Stop Reading Over My Shoulder  | American Journalism Review
 AJR  Columns :    FIRST AMENDMENT WATCH    
From AJR,   June 2002

Stop Reading Over My Shoulder   

The Colorado Supreme Court shields book-purchase records from government snoops.

By Jane Kirtley
Jane Kirtley (kirtl001@tc.umn.edu) is the Silha Professor of Media Ethics and Law at the University of Minnesota's School of Journalism and Mass Communications.     


Does the government have the right to know what books you buy?

Before September 11, most people would have said, "Absolutely not." The right to read what you choose without law enforcement looking over your shoulder is fundamental. Remember the uproar when Kenneth Starr's Office of Independent Counsel tried to subpoena Monica Lewinsky's purchase records from a bookstore in Washington, D.C., in 1998? When the booksellers contested the subpoenas, federal Judge Norma Holloway Johnson ruled that the government would first be required to demonstrate a compelling need for the customer data. Starr eventually got the information he wanted from Lewinsky's attorneys and didn't challenge Johnson's decision.

But after September 11, long after Johnson's ruling, Congress passed the USA Patriot Act. Law enforcement officials investigating suspected terrorist activities now have sweeping authority to obtain customer records from Internet service providers and to demand transaction records from other businesses. Newhouse News Service reported in April that ISPs and other telecommunications businesses such as cell phone operators have received hundreds of thousands of subpoenas for customer data, including subscriber lists, session times and the methods and sources of payment.

It would hardly seem like an opportune moment for a small independent bookseller in Denver, Colorado, to defy law enforcement demands for records showing who had bought two books on manufacturing illegal drugs--books that were found inside a mobile home that also housed an illicit methamphetamine lab.

As part of an investigation begun in March 2000, police claimed they needed more proof in order to identify the suspects. Based on an envelope found in the trash, they suspected that the books had been sold by The Tattered Cover Book Store. Drug Task Force officials tried to persuade Joyce Meskis, the store's owner, to identify her customer voluntarily. When she refused, one of the officers asked a Denver-based district attorney to issue a search warrant for the records.

A major difference between search warrants and subpoenas is that normally you don't get a chance to argue about a search warrant before it is executed. In this case, however, Meskis' lawyer quickly contacted the Denver DA, who persuaded the police to hold off until The Tattered Cover could challenge the warrant in court. A state trial judge upheld the warrant in October 2000, but this April, the Colorado Supreme Court ruled in the bookseller's favor.

The unanimous opinion by Justice Michael Bender identifies two "expressive rights" raised by this case: those of the bookstore and those of the public. "Any governmental action that interferes with the willingness of customers to purchase books, or booksellers to sell books, implicates First Amendment concerns," Bender wrote. However, he recognized that the U.S. Supreme Court has never held that the First Amendment prevents the execution of otherwise valid search warrants simply because expressive activities are involved.

So Bender invoked the Colorado Constitution, which, he wrote, provides greater protection of the right to receive and distribute information than does the First Amendment. This fact, in turn, requires even stronger justification for a search warrant than would be required under the Fourth Amendment.

Citing Judge Johnson's opinion in the Lewinsky case, Bender went even further. He ruled that, at least in Colorado, the third-party recipient of a search warrant has the right to challenge it in court. And not only is the government required to demonstrate a compelling need for the information, but the court must balance that need against the harm to expressive rights that would result from the execution of the warrant. "The chilling effect that results from disclosure of customer purchase records occurs because of the general fear of the public that, if the government discovers which books it purchases and reads, negative consequences may follow," he wrote.

The court struck down the search warrant, upholding the fundamental constitutional right "to purchase books anonymously, free from governmental interference."

"Had it not been for The Tattered Cover's steadfast stance," Bender noted, that right would have been eviscerated.

Conflicts between law enforcement and the First Amendment are nothing new. But statutes like the USA Patriot Act make it easier than ever for law enforcement officials, in the name of combating terrorism, to trample on the rights to receive information and to express ideas. There has never been a more important time to stand steadfast against that.

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