The Tattered Cover, one of the nation's flagship independent bookstores, has been ordered to hand over records of customer book purchases to aid a police drug investigation.
On October 21st, Denver District Court Judge Stephen Phillips lifted a temporary restraining order in place since April that had prevented police from executing a search warrant to get at the records. The police said they wanted to use the records to determine which inhabitants of house raided on a methamphetamine warrant had purchased two books on methamphetamine manufacture.
Tattered Cover owner Joyce Meskis had fought the warrant from the beginning. "When an individual purchases a book, they do so expecting to have the writer and the reader come together in the privacy of his or her home," said Meskis. "They don't expect it to become a public matter," she told the Denver Post in April, when police first attempted to execute the warrant.
At the time, her attorney, Daniel Recht, told the Post, "The Tattered Cover feels very strongly that its customers have a privacy interest in the First Amendment to not have anybody find out what they are reading. It's very important and has been litigated by libraries, booksellers and individuals that government agencies can not come in without a court order and obtain information on what people are reading."
They were not alone. Some 15 literary and bookseller organizations submitted documents supporting the store's efforts to keep the records private.
After the decision, Meskis called the judge's ruling "chilling" and said she is considering an appeal. She has 15 days.
"A bookstore is a house of ideas," she told the Post after the setback.
"We certainly have the responsibility to protect customers' rights to those ideas, and the right to privacy that goes along with that."
Librarians' and booksellers' organizations and civil libertarians lined up to support Meskis and denounce the ruling.
Judith Krug, director of the Office for Intellectual Freedom at the American Library Association, told the Denver Post drug investigators unfairly are "making the connection between what people read and what they do."
"Our concern is that what people read, what goes into their heads will no longer remain private."
Chris Finan of the American Booksellers Foundation for Free Expression (ABFFE) was restrained in his comments. "We're of two minds on the decision," he told DRCNet. "The judge's ruling limited the scope of the warrant to a couple of items, which was good. On the other hand, we continue to believe this will have a chilling effect on the customers of the Tattered Cover."
Finan told DRCNet that Meskis and the ABFFE are pondering whether to appeal. "What we're considering is whether in appealing the bad part of the ruling, we could lose the good part."
Finan added that they would probably use the entire 15-day appeal period to reach their decision.
Sue Armstrong, executive director of the Colorado branch of the American Civil Liberties Union (ACLU), was blunt. "Key principles of the right to privacy and freedom of speech have ultimately been compromised by the decision," she told the Post.
The case arose on March 14, when agents of the North Metro Drug Task Force raided an Adams County mobile home. They discovered a meth lab and the two books, "The Construction and Operation of Clandestine Drug Laboratories" by Jack B. Nimble and "Advanced Techniques of Clandestine Psychedelic and Amphetamine Manufacture" by Uncle Fester. Police also found a shipping envelope and invoice from the Tattered Cover. They said they hoped bookstore records would help them pinpoint which of the trailer's residents was the chemist.
According to court documents, a DEA agent with the task force first obtained an administrative subpoena for all information Tattered Cover had on the suspected person, but was thwarted by attorney Recht, who argued that the subpoena was deficient. The task force then asked the Adams County district attorney's office to issue a search warrant for the bookstore records, but was turned down, partially to avoid a public relations fiasco. The task force then turned to the Denver District Attorney, who, unaware of the county DA's rejection, granted their request.
Meskis' attorney strongly criticized the police warrant hunt as "forum shopping" and "abuse of process."
When police armed with the search warrant arrived at the Lower Downtown Tattered Cover in April, owner Meskis fended them off while her attorney contacted the Denver DA and convinced that office to postpone the search until Meskis could challenge it on First Amendment grounds in court. The following week, a Denver judge imposed a temporary restraining order barring the police from executing the warrant.
The case recalls independent counsel Kenneth Starr's 1998 subpoenas directed at two Washington, DC, bookstores as he investigated gift exchanges between President Clinton and Monica Lewinsky. A federal judge, writing that the state showed "no compelling interest" in that information, quashed the subpoenas.
Denver District Judge Phillips rejected the Lewinsky precedent, however. He said the Tattered Cover case was "dramatically different" because in the Lewinsky case, "The subpoenas were exploratory in nature, and the government was unable to show any need nor any nexus to a criminal event."
In his order, the judge ruled that in this case law enforcement's ability to investigate crimes outweighed First Amendment rights "to receive information and ideas, regardless of social worth."
The Metro North Drug Task Force was not concerned about such legal niceties.
Task force commander Lt. Lori Moriarty told the Denver Post, "If it only takes one or two records from a bookstore to help us eliminate drugs on the street, then so be it. We need all the tools possible to help law enforcement do its job."