Monday, August 18, 2003
Page 7
PERSPECTIVES (Column)
You With the Cell Phone: Shut Up!
By ROGER M. GRACE
No contrivance that’s gone on the market in recent years promotes obnoxious behavior to the extent that the cell phone does.
With cell phone in hand, a usually inoffensive individual is apt to become a boor—a broadcaster, a heralder, apprising all within earshot of dalliances, kiddies who are at home vomiting, what Sue says Tom did to her and vice versa, and so on and so on.
It forces all of us who are in proximity into the role of eavesdroppers. While we might be able to avert our eyes—which was the U.S. Supreme Court’s remedy, offered in a 1971 opinion, for those offended by a vulgar message on the jacket of a man who walked through the L.A. County Courthouse—it is not that easy to avert our ears. Loud discourses are difficult to block out.
And, typically, loudness there is when people talk on cell phones. For whatever reason, they perceive a need to raise their voices. Carrying on a normal conversation in a restaurant is often precluded while the person at the next table is shouting into the cell phone, like a child hollering into a tin can attached by a string to a like object held by a playmate.
I gather that while my aversion to voicemail, expressed in recent columns, may reveal an idiosyncrasy, I’m far from alone in reviling the intrusions on my “ear space” by cell phone users. My daughter told me of a recent “Candid Camera” show on which expressions of disgruntlement on the faces of diners in a restaurant were recorded as a “Candid Camera” staff member was bellowing into a cell phone. Then, to exacerbate this all-too-common occurrence, the man hooked up his phone to an amplifier, with one patron at first evincing outrage, then bursting into laughter as the stunt continued, and finally pounding her head on the table.
It is amazing what personal matters people will discuss in public places on cell phones. Does it somehow elude them that conversations are not “private” if they can be heard in public?
What a contradictory society this is. Ostensibly, we covet privacy. In 1972, voters passed Prop. 11, adding “privacy” to the list of “inalienable rights” in Art I, §1 of the state Constitution. Yet, the right of privacy in connection with telephone conversations is incessantly abandoned by users of cell phones who, in public places, voluntarily reveal their part of the dialogue to all within audible range.
Here we have the Privacy Paradox—our society proclaims privacy to be a treasured right while, more and more, our citizenry blithely relinquishes that right.
The national quest for privacy led to rules effective April 14, promulgated by the federal Department of Health and Human Services, revamping procedures in doctors’ offices.
At one doctor’s office I went to, patients were required to sign in using their initials, not their names, so that one patient would not know the identities of others in the waiting room. At another doctor’s office, the physician came to the door to bid me enter, addressing me as “Mr. G,” explaining once I was in the examining room that use of all five letters of my surname would have breached my rights of privacy, under the new rules.
Next, patients will be required to come to the waiting rooms wearing black hoods.
I found it ironic that right after signing a receipt for a six-page explication of my privacy rights, which an ear doctor was obliged to provide to me, I sat in the waiting room and viewed a woman casting aside her privacy rights just as Gypsy Rose Lee shed garments.
Penelope placed a call on her cell phone to Nichole. The caller’s boy friend, Ian, was seeing the doctor. He had an ear infection. She and Ian hadn’t been getting along recently, she told Nicole, but “today it was great.”
The problem with men, this worldly lass of about 18 pontificated, is that they “do not understand their own emotions” and aren’t “honest with themselves.” She explained: “They just lash out. Ian does that to me.”
Affording advice to the lovelorn, our sagacious sophisticate told Nicole that she was being “silly” for blaming herself in any way in connection with her discord with Denny. Denny was “kind of being a little kid,” she proclaimed, assuring Nicole: “You are like the most sensitive, empathetic person.”
These words of wisdom were shared:
“You’re two people in this relationship, not just him. It takes two to tango.”
I know you will join me in wishing well to Penelope and Ian, to Nicole and Denny, and to the unidentified friend of Penelope and Nicole who recently broke up with Nick; she’s out of a job, but is dating a “super-rich guy” who is “cute.”
The number of cell phones has burgeoned in the last two years. In a 2001 dissent, Chief Justice William Rehnquist noted that the estimate of cell phones then in operation was 49.1 million.
An Aug. 1 Associated Press story reported:
“Half of all Americans, about 148 million people, now have cellular phones, according to the Cellular Telecommunications and Internet Association.”
It added:
“That’s more than 80 times the number of pay phones.”
It is increasingly difficult to locate a pay phone—and phone booths (you remember, where you closed a door and passersby couldn’t hear what you were saying) will no doubt soon be found in antique shops alongside jukeboxes that play 78 rpm records.
With the upsurge in use of cell phones, and with phone booths for the most part in storage or dismantled, the number of calls where one end of the conversation is publicly boomed, if not both ends, is rising—and the number of involuntary listeners abounding in proportion.
The United States Supreme Court, in Katz v. U.S. (1967) 389 U.S. 347, said of the phone booth, at 352: “One who occupies it, shuts the door behind him, and pays the toll that permits him to place a call is surely entitled to assume that the words he utters into the mouthpiece will not be broadcast to the world.”
It would follow that one who stands in a public place using a cell phone, chattering away for all to hear, has no entitlement to any such assumption. Rather, that person must be assumed to have an intent to “broadcast to the world,” or at least to such inhabitants of it who happen to be in close proximity.
The court in Katz found that the electronic eavesdropping on a bookie using a Los Angeles phone booth was constitutionally impermissible, absent a warrant, owing to the reasonable expectation of privacy. Surely there is no such reasonable expectation in connection with cell phone calls in public places.
And any privacy statute the benefit of which is dependent upon a reasonable expectation of privacy should be deemed inapplicable to those users of cell phones who publicly emit their portion of conversations.
What of the privacy interest of the person at the other end?
The cell phone user will not always be anonymous. Occasions are bound to arise when a person within earshot, at a neighborhood market, a bar association cocktail reception, or wherever, will recognize the person talking away on the cell phone, and be able to figure out who the other party to the conversation is.
From questions and reactions, what the other party is saying might well be discernible. Questions like, “What doctor performed the abortion on you?” just might give away what was intended as a confidential utterance.
A few years ago, two lawyers in an elevator at what is now the Stanley Mosk Courthouse were chortling about how they were going to put one over on the judge. It happens that a young woman was also in the elevator. The lawyers apparently assumed she had no interest in their conversation. She was the judge’s research attorney.
Such lack of discretion is bound to occur on the part of lawyers using cell phones. One of these days (and perhaps it’s already happened), a lawyer will be socked with a malpractice action, or perhaps State Bar discipline, based on disclosure of a client’s confidence or invasion of the client’s privacy by “broadcasting” what shouldn’t be revealed.
What’s frustrating is that cell phone abusers create a public nuisance that, except in quite limited circumstances, can’t be legislatively abated.
Obnoxious as people are who force us to listen to their end of phone conversations when we’re eating in a restaurant or waiting for a plane, they can be tolerated; any legislative effort to curb their speech could not be.
The only circumstance where use of cell phones could be barred, consistent with First Amendment concerns, would be where any unnecessary noise—whether yodeling, blowing a trumpet, or talking—could validly be proscribed.
An ordinance went into effect earlier this year in New York City which would seem to be narrow enough to survive a challenge. It restricts use at certain public events of cell phones and other “two-way real time voice telecommunications” devices—collectively dubbed “mobile telephones.”
The Administrative Code now provides: “No person shall use a mobile telephone in a place of public performance while a theatrical, musical, dance, motion picture, lecture or other similar performance is taking place.” It says that “use” means “to receive a mobile telephone call signaled by an audible sound, dial a mobile telephone, or talk or listen on a mobile telephone.” An exception from the ban is made for “an individual who uses a mobile telephone to contact an emergency response operator, hospital, physician’s office or health clinic, ambulance company, fire company, first aid squad or police department in an emergency situation or in any other circumstance which may be deemed an emergency.”
Violation of the code provision will cost the phone user a $50 fine.
Years ago, the Sunday funnies included “Hatlo’s Inferno.” Artist Jimmy Hatlo each week devised a fitting punishment (not quite so drastic as those conjured up by his 13th Century inspiration, Dante) for society’s annoying folk.
Were Hatlo still around, I can just imagine what he would devise for today’s cell phone blabber. He’d probably depict a denizen of Hades encircled by 57 devils, each with a cell phone in hand, prattling incessantly.
Fit punishment, indeed.
Copyright 2003, Metropolitan News Company