Reckless Legislating

September 2001 -- On June 28, New York became the first state to pass a ban on using a handheld cell-phone while driving. Governor George Pataki, who had earlier issued an executive order banning state employees from using state-issued handheld cell phones while driving, quickly signed the bill into law. As of December 1, a motorist caught using a cell-phone while driving in New York State will be fined $100.

Governor Pataki justified the law by characterizing drivers' use of cell-phones as "an enormous threat to public safety." On the talk-radio circuit, listeners and hosts joined in the chorus by complaining about swerving drivers and near-miss accidents. Some forty other states and many more local communities are considering bans on using cell phones while driving. And on Capitol Hill, the U.S. Congress held hearings on the issue. Only Rhode Island Governor Lincoln Almond has had the courage to buck this trend and veto his legislature's attempt to ban the use of cell phones while driving.

Safety or Politics

What should we make of the claim that this is all about inconsiderate drivers endangering other people? Certainly, that is what politicians say when they take up these bills: They are only trying to protect people and keep them safe from harm. They are only exercising the government's power to secure public health and safety.

Public health and safety are important goals, and the government has some legitimate role to play in these areas, albeit a small one. But this is not an issue of safety and public health.

If it were, then we would also be hearing about proposed bans on listening to music, talking with fellow passengers, and eating while driving. Recent studies by the National Highway Safety Administration and the University of North Carolina (UNC) Highway Safety Research Center indicate that these factors are much more likely to cause distractions — and hence accidents. According to the UNC study, using a cell-phone distracted drivers in accidents only about 1.5 percent of the time, while adjusting the radio was at fault 11.4 percent of the time and being distracted by another occupant in the car was a cause 10.9 percent of time. So, if legislators calling for a ban on cell-phones were truly concerned about safety and the public health, they would be setting their sights on taking radios out of cars. After all, among drivers involved in accidents, adjusting the radio is 750 percent more likely to be the distracting factor than using a cell phone.

Why don't we see Gov. Pataki and other politicians seeking a ban such activities? It's because there are no polls indicating that 87 percent of New Yorkers want to ban car radios, but there are such polls showing a desire to ban on cell-phone calls in cars. In short, this is all about politics, not safety.

Cell-phones make an easy and popular political target, because people tend not to trust new technologies and because cell-phones are symbols of the elite. When a new technology begins to emerge, it is often viewed as dangerous or risky. Either the technology is itself viewed as dangerous, as in the case of nuclear power, or people fear that others will misuse the technology in dangerous ways, as with the Internet and cell-phones. Of course, for most technophobes, both reasons play a role in their dislike of the new technology. For instance, nuclear power is viewed not as only inherently dangerous, but also as something easily misused.

Consumer cell-phone technology is relatively new—about twenty-five years old—and until the mid-nineties it was not widely available. Like most new technologies, it is held to higher standards than older technologies and is seen as more easily misused and abused by its users. That is why people are not out to ban car radios, even though the studies show that these cause more driver distraction. As an older technology, we are comfortable with car radios and are familiar with their use. We take it for granted that we know how to deal with this technology and use it responsibly. Because cell phones are still relatively new and unfamiliar to us, we quickly blame them for problems that appear to be related to its use.

Also, although their use has become widespread (with almost 100 million subscribers), cell phones are still seen as the tools of stockbrokers and corporate executives, not of the working man. And using a cell phone while driving is an implicit assertion that one's time is highly valuable. All of these perceptions make the cell phone a great target for populist politicians looking to score points with the working class.

Safety and the Law

But suppose we set aside motives of technophobia and envy and confront the real though minor danger that arises from using a cell-phone while driving. The statistics cited above indicate that most drivers are careful and attentive, for their own sakes as well as for the sake of others. But what about the few who are not? How do we deal with the oblivious fellow who is swerving between two lanes while chatting away to his friend on the cell phone?

We deal with him in the same way we deal with the oblivious fellow who is swerving between two lanes for any other reason. Most states already have laws punishing reckless driving. So, if a person is driving carelessly because he is chatting on a cell phone, he can and should get a ticket. Passing a new law banning cell-phone use while driving is redundant.

In fact, it is far worse than redundant. Laws against reckless driving protect people's rights, which is what laws are supposed to do. Laws against using cell-phones are a form of prohibitionism, curbing everyone's rights because a few people might abuse those rights. Yes, talking on the cell phone can be distracting; so can tuning the radio or talking to a passenger; so can daydreaming. That is why a person must take responsibility for staying attentive to his driving. But it is not the job of the law to make it impossible for people to abuse their freedom; the law's job is only to punish those who do abuse it.

Self-Responsibility

That is the libertarian's case against attempts to ban cell phones: they violate individual rights and punish people who have done nothing wrong. Politically, I have suggested, the ban has roots in technophobia and envy. But these bans could not garner 87 percent support in the polls without the acquiescence of cell-phone users themselves; at a 100 million strong they constitute too large a percentage of the population. And so we must ask: Why would cell-phone users support prohibitions on their own activities, as 85 percent of them do? The answer is moral and cultural: Americans have come to feel grateful when they are relieved of responsibility for their lives and actions.

When people are seeking someone to provide a professional service, do they want to survey knowledgeable authorities and choose the professional with the best reputation? No, they would rather have the government license all professionals. When planning for their old age, do Americans want to set aside a percentage of their paycheck and put the money into good, longtime investments? No, they would rather have Social Security take as much as it wants and guarantee them a pension. When shopping for toys, do Americans want to consider their children's ages and degree of maturity? No, they would rather have the Consumer Product Safety Commission ban every toy that could conceivably be used to cause harm. And if they do manage to perform a risky action, Americans want somebody, preferably somebody very rich, to compensate them for any unwanted outcomes. Under these circumstances, it is no wonder that a legislative ban on cell phones draws support even from those who use them.

And this is deepest case against the cell-phone ban. It is incompatible with our status as adults. Genuine adults have the rational capacity to make their own choices, to act on those choices, and to take responsibility for the consequences of their actions. Indeed, that is what it means to be an adult. Children (to a degree that varies with age) do not have the rational capacity to make their own choices, and consequently they are not free to act as they wish nor responsible for the consequences of acting as their parents dictate. Liberty and responsibility go together.

The same is true in the political arena. If we default on self-responsibility, if we can no longer grasp what it would be like to take responsibility for our lives, then we must turn to some "parent" or "guardian" who will take responsibility for us. And as in real parent-child relations, this political parent will necessarily seek to make our choices and control our actions—because he is the one responsible for the consequences of those choices and actions. Nor will people object to his taking control. Not knowing how to behave without being told, people will positively clamor for laws that tell them. And the power-hungry politician will gladly comply.

Thus by the abrogation of our responsibility have we given up our freedom. We have become a nation of children, looking to the government to be our parent. It is precisely the fate that Alexis de Tocqueville foretold 160 years ago, when he described the sort of tyranny that Americans had to fear: "It would be like the authority of a parent if, like that authority, its object was to prepare men for manhood; but it seeks, on the contrary, to keep them in perpetual childhood."

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