CONSPICUOUS CONVERSATION

By CALVIN TRILLIN

The controversy over the Gingrich tapes has served as a reminder that the law is being broken when we listen to cellular telephone conversations we aren't supposed to hear. So, those of us who have been trapped near a cell-phone shouter want to know: Why isn't the law being broken when we're forced to hear cellular telephone conversations we don't want to listen to?

Why isn't there some punishment for the Wall Street type who sits down in a restaurant and immediately begins talking loudly into a cell phone about what would or wouldn't be a deal-breaker and who is or isn't a player? If the rap for intercepting cell-phone conversations (up to five years in prison) is considered too harsh for this sort of infraction, what about giving this guy some lesser penalty like suspension of luxury-sedan driving privileges or confiscation of red suspenders?

Let's get the First Amendment business out of the way. I happen to be a First Amendment absolutist who believes in the right to free speech with no exceptions. All right, I'll admit that I'm on record as advocating that people who show other people slides of their trip to Europe should be arrested and put in jail for a very long time. We all have our limits.

When it comes to limits that society can reasonably place on free speech, the best known statement by the Supreme Court is from Justice Oliver Wendell Holmes, who said that nobody has the right to shout "Fire!" in a crowded theater. More to the point is that nobody in a theater has a right to talk through the movie--particularly if it's a guy sitting right behind you whose voice could be used to torture political prisoners in South America and who can't stop talking about how much the actress playing the matrimonial lawyer resembles his Cousin Edna, the one who ran off with the sheet-rock installer. In this situation, you don't need a citation from Oliver Wendell Holmes. You only need an usher. The usher can explain to Torture Voice that he has every right to carry on a conversation, but he'll have to do it out on the sidewalk.

The problem with cell-phone users is that they often start conversations in places where there are no ushers available--in the passenger waiting-area before a plane is ready for boarding, for instance, where they're sitting 10 ft. from a pay phone that is one-fiftieth of the cost and doesn't make their conversation vulnerable to being taped by John and Alice Martin of Fort White, Florida, and published in the New York Times.

Maybe the only way to deal with people who make you an unwilling listener to their conversation may be to take some active participation:

"Excuse me, do you happen to be talking to Newt Gingrich?"

"What? What are you talking about?"

"Newt Gingrich, the Speaker of the House."

"Of course not."

"Because, if you are, could you tell him if he has to pay that big fine, maybe his pal, Rupert Murdoch, would be willing to give him an advance on the next book."

"Look, I'm not talking to Newt Gingrich. I'm talking to my broker. Could you please leave me alone?"

"Your broker? Maybe you could ask him how long he thinks this bull market can last. I mean, as long as you have him right there on the phone. Also, you don't know Rupert Murdoch's number off hand, do you? Maybe we should give him a call."