Dirty driving: a distraction or a right?

Sunday, November 7, 2004

Andre Gainey got pulled over for reckless viewing after he drove past the police station in Schenectady, N.Y., last February. A police officer behind Gainey’s Mercedes had glimpsed an adult film playing on three video screens set into the passenger-side visor and the car’s headrests.

This summer, Gainey was sentenced to three weekends in jail on a misdemeanor charge of public display of sexual material.

The facts of this case may be a bit extreme, but video viewing in moving vehicles apparently is no longer strictly children’s fare. It is yet another example of how quickly sex entrepreneurs convert new communications technology to their own use.

Each year, hundreds of thousands of vehicles arrive in the dealer showrooms equipped with DVD video systems; more are being installed after vehicles are bought. The original idea for this innovation was to provide entertainment for passengers, particularly children, riding in the back seats.

But some drivers apparently have other ideas and occasionally pop in adult videos for themselves or their passengers. Public officials and ordinary citizens who have glimpsed such naughty bits or heard about them are outraged. Already the trend is generating scornful labels, including “drive-by porn,” “dirty driving” and “vehicular obscenity.” And the term “rubbernecking” has acquired a lot more flexibility.

Tennessee and Louisiana already have enacted laws in response to complaints. Thirty-eight states have laws restricting the placement of on-board video screens.

Americans are constantly in motion, spending an average of 300 hours a year in their cars and SUVs. They have developed a great sense of privacy if not propriety about these moving homes. But those who catch a view of explicit movies from other vehicles or the sidewalk want to preserve their own privacy, to protect their children from such sights, and to eliminate safety risks caused by distracted drivers.

Distractions for drivers are not a new issue, of course. Americans zip down the highway talking on the cell phone, fiddling with the radio, munching on a hamburger, trying to read a map or the navigation system, even shaving or putting on makeup.

Allen J. DeWalle, president of AAA Mid-Atlantic, reminds us in a recent article that driver distractions have been around since the invention of windshield wipers in the early 1900s. “Wipers, AM radios and a host of other innovations designed to enhance motorists’ comfort, safety and convenience drew negative reaction until their benefits were understood and people learned to manage the distractions they caused.”

But many on the road, perhaps most, don’t want to manage this particular distraction. For them, a sexy video in the car ahead or in the next lane is one distraction too many. They want such activity banned or at least punished.

However, it’s difficult to draft a law that properly observes the many constitutional “yield” signs along the way. The courts are cautious when it comes to regulating protected speech, and offense alone is not enough to put speech outside the First Amendment’s protection.

“Part of the problem is separating out the impact of adult movies from the many other distractions that exist,” said First Amendment expert Robert Corn-Revere. “If you are looking into the next car to see what’s on TV, you arguably are invading that person’s privacy, not the other way around. As to the safety issue, it doesn’t seem that the possible distraction would be much different if they were watching 'Indiana Jones.'”

A number of Supreme Court decisions address this general issue. One, Corn-Revere points out, is particularly relevant in this instance.

In 1975, the Court ruled in Erznoznik v. City of Jacksonville that the Florida city’s ordinance making it illegal for drive-in movies to show films containing nudity was unconstitutional. Movies at the drive-in could be seen from the road as well as a nearby church parking lot. But the Supreme Court ruled that the law violated the First Amendment by discriminating among movies on the basis of their content.

The Court said the law could not be justified “on the basis of the limited privacy interest of persons on the public streets, who if offended by viewing the movies can readily avert their eyes.” Neither could the law be viewed as legitimate traffic regulation, the justices said, because movies without nudity also could distract a passing motorist.

Further, said the Court, the possibility of writing a narrow law that would pass constitutional muster was “remote” because such a law’s “deterrent effect on legitimate expression in the form of movies is both real and substantial.”

Writing for the majority in that decision three decades ago, Justice Lewis Powell anticipated even if he didn’t imagine the present quandary. Even though the facts of that ruling were about watching movies on a large screen from a car as opposed to watching movies on a small screen within a car, the principle — from a First Amendment perspective — remains the same:

“A State or municipality may protect individual privacy by enacting reasonable time, place, and manner regulations applicable to all speech irrespective of content. But when the government, acting as censor, undertakes selectively to shield the public from some kinds of speech on the ground that they are more offensive than others, the First Amendment strictly limits its power.”

Those words should be a clear signal to all parties that dirty driving is a problem best addressed by rules of the road that emphasize common sense, courtesy and discretion. Responsibility is the best protection for rights.

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