Why Grits still opposes a Texas texting ban

It's March of an odd-numbered year, so it must be time for a new round of demagoguery and overstatement about texting while driving and a renewed push to criminalize it.

First, a caveat: Grits acknowledges that texting while driving is unsafe and discourages the practice. But not every unsafe activity warrants a criminal law and, in this case, the arguments militate against it.

That's for a number of reasons. For starters, reckless driving is already a crime. If someone is texting and it results in bad driving, wouldn't that qualify? Why not enforce that law instead of creating a new one?

Moreover, what if a texting ban actually increased the number of distracted-driving accidents? An oft-ignored study by the Insurance Institute for Highway Safety found that states which enacted texting bans saw crashes increase. If they did acknowledge that study, texting-ban proponents would have to admit these uncomfortable facts:

It's perplexing for both police and lawmakers throughout the U.S.: They want to do something about the danger of texting while driving, a major road hazard, but banning the practice seems to make it even more dangerous. 

The Insurance Institute for Highway Safety says that 3 of every 4 states that have enacted a ban on texting while driving have seen crashes actually go up rather than down. 

It's hard to pin down exactly why this is the case, but experts believe it is a result of people trying to avoid getting caught in states with stiff penalties. Folks trying to keep their phones out of view will often hold the phone much lower, below the wheel perhaps, in order to keep it out of view. That means the driver's eyes are looking down and away from the road.

The studies you see supporting a texting ban test whether drivers are better or worse at their appointed tasks while texting. But we can grant that texting is not ideal and still understand that the same distraction can be caused by looking at the map on their navigation system or digging around for the last french fry in a fast food bag. And we can also recognize that it'd be an even worse distraction if they were holding the phone out of view to avoid detection. What you don't want to do is make things worse.

That's the problem: There's a very real chance that do-gooders seeking a texting ban will cause more harm than they prevent. And their good intentions won't be a comfort to victims if death totals rise, as they did in 3 of 4 states where texting bans were enacted.

Anyway, many types of distractions cause people to take their eyes off the road, and Grits is unconvinced this problem is worse than people eating fast food while driving, putting on their makeup, or disciplining kids in the back seat.

There's also the fact that phones are used for a lot more than texting, including legitimate purposes like playing music or performing navigation functions. So the same activity - looking at your phone - could indicate legal or illegal activity. How can the law be enforced fairly?

Finally, Grits believes that, precisely because of this ambiguity, texting bans will be used by law enforcement for pretext stops - as an excuse to question people and look inside their car for other purposes, perhaps requesting consent to search or interrogating the driver about their activities.

San Antonio logged 12,000 tickets for texting while driving in the first year of their ban (at $200 each, so raising $2.4 million in Class C misdemeanor fines). This is happening at a time when the number of traffic tickets overall statewide has declined, so texting bans give local police an excuse to ramp up traffic stops at a time when the trend is in the other direction.

That's why Grits doesn't favor the texting ban legislation up in the Texas House Transportation Committee this week and hope it does not pass. It strikes me as an example where people's anger and innate judginess has overwhelmed their capacity for reason.

No, I don't approve of texting while driving. But I'm even less a fan of criminalizing common human behaviors so the government can make money and insert themselves into people's private affairs. And that goes double when doing so might worsen the harm it purports to prevent. In general, I want law enforcement to have fewer reasons  to get into average people's business, not more.