The entire publishing industry applauded last week's decision by the Colorado Supreme Court that blocked an attempt by prosecutors to force the Denver bookstore Tattered Cover to turn over the records of its customers' book purchases in a case they were investigating. The ruling overturned a trial court judge's ruling that would have made the Tattered Cover release some information to the police.
Tattered Cover owner Joyce Meskis said she was "incredibly relieved" by the ruling. She praised the decision as "more than we asked for, but not more than we hoped for," and thanked the many groups that helped the store during its two-year battle. These have included the American Booksellers Foundation for Free Expression, which provided financial support and filed two amicus briefs on the store's behalf, other industry groups, booksellers, publishers and authors. "It was an incredible community effort on behalf of readers," Meskis said.
Calling the court's opinion "a primer on the First Amendment," Tattered Cover's lawyer, Daniel Recht of Recht & Kornfeld, said that the ruling has "huge national significance" because this is the first of the 50 state supreme courts to address the issue. ABFFE president Chris Finan emphasized that the "remarkable" ruling came at a particularly difficult time in the national debate about balancing law enforcement and free speech. While the ruling did not address the matter directly, he said it "underlines our concerns" about the Patriot Act, last fall's antiterrorist federal law that increased police powers to examine bookstore records.
Speaking on behalf of the publishing community, Association of American Publishers president Pat Schroeder cheered the ruling and praised Meskis's decision to fight the search warrant because of the possible chilling effect such a search would have on consumers' First Amendment rights.
In its ruling, the court found that "both the United States and Colorado constitutions protect the rights of the general public to purchase books anonymously, without governmental interference," and added that the police must "show a need for the specific customer purchase record sought that is sufficiently compelling to outweigh the harm likely caused to constitutional interests by execution of the search." In this case, there was no compelling need, in part because the police already had enough evidence to determine who committed the crime.
The local police and a Drug Enforcement Agency officer had sought the records to aid in an investigation of the owner of a methamphetamine laboratory. In a March 2000 search of the lab, police had found copies of Advanced Techniques of Clandestine Psychedelic and Amphetamine Manufacture and The Construction and Operation of Clandestine Drug Laboratories as well as an empty package from the Tattered Cover. The search warrant at the heart of the case asked Tattered Cover for information about what books had been shipped in the package as well as information about all other book orders placed by the main suspect.
In its decision, the court also ruled that in the future any law enforcement requests for information from an "innocent third-party bookstore" would require a hearing and couldn't be carried out merely with a search warrant. For law enforcement officials, that part of the ruling provides a guideline for the steps necessary to conduct a legal search of a store's records.
