In a continuing series of posts, Lyle Denniston provides responses based on the Constitution and its history to public statements about the meaning of the Constitution and what duties it imposes or rights it protects. Today’s topic: the proposal to ban all use of cell phones by drivers of cars and trucks.
The statement at issue:
“It’s time to put a stop to distraction. Just because we can stay connected when we drive does not mean we should. No call, no text, no update is worth a human life.”
- Deborah Hersman, chairwoman of the National Transportation Safety Board, in an op-ed column in the Washington Post, “Why we should ban drivers from using portable electronic devices,” December 15, defending the Board’s new recommendation.
We checked the Constitution, and…
Chairwoman Hersman and her colleagues on the Safety Board did not say so explicitly, but their proposed cell phone ban undoubtedly relies upon a theory of government “police power” to regulate how motorists use their cars. “Police power” is broadly defined as the authority to pass laws to protect public health, safety, and morals.
The Safety Board itself does not have power under that theory to impose a cell phone ban; its recommendation could be implemented only if state and city governments, which do have that authority, go along with the idea. No such ban has been enacted anywhere in the country.
That power, of course, has been used to impose speed limits, seat belt requirements, and age restrictions on drivers, and helmet requirements for motorcyclists. But not one of those mandates involves a form of human behavior that anyone could argue sensibly is protected by the First Amendment’s free speech clause. No court, for example, would take seriously an argument that driving very fast is a form of expression.
But using a telephone is clearly protected under the First Amendment, and the Supreme Court has said that it even involves a right of personal privacy when one uses a public telephone booth. The question for the courts, if a flat ban on all cell phone use by drivers were ever to be enacted, is whether those rights are in effect when one is behind the wheel of a moving private vehicle.
Americans are very jealous of the rights they believe they have, and many Americans are eager to go to court to test the reach of those rights. Seat belt laws and motorcycle helmet laws were widely challenged when they first started appearing in the early 1980s. Their contribution to public safety may have been obvious, but the lawsuits flowed anyway. That they routinely would be upheld in court was far from a deterrent.
Today, a strong libertarian, limited-government movement in American society – typified by the “Tea Party” – practically guarantees that a total ban on cell phones for drivers would meet an immediate constitutional challenge.
Indeed, James Ostrowski, a lawyer in Buffalo, N.Y., well known locally for handling libertarian causes, has sued to challenge his own arrest for using a cell phone while driving under a state law that restricts such devices but does not ban them altogether. “Surely,” his legal brief argued, “the courts have a role to play in ensuring that this endless stream of meddlesome legislation passes muster under the state and federal constitutions.”
Similar lawsuits are pending in other states.
One need only look at the constitutional controversy over the new federal health care law’s mandate that every individual obtain health insurance by 2014 to see that government action that is perceived as controlling one’s private life is bound to be challenged aggressively. The notion that government can require one to do what is good for one’s health is not universally accepted.
The Safety Board, of course, has gathered a large file of evidence showing that texting and downloading by drivers causes distraction, and that distraction causes accidents. The data, it said in announcing its proposed ban, goes back nearly 10 years to an accident in Largo, Maryland, “when a young driver, distracted by her cellphone, veered off the roadway…, crossed the median, flipped over, and killed five people.” Since then, it said, its investigations have shown similar incidents “across all modes of transportation.”
If the Safety Board’s plea for a ban is heeded by state and local legislatures, it will take very careful drafting to define when a violation has occurred and when police may make arrests, to achieve a successful balance of safety, privacy and free expression.
Lyle Denniston is the National Constitution Center’s Adviser on Constitutional Literacy. He has reported on the Supreme Court for 53 years, currently covering it for SCOTUSblog, an online clearing house of information about the Supreme Court’s work.