Even if law
enforcement officials believe they urgently need the information, it's
much harder for them to get First Amendment materials than to get
credit-card receipts or phone records. The court applies a higher standard
to warrants or subpoenas for such materials. It requires demonstration of
compelling need for the information and direct relevance to the
investigation; the requests must be limited in scope, and are to be made
only after all other investigative outlets have been exhausted.
The problem bookstores face is that there is little precedent regarding law enforcement's right to search their records.
In 1998, Independent Counsel Kenneth Starr made the first attempt -- at least, the first attempt that free speech activists know of -- to get customer sales records from a bookstore. It came pursuant to Starr's investigation of Monica Lewinsky's affair with former President Bill Clinton. He subpoenaed two Washington area bookstores for information about her purchases. One store, Kramerbooks, was especially adamant when they refused the request, and the case went to court. Chief U.S. District Judge Norma Holloway Johnson refused to quash the subpoena but stated that the bookstore had successfully shown that the subpoena had a potential chilling effect on First Amendment rights. She ruled that the government must prove "a compelling need for the materials it seeks and whether there is a sufficient connection between that information and the grand jury's investigation." Kramerbooks planned to fight that decision, but the case was resolved when Lewinsky agreed to provide the records voluntarily.
"There's so little precedent, given the fact that bookstores didn't have to worry about these requests until the Lewinsky case," said Judith Krug, director of the office for intellectual freedom for the American Library Association. "But that opened the floodgates."
Since then, four other cases, including Tattered Cover's, have come up, and in each one the bookstore chose to fight. According to Finan, "Many of the requests have been outright fishing expeditions. They haven't been respectful of privacy rights or the First Amendment.
"We're not asserting a categorical First Amendment for all records," Finan explained. "But in many cases, police don't do everything they should have done. They left avenues uninvestigated and went to the bookstore because it's more convenient for them. They should never have access until they have done everything they can. They need to respect bookstores for what they are: purveyors of ideas, not a hardware store."
What the district attorney's office didn't realize when they messed with Meskis was that she was probably the last person in the country with whom they wanted to pick this type of fight. She is a former president of the American Booksellers Association and chair of the task force that established ABFFE. She is also one of the coauthors of the group's pamphlet "Protecting Customer Privacy in Bookstores," and is a veteran of several Colorado First Amendment challenges.
Meskis' attorney, Daniel Recht, called the Denver D.A.'s office and was granted an unusual one-week extension before the search warrant was carried out, which enabled them to get a temporary restraining order and bring the case to court.
Attorney Andrew Nathan, of Nathan, Bremer, Dumm & Myers, gave oral arguments to the Colorado State Supreme Court on behalf of law enforcement and said that the suspect's book purchases are an essential piece of evidence and that authorities are merely trying to obtain information during the investigation of a crime. "It's a business record, a single business record," he said. "We're not exploring the reading habits of the suspect. We're not asking [them] to tell us everyone they sold the book to. The warrant only seeks to know if the suspect bought books about manufacturing of methamphetamine at meth labs."
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Maya Angelou reads from "The Heart of a Woman"
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