Drop That Book and
Back Away Slowly:
Five law enforcement agents entered a building in Denver to execute a search warrant in the spring of 2000. They were members of Metro North's Drug Task Force looking to take down a methamphetamine manufacturer. They had already raided the suspect's house and found what they say is a meth lab. On this April morning they were in the Tattered Cover, one of the most admired independent bookstores in the country, showing their search warrant to the store's owner, Joyce Meskis. The narcocops wanted to grab the store's customer records to see what books their suspect had bought.
Law enforcement has the right to enforce the law of the land, but the First Amendment is also the law of the land, and right now those laws are coming into conflict, says Meskis. She ought to know. She helped write Protecting Customer Privacy in Bookstores, a pamphlet for the American Booksellers Foundation for Free Expression. She probably didn't realize that she would eventually be following her own advice.
Her troubles began when the Drug Task Force, a multijurisdictional group that includes local cops and DEA agents, raided a house in Adams County, Colorado. They found a meth lab, but because several people lived in the house, they were having trouble pinning the operation on their suspect. Three items caught their attention. Two were Loompanics Unlimited books on the manufacture of drugs: Advanced Techniques of Clandestine Psychedelic and Amphetamine Manufacture by Uncle Fester and The Construction and Operation of Clandestine Drug Laboratories by Jack B. Nimble. The other item was a shipping envelope from the Tattered Cover. Figuring the envelope might have been used to ship the drug books to their suspect, the DEA issued an administrative subpoena demanding customer records from the Tattered Cover.
The bookstore's attorney, Dan Recht, said no way. We told them they needed to get a subpoena signed by a judge, he says, rather than an administrative subpoena, which is only signed by a federal agent. The feds backed off, and the matter seemed at a standstill. I thought we still had time to work it out, says Meskis. That illusion evaporated when the five cops came marching in on April 5, 2000.
The Drug Task Force had wanted a search warrant, so they approached the Adams County District Attorney. But he was concerned about a little thing called the First Amendment. No matter, though. The cops just went to the Denver Assistant D.A., who gave them the warrant.
Despite the Task Force's claim that the warrant only targeted these two books purchased by the suspect, Recht says the text of the warrant told a different story. The cops actually wanted the title of every book that the suspect had ever bought from the store. (The final court decision in the case confirms this.)
But even with the search warrant, the cops were rebuffed by Meskis. She called in Recht, who got a temporary restraining order that stopped the cops in their tracks. For a while, anyway.
The legal case (Tattered Cover, Inc. v. City of Thornton) worked its way through the system, finally being heard by the Colorado Supreme Court, which issued its ruling in April 2002. The justices supported the Tattered Cover, ruling that the police had not proved a compelling need for the information. Before law enforcement officials are permitted to take actions that are likely to chill people's willingness to read a full panoply of books and be exposed to diverse ideas, the court wrote, law enforcement officials must make a heightened showing of their need for the innocent bookstore's customer purchase records.
Furthermore, they forcefully argued: With this case, we recognize that both the First Amendment to the United States Constitution and Article II, Section 10 of the Colorado Constitution protect an individual's fundamental right to purchase books anonymously, free from governmental interference. Law enforcement officials implicate this right when they seek judicial approval of a search warrant authorizing seizure of customer purchase records from an innocent, third-party bookseller....
Without the right to receive information and ideas, the protection of speech under the United States and Colorado Constitutions would be meaningless. It makes no difference that one can voice whatever view one wishes to express if others are not free to listen to these thoughts. The converse also holds true. Everyone must be permitted to discover and consider the full range of expression and ideas available in our 'marketplace of ideas.'...
When a person buys a book at a bookstore, he engages in activity protected by the First Amendment because he is exercising his right to read and receive ideas and information. Any governmental action that interferes with the willingness of customers to purchase books, or booksellers to sell books, thus implicates First Amendment concerns....
Anonymity is often essential to the successful and uninhibited exercise of First Amendment rights, precisely because of the chilling effects that can result from disclosure of identity. The Supreme Court has recognized this principle numerous times in various contexts.
Despite these heartening words, the news isn't 100 percent rosy. The court notes: We emphasize that a bookstore's customer purchase records are not absolutely protected from discovery and that this question must be decided on the particular facts of each case.
In other words, records of the books purchased by an individual are not automatically and completely off-limits to the authorities. It's still possible to make bookstores fork over customer information, but the court's ruling says that there are highly stringent requirements. From now on at least in Colorado before the cops can serve a warrant for records on book purchases, they must submit to a court hearing in which the bookseller can defend itself against the demands. The burden falls heavily onto the government to prove it has a compelling need for the records, that the information couldn't be uncovered using other, less intrusive means, and that the potential harm to the Constitution would be outweighed by the public's safety. That's a pretty tall order.
This isn't a perfect victory, but it's a victory nonetheless.
Previous Power Grabs
If the Tattered Cover fiasco sounds familiar, you may be thinking of the days of Monicagate, when Ken Starr filed a subpoena to see which books Lewinsky bought from Kramerbooks & Afterwords and a Barnes & Noble in Washington, DC. Even though the records were never handed over, the murky outcome didn't exactly bolster the First Amendment. A federal judge limited the scope of Starr's subpoena but didn't quash it, despite requests from attorneys for the bookstores. The judge looked at the Barnes & Noble records herself and decided that the info wasn't necessary for Starr's investigation, so he never got his hands on it. Then Lewinsky agreed to tell which books she bought, so Starr quit strong-arming Kramerbooks.
Thus, the court never ruled that the subpoena for book records was unconstitutional.
A similar situation befell Ronin Publishing, one of the best known publishers of drug literature. In 1997 the DEA demanded that Ronin send them a list of every person in Arizona who had bought a copy of Marijuana Hydroponics. Like the DEA's initial contact with the Tattered Cover, this was just an administrative subpoena signed by a federal agent, so Ronin balked. The DEA let the matter drop, and it's surely a coincidence that Ronin got an audit notice from the IRS a short time later.
Feds Tried to Burn Drug Books
The Tattered Cover saga may also be ringing bells for you because it dovetails perfectly with the Methamphetamine AntiProliferation Act of 2000. With this odious piece of legislation, Congress did its level best to suppress drug information at its source books and the Web. The bill called for sending publishers and Webmasters to prison for ten years if they distributed info on making or using controlled substances. Such info could've included safe dosage levels of illegal drugs, explanations about how to use marijuana to fight nausea and glaucoma, Websites on how to identify psilocybin mushrooms in the wild or extract codeine from Tylenol 3, and, naturally, books on making meth or harvesting opium from poppies.
While this proposed law may have seemed ridiculously unconstitutional to people with a shred of common sense, it had a very real chance of passing. It was modeled on a similar law, which outlaws instructions for making bombs and other explosives. That law passed, but the law against drug info, luckily, did not.
The Worst Is Yet to Come
A First Amendment-destroying bill that did pass is the comically titled USA Patriot Act, a gargantuan assault on the entire Constitution and the notion of justice in general.
A First Amendment-destroying bill that did pass is the comically titled USA Patriot Act, a gargantuan assault on the entire Constitution and the notion of justice in general. Much has been made of this law which was passed in the wake of the September 11 terrorist attacks especially its destruction of judicial process and attorney-client privilege, its expansion of surveillance and secret searches, and its green light for the CIA to conduct domestic operations. But one new power under the law has been almost completely overlooked.
Under the Patriot Act, the feds can demand a list of the books you've purchased from booksellers or have borrowed from the library if you're suspected of involvement in terrorism, which as we've seen recently can mean whatever the authorities want it to mean. But surely the FBI still has to get a warrant in order to execute such a search, right? Strictly speaking, yes. The problem is that the warrant comes from the infamous Foreign Intelligence Surveillance Court (FISC), a secret Star Chamber located in the Justice Department that is completely anonymous and unaccountable. Its rulings are sealed forever. No one even knows the identities of the judges who sit on it.
Since the FISC was formed in 1978, the court has received over 12,000 applications for electronic surveillance or physical search. It has granted all but one of them.
What's more, the FISC is the intelligence community's whore: It almost never turns down a request. The only information the court is required to make public is the overall number of warrants it issued during any given year. Thus, we know that since it was formed in 1978, the court has received over 12,000 applications for electronic surveillance or physical search. It has granted all but one of them. If the past is any indication, the FISC will be rubberstamping requests to find out what books US citizens and non-citizens are reading.
What's more, according to the American Booksellers Foundation for Free Expression (ABFFE), it will probably be impossible for a bookstore or library to fight the warrant. No sort of appeal will be allowed. Either the records are turned over immediately, or librarians and bookstore owners go to jail.
But it gets worse.
The Patriot Act explicitly states that when a bookseller or library gets served with a secret warrant, it is not allowed to tell anyone about it.
The Patriot Act explicitly states that when a bookseller or library gets served with a secret warrant, it's not allowed to tell anyone about it. If they tell the media that the feds are demanding to know which books individuals have read, they've committed a felony. Actually, the gag order applies to telling any other person, so simply telling spouses or employees would also violate federal law.
The American Booksellers Foundation for Free Expression has alerted its members:
Although the wording of the law seems to suggest that contacting anyone about the court order is forbidden, it is ABFFE's belief that you remain entitled to legal counsel. Therefore, you may call your attorney and/or ABFFE. Because of the gag order, however, you should not tell ABFFE that you have received a court order under FISA (the Foreign Intelligence Surveillance Act). You can simply tell us that you need to contact ABFFE's legal counsel.
Legal counsel is important even in cases where it is not possible to challenge a court order. It may be possible for you to have a lawyer present during a search of your store records. If so, the lawyer will be able to help you ensure that there is no violation of the privacy of your other customers.
Free speech defender Nat Hentoff has said that, as of the beginning of April 2002, he knows of three cases in which the FBI has executed these secret warrants to discover what people have been reading. He won't divulge his sources, obviously, because they committed felonies simply by telling him.
Now put down that book and back away slowly, citizen.
Now put down that book and back away slowly, citizen.
Websites of American Booksellers Foundation for Free Expression and the Tattered Cover.
Text of the US Patriot Act, Methamphetamine AntiProliferation Act of 2000, and Tattered Cover, Inc. v. City of Thornton.
Doyle, Michael. Foreign Intelligence Surveillance Court Gets New Powers. Scripps Howard News Service, 4 Nov 2001.
Hentoff, Nat. Most Far-Reaching Gag Order In 1st Amend. History? Editor & Publisher, 1 April 2002.
Various articles from the Denver Post and the Washington Post.
Russ Kick is the editor of Everything You Know Is Wrong, You Are Being Lied To, and several articles published by Loompanics Unlimited in our various supplements.