus, not only can Harvard not meet its burden of showing that Clopper’s allegations are “implausible,” but Harvard has not articulated, and cannot articulate, an alternate theory as to how it came in possession of this stolen property. Harvard claims all it did is “ask” Baystate for the video, JA79, whereas Clopper persuasively alleges that Harvard threatened Baystate with its “preferred events vendor” status to steal Clopper’s IP in its desperation to find a pretext to terminate him on. JA21. If Baystate failed to comply, Harvard might rescind Baystate’s preferred vendor status and chances for lucrative contracts with Sanders Theatre performers. Id.
Plaintiff concedes that Harvard is correct: he should have pled the tort of theft of copyright instead of theft of chattel for his Tortious Conversion Claim (Count VIII), JA79, but then the District Court should have granted him leave to amend. Regardless, the specific tort is immaterial for sustaining the tort of “Conspiracy to Commit a Tort” (Count X), See Kurker v. Hill, 44 Mass. App. Ct. 184, 188–189 (1988), and beside the point.
The District Court should have construed the pleadings in the light most favorable to Plaintiff. As in the numerous other instances recounted in this appeal, it did not as to Counts VIII and X. The District Court construed the pleadings as narrowly as it could have to dismiss all his claims. See, e.g., ADD1 ⁋ 6 (dismissing Count VIII, tortious conversion, because Clopper alleged the wrong mode of theft: “plaintiff fails to allege the existence of any personal, tangible property over which Harvard exerted dominion.”) (emphasis added).
To uphold the District Court’s dismissal of Counts VIII and X would signal to large employers, like Harvard, that they are: (1) free to economically coerce smaller, dependent business into committing torts for them; (2) free to interfere with their employees’ outside contractual relations; and (3) free to enter into conspiracies to steal their employees’ outside work product. Harvard cannot be allowed to break the law with impunity.
Moreover, by brazenly stealing Clopper’s slideshow and putting it in the hands of the District Court, Harvard successfully distracted it from considering the merits of his claims and succeeded in getting it to dismiss all tort claims against Harvard as “implausible” without further discussion.
VIII. The District Court Erred in Not Applying the Proper Standard of Review on a Motion to Dismiss.
The District Court erred by not accepting pleadings as true or in the light most favorable to the Plaintiff; dismissing some claims without reasons; and asserting that Clopper’s reliance on Harvard’s Promises was unreasonable without discussion. The proper course is to evaluate the merits on further proceedings.
Perhaps the judge was offended by Clopper’s criticism of circumcision. Or perhaps he was offended by the 4-minute-long masturbation slideshow directed by Hammond that played in the background after Harvard ended the Play, which Harvard stole and submitted to the court in lieu of the entire 140-minute-long performance. However, that slideshow was not designed for the federal judiciary. It was designed for Clopper’s adult-only audience who paid Harvard to see an explicit sex play about penis functions. And the audience loved the Play. Even if Harvard, the judge, and this Court do not like the slideshow, Clopper would still have a case.
Clopper thus makes a persuasive appeal that the District Court ignored well-pled factual allegations; and dismissed claims without adequate explanation, analysis, or in some cases even discussion; and did not apply the law correctly to these genuine disputes. It is in the interest of justice that this Honorable Court allow his claims against Harvard and The Crimson to proceed.
For the foregoing reasons, Plaintiff Eric Clopper respectfully requests a remand to the District Court, so that his case can proceed to discovery and be heard on the merits.
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