Bookstore battles Starr’s demand for sales records

Tuesday, April 14, 1998

Customers prote...
Customers protested Kramerbooks’ initial decision to comply with Starr’s subpoena.

Business is back to normal–or even better than normal–at Kramerbooks, the Washington, D.C., bookstore whose records were subpoenaed by Whitewater Independent Counsel Kenneth Starr to see what books Monica Lewinsky has been buying.

Sales had been hurt in the days after the subpoena was issued March 23, when it seemed that the store was ready to turn over its records without much of a fight. Citing the possible costs of a legal battle and the obligation not to obstruct a federal investigation, the bookstore’s lawyers had initially agreed to turn over the records once the subpoena was narrowed somewhat.

But then, rattled by the angry complaints of privacy-minded customers who swore never to shop at Kramerbooks again, and fortified by civil-liberties groups that were eager to challenge the subpoena, the store’s owners decided to shift gears and fight. Barnes & Noble, also served with a similar subpoena, also decided to challenge the request, as did Lewinsky herself.

Shoppers have returned since the bookstore joined the battle against Starr, and some are even chipping in to help it pay legal fees. In the process, many have gained new insight into why a bookstore is a special place in the First Amendment landscape.

U.S. district court Judge Norma Holloway Johnson, who will decide whether or not the subpoenas stand, is one of those who has been educated on the subject. In a memorandum order issued April 6, and released publicly a few days later, Johnson stated without equivocation that “the First Amendment is indeed implicated by the subpoenas.”

After news of the bookstore subpoenas emerged, some commentators suggested that the First Amendment had nothing to do with the matter. Just as a grand jury in a terrorist bombing case might subpoena the sales records of a hardware store where bomb ingredients may have been purchased, some said, so too should Starr be able to subpoena a bookstore to corroborate or contradict the details of whatever story Lewinsky or President Clinton might be telling. Lewinsky and Clinton both reportedly mentioned an exchange of books as gifts in their depositions before the grand jury.

But a bookstore is not the same as a hardware store, Johnson seemed to be saying, and the First Amendment is the reason. “The constitutional guarantee of freedom of the press embraces the circulations of books as well as their publication,” she quotes the Supreme Court as saying in the 1963 case of Bantam Books v. Sullivan.

She also cited the prescient statement of Justice William O. Douglas in the 1953 case U.S. v. Rumely: “The purchase of a book or pamphlet today may result in a subpoena tomorrow… Once the government can demand of a publisher the names of the purchasers of his publications, the free press as we know it disappears.”

The American Civil Liberties Union, in its brief filed on behalf of Kramerbooks, also cites the 1973 decision Roaden v. Kentucky, which states, “The setting of the bookstore is presumptively under the protection of the First Amendment.”

Why is that the case? In the rights set forth by the First Amendment, the right to browse a bookstore in peace and privacy is nowhere mentioned. But in a number of contexts, the Supreme Court has declared that the rights of free speech and press include the right to receive the information that those protected activities produce.

The landmark case of Griswold v. Connecticut, for example, the court struck down a Connecticut law used to punish people who conveyed information about contraception. “The right of freedom of speech and press includes not only the right to utter or to print, but the right to distribute, the right to receive, the right to read.”

With those precepts established, it becomes easier to see why subpoenaing a bookstore’s records poses different issues than subpoenaing the sales slips of a hardware store. A heavy-handed subpoena for a bookstore’s records could easily have a chilling effect on the ability of people to receive constitutionally protected speech.

“If the government can find out what books we are buying, we will no longer feel free to buy the books we want,” said Christopher Finan, president of the American Booksellers Foundation for Free Expression. “That would be the death of free speech.”

But Judge Johnson’s memorandum does not end the dispute. Just because the First Amendment is implicated does not mean the subpoena is quashed, she said. Starr only has to convince her by a higher standard than normal that the information is needed badly enough to override First Amendment considerations.

“The court finds, then, that it must determine whether the Office of Independent Counsel has a compelling need for the materials it seeks and whether there is a sufficient connection between that information and the grand jury’s investigation,” Johnson wrote.

Starr was given a Monday deadline to build his case for the subpoena, but because the dispute relates to grand jury proceedings, both Starr’s possible filing and any ruling by the judge are secret until or unless the judge decides to release them. If Starr is successful in defending the subpoena, it will eventually be enforced.

In the 1972 case Branzburg v. Hayes, after all, the Supreme Court ruled that grand jury subpoenas of reporters could ultimately be enforced in spite of First Amendment considerations. But in that same ruling, the court said that the outcome might have been different if a grand jury tried to “invade protected First Amendment rights by forcing wholesale disclosure of names and organizational affiliations for a purpose that was not germane to the determinations of whether crime has been committed.”

If Judge Johnson concludes that the Kramerbooks case is just the kind of exception the Branzburg case contemplated, than Lewinsky’s purchase will remain private.

If not, then in the eyes of the law–at least Kenneth Starr’s law–bookstores will be treated like hardware stores in Starr’s investigation and others in the future. And people who buy books at bookstores will be well advised to pay cash, leaving their traceable checks and credit cards at home.