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June 13, 2008

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» Why No Fines for Cellphone Use in Movies and Concerts?: from The Volokh Conspiracy
Over at the Chicago Faculty Blog, Saul Levmore asks an interesting question:Why do we see fines for littering but but not for cellphones ringing i... [Read More]

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jimbino

The solution, for new construction at least, is to embed a Faraday cage in the walls of the theater. Of course, emergency calls from inside would be blocked if the cage is grounded.

Kimball Corson

I think Prof Levmore is dead on here, enforceability problems aside. I am all for curbing cell phone abuses, like calling me on one, for example. As a retired lawyer, the ring of my phone evokes a Pavlovian response of cringing. I associate all phone rings with substantial clients wanting something messy done by yesterday. I am living now in Latin America where the national pastime is cell phones: taking pictures with them, talking very loudly on them, playing games on them; stopping in the middle of traffic to dial numbers on them; etc. Not only is the ringing bad, but too often I am then subjected too loudly to one side of the conversation, with the speaker at my end invariably attempting to establish his importance or her sociability. Spare me, please, . . . on anything having to do with cell phones. I am the canary in the mine when it comes to them. I am the test case, too.

Kimball Corson

Prof Levmore should be given a very sizeable grant to pursue his line of thinking here and hopefully get the ball rolling more generally to curb cell phone abuse. We can no longer depend upon courtesy, consideration and good manners or taste to save us.

Colin

Public property/private property distinction is important here. Perhaps the cure lies with the private property owners (bus companies, commuter rail operators, movie theaters) to ferret out abusers and revoke invitations to use the services/locations provided. Perhaps the previously mentioned cage of shame is one solution. Another would be to have moviegoers/transit riders escorted from the premises for violation of local rules.
Moreover, it seems that there's a difference between the intentional act of littering (dropping trash requires a thought and the active release of a grip on trash) while not all cell phone *use* is intentional (I receive lots of calls on my cell phone that I do not intend to take).

Kevin Donovan

What happens with cell phones right now is a norm-based enforcement - people are ashamed when their phone rings in a movie so they try to avoid it. Implementing monetary fines may work in the opposite direction.

In Freakanomics there was an example of a day-care center who started fining late parents. Late-comers rose because they would rather pay than show up on time.

Perhaps people would rather pay a $10 fine instead of worrying about silencing their phone.

2L thinking at work

The quick solution to the Freakanomics problems would be to charge a higher fee than the original service; in this case, you might want to make the cell phone user refund the ticket price of all the movie goers in that theater. One can easily see the moral hazard with encouraging people to disrupt in large groups and fines in general only deter those who can't afford to pay.
The refund idea is a good start in a theater, but the better solution seems to be the "family" or infant discounts some theaters have on weekends where parent bring there crying and unruly children in to view a money at a lower ticket price disruption is inevitable. I have never been, so I can't say its "anything goes" and there probably are levels or norms that crying babies must observe as well.

An overall analysis of the experience fees in movie theaters is quite interesting. A normal theater may charge 10 bucks a ticket and serve standard popcorn+. A special experience theater may charge 5 bucks, but lets me order wine, beer, finger foods and pizza--all of which change the movie going experience quite a bit. Someone wanting to really see the film wouldn't take the 5 dollar discount because a quiet theater is worth more to them than more food. But that disruption is certain. I can't imagine a normal, non-George Lucas cult movie, attracting a substantial number of viewers willing to pay more simply to reduce the chance of disruption, especially if more often than not, it doesn't happen.

Rounding the corner, fines are probably bad because any method of identifying the wrong-doer and exacting punishment would be more of a distraction than the wrong itself.

Kimball Corson

Or how about asking at the ticket booth if the customer has a cell phone with him or her. If so, charge double the admission price, with the provisio that if it goes off in the theater or is used inside, then the phone owner faces a real stiff fine payable to the theater. If a ticket buyer has a phone, but lies and says he or she doesn't, then the stiff fine payable to the theater is tripled. The fines can cover the theater's cost of enforcement and give them an incentive to enforce. The rest of us can watch the movie in peace.

DAC96

Geez. Why make a very simple circumstance so pointlessly complicated?

The question presented is "[w]hy do we see fines for littering but but not for cellphones ringing in the middle of movies and concerts?" The reason is obvious. As a practical matter, the only solution for a theater owner is to toss (figuratively) the offender out on the curb. Given the hassle associated with removing a patron from a movie theater - I've seen it done on several occasions, for transgressions ranging from excessive talking to consuming adult libations, and trust me, the removee never goes quietly -- the theater owner's only practical option, except under the most egregious circumstances, is to do what they already do, i.e., ask patrons to turn off their phones beforehand and let the moral authority of other patrons shame offenders into compliance.

It works pretty well. I hear a cell phone ring approximately ever 4th or 5th movie I frequent, and it is ALWAYS followed by: (i) a chorus of "shhs!", (ii) disapproving glares, (iii) a furtive attempt to disable the offending device, and (iv) other patrons re-checking their own devices, in order to ensure that they are disabled.

We don't need a threat of legal action to regulate every last aspect of human behavior and misbehavior, and a fine doesn't necessarily have to be pecuniary in nature. Sometimes, as this circumstance illustrates, the best sanction is shame -- it costs the theater owner virtually nothing, and is highly effective.

Chad Davidson

Virtually all postings on this string ignore the obvious enforcement problems and costs that would be intrinsic to the proposed regulatory scheme. Will there be security guards dispatched to each and every theater to monitor people and enforce the rule? The costs there would easily outstrip any increased social or economic benefit. Might such a regulation "chill" people's attendance at such performances and showings if they knew they could face stiff penalties for an accidental cell phone ringing? I have a hunch the proprietors of movie theaters and concert halls would not be eager to see a decrease in attendance that may result.

Also, there are so many exceptions that attempts at regulation would be unsuccessful and inefficient. This is where the analogy to littering breaks down. With littering, the penalty (i.e., fine) is the same regardless of whether it was intentional or accidental (i.e., negligent): when someone purposefully tosses a paper bag out the window on the highway, she pays the same fine as another motorist from the back of whose pick-up truck loose-leaf paper blows out. That is, strict liability (very loosely used here) applies to littering. Not so with cell phones. It's hard to imagine a penalty attaching to a physician whose cell phone goes off in a movie because he's being paged to perform emergency surgery or to a mother who is being called because her young child has been injured. In fact, there could conceivably be so many exceptions as to make the rule inefficient to enforce at all. Unlike in the littering "strict liability" scheme, some fact-finder would have to consider the individual circumstances of obtrusive cell phone use in public before the issuance of a fine. That is surely not a wise use of our finite legal and regulatory resources.

Incidentally, the idea of damages being calculated to require payment of the full ticket price of all moviegoers is preposterous -- surely, their enjoyment of a concert or movie would not be wholly ruined by a cell phone going off for a couple of seconds. Furthermore, how might a mitigation of damages analysis work? Would the owner of the offending cell phone be liable for less if he, say, turned off the phone after the first ring as opposed to the fourth ring?

While we're debating this silly idea (which I ascribe to a penchant to over-regulate and to codify as law that which should firmly remain in the province of social norms like other manners, customs, and polite courtesies), do the proponents of this "cell phone cause of action" similarly propose a cognizable claim against someone who too loudly opens a candy wrapper in the theater? What about someone who gets the hiccups -- or, Heaven forbid, sneezes --during a concerto? What if my date has a coughing fit in a sold-out cineplex? Following the same line of logic, could I be fined if I laugh too uproariously at a punchline in crowded movie theater? While we're at it, let's fine so-called "heavy breathers" who too noisily inhale and exhale -- I can't stand those types. The same "nuisance" theory would surely apply to those situations as to a cell phone ringing because they all would annoy my fellow theater-goers and detract from their enjoyment of the performance/screening/dramatic moment/etc. (One is reminded of the "Seinfeld" episode where the classical concert pianist is tragically distracted and thrown off from her serious performance when Jerry puts a Pez dispenser on the arm-rest and causes Elaine to have a bout of uncontrollable laughter.)

Would the cell phone regulation pertain to just ringing and talking, or would Blackberry users be barred from texting during a movie or checking their e-mail too? What if I want to jot down a memorable quote or idea I have in the theater?

No, in the end, this attempt to make law what should remain a principle of common courtesy is too far afield. It's been a fun exercise, but let's put this doomed idea to bed and talk about something more meritorious.

Alan O

I propose a social experiment. Start telling people that you have a friend who knows someone who was in a theater when a patron started talking on his cell phone loudly and ignored attempts to shush him. The crowd got mad and beat him to death. You must be emphatic and sincere when you tell people this. Tell people that because the theater was dark and it was a big crowd the police couldn't arrest anyone.

If you don't believe this will work think about the times someone told you earnestly not to flash your headlights to someone driving at night with theirs turned off because they heard that people have been shot by gangs for doing that. http://www.snopes.com/horrors/madmen/lightsout.asp

Like all solutions - simple and cheap.

Tom Schavo

Yes you are right, there should be laws for cellphone ringing out of the way and for no reason. You are in a movie, watching quitely and suddenly disco trance starts. its so irritating. People dont even have shame to keep their cells on silent mode in hospitals and religious places or even at funerals!

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