Constitution Check: Would a total ban on drivers’ use of cell phones be constitutional?

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…

Photo by Edbrown05 via Wikimedia Commons

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.

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.

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.




  1. says

    If using a phone is protected by the First Amendment, what happens when your using one while driving a vehicle? Is a full cell phone ban while driving a car constitutional? Lyle Denniston returns with another Constitution Check.

  2. says

    If you have a First Amendment Right to live your life. When someone kills you by shooting you already wounded in the head. When that someone is convicted of Murder. When that someone for thirty years refuse to state what happened that night, what are the First Amendment rights of the dead Officer?

  3. says

    sorry we do not have a constitutional right to use cell phones. they were not invented when the constitution was written. and whether you believe it or not we do not have a right to use a cell phone while driving. P.S. cars wern’t also invented so think about that.

  4. says

    We obey the laws of the land. We got along quite well without cell phones in our cars previously. It is kinid of nice to talk with someone one on one. Personal communication has suffered greatly.

  5. says

    They should enforce approved hands free devices… Many people do business calls while driving, many driving jobs require phone calls… People driving back home late at night might need to call Someone to keep their company… Our life is very tied around the cellphones these days and They are necessity we can’t deny…
    To solve the distraction problems why not improve that technology just like improving cars with Seat belts airbags on star etc… Enhance the car and the communication tools, and develop more Speech recognition technology and apps…
    They can’t flat ban use of cell phon…they didn’t ban the radio..

  6. says

    Right on, Donna. The NCC’s behavior would say that it takes the attitude of oh, well, the policeman is dead but the wonderful Mumia is still alive–let’s not trample on his rights. Warped priorities and definitely a bastardization (like so many others as interpreted by progressive justices) of the intent of the Constitution.