Issue 85, Spring 2002

In a victory for book buyers’ right to remain anonymous “and free from governmental interference,” the Colorado Supreme Court ruled that the Tattered Cover bookstore need not reveal customer records since there was no compelling need for the information.

The case began two years ago when police raided a trailer park outside Denver and found evidence of illegal drug production, two books about drug-making, and a mailing envelope from the Tattered Cover—but no receipt or customer name. Faced with a search warrant for sales records, bookstore owner Joyce Meskis went to court to protect her customers’ rights to privacy and their right to read controversial titles. “Reading a book is not a crime,” said Meskis. NCAC joined in an amicus brief in support of the case (Censorship News 80).

Overturning a lower court decision, the state high court unanimously held that police had not shown a compelling need for the information, and that “the First Amendment embraces the individual’s right to purchase and read whatever books she wishes to, without fear the government will take steps to discover which books she buys, reads and intends to read.”

The American Booksellers Foundation for Free Expression reports an increase in bookstore subpoenas and warrants since special prosecutor Kenneth Starr sought records of Monica Lewinsky’s book purchases. According to ABFFE President Chris Finan, the decision, while not binding outside Colorado, is relevant to the debate over provisions in the USA PATRIOT Act permitting the FBI to obtain information about book purchases and library loans.

Ashcroft Loses

The Supreme Court, by a margin of 6-3, invalidated key provisions of the Child Pornography Prevention Act of 1996. In a ringing endorsement of the First Amendment, the Court re-affirmed the “vital distinction between words and deeds, between ideas and acts” and held that the statute’s ban on any visual depiction that “is, or appears to be, of a minor engaging in sexually explicit conduct” is unconstitutionally overbroad. (Ashcroft v. Free Speech Coalition, April 16, 2002)

Noting that the law could cover films like Traffic and American Beauty, and productions of Shakespeare’s Romeo and Juliet, the Court reaffirmed the rationale for prohibiting sexually explicit material involving minors that is not obscene: preventing the exploitation and abuse of real children used to create such images. Since “the CPPA prohibits speech that records no crime and creates no victims,” there is no legal justification for suppression.

The Court rejected the argument that virtual images should be banned because they allegedly encourage sexual abuse of children: the “evil in question depends upon the actor’s unlawful conduct, conduct defined as criminal quite apart from any link to the speech in question.” It is that conduct that the law should address, not individual’s thoughts or fantasies, however repugnant they may be to some: “The right to think is the beginning of freedom ….and speech is the beginning of thought.”