CUSTOMER PRIVACY AND MORE AT STAKE IN FIRST AMENDMENT TEST

When you buy a book, you don't expect to have a law enforcement agent
searching through the store's records to see what books you have purchased.
Such an action offends America's sense of privacy. It smacks of a police
state. Yet, that is precisely what a drug task force in Denver wants to do.

They want to look through the purchase records of Denver's Tattered Cover
Book Store, one of the nation's largest independent bookstores, to see if a
suspect in a drug case purchased two books on how to make methamphetamine.
They want to tie this suspect to an alleged meth lab.

The books on methamphetamine are not contraband. They are legal.

Everyone has a right to read these books without government agents looking
through their purchase records and taking down their names. But the North
Metro Task Force doesn't see it that way.

On March 17, in trying to build a case against a suspect, law enforcement
officials first attempted to serve a subpoena on the Tattered Cover for
information regarding one of its customers. An agent of the U.S. Drug
Enforcement Administration, who is part of the Metro Task Force, served an
administrative subpoena on the owner of the Tattered Cover, Joyce Meskis.
The subpoena requested information about books shipped to a particular
customer under a specific invoice and, further, "information regarding any
other orders placed by this customer."

The attorney for Tattered Cover, Dan Recht, told the DEA agent that the
bookstore treated the records of its customers as private and confidential
- -- and that the release of these records would violate the customers' First
Amendment rights.

Recht told the DEA agent that the administrative subpoena was insufficient
and that if the DEA wanted to continue its quest for the customer's records,
the agent needed to obtain a subpoena from a federal district court. At
that point, Recht told the DEA agent, the bookstore would file a motion to
quash the subpoena. The DEA agent, according to Recht, that told him that
"it wasn't important to them" and they would drop it.

Surprise, surprise. Less than a month later, Adams Count Deputy District
Attorney Fran Wasserman called Recht to say that the task force had come to
him with a request for a search warrant on the bookstore -- to obtain,
basically, the same information requested by the subpoena.

Informed about the First Amendment implications, Wasserman said he would
call Recht by the end of the following day.

Apparently, not happy with Wasserman's approach, the task force went to the
Denver District Attorney's Office. Task force members didn't tell Denver
Deputy District Attorney Brian Allen that they had previously dealt with the
Adams County District Attorney's Office. Allen OK'd the search warrant and
Denver County Court Judge Celeste de Baca signed it.

On April 5, five members of the Metro Task Force went to the Tattered Cover
with the search warrant. Fortunately, Meskis was able to reach Recht and he
immediately called Allen and told him about the First Amendment implications
of the search and about the task force first dealing with Adams County
District Attorney's Office. Allen asked the police officers to leave the
premises without executing the search warrant. The officers agreed not to
execute the search warrant for one week.

Normally, it is impossible to stop the execution of a search warrant. The
week delay, however, gave the bookstore an opportunity to seek a temporary
restraining order that prohibits the execution of the search warrant for
now.

The temporary restraining order is in effect until after the court hears
arguments in a motion for a preliminary injunction. If the court grants the
preliminary injunction, the drug task force will not be able to serve the
search warrant on the bookstore -- and customer records will continue to be
safe from police inspection.

After several requests for delays, the new date set for the hearing on the
preliminary injunction is Oct. 17.

Much more than customer privacy is at stake here. The First Amendment right
of a free press presupposes the fundamental right to read. One without the
other would be an empty promise. What good is a free press if the police
can intimidate you for what you read?

In an Aug. 2 interview, bookstore owner Meskis said, "We hope and expect
that the judge will look at this as a First Amendment issue beyond the
privacy issue. If the judge doesn't stop this warrant, people are going to
be very fearful of what they read and buy . . . . One needs to be
constantly mindful that the First Amendment is one of the dearest things in
a democratic society -- the protection of the freedom to read. It's so
important.

"Our customers have an expectation of privacy when they come into the
bookstore to purchase a book. If they feel that is compromised, they may
not read what is constitutionally protected for them to read because of the
concern that something may come up where their records would be open to
scrutiny."

If controversial books can cause the police to search bookstore records of
sales to customers of those books, few will end up buying them. As a
consequence, those books will no longer be available, because without sales
publishers won't be able to afford to publish them. When controversial
ideas disappear from the public dialogue, democracy is much, much poorer.

The Tattered Cover should win this battle. The U.S. Supreme Court has
generally prohibited the kind of searches that implicate the First Amendment
unless the government has a compelling reason. There is no compelling
reason in this situation. The Metro Task Force didn't even interview the
suspects or try other means to tie the suspect to the alleged meth lab.

The preliminary injunction hearing is being held in a state district court.
The state of Colorado has a very strong tradition of protecting its
residents' freedom of speech and freedom to read.

This is a case of a few misguided law enforcement officials who thought they
could ride roughshod over a legitimate business and its customers and ignore
the First Amendment implications.

It is fortunate that the Denver DA's office delayed the execution of the
search warrant, so that the matter ended up in the courts where both sides
and the First Amendment can have a fair hearing.