Laws…..laws…..and more laws…..where does one draw the line?
It’s creeping totalitarianism that has to stop before we end up like the guy in “1984” who had to suffer the churlish bureaucrat in a two-way TV barking order at him to exercise.
Or, since lack of sleep is a major cause of motor vehicle accidents, why shouldn’t the State install two-way radios in our cars and demand to know how many hours we slept before starting our cars in the morning? But then, why give them more ideas such as this one to toss around at city council meetings? I certainly hope they are not the audience I’m blogging for. Who knows.
The answer to those who would advocate such totalitarian methods is this: it’s none of the state’s business.
As many of you may know, the members of Billings, MT city council are trying to pass a anti-cell phone (while driving) law. Why is it up to the police to determine if you are checking the time? Or reaching for your soda can for that matter. As I asked before, where does one draw the line?
If they pass this bill why wouldn’t they pass another law to outlaw rolling your windown down? Bees are also a distraction you know? What about passengers in the front (or back) seat? What about the navigation systems installed into your dash? Car radios, satellite radios, etc…..I think you get the gist.
So…..here is what we’ve come up with thus far as to what this bill would violate.
(1) THE BILLINGS CELL PHONE LAW VIOLATES FEDERALLY PROTECTED FREE SPEECH AND EQUAL PROTECTION UNDER THE LAW
The hand-held cell phone ban violates equal protection under the law, in that many forms of expression that might also cause motor vehicle accidents will be exempted or excluded from the law. These include:
• Using a hands-free cell phone
• Police and firemen using cell phones (even though they have alternative means of communication)
• Using a ham radio
• Using a telephone linked to a private network (e.g. city buses)
• Using a citizens band radio
• Using a dispatch radio
• Using a walkie-talkie
• Talking to passengers in the car
Since the City Council excluded numerous forms of expression from the reach of the statute, with an emphasis on government speech by government employees, the statute is not properly tailored to serve citizen’s interests.
Please also note that a large portion of cell phone calls are made to spouses and immediate family members, or concern the children of the callers. Thus, this statute directly interferes not only with speech but with speech pertaining to intimate family associations that are entitled to strong protection under the federal Constitution. See Patel v. Searles, 305 F.3d 130 (2nd Cir. 2002).
Therefore, the statute violates freedom of speech in the context of the right to intimate family association.
(2) THE BILLINGS CELL PHONE LAW VIOLATES THE DORMANT COMMERCE CLAUSE BY IMPROPERLY BURDENING INTERSTATE COMMERCE
The law burdens interstate commerce by regulating an instrumentality thereof (cell phones) and by interfering with interstate phone calls which themselves may involve commercial transactions. Cell phones not only are instrumentalities of interstate commerce, but also directly facilitate thousands of acts of interstate commerce. A prime example would be calling ahead to make a hotel reservation in another state. Also, for any service providers based outside Billings, each call is itself an act of interstate commerce.
Under dormant commerce clause analysis, when a state law burdens interstate commerce, the validity of the legislation is determined by weighing the burden on interstate commerce versus the state interest. See Loren J. Pike v. Bruce Church, Inc., 397 U.S.137 (1970), Bibb, Director, Dept. of Public Safety of IL. v. Navajo Freight Lines, Inc., 359 U.S. 520 (1959); Kassel v. Consolidated Freightways Corporation of Delaware, 450 U.S. 662 (1980) (a court should weigh the asserted safety purpose against the degree of interference with interstate commerce.); Raymond Motor Transportation, Inc. v. Rice, 434 U.S. 429 (1978).
The only thorough economic analysis we are aware of addressing cell phone use in this context concluded: “[B]anning [all] cellular phone usage by drivers is a bad idea. A ban in the United States is estimated to result in annual economic welfare losses of about $20 billion.” R. W. Hahn, et al., “Should You Be Allowed to Use Your Cellular Phone While Driving?”, 23 Regulation 46, (Oct. 2000).
Even if drivers from out-of-town are aware of Billing’s law and comply with it, the result will be a depression of all cell phone use while in this city (since they presumably lack hands-free devices) and therefore a lessening of free interstate commerce, the very result the interstate commerce clause was designed to prevent.
BUT, HEY, NO NEED TO CONFUSE THEM WITH FACTS.
IN CASE YOU WOULD LIKE TO READ ON…..HERE ARE A COUPLE ARTICLES FOR YA.
Study: Cell phone bans don’t stop car crashes
Cell phone ban – exception for using a hand-held device while stopped at a red light
Exception for emergency situations or to call 911