Judge dismisses lawsuit over way Harvard cut short a diatribe about Jewish circumcision; issue wasn't antisemitism, but guy's onstage nudity

A federal judge ruled yesterday that Harvard University was within its rights to turn up the lights in Sanders Theater and end an employee's performance while he was nude and having intercourse with a sex doll on stage and a video played showing him ejaculating in the doll's mouth, all somehow connected to his argument that Jewish circumcision is evil.

US District Court Judge Richard Stearns ruled that Eric Clopper, at the time a Harvard IT worker who had rented the theater for a night, had no case: Harvard didn't interfere with his First Amendment rights because it was not acting on behalf of any government entity to end his performance before he could deliver his "final message" and he showed no proof that Harvard and the Harvard Crimson, which wrote about the case, had engaged in any sort of conspiracy, let alone one controlled by the Jews, to squelch him.

Harvard's subsequent decision to fire him - which meant he could no longer get into a Harvard IT graduate program - was also legal because he had an "at will" contract, which meant the school could fire him over the performance, during which he threw dollar bills at the audience and yelled that the Jews "can keep their money."

Stearns wrote he agreed with Harvard the issue was not Clopper's feelings about circumcision and the Jews - Clopper claims he wasn't being antisemitic because he's a Jew himself - so much as it was his decision to disregard theater management's warnings about nudity and show up on stage naked towards the end of his two-hour diatribe about the religious practice.

Even assuming arguendo that plaintiff's nude performance is entitled to some measure of protection under the First Amendment (which the court doubts), plaintiff nonetheless has failed to state a claim for relief under federal or state law. The Complaint does not, for example, allege that Harvard acted under color of state law, as required by the Federal Civil Rights Act, 42 U.S.C. s. 1983; nor does it plausibly suggest that Harvard used threats, intimidation, or coercion to achieve any alleged interference with his rights, as required by the Massachusetts Civil Rights Act, M.G.L. ch. 12, ss. 11H, 11I.

The court also dismisses plaintiff's contract-based claims ... Plaintiff does not identify any provision in the Sanders Theatre contract entitling him to perform nude. Indeed, he appears to concede that the Sanders Theatre contract contains a provision expressly prohibiting nudity in performances. He also does not explain how his termination, even if premised on the content of his performance, breached any employment agreement with the university. Plaintiff, after all, was an at-will employee and, subject to certain exceptions which plaintiff does not assert here, could be terminated at any time "for almost any reason or for no reason at all." See Jackson v. Action for Bos. Cmty. Dev., Inc., 403 Mass. 8, 9 (1988).

In its explanation for seeking dismissal, Harvard said Sanders Theatre management was only seeking to comply with a Cambridge city ordinance banning nude performances. Harvard said managers felt compelled to warn Clopper before the performance after seeing he had produced a poster advertising the show that included a photo of him naked, but with a "censor bar" covering his genitals, and after learning he had advertised the play by having people walked around Harvard Yard in "inflatable penis costumes."

Harvard claimed Clopper had said before the show that he would abide by the ban.

As part of its arguments, Harvard submitted video of the performance to the court. However, Stearns agreed with the school to seal the submission from the public because, as Harvard argued, "the video files contain nudity and potentially obscene matter that are not appropriate for filing on the public docket."

Stearns did not dismiss Clopper's suit against the Crimson; Clopper has until Oct. 26 to argue against the paper's motion to have his case against it thrown out as well.