First Amendment outrage of the week: Bookstore tries to shelve subpoena of purchase records
Periodically, freedomforum.org identifies a “First Amendment Outrage of the Week,” recognizing the single act or gesture most offensive to the spirit of free speech, free press and free expression.
Bookstore tries to shelve subpoena of purchase records
It should come as no surprise that the Drug Enforcement Administration and the North Metro Area Drug Task Force, which operates in the Denver area, would be most anxious to do everything they could to shut down a methamphetamine laboratory and prosecute those involved in the production of the illicit drug.
But however strongly one feels about the dangers of drug use, it does not justify tromping on the First Amendment in an effort to add some circumstantial evidence to the government’s case.
That is exactly what is happening in the Denver area as the DEA and the North Metro Area Drug Task Force square off against the Tattered Cover bookstore in a battle over the confidentiality of a customer’s reading habits.
The case began in March when authorities served a search warrant on a residence in an unincorporated area in Adams County, which borders Denver to the north. In addition to the methamphetamine lab, officers found two books on making methamphetamine that were purchased by mail from the Tattered Cover. Not only did they find the books, they found the packing material that the books came in and a specific ticket for the purchase of the books. But they did not find the name of the person who purchased the books.
The DEA then issued an administrative subpoena to try to obtain the suspect’s purchase records from the bookstore to show that it was he who bought those books. When agents showed up to serve the subpoena, however, they ran smack into Joyce Meskis, the bookstore owner and the co-author of a pamphlet on protecting customer privacy distributed by the American Booksellers Foundation for Free Expression.
Meskis and her attorney told the officers that their subpoena was not sufficient to force production of the records, and they would fight on First Amendment grounds whatever other order the government might obtain. Determined to get those book-purchase records, the North Metro Drug Task Force went to the Adams County District Attorney for a search warrant for the bookstore. But because of concerns about the First Amendment implications of the case, the Adams County DA refused.
Normally, that should be the end of this story. Authorities would continue their investigation, decide whether or not to charge the suspect based on the other evidence in their possession, and the bookstore would go back to selling books without fear of legal harassment.
But that’s not what happened here. Instead, the task force pressed on, and by virtue of a little venue shopping, they got their search warrant from the Denver district attorney and a judge in Denver District Court. When five plainclothes Denver police officers showed up at her store, Meskis said she ‘just couldn’t believe it’ because she thought the case was over.
After much phoning and maneuvering, the officers held off on the search to allow the bookstore to go to court to challenge the search warrant. A temporary restraining order was issued last week to block authorities from serving the search warrant, and Meskis and her lawyer will be in court in early May to begin the process of getting an injunction against the warrant on First Amendment grounds.
Now some might say, what’s the problem? Law officers have a tough enough time doing their job without having to jump through legal hoops just to get something as simple as the name of a person who made a certain purchase. But consider the ramifications of this sort of case.
First, the bookstore itself is not being investigated. It did nothing more than sell two books to someone, and there’s nothing illegal about that. Why should that store suddenly become the object of a subpoena or a search warrant, and, shades of Big Brother, a pretty broadly drawn one at that?
Second, reading is not illegal. Reading literature that might offend someone else is not illegal. Further, reading about something illegal is not illegal. It’s a personal thing. ‘Freedom’ might be the operative word here.
Third, think about how comfortable you would be reading if you thought law officers, essentially just by asking, could get a record of every book you bought or every book you checked out from the library. What if, for example, someone on your street is the victim of child abuse, and authorities go to the library and get the records of every person in your town who checked out books on child rearing in the last five years? And what if, because you checked out such a book, you suddenly find police officers on your porch questioning your motives in reading that book and making you appear to be under suspicion, just because of something you read?
Are you getting uncomfortable yet? That’s what ‘chilling effect’ means.
No one disputes the authority of the DEA or the North Metro Drug Task Force to investigate possible violations of the law and prosecute violators. But what really would they gain even if they were able to categorically pin the purchase of two books on making methamphetamine on their prime suspect? Perhaps he bought them for someone else. Perhaps he bought them by mistake. Perhaps, perhaps, perhaps.
And is there really no other way — fingerprints, for example — to link that suspect to the books if that becomes so critically important to the case? A way that doesn’t involve violating his own personal privacy and the bookstore’s tacit confidentiality agreement with its customers on their reading habits?
Joyce Meskis is to be commended for knowing her rights and fighting rather than giving in to pressure from the authorities. But this troublesome and outrageous case makes us wonder how many other bookstore owners or libraries would make such a stand, either because they didn’t know their rights or they didn’t feel like fighting.