Why No Fines for Cellphones Ringing in Movies and Concerts?:
Over at the Chicago Faculty Blog, Saul Levmore asks an interesting question:
I suspect mens rea explains the different treatment here. Littering and public smoking are usually intentional acts. "I really need a cig," the smoker might say to himself. "Someone else can clean up," thinks the litterer. There may be exceptions, like someone who doesn't realize he is littering. But I suspect the exceptions are relative rare, and I would guess enforcement in that setting is low. On the whole, the conduct is intentional.
On the other hand, a ringing cellphone is usually if not always an accident. I've never heard of someone intentionally ringing his cellphone in a movie or concert. The conduct we want to deter is the failure to exercise due care in making sure that your phone is off or set to vibrate just in case someone else decides to call you. The possible wrong is garden variety negligence, not some sort of intentional act, and is therefore considerably less culpable. So we let social norms take care of it, aided by the now-ubiquitous pre-show reminder to turn off cell phones that emphasize the norm and encourage people to follow it.
UPDATE: As noted in the comment threads, it seems that New York City has such a ban, with a $50 fine.
Why do we see fines for littering but but not for cellphones ringing in the middle of movies and concerts? I'm afraid the question is better than any answer I have to offer. . . . [Consider a] fellow who "negligently" lets a paper bag and its contents fly out the window of his car. In that setting, we resort to fines rather than torts, though that must be in part because the littering is on public property. The cellphone wrong is often on private property, and littering is normally a misdemeanor on public property.Having enjoyed going to the movies with Saul before (no ringing cellphones that I recall), I thought I would venture a guess. I think the main reason boils down to mens rea. Mens rea is Latin for "guilty mind," and is usually used in criminal law to mean the person's state of mind with respect to the underlying offense. It's a critical concept in criminal law, if not the critical concept, because an actor's state of mind with respect to a harm generally reflects his culpability. The basic idea is that intentional acts are most likely to justify punishment while negligent acts are much less likely to justify punishment.
[On the other hand, consider] smoking, where smoking is banned. . . . [F]ines for smoking are common both in public places and in private places subject to public regulation. Someone who smokes in a banned area, including a restaurant, in Chicago is subject to a $100 fine; the non-complying owner also faces a $100 fine for the first offense, and then $500 for a second offense.
The problem is of course a trivial one as problems go. But it points, first, to the interesting set of behaviors that constitute negligence with no enforcement through tort law and, second, to the problems that generate political pressure for fines (publicly or privately stipulated), even though fines are less calibrated (to the level of injury) than are negligence suits.
I suspect mens rea explains the different treatment here. Littering and public smoking are usually intentional acts. "I really need a cig," the smoker might say to himself. "Someone else can clean up," thinks the litterer. There may be exceptions, like someone who doesn't realize he is littering. But I suspect the exceptions are relative rare, and I would guess enforcement in that setting is low. On the whole, the conduct is intentional.
On the other hand, a ringing cellphone is usually if not always an accident. I've never heard of someone intentionally ringing his cellphone in a movie or concert. The conduct we want to deter is the failure to exercise due care in making sure that your phone is off or set to vibrate just in case someone else decides to call you. The possible wrong is garden variety negligence, not some sort of intentional act, and is therefore considerably less culpable. So we let social norms take care of it, aided by the now-ubiquitous pre-show reminder to turn off cell phones that emphasize the norm and encourage people to follow it.
UPDATE: As noted in the comment threads, it seems that New York City has such a ban, with a $50 fine.
it doesn't matter if its a petty offense-like speeding (which doesn't require-in any jurisdiction that i know of-that you 'knew you were speeding') or a huge offense-like statutory rape (not knowing the age of the girl is not a defense in most states)
theoretically-there is nothing to stop a state from punishing manslaughter and murder with mandatory life for both regardless of whether it was voluntary or not.
so i don't see the problem with this legally.
not that i agree with it from a policy perspective-people make mistakes-i make that mistake all the time-and the theaters now do a good job of putting a reminder in the screens that pop up right before you see the movie.
but lets not preted its because of some legal doctrine.
As far as torts - the solution of imposing fines is an interesting means to deal with the fact that these problems aren't solved through tort law. The damages (even in the aggregate) would be far outweighed by the cost of bringing a suit, and the damage is not to an individual per se but rather to the public in general. On some level, it makes sense to determine the damages in advance and have it paid into the public fisc.
I've heard that littering has such high fines because people are rarely caught when they do it. The fines are adjusted upward to change the calculation of risk. "I'm not likely to get caught" can be outweighed by, "But if I am, it's a $1,000 fine." (IIRC, San Diego has $1,000 fines for littering. Could be wrong... maybe that's a HOV lane violation. ;) )
jammers are illegal under federal law as interfering with a communications device-not 'most areas'
I will note the downside to that (aside from any legal, libertarian, or privacy issues): many people need their cell phones, pages, or the like with them and operable at all times. Doctors, nurses, EMTs, and firemen who are on call otherwise have a life, and want to do things like go to restaurants, movies, and plays. Often, these people are very responsible with their technology and have the item on vibrate so as to not disturb others when summoned, but it would nevertheless be a huge imposition upon their lives to have jammer technology.
I'd use some examples of my own, but I saw a post recently that sums up the attitude of the annoying person-on-phone-at concert pretty well:
Wil Wheaton: bring on the night . . . and the a-holes
If that isn't the definition of intentional, I don't know what is — and had the phone rang a dozen times, I doubt it would have been as annoying as a series of extended conversations. Any idea how that can be criminalized?
Littering and no spitting and cigarette smoking laws were all passed as public health issues. Cell phone ringing (aside from mental health) is not a health issue.
On the other hand, I recently had a bailiff approach me because he thought I was "texting" on my Treo during a court session while I was sitting in the gallery. Though even if I was, I am not sure why it would have mattered. I showed him my Soduko game and he calmed down.
I perceive a tolerance of these laws within our society that worries me--in the sense that this laws broach questions of the ninth amendment. Shall we pass a law regulating the color of our shirts and the cuts of our collars too?
Free speech issues mean that a private area subject to public regulation cell phone ringing fine would be easier to justify than a public area fine, although I am not sure a private regulated area fine would survive 1st amendment scrutiny. There may be a way to remove cell phone ringing/conversation from coverage by the 1st amendment but I cannot think of it.
I am a high school teacher and I am probably older than any other commenters on this note. Most of my students carry cellphones in class - they’re supposed to be off, and if the phone makes noise, or I notice texting, game-playing, or such I’m supposed to collect the phone and give it to a principal who returns it after some minor punishment (detention, maybe - not sure). I think this puts me in a unwinnable situation - I can’t hear some of the ringtones that the kids can hear, and the kids are clever about how they use the phones in their pockets and handbags. Mostly I make sure I don’t notice the phone usage.
The bad thing for me is it’s one more reason for me to be the students’ adversary - otherwise good kids become rule breakers. Or I become the rule-breaker by not policing the phones. For what do the students use the phone? Helicopter parents, socialization skills - maybe (at the most malevolent) some minor cheating. Maybe nothing too bad but distracting from what school is supposed to be, just the same.
So unlike George Weiss, I wish my school could electronically jam the things. Admin’s problem gone, my problem gone.
I like the personal pocket jammers. They are illegal but I hear the law has never been enforced and you can buy them on the internet and in some other countries. I'd like to get one for those people who drive 10 mph while talking and who hold up the line at the bank and post office. Anyone know if they really work?
Because having an usher walk around the theater asking for Doctor So-and-so is much less disruptive than a pager chirp...
I would be in favor of some sort of penalty for cell phones ringing (or talking on one whether or not it rang) -- this happens literally every time I go to a movie these days. Along with the $12 tickets and unreliable projectors/projector operators, it's why I either don't go or stick to sparsely attended Sunday morning matinees.
It strikes me that this is a slam dunk for a private solution -- while I probably wouldn't pay extra for a phone-free theater, one could definitely gain my unswerving loyalty (and probably increase my moviegoing overall) by enforcing a no-phone policy.
As an aside, you could probably get the same benefit by having an over-21-only auditorium.
There speaks a law professor.
Surely DS09 is correct that enforcement is too costly. Besides, there is already the punishment of being considered an a**hole by everyone around you.
The point is, I go to a movie theater for an experience that is better than I can get at home. If that experience is fouled by distractions, then I don't go. That's bad for business, so the business should work to improve the experience.
As for the HS teacher... I would go with cellular jammers for schools. This would need to be carefully done with appropriate common areas not being banned. Might need some technology advancement to work.
For live performances, which usually entail a ticket and a seat number, the answer is very simple. Before the concert, you hand your cell phone to an usher who takes note of your seat number. If it rings, the usher knows exactly where to get you.
I have been to many classical music concerts where the cell phone goes off, and there is absolutely no excuse for this. It's rude to the performers and the audience alike. If your business is too important to separate you from your cell phone, or at least turn it off, then spend your leisure time on your back porch, not a public concert venue.
Nick
But it's not discrimination. The theater owner wouldn't be saying, "I will not allow doctors into my establishment." The fact that such a rule might have some incidental disparate impact on certain people does not make it discrimination.
Well said, Randy.
IIRC that argument didn't fare too well with respect to poll taxes.
There's a difference between disparate impact and discrimination. Disparate impact may belie discrimination, but I don't think anyone is asserting that theatre owners would jam frequencies in order to stick it to doctors and lawyers.
With the extension, you have a valid point, I should have asked if it were reasonable to enact a policy which will have such a disparate impact on people who have the wrong type of job.
This is an unsatisfying explanation. There's always an announcement to turn your cellphones off before the movie begins, and the mens rea involved in ignoring that warning is intent/knowledge. Nor can the act/omission dichotomy rescue us, since we otherwise feel free to hold people criminally liable for omissions when they had a duty to act.
How's this for an analogy? Imagine a state that imposes a fine on any driver who was talking on his cellphone when he got into a traffic accident. Surely this is acceptable, even if the state imposes no fine on talking on your cell phone if you don't get into an accident. It doesn't cut it to object to the law by claiming that the accident was merely negligent: if you intentionally choose to engage in risky behavior (talking on your cell phone while driving, leaving your cell phone on during a movie) then there's no problem imposing strict liability on subsequent harms that materialize from that risky behavior.
Whether or not it's actually discrimination, by the letter of the law, to create a situation which makes it nearly impossible for doctors, EMTs, firefighters, and the like to be on call and go out for entertainment, it's just really, really dumb as a society to create that situation. Generally, the people who are on call are those who do public service - the people who spend their lives making ours healthier and safer.
You would have to be amazingly short-sighted to think that it's a fine idea to ensure that public servants who are "on call" cannot enjoy a movie or a dinner out. Now that we've determined that doctors, EMTs, nurses, and firemen can just rent a movie at home so we can have an uninterrupted movie experience, why not go after the nuns next?
There are people who would not consider that a punishment. Those people are called "a**holes".
Sadly, you do have a point.