Thomas Curtin ’11, a first-year associate in the Financial Restructuring Group at Cadwalader, Wickersham & Taft LLP, was named a National Finalist in the Constance Baker Motley National Student Writing Competition run by the American Constitution Society (ACS) and the University of Pennsylvania. The competition honors the legacy of civil rights leader Constance Baker Motley, whose pioneering career included such achievements as being the first African American woman to serve as a federal district judge and the first African American woman elected to the New York State Senate.
Curtin’s article, “Online Hookup Speech and Employer Hang-Ups: The Pickering-Connick Doctrine and Online Hookup Web sites,” explores the issue of whether an individual can and should be fired for off-duty sexual speech on the Internet, specifically for sexually explicit and deviant language on gay “hookup” websites. “On the one hand,” he writes in his piece, “individuals have a right to freedom of speech—but that right is not absolute, especially when balanced against the interests of employers.”
He argues that speech on hookup websites is a matter of public concern, because these websites serve as an important conduit for gay men to come out of the closet and to express themselves. However, pursuant to the Pickering-Connick balancing test for employees’ First Amendment rights, an employer has the right to terminate an employee for his speech based on a wide variety of reasons, including a negative public reaction to an employee’s off-duty statement.
His article maintains that the Pickering-Connick balancing test is not a good fit for unrelated speech on the Internet. Furthermore, he contends that the reliance on public perception of an employee’s statement as a determinative factor in the Pickering-Connick analysis constitutes a deference to the heckler’s veto; such deference is unconstitutional. He concludes that this doctrine should not apply to gay hookup web sites, as it will inhibit “out” speech that is completely unrelated to an individual’s employment.
As an alternative to the modern doctrine, Curtin’s piece argues that an employee’s speech must be directly related to his employment for the balancing test to apply. Furthermore, in situations where the Pickering-Connick analysis does apply, the balancing test must be employed in a manner that does not defer to the heckler’s veto.
Curtin has written about legal issues and the Internet before. He was the Notes and Comments Editor of the Journal of Law and Policy, where his note, “The Name Game: Cybersquatting on Social Media Websites,” was published (19 J.L. & POL’Y 353 (2010)).
“I feel honored to have received this recognition from the American Constitution Society, along with students from top-ranked law schools, including Stanford, Berkley, and Boston University,” said Curtin. “Professor Bill Araiza’s guidance on this topic was especially helpful. He encouraged me to pursue this novel and important issue, and for that I am very grateful.”