TO BOOKSELLER, OFFICERS' TRY AT A SEARCH WARRANTS A FIGHT

A Denver Drug Probe Clashes With Aims To Keep The Public's Reading Choices
Private.

DENVER -- Joyce Meskis didn't have any warning when the five policemen
marched into her office that day, search warrant in hand. They were
there to search the sales records of Meskis' Tattered Cover Bookstore,
a Denver landmark, as part of an investigation into a small-time drug
operation.

"I was dumbfounded," said the 60-year-old, whose bookstore is one of
the largest independently owned in the country. "We had never faced a
search warrant before."

In a matter of minutes, she was on the phone to her lawyer, who
advised her to politely decline to cooperate. With that, the battle
was joined in what has become one of the most prominent 1st Amendment
cases in the country. Now, two years later, the Colorado Supreme Court
is expected to issue an opinion this spring about whether the police
have the authority to search the Tattered Cover's sales records and,
by extension, the records of other Colorado bookstores. The case could
decide whether booksellers have the right, even the responsibility, to
keep their customers' purchases confidential. Losing that right,
activists say, could influence what publishers are willing to print
and what bookstores are willing to sell.

The drug lab investigation was one in a growing trend by law
enforcement agencies to seek computer records from booksellers to
assist in building a criminal case. The first of these cases occurred
in 1998, when independent counsel Kenneth Starr subpoenaed two
Washington bookstores during his investigation of Monica Lewinsky's
affair with then-President Bill Clinton. That effort was sidetracked
by Lewinsky's agreement to cooperate with Starr's investigation, but
it opened the door to other attempts.

Even with the Lewinsky case already on the books, Meskis had no
inkling of the judicial odyssey she was about to embark upon, one that
has become a cause celebre in the civil rights and literary
communities nationwide. In January, San Francisco's A Clean
Well-Lighted Place for Books--itself an institution of sorts--held a
fund-raiser that took in more than $10,000 to help defray the Tattered
Cover's legal costs. Pulitzer Prize-winning novelist Michael Chabon
and author Dorothy Allison attended, saying the case threatens the
right to read without fear of prying government eyes.

"I believe in the right to privacy," Chabon said. "I believe in the
freedom to read what one chooses. As a writer, a reader and an
American, I truly hold the 1st Amendment sacred."

The case arose when a narcotics detail was staking out a trailer in
suburban Denver where agents suspected a methamphetamine lab was
operating. As part of the surveillance, the police routinely combed
through the trailer's trash and, at one point, came across a Tattered
Cover shipping envelope, which had an invoice number on the front.

When police raided the trailer, they found two nearly new books by
humorously bogus authors: "Advanced Techniques of Psychedelic and
Amphetamine Manufacture," by Uncle Fester, and "The Construction and
Operation of Clandestine Drug Laboratories," by Jack B. Nimble. The
books fit neatly into the envelope found in the trash, so
investigators hoped to bolster their case by connecting the trailer
owner to the drug how-to books. But to do so, they said they needed to
see the Tattered Cover's computerized records to match the invoice
number.

According to an appeals brief filed by Dan Recht, the Tattered Cover
lawyer, investigators had to shop around before they could find a
district attorney willing to approve a search warrant for the
bookstore. When they finally did get one, police showed up unannounced
to go through the Tattered Cover files.

Meskis, who leans toward cardigan sweaters and comfortable shoes,
remembered, as she put it, "trying to beam thoughts" for the police to
stop because she knew the case was one she would have to fight. Over
the years the 1st Amendment protections that cover publishing books
and newspapers have evolved to cover the institutions that sell them
as well.

The police, for their part, saw no difference between a bookstore and
a hardware store in searching for and confiscating records. They
simply wanted to link the owner of the trailer with the books found
during the drug raid. What they probably did not know was that Meskis
is one of the more formidable advocates of 1st Amendment rights in the
United States.

"Joyce is a very stubborn lady," said Chris Finan, president of the
American Booksellers Foundation for Free Expression. "Her philosophy
is that people should make their own decisions about what they read,
and her job is to make available to her customers what they request."

Meskis, among other things, is the recipient of the William J. Brennan
Jr. and PEN"Newman's Own First Amendment awards, which honor those
devoted to free expression. She has led a number of 1st Amendment
fights in Colorado, including a successful 1994 campaign to stop a
proposed constitutional amendment that would have made it easier for
communities to label materials as obscene.

"We sell any book that is constitutionally protected," said Meskis,
seated in the comfortable, homey office of her downtown Denver store.
"Once we start imposing our value system on you, the customer, we
firmly plant our feet on a slippery slope."

Booksellers Afraid To Open The Gates

After the police tried to execute the search warrant, Recht arranged
for a week's grace period with the Denver district attorney's office,
long enough to file for a temporary restraining order to stop the
search and bring the case to court. But in October 2000, a Denver
district judge ordered the bookstore to reveal the requested
information about the invoice found in the trash can, which led to the
state Supreme Court challenge.

In arguments before that court in December, the lawyer for the police,
Andrew Nathan, said that the invoice information was an essential
piece of evidence needed in the case. Recht countered that it was not
and that police had not done everything else in their power to find
out who bought the books. "Our impression is that law enforcement sees
[such searches] as a new tool and is pushing to use it," Recht said.
"From the bookseller's point of view, it has scary repercussions. It
could open gates."

Judith Krug, director of the office for intellectual freedom for the
American Library Assn., likened the Tattered Cover case to the time in
1970 when law enforcement officials began combing library records for
clues to criminal activity. Specifically, they were trying to find out
who checked out books on bomb-making after a lab at the University of
Wisconsin was blown up by left-wing radicals.

"I was horrified," said Krug, who then began a 30-year campaign to
protect library circulation records. Today, only Kentucky and Hawaii
don't have laws protecting the privacy of what readers check out from
libraries. She said combing through charge records had a similarly
ominous tone.

"The thought of a law enforcement officer accessing my charge records
and then determining what kind of person I am on the basis of what I
read would bother me tremendously," she said.

Two other prominent cases involved a Los Angeles bookstore and Seattle
bookselling giant Amazon.com. The Los Angeles case centered on an FBI
probe into possible illegal gifts, apparently including books,
received by U.S. Sen. Robert Torricelli (D-N.J.). As part of that
investigation, the FBI subpoenaed several bookstores around the
country, seeking data on the purchases Torricelli and seven others
made over the previous 6 1"2 years. Among those subpoenaed was
Arundel's bookstore, with shops in Los Angeles and Seattle. The owner
of the stores, Phil Bevis, refused to turn over any information to FBI
agents.

"The feds' conduct in this case is reprehensible," Bevis said. "They
really colored outside the lines on this one. They are supposed to
[show they] need the information and, second, they are supposed to
explore other ways of getting it. This was a fishing
expedition."

Bevis said FBI agents arrived at the Beverly Boulevard bookstore in
August and began interrogating his staff on the spot. He said he
decided from the outset not to provide the information requested.

"I decided we were not going to comply, period," he said. "If the
ground rules changed so that we were forced to comply, we were going
to close. It was a gut check. I can't be a bookseller if those are the
rules." The Justice Department backed off on the subpoenas in
September and announced in January that it would not file charges
against Torricelli. While it was at least a partial victory for Bevis,
it also was an expensive one. "It's going to take me until 2003 to pay
off my legal bills," he said.

The Amazon case took place two years ago when Ohio authorities
subpoenaed the company for records of anyone in the Greater Cleveland
area who had purchased the "Cyborgasm I" and "Cyborgasm II" compact
discs. The request was part of an investigation into a stalker who had
sent the CDs--along with lingerie and other items--to 42 women over a
three-year period.

Amazon responded by saying it could not reply to an out-of-state
subpoena. When Ohio investigators persisted, Amazon took it to the
courts.

Ultimately, Amazon did not have to turn over anything. The company
also found out that the chief suspect in the case, Cleveland radio and
television personality Joel Rose, had committed suicide after he was
publicly named as a suspect. He left a note in which he claimed his
innocence, saying, "When your integrity is destroyed, you have
nothing." The case remains unsolved.

Colorado Court And Individual Liberties

In the Denver case, Recht said he is pinning some hope for success on
the fact that the Colorado Supreme Court has a history of landing on
the side of individual liberties. He said the decision will be cutting
edge, no matter what the ruling, because no other state supreme court
has ruled on the issue.

Bevis, meanwhile, wondered how many other bookstores had been
approached whose owners didn't have the will or the money to fight the
government. "God only knows how often it's happened," he said. "And
the stores that roll over, you'll never know about."

In Denver, the criminal investigation that started the Tattered
Cover's ordeal has taken a back seat to the 1st Amendment case. Only
one charge was ever filed in the meth lab bust, and that was later
dropped. Authorities don't know where the four people who were under
investigation now are.