Today, A Ban On Headphones While Crossing The Street; Tomorrow, A Ban On Chewing Gum While Walking

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In the wake of the sensible legislation banning on texting while driving and requiring of hands-free in cars, it seems that lawmakers are setting their sights a little too high — or low, depending on your perspective. Some nascent proposals in New York aim to make it a crime to cross the street while using an electronic device. I don’t often cry “nanny state,” but this situation really is verging on requiring that term.

And yet there clearly is some need to address the fact that pedestrians in urban areas are more distracted than ever, and increasingly tend to throw themselves in front of cars, if the most recent accident statistics are any indication. But surely such a unilateral ban is not the answer. Is it even a starting place for a discussion?

The idea of personal responsibility has undergone a rather complete redefinition over the last few decades, and although that’s a whole other kettle of fish, it seems reasonable and relevant to me to observe that liability now seems to be on the side of the accused until proven otherwise. This is the reason for the huge amount of warning labels and signs on obviously dangerous items: “Rat poison. Not for human consumption. Keep away from children.

The trend of preemptively establishing liability through conspicuous warnings would naturally extend itself to legislation. Doubtless there are hundreds or thousands of allowances and precedents modifying existing law to the effect of delineating liability and responsibility in public areas, and the proposed New York law would just be an extension of that. It would make situations where a pedestrian isn’t paying attention into situations where the pedestrian is liable for the consequences, and that sounds all right to me.

Yet it still isn’t convincing. That’s because, in the case of cars (and to a lesser extent, bikes), you are not simply putting yourself at risk. You are piloting a two-ton vehicle through crowded streets, and could kill dozens of people at any time with a minor mistake. It is the government’s business to regulate your behavior when you are in such a position of power. But when the only thing you’re piloting is your body, and the only person you’re directly putting at risk is yourself, we’re far less likely to accept legislative intervention. Hence the lack of bans on smoking, back country skiing, rugby, F1 racing, and all the other ways we tend to murder ourselves.

The words the ban’s chief proponent, State Senator Carl Kruger, solidify my opposition:

We’re taught from knee-high to look in both directions, wait, listen and then cross. You can perform none of those functions if you are engaged in some kind of wired activity.

It is likely that what Mr. Kruger isn’t capable of, and what he therefore thinks should be banned, would fill many books of ordinance. But I’ll thank him not to tell me what I am and am not able to do. I’m reminded of Twain’s epigram: “Censorship is telling a man he can’t eat steak because a baby can’t chew it.” Similarly, it seems a good basic ground rule that we should not legislate behavior based on the the lowermost percentile of cognitive ability. And this is before we get around to the part where it’s shown that any such law would be unenforceable and unpopular.

The reality of modern life, electronic devices, portable connectivity, and personal devices is that we need to strike a balance between the new and the safe, and that needs to happen on an individual level. I’ll always take the side of New Yorker Marie Wickham, who, when interviewed about the potential ban, expressed concern that people are putting themselves at risk, but in the end noted that “at some point, we need to take responsibility for our own stupidity.”

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