Robert Guest, who Was The State, has taken up arms against a proposal to ban the use of cellphones will driving near schools in Dallas. And he is steaming. He writes, “Her column fails to recognize that this law is a waste of criminal justice resources and an affront to privacy, liberty, and freedom.”
In a second post, coming quickly on the heels of his first, Robert goes the 1st Amendment route to attack the proposed ban. While I generally find myself in agreement with the positions taken by Robert, he must be one huge cellphone user because he’s gone blind on this one.
First, there is no longer any question that cellphone use while driving is as bad as, if not worse, than drunk driving. It is not merely benign conduct, but conduct that has the potential to kill. Worse yet, it lacks the moral stigma of drunk driving, so that ordinary law-abiding people wouldn’t think twice about chatting away on the cellphone while behind the wheel. It doesn’t make you a bad person.
For some, the point can be quickly driven home on a policy basis by noting that there is no conversation that someone needs to have so desperately that is worth the life of my child. Until recently, society survived without cellphones. We were not on the verge of crumbling for lack of an opportunity to chat with a friend, or even a client. Are cellphones convenient? Absolutely. Are they worth taking a life? No.
But this effort to wrap this up in a 1st Amendment right is misplaced. The restriction is not about the frequency or content of cellphone communications. This is a limitation on driving a vehicle while engaging in unsafe conduct. Driving a car is a privilege, not a right. Being able to communicate is a right, but not while enjoying the privilege of driving.
You need to talk to someone immediately? So pull over and talk all you want. Talk till your blue in the face. Just don’t do it while driving a car. No one is taking away your right to talk. They are taking away your privilege of driving while you talk on the cellphone.
Anecdotally, I’ve had about 100 near misses driving around people with a cellphone glued to their ear. And this is New York, where it has been unlawful to do so for a while already. It’s another law observed primarily in the breach, with a substantial number of otherwise nice people breaking the law without a second thought.
Now I’m a very defensive driver, primarily because I don’t trust other people with the ability to kill me. And I’ve managed to escape unscathed from my close calls with cellphone drivers. Others have not. Whether it’s one or a million doesn’t strike me as terribly relevant, since the trade off is non-existent. There is simply nothing anyone has to say on a cellphone that is worth someone else’s life. Not even one life.
Usually, when the cellphone driver has the near-miss, they give you “the wave.” That’s the sign that they are sorry to have come so close to killing you, as if that would mean a lot to your children at your funeral. But even as they wave, the cellphone remains glued to their ear. The risk remains. Their focus is on their critically important phone call. Their focus is not on the road.
I am all for liberty and freedom. There are issues worth fighting for, and even dying for. But the “right” to chat at any moment doesn’t even come close to making the list. There is no 1st Amendment right at stake in laws prohibiting the use of cellphones while driving, since cars have breaks as well as accelerators. And there is no trade-off between the life of a human being and the convenience of using a cellphone whenever you darn well please. If there is any problem with the proposed Dallas ban, it doesn’t go nearly far enough.
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Our disagreement begins with our view of victimless crime. You accept the premise we need more laws to protect “public safety”. I believe we need more freedom to protect us from government.
Adults should have the right to drive. No other activity, beyond attending public school, has led to the loss of privacy and freedom than driving. From pretext stops to implied consent to drug searches- the idea that driving is somehow a “privilege” is an idea that needs to be reconsidered. If driving is a privilege, then taxes that pay for public roads should be optional.
What are the odds of any phone call in a car leading to an accident?
Should that percentage be the government “public safety” threshold for passing new safety laws? What other behavior is as deadly as cell phone use? Using the radio, driving at night, driving without enough sleep. Let’s have a law for each.
Public safety is not an idol to be worshipped. It is an weak argument used to silence opposition.
My first amendment question is-
Since the government allows some cell phone speech- calls to police, 911, call to report or avoid an accident- but not any other- is that a first amendment issue?
I don’t know the answer. That’s why I put the question out.
To the contrary, I don’t support “more laws,” I support this law. To compare it to listening to the radio or driving at night is silly. Driving while using a cellphone has been empirically proven to be as much, if not more, of a threat than driving drunk. While I agree with you about the unduly harsh treatment of drunk driving, I know that neither you nor I advocate people driving drunk.
You ask, “What are the odds of any phone call in a car leading to an accident?” I ask, what telephone call have you ever made or received that is worth the lives of my children?
To your 1st Amendment question, my guess is that the exceptions are justified by a tipping of the scales based upon an immediate threat of harm or need for emergtency assistance, if one uses a 1st Amendment strict scrutiny standard. A legitimate but inchoate threat to safety is trumped by the actual occurrence of harm or emergency. I don’t see a problem here.
“I ask, what telephone call have you ever made or received that is worth the lives of my children?”
Why do you ask such hyperbolic questions? You ignore the reality- Millions of phone calls are made daily, and no one is injured. Phoning and driving is one of the safest things you can do.
Nanny Statists often appeal for the public to “think about the children”. It is a cheap fear based argument to stifle dissent.
Freedom to be left alone in your car and speak with whom you want, is more important that protecting “the children” from the threat of cell phone using drivers.
While I am unsure on the merits of the cell phone law issue, I would point out a major difference between cell phone use and being drunk.
You can hang up a cell phone; you can’t sober up by an act of will.
I have used a cell phone while driving, often to say things like “I’m going to be late, because traffic on I-90 is moving at about 2 mph.” I don’t really need to focus on driving when I’m standing still in gridlock. Then, if things start moving again, I can hang up and focus on driving.
Robert, this statement (besides being hyperbolic) is simply wrong. By making an arguing that is, and has been proven to be, factually false, your position evaporates. The balance of your arguments are generic, having no application in this instance because your baseline point relies on a totally false assumption.
This is a reason why we don’t look for anecdotal evidence from college kids in support of driving laws. Do you see a breadth of experience deficit in your thoughts? Is that one instance indicative of the totality of experience?
By the way, no college kid I’ve ever met thinks they will cause anyone harm. Until it happens. Fortunately, it doesn’t happen to most.
Let’s focus on my assertion- Driving and Phoning is safe.
Can you tell me what the ratio is of phone calls while driving to accidents?
At that ratio/percentage, how is it not safe?
Finally, assume my premise is wrong. Why are you advocating the police to enforce public safety laws? The same arguments are what keep marijuana illegal. It’s the same logic. If we give up small freedom X, we could be just a little safer.
I don’t need a government that promises to keep me free from accidents. Only a tyrant could or would propose such a thing.
Let’s focus on my assertion- Driving and Phoning is safe.
Sorry, but I’ve given you the University of Utah study proving this is a false assertion. In contrast, you’ve made a bald, groundless assertion. Start with the proven fact, not groundless assertions.
Can you tell me what the ratio is of phone calls while driving to accidents?
The ratio is not the point, and this is a red herring argument. If 20,000 people die or are injured annually from automobile accidents that are cause by cellphone use while driving, those are 20,000 absolutely needless deaths. There is no countervailing need to talk on a cellphone while driving.
At that ratio/percentage, how is it not safe?
I’m disappointed in your trying this route. Killing and maiming people for no reason does not make it “safe” because it doesn’t happen to everyone.
Finally, assume my premise is wrong. Why are you advocating the police to enforce public safety laws? The same arguments are what keep marijuana illegal. It’s the same logic. If we give up small freedom X, we could be just a little safer.
This is a better question. By this logic, there would be no law at all. I am against the use of law where the threat is not real, outweighed by the societal benefit of the freedom to engage in the conduct, where the right to engage in the conduct is fundamental (and this most definitely is not), used as political paliative or outweighed by the societal detriment suffered by prohibiting the conduct. None of these things are present in this situation. Here, the risk of death or serious physical injury is very real. The need to chat with a friend on the phone while driving is negligible. The two are not even comparable, no less close.
I don’t need a government that promises to keep me free from accidents. Only a tyrant could or would propose such a thing.
I need a government that keeps you from killing me or my family by engaging in conduct that is dangerous to me, needless to you, and simply something that you would prefer to do rather than not. That goes to a core reason for government to exist. Government can, and often does, overreach. Just not this time.
You miss the main point of my post.
Because people can stop talking on a cell-phone, the impairment can be stopped if the driving situation requires their full attention.
Further, a drunk driver will certainly be drunk for the entire time s/he’s driving. A cell phone call usually impairs the driver for a shorter time.
Now, people tend to overestimate their skill, so they will still drive like idiots with their cell phones. But it’s certainly better than driving drunk.
Oh, and we shouldn’t seek anecdotal evidence from New York lawyers either. The reason I might support a cell phone law is that actual tests show impairment in driving skill while talking on a cell phone, rather than because some idiot almost killed you.
On balance, I don’t mind laws, like most of those that exist, that treat it as a ticketable offense, like speeding. I’d be more skeptical of making it on par with DWI/DUI.
I was trying to be gentle with you. So here’s my next attempt. First, in the text of the post, you will see reference made to the University of Utah study finding cellphone use to be as dangerous, if not more, than drunk driving. My anecedotes add to and are consistent with the empirical study. They are not in lieu of it. Moreover, whether you or I approve of it is irrelevant. The study shows what it shows. That’s the point of studies.
Second, are you aware of a device in vehicles that alert the driver that he will be the cause of crash ten second in the future? If there were such a device, it would enable the cellphone user to close the phone, focus on the road and avoid the crash. This would make the ability to turn off the cellphone relevant. I’m not aware of any such device.
Third, cellphone users are not always involved in accidents, but the cause of other people having accidents as a result of weaving, heavy braking, etc. Even if they were to be able to shut off their cellphone and protect themselves, this would not help people in other vehicles who crashed as a result of the cellphone users conduct.
And finally, cellphone use is a traffic infraction in New York (neither a misdemeanor nor felony, as DWI can potentially be). There is a fine for such use. No criminal record, no jail. Robert’s point is the ban, not the penalty. If there’s no ban, there’s no penalty.
I want to see a study that compares cell phone distraction to coffee and radio distraction.
need a government that keeps you from killing me or my family by engaging in conduct that is dangerous to me, needless to you, and simply something that you would prefer to do rather than not.
Calling this conduct “needless” is subjectivity. Personal opinion should not guide law enforcement.
Are you really in such fear of the public? Our Constitution did not promise to keep you free from worry, or accidents.
Public Safety is a incidious positive right because there is no regard for freedom. Public safety busybodies are constantly banning things that pose the most remote risk of danger.
Let’s assume the accident/phone call ratio is (example) 1 in 10 million. If that is your risk/freedom ratio, then many other benign activities would have to be banned. Guns would need to be outlawed first, then probably cars altogether.
By public safety logic the War in Iraq/Patriot Act (keeping your family safe from terror), War on Drugs (keeping you safe from drug users), are great policies.
To accept freedom is to accept that accidents will happen.
And I completely support your doing such a study.
So we’ve finally reached the point of complete silliness? You have no right to drive at all. You have no right to drive in a manner that endangers anyone. And your going to try to argue that the need to chat on the phone is worth someone else’s life. That’s insane.
Why do you persist in suggesting that the need to chat on a cellphone while driving is comparable to the War in Iraq, Patriot Act, etc. Do you realize how ridiculous this is?
I asked a question earlier, which you totally avoided. What telephone call is so critical that it worth someone dying for? You can’t. You just go down the generic dribble argument. And you still can’t explain how your theory doesn’t mean that there should be no laws at all, since every law inhibits freedom in some respect.
First, you cite an news post, which cites an article. The news post description of the article only claims that driving skills are affected by talking on a cell phone. The abstract of the article apparently states that some people are less able to judge correctly whether it is safe to answer a cell phone. Which in fact supports my objection: people can and do evaluate the road situation to determine if answering (and presumable continuing to use) their cell phone is safe. Some people do it more effectively than others; some people drive more safely than others in general. It still represents an important difference between cell phone use and intoxication.
Second, while such a device would be useful, it is hardly a requirement for people to judge road conditions. Driving in heavy traffic, on ice, fast etc. are all more difficult than being alone on a dry road moving slowly. Making certain manuevers (passing, turning etc) is more difficult than driving straight. A cell phone user can choose to turn off their cell phone if conditions become dangerous or they need to make a (foreseeable) manuever. A drunk driver cannot sober up under those circumstances.
Third, bad driving can, indeed, cause other people to have accidents. A drunk driver can do the same thing, if their slowed reactions require them to make a sudden manuever. The difference is, a cell phone user can avoid using their cell phone in situations where a fast reaction is needed. Yes, a last minute reaction can be a problem. But the reactions need not be last minute.
For an extreme example, a person could use their phone while stopped at a red light, then hang up when it turns green. I suspect the increased risk is practically nill. I am aware that many people don’t use their phones this way, but the law is a blunt instrument, and the harm to benefit must be wieghed against the harm to legitimate users.
Finally, the reason I commentted, when I don’t mind the law, is that people often compare cell phone use to intoxication based on the degree on impairment, not considering other differences between them.
“And your going to try to argue that the need to chat on the phone is worth someone else’s life.”
I have never made that argument. You are the one who equates death and phone calls. I don’t. The danger is so small, so remote, that it does not require a new set of laws. If every time I answered the phone someone died, I probably would quit. However, just because activity carries some degree of risk, does not mean it should be banned.
Your important question- If I was going to answer the phone, and someone was going to die, I wouldn’t answer. However, like most people, I can use the phone safely. I am not in need of police supervision to keep you safe.
“Why do you persist in suggesting that the need to chat on a cellphone while driving is comparable to the War in Iraq, Patriot Act, etc. Do you realize how ridiculous this is?”
I am glad you agree with my point. Your justification for laws (keeping your family safe), is the same as other failed policies. I can not see how you miss the obvious. Positive rights lead to tyranny. You actually proved my point.
Your fear about children dying is the same fear that keeps drugs illegal, and the same fear that NeoCons use to lead us to war.
The article links to the study, Gregory. Your characterization of the study (and the article) is mistaken.
As for the rest of it, you don’t show much awareness of reality when people drive. Yes, it is true that if each and every driver were to instananeously stop using the cellphone when they see themselves entering into a situation that could present a risk, it would have a substantial reduction in the degree of risk. Do you think that this is what happens? The reasons states have passed laws against driving while using a cellphone is because people do not drive that way. They drive, they chat and they don’t stop chatting until they’re done.
The comparison of cellphone use to intoxication is for the purpose of demonstrating degree of impairment, not to say they are the same thing. Sometimes you argue for arguments sake, and persist despite having no reason to continue.
Here are some numbers from the study. These relate solely to fatalities caused by cellphones, not mere injuries.
Now if that’s what you think is benign and safe, then I can’t argue. I disagree, and think that more than 5% of all driving fatalities is huge, particularly since they died so somebody could chat on the cellphone. This isn’t a joke designed to deny you your constitutional right to chat on the phone because only a few thousand people will die as a result.
Unless you can connect your overbroad semantic points to something of substance, there isn’t much more to discuss.
You think this is a victimless crime. I think dead people constitute victims.
You think the likelihood of harm is so small as to make this pointlessly repressive. I think the likelihood of harm is substantial and have studies to support my position.
You think the this is no different than the Iraq War/Patriot Act, where fear is used to impair liberty. I see no similarity whatsoever. This involves an actual problem and real harm.
You have an unexplained but extremely crucial need to chat on the cellphone while driving. I have an extremely crucial need not to be killed by people chatting on the cellphone while driving.
I think that pretty much sums it all up.
Looking back, I seem to be making an absurd amount of noise about a trivial point.
I leave it as: I concur that this is not a 1st Amendment issue. I concur that talking on a cell phone while driving is dangerous. I concur that people can be idiots, even when they don’t have to be. And, as this argument proves, I am not immune to this.
To the contrary, you always bring thoughtful and provocative ideas to your comments, and I always appreciate hearing from you. You are going to be one scary good lawyer someday. I just hope you’re on the side of truth and justice.
You think I’ve got nothing better to do? Assign it to one of your 1L students, Professor Vader-Greenfield.
Good summary. I think we can leave those original questions as asked and answered.
Things I didn’t mention-
1. Opportunity Costs- Every officer writing cell phone tickets is not solving/preventing murder/robbery etc.
2. Pre Text Stops- Texas allows arrest for almost all traffic violation. Cell Phone tickets will become the new “defective license plate light”.
3. Research based public safety laws. MADD promised .08 would safe thousands of lives, it didn’t. Safety advocates argued raising the speed limit would kill us all, it didn’t. I take all these “studies” with a grain of salt.
I agree with you about everything, except as to the cellphones. I guess we’ll have to leave it at that. Thanks for debate.
Trying to control the use of cell phones while driving is inherently wrong.
1. It is impossible to take someone’s right to talk. After all this is what we are doing when using a cell phone. No different than having a conversation with another occupant.
2. I do agree however that people are breaking the law when they do not have two hands on the wheel while driving.
Short version. Stop trying to make new laws that only further inflict a big-brother like government entity on us. Just enforce the laws we already have. This way we can blame being cut-off in traffic on the idiot DRIVER and not the helpless cellphone.
It appears from the abstract that the Utah study focuses on SEVERAL distractions, not just cell phones. Putting on Make-up, “picking a good one,” fumbling for a CD or with an Mp3/DVD player, and children throwing cheerios in the back seat can all be “distractions.” In fact, there are an infinite amount of specific distractions while driving. SHG, are you in support of a law that eventually bans ALL distractions? And should even these current laws differentiate between texting, reading, talking and “walkie-talkie” type communications. What about CB radios? The point is these laws are the beginning of a very slippery slope. It is stupid to suddenly turn normally law abiding citizens into outlaws “for the sake of the children.” These laws could easily be enhanced to ban cell phones in other areas where drivers are supposed to be vigil such as, in front of a fire station, hospital, all 20mph zones, residential areas, highway ramps, 30mph zones, 40mph zones, etc…. Do we ban cell phones altogether in cars? Where is the line? And who says people are just “chatting” on the phone while in the car. As a doctor, I often have to answer the phone and make health decisions that, although may not be emergencies, are important to my patients’ health and my business.
What’s interesting about the entirety of the slippery slope arguments is that these laws have been in force for quite a while in other parts of the country without any slippery slope at all. Those states that have the law in place (and most are far more restrictive than Texas) have very real savings. What nobody wants to acknowledge is that thousands of accidents are caused by cellphone use while driving, and they would rather try to nitpick the studies than acknowledge what most of the country accepts as a basic reality. It is a real problem.
You get to your point, that you use your cellphone while driving and hence don’t want a law that interferes with your use. The law allows hands-free use. You can always pull to the side for that rare telephone medical emergency. As for you business interested, sorry but no sympathy. How did we EVER survive without cellphones?
You do realize how silly it all sounds when put in perspective of the fact that mankinds survived quite well without cellphones, and now it’s as if we’ve denied you air to breath.
What I don’t understand is why we need a law that adresses a specific distraction when there are allready laws that cover what a person does with their car regardless of the distration. If someone is driving recklessly through a schoolzone, arrest or cite them for wreckless driving, speeding, unlawful display of acceleration, driving through a crosswalk, illegal lane change, no blinker etc. There is no need for a “Cell Phone Law” any more than a “Pick your nose and look at it Law” which is just as common a distraction. And what of the pedestrians responsibility in all this? Are there not crosswalks they are to be only crossing. What if they are on a cell phone and not looking for oncoming traffic outside a crosswalk? Isn’t there responsubilty to the parent and school to instruct children/pedestrians/people on traffic safety. I want as little laws as possible that interferes with my free speech or quality of life and clearly this law is not necessary. There are allready enough laws that deal with the consequences of whatever one can do in an automobile with or without a cellphone. Enforce these penny ante laws if you want but don’t keep adding more that are ridiculous or will never be enforced.
Technology will always progress we seek to make our lives richer. It is import to me to communicate with others in my life and cell phones do the job. Mankind has survived quite well without Cancer treatment too but many have a richer, fuller life because of it.
It is import to me to communicate with others in my life and cell phones do the job.
It’s important to others to be able to go out after work, down a few cold ones till they got a good buzz going, and then go home. Everybody has the stuff that they personally like. Not every drunk driver kills someone. So if you get to use your cellphone because it’s important to you, does the drunk get to drive because it’s important to him? Same impact on the road.
Mankind has survived quite well without Cancer treatment too but many have a richer, fuller life because of it.
You didn’t really write this, did you? No, they didn’t survive too well. They were dying. Cancer will do that.
C’mon, if you’re a real doc, then you should get this: Be honest and say, I like using my cellphone and so I don’t like this law. Personally, I don’t like using seat belts. I grew up long before they were required, and my not wearing a seatbelt shouldn’t be anybody’s business but my own. Unless I get hit, crippled and society has to pay my expenses for the rest of my life. I think it sucks. But I do it. And it really didn’t turn out to be a big deal at all.
I am a doc and honestly, I hate talking on the cellphone. I find it disrupting and I do not concentrate on the road as well. Driving time is my little fortress of solitude in life. I do however, enjoy coffee, switching music and secretly, even a little pick and grin, all likely to cause the same distraction. Here in Texas i find the big haired lady on her cell phone while driving very annoying. Just as annoying as putting on make up or any type of grooming. But we really don’t need a law to regulate all that. Once again there are allready laws that cover any type of reckless or irresponsible driving. Enforce those and there is no need to pass a law for every type of human behvior that is not based on common sense. I am in agreement with you on the seat belt too and would even say they cause more bodily injury and medical expenses in “non life threating” accidents. But that is another argument. Society paying for expenses? Do you really want to open the healthcare Pandora’s box argument on that?
Too much info on the P&C. Laws like the cellphone laws are palliative; They aren’t intended as another excuse to give you a ticket, but as a way of stopping a behavior that is a known problem.
Since I hate cellphones (I’m not all that thrilled with any phones, but I really hate cellphones), and I’ve experienced many near disasters with people driving while on the phone (but that’s just anecdotal, so it doesn’t count for other people), I love this law. It’s been the law in New York for a few years, and is roundly ignored. In the meantime, the mommies in SUVs have the phone glued to their ears, slowing down on highways and weaving in and out of lanes. As the just barely miss hitting a car in another lane, they wave and make this stupid smile, acknowledging that they almost killed someobody and they kinda feel badly about it. But not bad enough to get off the phone.
And no, I don’t want to disuss seat belts next. I still would be just as happy without them.
Ahhh. Paliative laws. Perhaps their intent is noble but in reality, “palliative” laws are a brick in the path to tyranny. They sure feel good but don’t do a damn thing if they are never enforced. I would suspect in New York (just as in L.A. where i’ve spent allot of time) they never will be, unless a cop just wants to tack it on because someone is being an A-Hole. But there in lies the problem. DWI’s/DUI’s are good palliative traffic laws with the most noble of intents, but, (big but)they are now currently being abused and twisted by overzealous DA’s in small towns to forcibly extract blood at roadblocks with a ‘friendly’ Judges warrant. People who refuse these blood draws are getting tasered and strapped to a chair by POLICE and getting their blood sucked out of them. WTF?!?!? http://www.dallascriminaldefenselawyerblog.com/2008/03/texas_dwi_blood_draw_warrants_1.html
I would submit there is allready an answer in laws that are currently on the books to any Public Safety concerns that a cell phone may cause.
There have always been “issues” with abuse of law by police, but that’s not a problem with the law, it’s a problem with the cops. Keeping the cops honest will always be a struggle, regardless of what laws are enacted. This problem existed before any of these laws, and will continue despite these laws. We must always be vigilant of abuse by law enforcement regardless of the state of the law.
Driving with Cellphones, The Anti View
When I posted a while back about the Texas foray into its unbearably inconsequential limitations on
hand-held cellphone use while driving through a school zone, you would have thought I had advocated the castration of all males of child-bearing age.