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Feb. 13, 2002 | Joyce Meskis vividly remembers the day when five drug task force officers walked into her bookstore with a search warrant. "I was dumbstruck," she said. "Even though they were polite, it's a daunting experience."
One of the largest independent booksellers in the country, Tattered Cover has over 100,000 titles and a study-like atmosphere with plenty of what Meskis calls comfortable "grandma's attic" furniture. The brick, turn-of-the-century building seems an unlikely place for criminals, and the police probably thought that day's task would be quick and easy. But almost two years later, the warrant demanding that Tattered Cover hand over records of one of its customers' purchases remains unexecuted, held off by lawyers and temporary restraining orders.
Although many people aren't aware of it, in the eyes of the law buying a book is different from buying a bicycle or a pack of cigarettes. Through the years, the protections accorded materials covered by the First Amendment, such as books and newspapers, have evolved to protect the institutions that provide those materials as well. So when law enforcement officials say they just want information about the books a suspect purchased, booksellers and civil rights advocates see the demand as something that could erode book buyers' privacy and First Amendment rights.
"If we allow law enforcement access to customer records whenever they think it's convenient, customers won't feel secure purchasing books and magazines that are their constitutional right to buy," said Chris Finan, president of the American Booksellers Foundation for Free Expression. "It's important because many books are very private, or about sensitive issues, and if they feel booksellers turn over buying information at regular intervals, customers won't buy those books." By extension, this could have a chilling effect on the types of books that end up being published.
Tattered Cover's ordeal began in March 2000, when the Adams County District Attorney's Office contacted Meskis to inform her that the Drug Enforcement Agency was planning to subpoena the store for one of her customer's sales records. During a raid of a methamphetamine lab in a trailer park in suburban Denver, authorities had found an empty Tattered Cover shipping envelope addressed to one of the suspects in an outside trashcan, and two nearly new books, "Advanced Techniques of Clandestine Psychedelic and Amphetamine Manufacture," by Uncle Fester, and "The Construction and Operation of Clandestine Drug Laboratories," by Jack B. Nimble, inside the trailer. The DEA planned to strengthen its case by tying the suspect's illegal activities to his purchases of books outlining how to make methamphetamine.
Meskis answered that such a request was a violation of First Amendment rights and said she would fight it in court. "I thought that was the end," she recalled, "but it wasn't." Instead of bringing it to court, the DEA persuaded a judge to authorize a search warrant, which would be immediately executable and would bypass judicial interference. That's how the five task-force officers wound up in her bookstore.
Meskis' first try at quashing the warrant wasn't as successful as she'd hoped. In October 2000, a Denver district court judge narrowed the warrant's scope but ordered the store to turn over the information. She appealed that ruling to the Colorado Supreme Court, and on Dec. 5, 2001, lawyers from both sides presented oral arguments. The decision is expected sometime this spring.
The case has attracted nationwide media attention and the support of dozens of civil liberties groups and a phalanx of writers. On Jan. 11, at San Francisco's A Clean Well-Lighted Place for Books bookstore, over 500 people attended a benefit to help defray legal costs that have arisen from the case. Daniel Handler, author of the Lemony Snicket series, helped organize the event, attended by other literary luminaries such as Pulitzer prizewinner Michael Chabon, McSweeney's editor Dave Eggers and novelist Dorothy Allison. "It's startling and disappointing to me," Handler said about the case. "There are so few countries where you can't get in trouble for what you read, and the U.S. appears to be falling from that short list."
In fact, according to Finan, less-publicized demands by law enforcement for customer information have become "alarmingly" more frequent over the past two years. And not only independent booksellers, but giants like Borders and Amazon, have been subpoenaed. In perhaps the most egregious case, authorities ordered Amazon to give them a list of all customers in a large part of Ohio who had ordered two sexually oriented CDs. Independent booksellers have been especially hard-hit by these cases. And fighting them without the benefit of a corporate budget or in-house counsel means hefty legal bills and months, if not years, of hassle.
"It's a big problem," said attorney Theresa A. Chmara of Jenner & Block in Washington, DC, who is on the ABFFE board and wrote an amicus brief for Tattered Cover. "This is an opportunity for a state supreme court to determine how these cases should be done and explicitly define how they should be handled."
Meskis, Finan and other advocates contend that bookstores need the same protection of their patrons' rights that suppliers of other types of First Amendment materials enjoy. For example, in 1987, after a Washington weekly newspaper published a list of videos rented by Supreme Court nominee Robert Bork, Congress passed the Video Privacy Protection Act, which severely limits the information video stores may release about their customers. Public and private libraries have for decades butted heads with groups and individuals attempting to gain access to their lending records, and there are now statutes in 48 states that restrict the ability of librarians to give out such information.
Maya Angelou reads from "The Heart of a Woman"
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