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Colorado Bookstore Wins Battle To Protect Customers' Privacy

Colorado Bookstore Wins Battle To Protect Customers' Privacy

By Elaine Hargrove-Simon, Bulletin Editor

In April 2002, the Colorado Supreme Court ruled that The Tattered Cover Bookstore would not be required to hand over information regarding customer purchases to investigators. In March 2000, police and a Drug Task Force agent were observing a trailer home where they suspected a methamphetamine lab was operating. One of the investigators searched through the garbage left outside the trailer for collection and found evidence of the operation of a drug lab as well as an envelope from The Tattered Cover bookstore. The envelope was labeled with the invoice number, order number, and the customer's name, who was one of the residents of the trailer.

The police obtained a search warrant for the trailer. When they entered the trailer, they found evidence of four people living there, and a methamphetamine lab in the master bedroom. They also found two books describing drug manufacturing: Advanced Techniques of Clandestine Psychedelic and Amphetamine Manufacture by Uncle Fester, and The Construction and Operation of Clandestine Drug Laboratories by Jack B. Nimble. Following the search of the trailer, authorities informally sought records from The Tattered Cover to verify the purchase of the two drug-related books, in order to determine which of the residents of the trailer could be connected to the construction of the meth lab. When the bookstore's owner, Joyce Meskis, refused to cooperate, the Denver District Attorney was asked to approve a search warrant, which requested any and all titles ordered by the one suspect who lived in the master bedroom.

The lawyer for The Tattered Cover asked the Denver District Attorney to delay the execution of a search warrant and obtained a temporary restraining order pending a hearing in the Denver District Court. Judge J. Stephen Phillips ultimately narrowed the scope of the warrant, but ordered Meskis to reveal the titles relating to the invoice found in the garbage at the trailer home.

The case (Tattered Cover v. The City of Thornton, 2002 Colo. LEXIS 269 (2002)) was decided by the Supreme Court of Colorado on April 8, 2002. The unanimous opinion by Chief Justice Michael L. Bender cited United States v. Rumely (345 U.S. 41 (1953)): "Once the government can demand of a publisher the names of the purchasers of his publications, the free press as we know it disappears. Then the spectre of a government agent will look over the shoulder of anyone who reads. . . . Fear of criticism goes with every person into the bookstall. . . . Some will fear to read what is unpopular, what the powers-that-be dislike. . . . Fear will take the place of freedom in the libraries, book stores, and homes of the land. Through the harassment of hearings, investigations, reports, and subpoenas government will hold a club over speech and over the press."

Relying on the Colorado Constitution, which he said provides greater protection for free expression than the First Amendment to the U.S. Constitution, Bender outlined a balancing test even stronger than the one set forth In re: Grand Jury Subpoena to Kramerbooks & Afterwards Inc. (26 Med. L. Rptr. 1599 (D.D.C. 1998)), the case arising from Kenneth Starr's attempts to subpoena Monica Lewinsky's book purchases. The first prong of the test provides that the government must not do anything that abridges fundamental rights unless there is an appropriate connection to a compelling government interest. That connection must be direct and significant. The second prong requires that there must be a "significant connection" between the criminal investigation and the information being sought. Finally, "officials must exhaust [other] alternatives before resorting to techniques that implicate fundamental expressive rights of bookstores and their customers."

The ruling in this case is notable, particularly in the wake of the passage of the USA PATRIOT Act. The Act has given greater latitude to law enforcement officials in searching retail records hoping to link suspects with purchases of items that played a role in terrorist activities. But when retail records are for items such as books, the Act creates a chilling effect on the right of all Americans to receive information and to express ideas. (See "The USA PATRIOT Act: How Patriotic Is It?" Winter 2002 Bulletin.)

Meskis, who is one of the founders of American Booksellers Foundation for Free Expression, as well as Colorado Citizens Against Censorship, was supported by booksellers nationwide, some of whom have aided in raising $30,000 to help pay her legal fees. She has owned the bookstore since 1974.