Law and Liberty at 30,000 Feet

Cell phones on airplanes frighten a lot of people and not for safety reasons. Few people want to listen to a seatmate discuss his cat’s health or other trivia for hours. As someone who flies a good deal and values a trip in the clouds for wispy and random reflection, I deeply sympathize. But as a friend of liberty, I oppose a law to ban phone calls on planes.  Private ordering can better determine when and where passengers may make calls in the air.

In the same week in December that the FCC voted to consider lifting its ban on cell phones for airplanes, members of Congress introduced legislation to ban calls, regardless of an inquiry into their safety.  This position allows our representatives to pose as tribunes of the people’s ear. But left to their own devices, airlines have an interest in maximizing revenue by satisfying both cell phone users and devotees of peaceful glide time.

First, some airlines might permit cell phone uses and others not, giving customers a choice. Southwest, for instance, has said it will not allow phone service, regardless of its legality. Second, airlines could have quiet sections where no cell phone is permitted and sections where travelers can connect with the world outside. Even the government monopoly of Amtrak offers inspiration here with its quiet cars in several sections of the nation.

Third, airlines could use surcharges to limit phone use to those most willing to pay for it, thus preserving relative tranquility while satisfying those who really need to make calls. Unbundling communication and transportation services in this way could even lower prices for passengers who do not use their phones, continuing the process of deregulation that has helped reduce basic ticket prices by 50 percent in the past thirty years.  Fourth, the prospect of airline phone use will encourage innovation that could help people makes calls without disturbing surrounding passengers. Many of us baby boomers remember the cone of silence! The jokes of our childhood can point to the inventions of tomorrow.

And social norms will surely come into play. On the commuter trains I rarely hear people speaking on the phone for any length of time. We tend to imagine an unknown future without norms, but when the future arrives there is much order without law.

A government ban on a human activity without real danger to health or safety forecloses possibilities to our detriment. But freedom allows experimentation and innovation to expand horizons no less than does travel itself.

John O. McGinnis

John O. McGinnis is the George C. Dix Professor in Constitutional Law at Northwestern University. His book Accelerating Democracy was published by Princeton University Press in 2012. McGinnis is also the coauthor with Mike Rappaport of Originalism and the Good Constitution published by Harvard University Press in 2013 . He is a graduate of Harvard College, Balliol College, Oxford, and Harvard Law School. He has published in leading law reviews, including the Harvard, Chicago, and Stanford Law Reviews and the Yale Law Journal, and in journals of opinion, including National Affairs and National Review.

About the Author

Recent Popular Posts

Related Posts


  1. GregQ says

    If I could simply walk away while you were using your cell phone, it would be a matter of liberty. But I can’t. I’m stuck in the seat next to you. Now it’s your “right” to make calls, competing with my “right” not to have you forcing your personal life all over me.

    I fly a a lot. it would benefit me to be able to make calls on occasion. I’m still utterly opposed to the idea. People are already too damn loud on planes.

    • Tedd says

      Rights are simply not the issue here, except in so far as the government has no legitimate authority to dictate social convention in this manner. You, the person next to you, and the airline are private actors acting completely within private space. The government has no more legitimate authority to legislate cell phone use in that context than they have to legislate whether you can or can’t smoke in your own living room — which some would no doubt propose to legislate, as well.

  2. Dave Boz says

    “…airlines could have quiet sections where no cell phone is permitted ”

    That would work about as well as non-smoking sections.

    I have a compromise: allow the yakkers to bring cell phones if the rest of us are allowed to bring guns. Order and quiet will be restored.

  3. Roger Zimmerman says

    Note that GregQ and Dave Boz are unable to imagine airlines differentiating on cell phone usage policy. Note also their conspicuous lack of tolerance for their fellow man. Finally, note that they are demonstrating their unwillingness to take responsibility for choosing, which is, at essence, the responsibility of owning one’s own life.

    I feel sad for them.

  4. Tim says

    Yeah, I get it. We have enough regulations in the air and everywhere around and in an airport. So go ahead, chat away. But I may be tempted to turn up the sound on some Metallica. Yeah, freedom is great.

  5. Alan says

    The conflict is between a reasonable, and occasionally needful, individual freedom to act, and an equally reasonable & needful individual freedom to avoid the consequences of someone else’s act. The avoidance part – those most offended may want government regulation simply because it provides for uniform expectations (how do I leave an airplane, or even force a change in seating, to get away from loud social jabber after the plane is in the air?) A reasonable solution that stays within the realm of private action is for certain limits and ways of handling violations to be generally agreed upon within the industry, and enforced by the contract terms of your ticket. If those do not provide you sufficient avoidance of the offense, personally-owned sound-cancelling headphones are a secondary solution (I don’t think the market would stand for them being the primary solution.) Common expectations plus belt-and-suspenders solutions – should be enough to manage the problem.

  6. Harmon says

    What is this nonsense about government not having any business regulating cell phone calls on planes? Planes are a public conveyance. Public conduct may be regulated by the government. Ever hear of “disturbing the peace”? Ever hear of noise level laws? Ever hear of laws forbidding littering, requiring snow to be removed from the sidewalk, &c.? This is not a question of contract; it is a question of behavior.

    The solution to this situation is dirt simple. The law does not need to be “no using cell phones on airplanes”. All it needs to do is make it a misdemeanor for anyone using a cellphone on a plane to continue to use one after being requested by anyone in any contiguous seat to stop, and allow airline attendants to hand out the tickets imposing a fine of, oh, say $500 to someone who does not comply with an attendant’s direction to hang up the cell phone.

  7. Tedd says

    “Planes are a public conveyance.”

    You must be one of our European friends. Here in North American, airlines are businesses, and passengers customers. It’s not a public space.

  8. Nate Whilk says

    “And social norms will surely come into play. On the commuter trains I rarely hear people speaking on the phone for any length of time. ”

    Try taking the bus and/or Rapid Transit for an extended period. Take into account the fact that a lot of the riders are NU students, and imagine the people that might be there if the students weren’t.

    Commuter trains get a different population of riders, although there are exceptions. I lived near San Francisco for a few years and took the peninsula commuter train for part of that. A number of times I was in the same car with a woman who applied nail polish.

  9. Fred says

    As you say “airlines have an interest in maximizing revenue”. How has this worked out for airlines trying to increase customer comfort in other areas say, in seat sizes? Despite the overwhelming desire of customers for wider and more comfortable seats they are getting smaller and smaller. So the cell phones are coming and the customer who want some peace and quiet will find themselves out of luck…


Leave a Reply

Your email address will not be published. Required fields are marked *

You may use these HTML tags and attributes: <a href="" title=""> <abbr title=""> <acronym title=""> <b> <blockquote cite=""> <cite> <code> <del datetime=""> <em> <i> <q cite=""> <s> <strike> <strong>