Snakes on a Plane, The Cellphone Question

Now that the assumed nonsense that electronic toys will crash planes and bring death raining down on the people of Kansas is over, the next big debate will be whether people should be allowed to make calls on their cellphone. There is a safety issue, of course, because people who don’t want to listen to someone talking loudly about their cat may try to kill.

In fairness, I’m not a telephone talker. I use the phone when I must, but feel no need to chat to kill the quiet.  And I am not a fan of cellphones. I never give out my number and only turn it on if I need to make a call out. I do not take calls on my cellphone. Did I mention I don’t like cellphones?  So take what follows with a grain of salt, knowing my bias.

At Volokh Conspiracy, Ilya Somin writes about John McGinnis’ libertarian position on cellphones:

In the same week in December that the FCC voted to consider lifting its ban on cell phones for airplanes, members of Congress introduced legislation to ban calls, regardless of an inquiry into their safety. This position allows our representatives to pose as tribunes of the people’s ear. But left to their own devices, airlines have an interest in maximizing revenue by satisfying both cell phone users and devotees of peaceful glide time.

First, some airlines might permit cell phone uses and others not, giving customers a choice. Southwest, for instance, has said it will not allow phone service, regardless of its legality. Second, airlines could have quiet sections where no cell phone is permitted and sections where travelers can connect with the world outside. Even the government monopoly of Amtrak offers inspiration here with its quiet cars in several sections of the nation.

Third, airlines could use surcharges to limit phone use to those most willing to pay for it, thus preserving relative tranquility while satisfying those who really need to make calls. Unbundling communication and transportation services in this way could even lower prices for passengers who do not use their phones, continuing the process of deregulation that has helped reduce basic ticket prices by 50 percent in the past thirty years….

And social norms will surely come into play. On the commuter trains I rarely hear people speaking on the phone for any length of time. We tend to imagine an unknown future without norms, but when the future arrives there is much order without law.

McGinnis’ experiences aside, riding the LIRR, where cellphone use is unrestricted, can be a nightmare. I don’t know exactly why people chatting on cellphones talk twice as loud as they would to someone sitting next to them, but they do. And the cars are far less compressed than an airplane cabin.

But there is a point here, whether outright banning is the answer or leaving it to the marketplace to find its level.  The argument against the marketplace is that if airlines can find a way to monetize it, they will, even if other passengers despise it. And let’s face facts, no one picks a flight because we like their policies. We pick the flight that gets us where we want to go when we want to be there at the best price.

From an economic perspective, the cost of banning is the deprivation of use by those who want to make a call from a plane. The cost of not banning is the annoyance of everyone else. Since we’re talking about governmental action, rather than private choice by commercial entities, silencing people implicates their free speech and association rights.

Unlike banning cellphones while driving, which I also favor because I don’t want to die because the gal in the car next to me needs to chat, this isn’t a life or death issue, but an annoyance issue.  Is the right not to be annoyed by loud talking sufficient justification to restrict constitutional rights?  No matter how annoying it may be, that’s a very slippery slope.

Exercise of First Amendment rights is often annoying. People don’t care to hear anyone on their soapbox in Hyde Park, or on college campuses, and so constantly seek to restrict where and when they can explain why we need to stop the government from shooting gamma rays at people’s heads.  Crazy stuff? Sure, but they still have the right to say it (and it’s becoming less crazy every day).

McGinnis’ efforts to claim that the annoyance is overstated, that there are easier fixes that will minimize the problem and that experience suggests it just isn’t nearly as royal a pain as most of us think fall flat.  He doesn’t think it’s a problem? Who cares what he thinks?  My experience on the train tells me I’m going to want to strangle someone if they don’t shut up.

But annoyance, as annoying as it may be, does not suffice as a reason to prohibit the exercise of free speech.  It’s just not a compelling interest that can withstand strict scrutiny.  It kills me to think this, but annoyance is just, well, annoying. Lots of things are annoying, but we survive even if we are forced to suffer the inanity of some insipid telephone chatterer.

This doesn’t mean I don’t hope airlines don’t ban it, or make anyone who wants to talk on their cellphone sit on the wing outside the cabin while doing so, but the government can’t get in the business of banning speech that’s merely annoying, even if every other passenger but the one douche on the cellphone thinks so.

One argument McGinnis offers, that social norms will develop to shut down the loud-talker, will no doubt have the greatest potential to stem the annoyance. Except for the drunks, the selfish and narcissistic, the entitled and the grandiose, I’m sure people will conduct themselves with decorum and concern for others.  Because it works so well now.

14 comments on “Snakes on a Plane, The Cellphone Question

  1. william doriss

    Now I want, demand to hear what John Barleycorn has/is to say about this? He gets receives the LAST word.

    1. SHG Post author

      I don’t know if he does command performances, but I’m sure he will be flattered by your appreciation.

  2. jakee308

    It’s not so much that we’re being annoyed, it’s that we’re restricted from escaping the source of the annoyance and the length of forced exposure. Something we’re usually in a position to relieve in other environs.

    The train is a good example but you can still move about somewhat if you really cannot abide the chit chat.

    Airplane? Not so much.

  3. nidefatt

    Time/place/manner restrictions on the right to speak are not usually difficult to craft, I highly doubt the courts would strike down a law banning talking on a cell during a flight. This wouldn’t be an attack on a particular message. Being an obnoxious prat probably is protected by the constitution, but that doesn’t stop most states from still having and enforcing “disturbing the peace” laws or the courts from upholding them as legitimate democratic devices.

    1. SHG Post author

      Under strict scrutiny, it first requires a “compelling governmental interest.” Do you think there is a compelling right not to be annoyed? If so, I have a list of things to outlaw.

      1. Kaylei Elworth

        Time/place/manner restrictions on speech are subject to intermediate scrutiny. They must be content neutral and narrowly tailored to serve a significant (not compelling) governmental interest. Reducing noice has already been considered a significant governmental interest in other circumstances, and might be here also. I think there’s a really strong case to be made, at the least, for the constitutionality of a proposed cellphone ban on planes.

  4. Onlooker

    It comes down to how we want to deal with this and other problems in society. Do we try to find imaginative, creative solutions through cooperation and incentives, or do we just reach for the hammer of government edict.

    We’ve done the latter all too often over the years, and it’s getting quite oppressive.

  5. DanQ

    A portable “Cone of Silence” is (of course) the correct marketplace response. They can be sold next to the trendy headphone kiosks, have a designer model with a neck-line drawstring and possibly function as an in-flight hair dryer. I finally have an exit strategy.

    1. Turk

      You call it a portable cone of silence, I call it a phone booth. We had phone booths for a reason. Then we knocked them all down, perhaps not truly appreciating why they were constructed to begin with.

      And this would be a good spot to link to your other post on Chesterston’s Fence.

      Here’s a thought: An enterprising airline may try to install a phone booth on the plane from which you can make calls. For a fee, of course, to replace the income from the seat(s) that were there.

        1. Turk

          You were writing about congressional action, so what is this nonsense about “viable ideas?”

          By the way, the geese fly high…now answer me Mr. SmartyPants without looking up the rejoinder…

Comments are closed.