Author: David G. Savage

COURT UPHOLDS ANONYMITY FOR BOOK BUYERS

Law: The Colorado High Court Cites "Fundamental Right" of Privacy. More
Crime Investigators Have Been Seeking the Records.

WASHINGTON -- The Colorado Supreme Court on Monday ruled that the state's
constitution protects the privacy of both bookstore owners and their
customers when it refused to force a Denver retailer to turn sales records
over to police.

Legal experts predicted that the decision would slow, if not halt, the
recent trend of investigators seeking records of book purchases or video
rentals as a quick way to track suspects or bolster a prosecution.

Four years ago, independent counsel Kenneth W. Starr surprised booksellers
when he subpoenaed the records of a Washington store, seeking purchases
made by Monica S. Lewinsky.

Since then, there has been "an alarming increase in the number of bookstore
subpoenas and search warrants," including requests to online booksellers,
said Chris Finan, president of the American Booksellers Foundation for Free
Expression.

But the bookstore owners have fought back, and they won an important
victory Monday.

"The 1st Amendment embraces the individual's right to purchase and read
whatever books she wishes to, without fear the government will take steps
to discover which books she buys, reads and intends to read," the Colorado
court said in a unanimous decision.

This "fundamental constitutional right . . . to purchase books anonymously"
cannot be swept aside, the judges said, except in the rare instance where
police can show the information is absolutely essential and cannot be
obtained in any other way.

Moreover, the "innocent, third-party bookseller" deserves an opportunity to
contest these claims in a special hearing, the state court said. Typically,
a magistrate approves a police officer's request for a search warrant
without hearing from anyone who opposes it.

In the case decided Monday, police were trying to determine who had run a
methamphetamine lab. Two years ago, police raided a trailer park in
Thornton, Colo., and found the lab, but it was unclear who among several
suspects was the operator.

In the bedroom of one trailer, police found two how-to books on making
illegal drugs. They also found a mailing envelope from the Tattered Cover,
a popular Denver bookstore, but there was no receipt to show who had
purchased the books and no name on the envelope, only the trailer's address.

The officers obtained a subpoena from the Drug Enforcement Administration
for the purchase records. Joyce Meskis, the owner of Tattered Cover,
refused to comply.

Police then obtained a search warrant from the Denver district attorney's
office. Six officers went to the bookstore to carry out the search, but
Meskis contacted her lawyer, who persuaded prosecutors to wait until a
hearing could be held.

Meskis said her customers were aware of the 1st Amendment and their right
to privacy. "This is not an uninformed society. They care," she said.

The trial judge, however, concluded that the police had shown a strong need
for the information and upheld the search warrant.

But Colorado's highest court immediately took up the issue and quashed the
search warrant Monday. Its judges pointed out that police had sufficient
evidence to determine who occupied the trailer where the illegal lab was
found. They did not need the book receipt to "connect" the methamphetamine
lab to the occupant of the trailer, the judges said.

"Not only is this case a victory for readers and book purchasers in
Colorado, [but] we believe the court's opinion sets an important precedent
for readers, bookstores and library patrons throughout the country," Meskis
said.

Ruling Can't Be Used as Federal Precedent

Since the ruling relies in large part on Colorado's state constitution, it
is not a binding precedent for courts around the nation. However, for the
same reason, Colorado police cannot appeal the outcome to the U.S. Supreme
Court. The high court's jurisdiction is limited to questions of federal law
or the U.S. Constitution, and the justices do not review rulings that stand
on state law.

Finan, the president of the booksellers' group, called Monday's ruling "the
strongest opinion by any court on the importance of protecting customer
privacy in bookstores. It will influence judges deciding future cases."

He and other lawyers said the principles set in the ruling would apply
equally to videos as well as books.

However, two experts on the 1st Amendment differed on whether bookstores
deserve a special place in the law.

UCLA law professor Eugene Volokh questioned why purchases from bookstores
were more private than a conversation between two friends or co-workers.
Judges routinely have upheld court orders that require individuals to
testify about their conversations. For example, in a job discrimination
lawsuit, employees are required to reveal what others said in private
meetings, he said.

"It sounds appealing to say a bookstore is special, but why is a private
conversation deserving of less protection." Volokh asked.

But Jane Kirtley, a media law expert at the University of Minnesota, said
the freedom to exchange ideas demands a broad shield of protection. "The
issue comes down to whether we want the government to find out what we are
reading," she said. "If controversial books can justify police searches,
people will be afraid to buy them, and bookstores will be afraid to stock them."