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Tattered Cover v. Thornton Reversed
TheMatt writes "In a victory for all those who like the First Amendment, the Colorado Supreme Court today reversed
and remanded 'Tattered Cover v. Thornton'.
The case concerned the Thornton police attempting to use a search warrant to gain access to the book-buying records of a suspected criminal. The Tattered Cover asserted First Amendment rights and refused to comply with the warrant.
It is believed this will be heard by the US Supreme Court eventually." I can only imagine what the Tattered cover's legal bill must be like.
is the death shriek of an innocent server running Apache on a PII 450 somewhere in central Colorado... ;)
May God have mercy on Tattered Cover's admin.
3 (or is it 4?) BIG floors. Kinda like a B&M Amazon.com
"The prosecution can bite my shiny, metal ass. Case dismissed."
I am filled with much joy to see this. Am so glad tattered cover won.
now to correct my spelling
-THIS SPACE FOR RENT!
When nothing but second best will do . . .
It's bad enough that the RIAA wants to watch who's listening to what and where and how. It's bad enough that the MPAA wants to make sure you don't watch DVDs in the wrong country on the wrong brand of TV. It's horrible that they've bought enough senators to have their way with us, but it's fucking untenable that what we read can be subpeoaned and used against us.
Reading, music and movies are all unsafe at any speed. Let me know if you find a hobby I can enjoy without feeling someone's eyes on my back.
Easy does it!
This comment has been submitted already, 276865 hours , 59 minutes ago. No need to try again.
i like that name.
makes me want to start a computer company called Dented Boxen
In high profile cases that challenge the courts' previous decisions the work is usually done pro bono(free).
." I can only imagine what the Tattered cover's legal bill must be like." Yea, and now their bandwidth bill..poor bastards.
The little guy has to win some of the time! Anybody know if there's a fund set up for folks to donate money towards legal expenses?
;-)
I mean, used bookstores are just *rolling* in dough.
The Tattered Cover may not be in the right. The first amendment protects speech, religion, and the right to openly demonstrate those. It does not protect the right to privacy. I can certainly understand the bookstores reluctance to give out its customer's purchasing records, but if the government has a warrant there might not be much that can be done. I would assume this falls under the fourth amendment about search and seizure.
The legal system is based on things like search warrants and rules of evidence, admissibility, etc. Why try to attempt to stop someone from serving a warrant? Why not allow the customer to wage their own legal battle over the admissibility of their records?
I don't see any reason to stand in their way. A judge shouldn't have issued the warrant if it would violate their constitutional rights. The defendant should argue that the admission of the evidence would introduce a bias or something.
I don't know the details of this case; can anyone point me to a link that gives some background? Because I have to admit, given what I've seen on their site, the First Amendment argument seems pretty weak...just like (almost) everyone else here, IANAL, but saying that anonymity is required for true freedom of speech seems a tenuous link at best. As long as you're protected from being censored or censured for your opinions, I fail to see how anonymity is a legitimate requirement for free speech. But, again, IANAL, and there could be loads of legal precedent for this of which I am unaware. Still, I would have thought this sort of thing would fall more under the Fourth Amendment...
Anyhow, the upshot is, I'd appreciate someone pointing me to the background for this story so I can remove the "un"...
Reality has a conservative bias: it conserves mass, energy, momentum...
As anyone in Denver and it's surrounding area's can tell you Tattered Cover is *the* place to go for great books and wonderful service so it's nice to see them not only survive the onslaught of cookie-cutter book "warehouses" but also unfounded legal assaults.
"Anonymity is a shield from the tyranny of the majority. It thus exemplifies the purpose behind the Bill of Rights, and of the First Amendment in particular: to protect unpopular individuals from retaliation--and their ideas from suppression--at the hand of an intolerant society," wrote Justice Bender.
Mr. Bender, would you please run for Congress?
"Mod, mod, mod...and another troll bites the dust."
Still you should pay cash for books (or anything else) if you really want your privacy. Tattered Cover may be all nice, but another bookstore would be within its rights to send you direct mail based on your purchases ... "You must be a gun nut! Here are some shooting catalogs!"
OK, I don't see how that has anything to do with refusing to release documents. However this:
4th amendment: The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
. . . seems like it would apply. I could understand how the store's customer records would be considered "papers and effects".
So I'm confused, how exactly does this relate to the 1st? Freedom of the press? That's usually considered to be the press's right to maintain secrecy of it's sources, not it's customer list.
For those of you not from Colorado. The Tattered Cover is a bookstore chain out here in Colorado that specializes in all sorts of books over all sorts of subjects. The two stores that I am aware of (there may be more) are at least three, maybe for fours. There are not a used book store and the can be said to be larger than any Barnes and Nobles that I know of.
From a computer books perspective they are neither the best nor the worst but certainly they do carry them.
Beware the wood elf!!!
I can only imagine what the Tattered cover's legal bill must be like.
The losing party will ultimately have to cover most of the legal cost. If not awarded in the verdict they can file a separate lawsuit to recover cost. Even if the judge allocate the cost that portion can be appealed however they run the risk of other issues raised again (Crossspoints) by the other parties.
Help fight continental drift.
It's time to close the "book store loophole," where criminals can purchase "how to" books that contain instructional information on committing illegal acts without any type of background check.
Do it for the children.
Every time I excercise my second amendment rights by purchasing a firearm, I am required to fill out a government form with all sorts of personal information. The seller is then required to get permission from the FBI and Colorado Bureau of Investigation to complete the transaction.
The government has illegally been keeping these records. After being conditioned that this is "reasonable," -- often by first amendment extremists -- why should I give a flying rat's ass if it happens to other people?
To save a little time... Quote below...
Plaintiff-Appellant:
TATTERED COVER, INC., d/b/a THE TATTERED COVER BOOKSTORE,
v.
Defendants-Appellees:
THE CITY OF THORNTON; and THORNTON POLICE OFFICER RANDY GOIN, in his official capacity.
JUDGMENT REVERSED AND CASE REMANDED
EN BANC
JUSTICE BENDER delivered the Opinion of the Court.
JUSTICE COATS does not participate
In an attempt to drive up tattered covered's bills towards bankruptcy , the prosecution submitted this story to slashdot, with the fondest hopes of a severe slashdotting.
"How will it feel when we turn the unwashed hordes upon your server door, muahahahaha"
Rocky Mountain News has a pretty decent overview of how this all got started.
Sounds like this isn't a first ammendment issue at all IMHO. Rather, it sounds like the owners of the Tattered Cover are just trying to block a standard police investigation:
i cl e/0,1299,DRMN_15_1061730,00.html
http://www.rockymountainnews.com/drmn/local/art
Just because someone is claiming that a case is regarding defending First Amendment rights does not mean that it really is. In this case I would definately say that this has nothing to do with freedom of speech and the judge made a mistake in reversing the judgement.
Oh... and the link...
Link to Decision
(It's a doc file)
The Denver Post has a good story about this here
Probable cause + Warrant = Perfectly legal
Why shouldn't the cops have access to someone's book purchase records if there is probable cause that those records might yield useful information in an investigation? This is the way the law is supposed to work.
bb
What does a store not providing records have to do with the first amendment? Is there a news story about this anywhere?
There is really no guarantee of anonymity in the first amendment that I can see. I would see this more related to the "unreasonable search and siesure" statutes because police may not have had compelling reason to request the documents.
My computer store always asks for my name and address, even when I buy with cash. I usually tell them "No thanks" but one woman kept at it, so I gave her the address for Wrigley Field, heh heh.
Radio Shack was the original offender in this 'collecting your address to serve you better' BS, but it seems to be picking up steam as 'the thing to do'.
So, pay cash, and remember "3600 N. Clark Street, Chicago Illinois, 60657".
-----
My father is a blogger.
It's a bookstore, therefore, it must fall under free press.
Just another case of someone crying about "big brother" when the worst thing that could happen is that they know some guy buys hustler now and then. What an affront to privacy!
On the other hand, this information could be used to prevent future crimes. What's the big deal?
(-1, Raw and Uncut is the only way to read)
Why would they refuse based on the first amendment? It was the cops trying to search, so shouldn't they be refusing based on the right-to-privacy / search-and-seisure amendments??
Can somebody explain?
This is wonderful to see. Tattered Cover is easily the coolest bookstore I have ever had the pleasure to buy books at. The main store (Cherry Creek) is giagantic, sporting (among other things) very extinsive abounts of Sci-Fi, History, Maps (some historical), and computer books. At 4 stories, I don't know of another anywhere near it's size. The Downtown one is also very cool, right in one of the hottest parts of Denver (LoDo). Regularly, they have really high profile authors in, talking about their books or doing readings.
All this from what was a tiny corner bookstore maybe 15 years ago.
Between their just utter badassness, and this - I don't see myself buying books anywhere else for a long long time. oh, and note: they have an affiliate program - so if you value companie slike this, dump amazon, and add them.
- The unexamined life is not worth leading -
Without fear of someone seeing my shopping habits.
-THIS SPACE FOR RENT!
Perhaps a bit limited.
I'd do something interesting, but my server can't handle a slashdotting.
First off, it's not a used bookstore...at least not the merchandise I have seen there (I have been to the LoDo store, but not Cherry Creek).
:)
Their legal fund (according to one of their clerks, anyway) is with:
American Booksellers Foundation for Free Expression
139 Fulton St #302
NY, NY 10038
Or you can call them at 303-322-7727 or 303-436-1070. I'm not listing their toll-free number here cause it costs them money for people to call them on it
You CAN order books directly from them online at www.tatteredcover.com. They have been very helpful in finding books for me that B&N, Boreders, and Amazon have said were out of print.
Denver Isuzu Suzuki
Is the bandwidth bill after they get /.'d
-THIS SPACE FOR RENT!
I doubt the U.S. Supreme Court will take it.
The Colorado Supreme Court restricted the ability of Colorado police to execute a search warrant.
First, there is a doctrine that says if there is an independent state ground for the ruling, then there is not a basis for Supreme Court review. This doctrine has less applicability when a Constitutional right is being allegedly violated. However, nobody says that the Colorado police have a Constitutional right to the search -- if anything the ruling tends to support Constitutional rights.
Second, Federalism doctrine, which the current U.S. Supreme Court favors, would tend to lead to the conclusion that the U.S. Supreme Court should let the Colorado Supreme Court rein in the Colorado police if it wants to.
There will be other cases in the future, and the Supreme Court may well hear one. Just not this one.
The Colorado constitution "protect an individual's fundamental right to purchase books anonymously, free from governmental interference."
So it isn't just a first amendment issue.
The middle mind speaks!
(IANAL but...) freedom of speech has traditionally been interpreted as protecting a dialog of ideas (as opposed to a monologue). In other words, not only are your rights to express an idea protected, but also your right to receive ideas lawfully expressed by others. (Otherwise, the government could simply say: "Freedom of speech? Sure, talk all you want. Just step into this soundproofed room first.") Freedom of expression without reasonable freedom of channels of expression is more or less useless.
In this case, it seems the court found that, among other things, the warrant placed an undue burden on the bookstore in its role as a channel of constitutionally protected speech.http://www.cobar.org/CFwebFiles/Content/dspOpinion . fm?OpinionID=560
Sig: What Happened To The Censorware Project (censorware.org)
An excerpt from the opinion summary:
. . . the law enforcement need for the book purchase record in this case was not sufficiently compelling to outweigh the harm that would likely follow from execution of the search warrant, in part because law enforcement officials sought the purchase record for reasons related to the contents of the books that the suspect may have purchased. (emphasis added)
In other words, the police weren't interested in any criminal acts related to the purchase of these books, but rather if there was any content in the books which the prosecution could use to strengthen their case against the defendant.
To draw an Internet analogy, this would be akin to the cops forcing an ISP to turn over their Web proxy logs, in order to determine if a suspected terrorist visited a site on bomb-making, instead of finding hard-copy instructions in the terrorist's apartment (which certainly could be used as circumstantial evidence).
This decision makes a lot of sense. It would be one thing if the suspect had bought a dictionary, then used it to brain a little old lady during a mugging--then the police would have the right to obtain purchase records in order to prove the perp bought the murder weapon. But simply to say that "he bought The Anarchist's Cookbook, therefore he must be guilty"--that is a dangerous assumption, and clearly represents an attack on our rights to free expression.
Because a government threat to collect the names and addresses of everybody who has been exposed to my "speech" would definately have a chilling effect on my ability to diseminate information, no?
That's Tattered Cover's big selling point with me (besides 4 floors of selection and a coffee bar). Big leather chairs everywhere to test-read your selections, floor-to ceiling wooden bookcases w/ step ladders all over, bookcases all the way up the stairwell... and a distinct shortage of clerks wandering the store asking you if they can help you every five minutes. Peace and quiet while shopping is a rare thing these days. If I can't find something, there's help desks readily available for me to ask.
Man, I can lose hours in there.
Once you eliminate the impossible, whatever remains, no matter how improbable, will be quoted out of context on
One question:
Can you imagine Barnes & Noble, Borders, or Amazon.com doing what the Tattered Cover has done?
Try reading the Court's statement-- they explain everything in excruciating detail. This sort of background reading can be very informative and legal documents are not that inscrutable.
I do not have a signature
We need some dim-witted, left-wing commentary about our rights being violated!
It's called "a chilling effect" on free speech, and it's something courts have tried to avoid causing through their decisions. What would be the point of freedom of speech, if everyone was afraid to listen? This is a 1st amendment issue, the fourth amendment is pretty well taken care of, since they had a properly issued warrant.
I've had enough abrasive sigs. Kittens are cute and fuzzy.
from the rocky mountain news article:
... booksellers insist they aren't like hardware stores.
They deal in thoughts, opinions, ideas, information -- all protected by the First Amendment, and they insist that means the police must have extraordinary reasons to look at customer records.
"There is a higher standard when it's not a hardware store,".
So, the real story here, is that this is a precedent setting case, and the point of this case is to decide in the eyes of the law as to whether a book store is different from a hardware store, or not. if a bookstore is found to be just like a hardware store, then any police department will be able to request the store's records in an investigation into illegal activity. if a bookstore is considered to be different (and that is what this announcement is about), then police investigators will not be able to request the store to release information about patrons.
No. 01SA205, Tattered Cover, Inc. v. City of Thornton: Freedom of speech -- First Amendment -- Colorado Constitution, Article II, Section 10 -- search warrants - booksellers -- customer book purchase records -- adversarial hearings
This case involves an attempt by law enforcement officials to use a search warrant to gain access to the book-buying records of a suspected criminal. The petitioner, an innocent, third-party bookseller, asserts its own and its customers' First Amendment and Article II, Section 10 rights.
The Supreme Court recognizes that both the United States and Colorado Constitutions protect the rights of the general public to purchase books anonymously, without governmental interference. As such, any law enforcement attempt to use a search warrant to discover which books that a customer has purchased from a bookstore implicates fundamental rights.
The Supreme Court holds that the Colorado Constitution requires law enforcement officials to 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. The search warrant will issue only if this test, which is to be applied at a pre-seizure adversarial hearing, is met.
Applying this balancing test, the Supreme Court concludes that the law enforcement need for the book purchase record in this case was not sufficiently compelling to outweigh the harm that would likely follow from execution of the search warrant, in part because law enforcement officials sought the purchase record for reasons related to the contents of the books that the suspect may have purchased.
I'm amused that people do not notice satire when they see it... this thing should be +3 Funny, not +2 Insightful. And all those serious replies... sigh.
The fact that the writer does not even coherently stick to the same point from beginning of post to end should clue people in that it was meant as humor.
"I will trust Google to 'do no evil' until the founders no longer run it." Hello Alphabet.
As a person doing research in organic chemistry, I'm sure that my book buying habits would be equally circumspect in the eyes of law enforcement. Sitting on my desk right now? PIKHAL: A Chemical Love Story , a wonderful work of fiction by a researcher interested in the pharmacological properties of phenylethylamines. It just so happens that the second portion of the book reads like a recipe book for something like 180 compounds and includes dosage and effect information. Best part? The second half is freely available online. So essentially, the knowledge is out there and the Denver police should not have concerned themselves with where the recipe came from, but the fact that they were making them.
When I first read this, I thought: "That's very strange. Why shouldn't the police be able to get the book buying records of a legitimate criminal suspect? They can get phone company records and credit card records, right?"
Pages 9 and 10 of the ruling make it clear:
---
[Officer Goin] and DI McFarland then served the Tattered Cover with a DEA administrative subpoena. [...] Using such a subpoena was ordinarily a successful technique for DEA officers, though such a subpoena lacks any legal force or effect.
[...]
INSTEAD OF ATTEMPTING TO OBTAIN AN ENFORCEABLE SUBPOENA, Officer Goin approached prosecutors from the Adams County District Attorney's office to get a search warrant for the Tattered Cover. Several prosecutors at the Adams County DA's office refused to sign off on the warrant, voicing concerns about its scope and subject matter. [...]
Without informing the Adams County DA's office, Officer Goin sought approval for his search warrant from the Denver DA's office. As approved by a Denver DA, the warrant authorized a search of the Tattered Cover for information related to the transaction in question, and for records of any other transaction involving Suspect A during the thirty-day period before the police searched the trailer. A Denver county court judge then approved the warrant.
---
So, basically the Officer was a dope who tried to do an end-run around the law. Oops!
Moderating "-1, Disagree" is simple censorship. Have the guts to post your opinion.
as a former employee of the tattered cover i think this is a huge victory for the first amendment. i hope that this will help to set a precidence that will carry over into other areas as well.
reading a book is not a crime.
hacking should not be a crime.
If they have a valid search warrant, why not give them the data? If someone who is a suspect for a crime has been buying books on how to perpetrate that crime, then why not turn over the records?
And if someone had a warrant to bend you over and make you their bitch, would you comply, then argue the legality later?
Mod down people who tell people how to mod in their sigs
Jan Fennell
Gloria Thomas
Bruce Caughey and Dean Winstanley
$5 / month hosted VPS on linux = awesome!
I. INTRODUCTION
With this case, we recognize that both the First Amendment to the United States Constitution and Article II, Section 10 of the Colorado Constitution protect an individual's fundamental right to purchase books anonymously, free from governmental interference. Law enforcement officials implicate this right when they seek judicial approval of a search warrant authorizing seizure of customer purchase records from an innocent, third-party bookseller. This case requires us to decide what test should be applied to balance the constitutional rights of individuals and bookstores against the duty of law enforcement officials to investigate crime.
We hold that the Colorado Constitution requires that the innocent bookseller be afforded an opportunity for an adversarial hearing prior to execution of a search warrant seeking customer purchase records. At that hearing, the court must apply a balancing test to determine whether the law enforcement need for the search warrant outweighs the harm to constitutional interests caused by its execution. In order for law enforcement officials to prevail, they must demonstrate a compelling governmental need for the specific customer purchase records that they seek. When conducting the balancing test, the court may consider whether there are reasonable alternative methods of meeting the government's asserted need, whether the search warrant is unduly broad, and whether law enforcement officials seek the purchase records for reasons related to the content of the books bought by any particular customer.
Applying this balancing test, we hold that the search warrant in this case is not enforceable and should not have issued. The plaintiff, Tattered Cover, Inc., is an independent bookstore. The defendants are the City of Thornton and one of the city's police officers ("the City").
The City argues that the information sought is necessary: (1) to prove that the operator of an illicit drug lab acted with the level of intent necessary to secure a conviction under state statute; (2) to prove the identity of the perpetrator; and (3) to "connect" a suspect to the lab. We consider the City's arguments within the factual context of this case. The City currently has significant evidence as to who committed the crime, as well as reasonable additional means, other than serving the Tattered Cover with a search warrant, of discovering additional proof as to the identity of the perpetrator. The execution of the City's search warrant could substantially chill the exercise of fundamental state constitutional rights, primarily because at least one of the reasons why the City seeks the suspect's customer purchase record is related to the contents of the books that he may have purchased.
Thus, we conclude that the City has failed to demonstrate that its need for the Tattered Cover's customer purchase record is sufficiently compelling to outweigh the harm that would be caused to constitutional interests if the search warrant were executed. Therefore, we reverse the decision of the trial court.
Officer Goin searched the Tattered Cover's webpage and discovered that it offered both books for sale. He and DI McFarland then served the Tattered Cover with a DEA administrative subpoena. This subpoena demanded the title of the books corresponding to the order and invoice numbers of the mailer, as well as information about all other book orders ever placed by Suspect A. Using such a subpoena was ordinarily a successful technique for DEA officers, though such a subpoena lacks any legal force or effect.
So, the DEA can make up any 'subponea' that they want to, and as long as no one questions it, they can do what they damn well please? This just doesn't seem right. Lawywers? Anyone?
I disable sigs...do you?
II. FACTS AND PROCEEDINGS BELOW
The following facts, most of which are undisputed, are gleaned from the record of the hearing below. As part of an ongoing drug investigation, the Thornton police and an agent of the federal Drug Enforcement Administration ("DEA"), Diversion Investigator Timothy McFarland ("DI McFarland"), were cooperatively monitoring a trailer home in Thornton in March of 2000. These law enforcement officials suspected that a methamphetamine lab was being operated out of the trailer. Officer Randy Goin was the lead investigator on the case.
The police believed that Suspects A, B, C, and D probably lived in the trailer. Suspects A and C (both males) were registered with the trailer park's management as residents. The
officers guessed, based on their surveillance, that Suspect A and Suspect B were involved in an intimate relationship. Suspect D received mail at the trailer home.
On March 13, 2000, DI McFarland searched through some garbage from the trailer home. In doing so, he found evidence of drug operations. Additionally, he discovered a mailing envelope from the Tattered Cover addressed to Suspect A. The label on the mailer listed the invoice number, order number, and customer phone number corresponding to whatever books had been shipped in the envelope. There was no clue, however, as to the titles of the particular books that the mailer had contained.
The following day, based upon a variety of evidence discovered during the course of the investigation, Officer Goin obtained a search warrant for the trailer home. With the assistance of the Adams County SWAT team, Officer Goin and DI McFarland executed this search warrant.
In the trailer's master bedroom, the police found a methamphetamine laboratory and a small quantity of the manufactured drug. Because of the location of the lab, the question of which suspect or suspects resided in the master bedroom became the focus of the police's investigation.
The officers believed that Suspects A and B occupied the master bedroom, but were unable to make a conclusive determination on this question. Relevant to this issue, the police noted the presence, in the master bedroom, of male and female clothes; Suspect A's personal address book; other papers bearing the names of Suspects A, B, and C; mail and bills belonging to various additional people; some firearms; printed instructions on how to manufacture a firearm silencer; and two books.
The only objects from the room that were tested for fingerprints were the glassware from the methamphetamine lab and the two books. The record made at the time of the hearing, nine months after the search was executed, does not reflect whether the police ever attempted to match the fingerprints found on the glassware to any of the suspects. No usable prints were recovered from the two books.
When the police executed the search warrant, they found two people in the trailer home. Neither of these two people, referred to here as Person E (a male) and Person F (a female),
resided in the home, though Person E had keys to a shed on the property. The parties debate the extent to which the police questioned Persons E and F. Person E, a transient, indicated that he did not know anything about the lab and that he just left some property at the trailer. Person F said that she had just stopped by to see her boyfriend and could not provide any information. The police apparently did not specifically ask either Person E or Person F who resided in the master bedroom of the trailer.
After the search, Officer Goin believed that he had probable cause to arrest Suspect A. However, he wanted to accumulate more evidence of Suspect A's guilt before making the arrest.
The two books seized from the master bedroom were entitled Advanced Techniques of Clandestine Psychedelic and Amphetamine Manufacture, by Uncle Fester, and The Construction and Operation of Clandestine Drug Laboratories, by Jack B. Nimble. Officer Goin noticed that the books appeared to be new. DI McFarland thought that there might be a connection between the Tattered Cover mailer found in the trash and these two new books. Officer Goin then noticed that the new books appeared to fit the dimensions of the mailer.
Officer Goin searched the Tattered Cover's webpage and discovered that it offered both books for sale. He and DI McFarland then served the Tattered Cover with a DEA administrative subpoena. This subpoena demanded the title of the books corresponding to the order and invoice numbers of the mailer, as well as information about all other book orders ever placed by Suspect A. Using such a subpoena was ordinarily a successful technique for DEA officers, though such a subpoena lacks any legal force or effect.
Joyce Meskis, the owner of the Tattered Cover, instructed her attorney to tell the police that the bookstore would not comply with the subpoena, based on its concerns for its customers' privacy and First Amendment rights.
Instead of attempting to obtain an enforceable subpoena, Officer Goin approached prosecutors from the Adams County District Attorney's office to get a search warrant for the Tattered Cover. Several prosecutors at the Adams County DA's office refused to sign off on the warrant, voicing concerns about its scope and subject matter. Finally, a chief deputy at the Adams County DA's office told Officer Goin that he would contact the Tattered Cover's attorney and that, while he made attempts to negotiate for the Tattered Cover's voluntary release of the information, Officer Goin should interview the suspects in order to see if they could provide any information.
Without informing the Adams County DA's office, Officer Goin sought approval for his search warrant from the Denver DA's office. As approved by a Denver DA, the warrant authorized a search of the Tattered Cover for information related to the transaction in question, and for records of any other transaction involving Suspect A during the thirty-day period before the police searched the trailer. A Denver county court
judge then approved the warrant.
On April 5, 2000, Officer Goin, along with five other police officers, attempted to execute the search warrant on the Tattered Cover. Meskis immediately contacted the bookstore's attorney, who in turn contacted the Denver DA's office. A Denver DA persuaded the police officers not to execute the warrant until the Tattered Cover could litigate its validity.
The Tattered Cover brought suit, seeking to restrain the Thornton Police and Officer Goin from executing the search warrant. The trial court held a hearing on the question of the search warrant's validity.
At that hearing, the Tattered Cover presented unrefuted testimony that the execution of the search warrant in this case would have a substantial chilling effect on the willingness of its customers to purchase controversial books. Meskis stated that she had received an "enormous amount of feedback" from customers about this case, including over one hundred letters from customers in support of the Tattered Cover's position. Many customers told Meskis that they shopped at the Tattered Cover because of the Tattered Cover's policy of not disclosing customer book purchase records. Meskis further testified that if book purchase records were made available to investigative authorities, customers would not feel at ease perusing, buying, or reading a wide variety of books. Meskis pointed out that "people who read books are very concerned about First Amendment issues, and their privacy as it relates to First Amendment issues. This is not an uninformed society, they care."
There was also other testimony at the hearing about the warrant's likely effect. An official from the American Library Association testified about the chilling effect that results from disclosure of library circulation records. A bookstore owner from the State of Washington also testified about the concerns expressed by his customers about their privacy rights while a case analogous to this one, In re Grand Jury Subpoena to Kramerbooks & Afterwords Inc., 26 Med. L. Rptr. 1599 (D.D.C. 1998), discussed in detail below, was pending.
The trial court granted a restraining order with respect to the request for Suspect A's thirty-day purchasing history, but allowed the police to discover the information related to the mailing envelope found in the suspects' trash. This order was stayed, pending appeal.
In reaching its decision, the trial court announced a four-part test intended to balance the rights and interests of the Thornton Police Department, on the one hand, and the Tattered Cover and its customers, on the other. Specifically, the trial court considered: (1) whether there was a legitimate and significant government interest in acquiring the information; (2) whether there was a strong nexus between the matter being investigated and the material being sought; (3) whether the information was available from another source; and (4) whether the intrusion was limited in scope so as to prevent exposure of other constitutionally protected matters.
The plaintiff sought review of the trial court's decision, arguing that it should not be required to disclose any information regarding customer purchase records. The defendants have accepted the trial court's judgement that the portion of the search warrant that contained the general demand for all of Suspect A's purchasing records during the thirty-day period prior to the search is unenforceable, and do not seek review of that issue.
We accepted jurisdiction over this case pursuant to section 13-4-110(1)(a), 5 C.R.S. (2001). We reverse the trial court's order with respect to the police request for information related to the books mailed in the envelope found in the suspects' garbage.
Interesting reading, ."
specifically this quoute from Colorado Constitution:
"Like the Federal Constitution, our Colorado Constitution protects speech rights. Specifically, Article II, Section 10, entitled "Freedom of speech and press," provides that:
No law shall be passed impairing the freedom of speech; every person shall be free to speak, write or publish whatever he will on any subject, being responsible for all abuse of that liberty . . .
It seems that Colorado Constitution prohibits DMCA
great bookstore! last time i was in denver, i loaded my suitcase with books. next time, i'll do so even more. there aren't enough good bookstores, let alone businesses who will fight for their principles (or any principles for that matter). enjoy those nike's :(
Also close the loopholes for boxcutters, automobiles, beer, baseball bats, and other objects that can cause death and destruction.
Okay, both of you raise very good points (assuming that Anne_Nonymous was being sarcastic. I believe what it comes down to is the amount of dangerous use an item is designed for.
For instance, a plastic spoon could in theory be used as a weapon of mass destruction and genocide... but it's design, intent, and 99.99% most common use is for eating. A gun, however, is designed to throw a bit of metal (or porcelain, etc) at a very high velocity towards a target. For the responsible gun users, this means target practice, competitions, or hunting, and the very rare instance of absolute self-defense. But ultimately, the point of a gun (and target practice/shooting competitions) is to kill or learn to kill, while the point of a box-cutter is to open boxes, an automobile is designed for transportation, and a plastic spoon is designed for eating.
Okay, it seems silly to point all that out... because it's all fairly bluntly obvious, right? Right. Well... that's where books get tricky... Books are either knowledge or entertainment, or both. If it's knowledge, the purpose of the book is to inform...to teach... Still with me? Yes, it's still fairly obvious... I'm getting to the point.
Now take a book that teaches you how to make explosives out of common household materials. How to murder. Take your pick of crimes. I'm not talking about Fight Club, whose purpose was entertainment and philosophy, but rather a step-by-step manual that tells you exactly how you could get away with murdering your entire neighborhood and get away with it.
The knowledge gleaned from books like that can be deadlier than any pistol or shotgun will ever be. Now before the flames happen, please understand I am neither condemning these books, the good use they can be put towards, or the First or Fourth Amendment.
What I am saying is, that if we are going to accept that we have a wait and background check on gun purchases, then a "red-flags" list of very certain books is understandable in my eyes. Not all, or even most books. But specifically, manuals whose purpose is to teach you how to make weapons of mass destruction. And before it gets mentioned, I am not even talking about Martial Arts manuals, or books on Chemistry... I am talking about a book where the knowledge contained within is an effective manual on creating mass destruction.
Which is more dangerous? A madman with a gun, or a madman with the sudden knowledge of how to destroy a skyscraper easily.
Am I exagerating? I refer you to September 11th, where several madmen, trained from manuals on mass destruction, took out two skyscrapers and pegged the Pentagon.
Am I ignoring the "fact" that "anyone could figure out how to make the stuff"? I refer you to Harris and Klebold from Columbine High School, who prepared for months, and "knew" how to make a propane bomb that would have killed hundreds of students had it worked properly. Had they the proper knowledge, their intended plan was to continue on after blowing up the high school, and then hijack a jet, and crash it into a building in New York City.
What was the key difference between these two parties? One had the right training, the right manuals, the right knowledge. The others did not.
Now, I ask you to reconsider the prospect of "red-flags" on certain books.
The Libra
"...but the stars we could reach, were just starfish on the beach..." -Seasons in the Sun
The Video Privacy Protection Act was passed because some naughty people in congress looked up Supreme Court nominee Robert Bork's video tape records. I guess we need a similar act for books now.
Oh yah....A link to the whole story.
III. ANALYSIS
.
The Tattered Cover asserts its own constitutional rights, as well as the rights of the book-buying public, through this lawsuit. Hence, we must consider not only the effect that our decision has on the expressive rights of the actual party to this case, the Tattered Cover, but to members of the general public as well. Bursey v. United States, 466 F.2d 1059, 1083 (9th Cir. 1972) ("The First Amendment interests in this case are not confined to the personal rights of Bursey and Presley. Although their rights do not rest lightly in the balance, far weightier than they are the public interests in First Amendment freedoms that stand or fall with the rights that these witnesses advance for themselves.").
We begin our analysis by delineating the right implicated by the City's actions in this case. Specifically, we explain how the First Amendment and Article II, Section 10 of the Colorado Constitution safeguard the right of the public to buy and read books anonymously, free from governmental intrusion. After recognizing this fundamental constitutional right, we consider and resolve the tension between it and the needs of law
enforcement officials who investigate crime. Next, we address a troubling procedural issue: the need for a pre-seizure adversarial hearing when law enforcement officials seek to use a search warrant to obtain customer book purchase records from an innocent, third-party bookstore. Finally, we apply the test that we adopt.
A. The Right to Purchase and Read Books Without Fear of Government Disclosure or Reprisal
The First Amendment to the United States Constitution protects more than simply the right to speak freely. It is well established that it safeguards a wide spectrum of activities, including the right to distribute and sell expressive materials, the right to associate with others, and, most importantly to this case, the right to receive information and ideas. These various rights, though not explicitly articulated in either the Federal or Colorado Constitution, are necessary to the successful and uninhibited exercise of the specifically enumerated right to "freedom of speech."
Without the right to receive information and ideas, the protection of speech under the United States and Colorado Constitutions would be meaningless. It makes no difference that one can voice whatever view one wishes to express if others are not free to listen to these thoughts. The converse also holds true. Everyone must be permitted to discover and consider the full range of expression and
ideas available in our "marketplace of ideas." As Justice Brandeis so eloquently stated, "[Our founders] believed that freedom to think as you will and to speak as you think are means indispensable to the discovery and spread of political truth." Whitney v. California, 274 U.S. 357, 375 (1927) (Brandeis, J., concurring).
The Supreme Court has recently reiterated the crucial role that the free exchange of ideas plays in our society, stating, "The citizen is entitled to seek out or reject certain ideas or influences without Government interference or control." United States v. Playboy Entm't Group, Inc., 529 U.S. 803, 817 (2000).
Bookstores are places where a citizen can explore ideas, receive information, and discover myriad perspectives on every topic imaginable. When a person buys a book at a bookstore, he engages in activity protected by the First Amendment because he is exercising his right to read and receive ideas and information. Any governmental action that interferes with the willingness of customers to purchase books, or booksellers to sell books, thus implicates First Amendment concerns.
Anonymity is often essential to the successful and uninhibited exercise of First Amendment rights, precisely because of the chilling effects that can result from disclosure of identity. The Supreme Court has recognized this principle numerous times in various contexts. For instance, in McIntyre v. Ohio Elections Commission, the Court stated, "Anonymity is a shield from the tyranny of the majority. It thus exemplifies the purpose behind the Bill of Rights, and of the First Amendment in particular: to protect unpopular individuals from retaliation -- and their ideas from suppression -- at the hand of an intolerant society." 514 U.S. 334, 357 (1995) (citation omitted). In another case, Lamont v. Postmaster General, 381 U.S. 301, 307 (1965), the Court struck down a federal statute that required citizens who wished to receive "communist political propaganda" to affirmatively so notify the post office. The Court's holding rested on concerns that First Amendment speech rights would be chilled if people were required to reveal their identities before being able to receive these expressive materials. Id.
The need to protect anonymity in the context of the First Amendment has particular applicability to book-buying activity. As was explained in United States v. Rumely, governmental inquiry and intrusion into the reading choices of bookstore customers will almost certainly chill their constitutionally protected rights:
Once the government can demand of a publisher the names of the purchasers of his publications, the free press as we know it disappears. Then the spectre of a government agent will look over the shoulder of everyone who reads. . . . Fear of criticism goes with every person into the bookstall. The subtle, imponderable pressures of the orthodox lay hold. Some will fear to read what is unpopular, what the powers-that-be dislike. . . . [F]ear will take the place of freedom in the libraries, book stores, and homes of the land. Through the harassment of hearings, investigations, reports, and subpoenas government will hold a club over speech and over the press.
345 U.S. 41, 57-58 (1953) (Douglas, J., concurring). The right to engage in expressive activities anonymously, without government intrusion or observation, is critical to the protection of the First Amendment rights of book buyers and sellers, precisely because of the chilling effects of such disclosures. Search warrants directed to bookstores, demanding information about the reading history of customers, intrude upon the First Amendment rights of customers and bookstores because compelled disclosure of book-buying records threatens to destroy the anonymity upon which many customers depend.
In sum, the First Amendment embraces the individual's right to purchase and read whatever books she wishes to, without fear that the government will take steps to discover which books she buys, reads, or intends to read. A governmental search warrant directed to a bookstore that authorizes seizure of records that reflect a customer's purchases necessarily intrudes into areas protected by this right.
B. Article 2, Section 10 of the Colorado Constitution
Like the Federal Constitution, our Colorado Constitution protects speech rights. Specifically, Article II, Section 10, entitled "Freedom of speech and press," provides that:
No law shall be passed impairing the freedom of speech; every person shall be free to speak, write or publish whatever he will on any subject, being responsible for all abuse of that liberty . . .
The United States Supreme Court has repeatedly acknowledged that its interpretation of the Federal Constitution defines the minimum level of protections that must be afforded, through the Fourteenth Amendment, by the states. See, e.g., PruneYard Shopping Ctr. v. Robins, 447 U.S. 74, 81 (1980). However, the Supreme Court has also recognized that a state may, if it so chooses, afford its residents a greater level of protection under its state constitution than that bestowed by the Federal Constitution. Id.
With respect to expressive freedoms, this court has recognized that the Colorado Constitution provides broader free speech protections than the Federal Constitution. In Bock v. Westminster Mall Co., 819 P.2d 55 (Colo. 1991), we detailed the source of this increased protection. We relied on the differences between the language of the First Amendment to the United States Constitution and the language of the Colorado Constitution. Id. at 58. In addition, we recognized our state's extensive history of affording broader protection under the Colorado Constitution for expressive rights. Id. at 59.
As discussed in section IIIA above, the First Amendment protects one's right to receive and distribute information and ideas and to purchase reading materials anonymously, without governmental interference. This right also receives protection under our Colorado Constitution. Indeed, because our state constitution provides more expansive protection of speech rights than provided by the First Amendment, it follows that the right to purchase books anonymously is afforded even greater respect under our Colorado Constitution than under the United States Constitution.
C. The Intersection Between the Constitutional Right to Purchase Books Anonymously and Search Warrants Aimed at Bookstores
Having defined the right at issue in this case, we next address the collision between the exercise of this right and the investigative efforts of law enforcement officials. We consider the legal test that applies to determine when law enforcement officials may use a search warrant to obtain customer book purchase records from an innocent, third-party bookstore, and the circumstances that trigger application of that test.
Both the Fourth Amendment to the United States Constitution and Article II, Section 7 of the Colorado Constitution guard against "unreasonable searches and seizures." U.S. Const. amend. IV; Colo. Const. art. II, 7. Search warrants are the mechanism used to protect against unjustified police intrusions that would otherwise violate the dictates of the Fourth Amendment and Article II, Section 7. See, e.g., Steagald v. United States, 451 U.S. 204, 213 (1981). In order to obtain a search warrant, law enforcement officials must demonstrate, prior to any search, that probable cause exists to believe that the legitimate object of such a search is located in a specific place. See, e.g., id. The warrant itself must describe with particularity the place to be searched and the objects that may be seized. See, e.g., Maryland v. Garrison, 480 U.S. 79, 84 (1987). Such requirements safeguard citizens against "the wide-ranging exploratory searches the Framers [of the Constitution] intended to prohibit." Id.
Conflicts between First Amendment and Fourth Amendment rights are inevitable when law enforcement officials attempt to use search warrants to obtain expressive materials. This is because a seizure of documents, books, or films is conceptually distinct from a seizure of objects such as guns or drugs. See, e.g., A Quantity of Books v. Kansas, 378 U.S. 205, 211-12 (1964). The former category of objects implicates First Amendment expressive rights, while the latter category of objects does not. Id.
Outside the context of obscenity, few federal cases have discussed this collision between the Fourth Amendment and the First Amendment. However, the Supreme Court has made clear that, when expressive rights are implicated, a search warrant must comply with the particularity requirements of the Fourth Amendment with "scrupulous exactitude." Zurcher v. Stanford Daily, 436 U.S. 547, 564 (1978); Stanford v. Texas, 379 U.S. 476, 485 (1965).
In Zurcher, law enforcement officials served a search warrant on a student newspaper, seeking photographic evidence that would help them identify demonstrators who assaulted police officers assisting in the break-up of a demonstration. 436 U.S. at 551. The newspaper challenged the warrant on the basis of the First and Fourth Amendments, arguing that the police should be required to use a subpoena duces tecum instead of a search warrant because of the important First Amendment interests at stake. Id. at 563. The Supreme Court rejected this argument, implying that First Amendment concerns can never entirely preclude the execution of a search warrant that complies with the Fourth Amendment: "Properly administered, the preconditions for a warrant -- probable cause, specificity with respect to the place to be searched and the things to be seized, and overall reasonableness -- should afford sufficient protection against the harms that are assertedly threatened by warrants for searching newspaper offices." Id. at 565.
The Supreme Court's pronouncements in Zurcher can be read to mean that, beyond the "scrupulous exactitude" requirement, the First Amendment places no special limitation on the ability of the government to seize expressive materials under the Fourth Amendment. We acknowledge that this is arguably the import of Zurcher. Thus, we ground the holding in this case in our Colorado Constitution.
The Fourth Amendment provides significant and important privacy protections to Americans. Nonetheless, there are occasionally situations where the Fourth Amendment simply does not go far enough. This case presents one such situation.
We are hesitant to hold that the only constraint limiting law enforcement officials' ability to obtain a search warrant that gives them access to a bookstore's customer purchase records, beyond the general Fourth Amendment requirements applicable to all warrants, is that the search warrant in question describe the expressive material to be seized with scrupulous exactitude. Under this approach, assuming that the probable cause standard was met and that the materials to be seized are very precisely described, expressive materials can always be seized, irrespective of the substantial chilling effects that might result. Thus, fundamental expressive rights could never preclude law enforcement officials from seizing particular expressive materials.
To take a simple example, one could imagine a situation where law enforcement officials might have probable cause to search a bookstore for all records relating to any purchases of the book The Anarchist's Cookbook. The requirement that the police describe the materials to be seized with "scrupulous exactitude" could be easily met in this situation by limiting seizure to those records involving sales of the specific book. We agree that, depending on the exact factual circumstances, such a seizure might be necessary and appropriate. However, the substantial chilling effects that could occur if this hypothetical search warrant were executed mean that there might also be circumstances where the police should be entirely precluded from executing the warrant.
Thus, we find the protections afforded to fundamental expressive rights by federal law, under the above interpretation of Zurcher, to be inadequate. We turn to our Colorado Constitution, which we now hold requires a more substantial justification from the government than is required by the Fourth Amendment of the United States Constitution when law enforcement officials attempt to use a search warrant to obtain an innocent, third-party bookstore's customer purchase records.
Our basic rationale for this holding is that, before law enforcement officials are permitted to take actions that are likely to chill people's willingness to read a full panoply of books and be exposed to diverse ideas, law enforcement officials must make a heightened showing of their need for the innocent bookstore's customer purchase records. We emphasize that a bookstore's customer purchase records are not absolutely protected from discovery and that this question must be decided on the particular facts of each case.
1. Development of a Balancing Test
We now turn to a discussion of the test that must be applied to determine the circumstances in which law enforcement officials will be permitted to use a search warrant to obtain a bookstore's customer purchase records.
The facts of this case are unusual. The parties have cited, and our independent research discloses, only one previous case where a court has considered the constitutionality of law enforcement attempts to gain access to the purchase records of a bookstore customer. Although that case, In re Grand Jury Subpoena to Kramerbooks & Afterwords Inc., 26 Med. L. Rptr. 1599 (D.D.C. 1998) (hereinafter Kramerbooks), arose in the context of investigative subpoenas, not a search warrant, we find it to be instructive as to the test that should be applied in this case because it addresses and balances the same competing concerns presented here.
Kramerbooks involved subpoenas issued by the Office of Independent Counsel to two bookstores. Id. at 1599. The subpoenas sought book purchase records related to a particular customer under investigation, Monica Lewinsky. Id. Similar to this case, the bookstores claimed that their revelation of book purchase records would have a chilling effect on the exercise of their customers' First Amendment rights. Id. at 1600.
The Kramerbooks court determined, as we do for search warrants, that the subpoenas directed to innocent bookstores implicate First Amendment concerns. Id. The court then briefly considered a Supreme Court case involving a grand jury subpoena and the First Amendment right to freedom of the press, Branzburg v. Hayes. Id. at 1600-01. Because Branzburg was not dispositive of the issues presented, the Kramerbooks court turned to federal circuit court cases involving collisions between governmental investigative efforts and the First Amendment. Id. at 1601.
The court imported the standard applied in those cases to the bookstore context. Thus, the court held that, in order to demonstrate the enforceability of the subpoena, the government must show: (1) a compelling interest in or need for the information sought; and (2) a sufficient connection between the information sought and the criminal investigation. Id. The court then ordered the special prosecutor to submit documents explaining how this test was satisfied for the OIC subpoenas at issue. Id.
The balancing test used by the Kramerbooks court is similar to that used by the numerous courts that have addressed situations where government action has implicated fundamental speech rights. Specifically, courts have recognized that a very high level of review, referred to as "strict scrutiny" or "exacting scrutiny" is to be undertaken when government action collides with First Amendment rights. See, e.g., Playboy Entm't Group, 529 U.S. at 813; Buckley v. Valeo, 424 U.S. 1, 64-65 (1976) ("This type of scrutiny is necessary even if any deterrent effect on the exercise of First Amendment rights arises, not through direct government action, but indirectly as an unintended but inevitable result of the government's conduct in requiring disclosure."). This heightened standard is necessary because governmental action that burdens the exercise of First Amendment rights compromises the core principles of an open, democratic society.
In order to withstand strict scrutiny, the government must have some "compelling" interest at stake. See, e.g., Gibson v. Florida Legislative Investigation Comm., 372 U.S. 539, 546 (1963). Anything less will not justify an abridgement of fundamental speech rights. Beverly v. United States, 468 F.2d 732, 748 (5th Cir. 1972) ("It is simply a statement of long recognized horn-book principles of constitutional law to say that no government, either state or federal, may encroach upon First Amendment rights without the demonstration of a compelling interest.").
Courts have also required the government to demonstrate a substantial connection between the government's action and the interest the government seeks to further. See, e.g., Buckley, 424 U.S. at 64; Gibson, 372 U.S. at 546. While this prong of the test has been phrased differently by different courts, its import is the same in every case. Id. The government must not do anything that abridges fundamental rights unless the government's action bears the appropriate connection to its compelling government interest, and this connection must be both direct and significant.
Further, when government action implicates fundamental expressive rights, courts have imposed a few other requirements that must be met in order for the government action to withstand strict scrutiny. For instance, courts commonly require that government action be no broader than necessary to advance its compelling interest. See, e.g., Shelton v. Tucker, 364 U.S. 479, 488 (1960); Bursey, 466 F.2d at 1083 (stating that the government must show that "the incidental infringement upon First Amendment rights is no greater than is essential to vindicate its subordinating interests"). That is, government action must not chill the exercise of fundamental expressive rights any more than absolutely necessary to advance the government's interest. This requirement is frequently referred to as the "least restrictive means" requirement. See, e.g., Buckley, 464 U.S. at 68.
The balancing test described above addresses the competing concerns implicated when governmental action directly or incidentally abridges constitutionally protected speech rights. It has been used in numerous factual and procedural contexts. We modify the test only slightly to address the specific issues raised when law enforcement officials seek to seize an innocent, third-party bookstore's customer purchase records. We hold that law enforcement officials must demonstrate a sufficiently compelling need for the specific customer purchase record sought from the innocent, third-party bookstore.
When considering generally applicable laws and regulations that implicate fundamental speech rights, it is logical to
separate out two distinct steps: first, to consider the government's justification for the law and, second, to determine whether the law serves that purpose. In the context of criminal investigations, the two prongs run together. This is so because the law enforcement officials' need to investigate crime will almost invariably be a compelling one. Thus, the court must engage in a more specific inquiry as to whether law enforcement officials have a compelling need for the precise and specific information sought. Yet this more particularized showing captures the nexus requirement, normally considered separately from the government's interest.
The second prong of the Kramerbooks test, that there be a "sufficient connection" between the criminal investigation and the information sought, is therefore duplicative of the first prong of the test because the government's need "for the information sought" cannot be compelling unless there exists a sufficient nexus between the investigation and the information sought.
Here, the trial court recognized that strict scrutiny was the appropriate standard in this case and then applied a balancing test that considered four factors: (1) the government's interest in acquiring the information ; (2) the nexus between the matter investigated and the material sought; (3) whether the information was available from another source; and (4) whether the intrusion was limited in scope so as to prevent exposure of other constitutionally protected materials.
While the test that we use does not specifically include either the third or fourth prongs of the trial court's test, we believe that these factors are implicit in the balancing test that we develop. The law enforcement officials' need for the information sought cannot be compelling if there are reasonable alternate ways of conducting an investigation other than by seizing a customer's book purchase record. Officials must exhaust these alternatives before resorting to techniques that implicate fundamental expressive rights of bookstores and their customers.
The fourth factor considered by the trial court, the breadth of the warrant, is also captured by the "compelling need for the information sought" test. When considering a search warrant, a court must separately consider each item that the law enforcement officials seek to obtain. For any particular expressive material sought, if the request is overly broad, then the law enforcement officials will not have a compelling need for that particular item.
The ultimate question is whether the law enforcement need for the customer purchase record is sufficiently compelling to outweigh the harms caused by execution of the search warrant. We acknowledge that it is difficult to predict the extent of harm that would be caused by execution of any particular search warrant. However, we note that, in most situations, there is a lesser danger of harm to constitutionally protected interests when the customer purchase record is sought for reasons entirely unrelated to the contents of the materials purchased by the customer. The chilling effect that results from disclosure of customer purchase records occurs because of the general fear of the public that, if the government discovers which books it purchases and reads, negative consequences may follow. However, if the government seeks a purchase record to prove a fact unrelated to the content or ideas of the book, then the public's right to read and access these protected materials is chilled less than if the government seeks to discover the contents of the books a customer has purchased.
For example, if the police were to find a book about baseball with a Tattered Cover price sticker on it in the vicinity of an illegal drug lab, and they wished to find out who purchased the baseball book in order to place that person at the scene of the crime, the harm to constitutional interests caused by forced disclosure of the Tattered Cover's book records might well be permissible under the balancing test we describe. Similarly, if law enforcement officials seek to discover a book purchase record to disprove a suspect's alibi, on the theory that the bookstore record proves that the suspect was at the bookstore at a particular time, the contents of the books bought are not significantly at issue and the harm to the public caused by the seizure of the record is less than if the facts were otherwise.
To summarize, we hold that our state constitution requires that the government, when it seeks to use a search warrant to discover customer book purchase records from an innocent, third-party bookstore, must demonstrate that it has a compelling need
for the information sought. In determining whether law enforcement officials have met this standard, the court may consider various factors including whether there are reasonable alternative means of satisfying the asserted need and whether the search warrant is overly broad. The court must then balance the law enforcement officials' need for the bookstore record against the harm caused to constitutional interests by execution of the search warrant. This harm likely will be minimal if the law enforcement officials' reasons for wanting the book purchase record are entirely unrelated to the contents of the books.
2. Procedural Issues
Having defined and explained the two-part test applicable to this case, we turn to the procedural context in which this test ordinarily must be applied.
The procedural context of this particular case is unusual. The City sought and obtained a search warrant as part of an attempt to discover specific information ordinarily protected from involuntary disclosure to law enforcement officials by the First Amendment and Article II, Section 10. Then the City voluntarily agreed to delay execution of the warrant until its validity could be litigated in the district court.
We are aware, however, that the City could have proceeded to conduct the search before giving a court the opportunity to consider the legality of the warrant in an adversarial setting. This is of grave concern since the chilling effect felt by the general public is caused by the very fact of governmental discovery of book-buying purchases. This chilling effect is unlikely to be offset by any procedural protections, such as the exclusionary rule, that might subsequently be afforded to Suspect A if the search is later deemed to be unconstitutional.
People in Colorado have a privacy interest in their book-purchase records and, therefore, we recognize that special procedural protections must be afforded to bookstores when law enforcement officials attempt, pursuant to Article II, Section 7, to use a search warrant to obtain these records. The protections afforded by the Colorado Constitution are of little value if the bookstore is not given an opportunity to challenge the law enforcement officials' action before the search warrant is executed. Without the opportunity to protect its rights and the rights of its customers, a bookstore, unrepresented at the typical ex parte search warrant proceeding, might receive short shrift in any constitutional analysis of law enforcement's right to obtain such a search warrant. This point is borne out by the facts of this case. The City's use of progressively narrower requests at each stage of its request for the information convinces us that a hearing is necessary to protect innocent, third-party booksellers and the book-buying public.
The original DEA subpoena was unlimited in its terms. It sought all of Suspect A's book-purchasing records from the Tattered Cover. Because of the concerns of the district attorney's office, the City's request was narrowed somewhat before the search warrant was approved by a county court judge. The search warrant sought information related to the one transaction for which the police had an invoice number as well as the thirty-day purchasing history of Suspect A.
After the adversarial hearing, the trial court held that the thirty-day purchasing history request was too broad and therefore unconstitutional. On appeal to us, the City abandons its request for Suspect A's thirty-day purchasing history information, thus implicitly conceding that it was never entitled to the information in the first place.
Further, the remaining information sought to be seized, related to the specific invoice, has been the subject of heated debate. Had it not been for the Tattered Cover's steadfast stance, the zealousness of the City would have led to the disclosure of information that we ultimately conclude is constitutionally protected. This chronology demonstrates the importance of providing the bookseller with an opportunity to contest the actions of law enforcement officials in an adversarial setting.
Also supporting the need for an adversary hearing is the fact that, whenever law enforcement officials rifle through a bookstore's file cabinets or computer records, the book-buying records of innocent customers will almost inevitably be exposed to governmental observation. The rights of these innocent customers, who may not want the government to know which books they read, must receive adequate protection.
The central rationale for the ex parte warrant process does not apply when an innocent, third-party bookstore's book-buying records are seized. In the case of a typical warrant procedure, the magistrate must consider two competing factors: the interests of law enforcement and the privacy rights of the suspect. An ex parte procedure, and the invasive search and seizure that follows, is justified in such a case because of the exigencies of law enforcement and the practical reality that a suspect, if notified ahead of time, has a motive to destroy evidence or otherwise frustrate the search for particularly incriminating records. This justification lacks persuasive force when the subject of the search is an innocent, third-party bookseller.
Thus, we hold that an innocent, third-party bookstore must be afforded an opportunity for a hearing prior to the execution of any search warrant that seeks to obtain its customers' book-purchasing records. At the hearing, the court will apply the balancing test described above to determine whether law enforcement officials have a sufficiently compelling need for the book purchase record that outweighs the harms associated with enforcement of the search warrant.
IIRC from my high school CJ class, wouldn't the proprietor still be criminally liable for obstruction of justice by refusing the warrant, regardless of its merit?
Another example: if the friendly fuzz want to arrest you because they don't like the color of your hat and you fight them off, it would still be resisting arrest, regardless of the circumstances, right?
Any US-ians with better knowledge of the law care to comment?
Where does the school board find them and why do they keep sending them to ME?
IV. Application
Having outlined the relevant constitutional principles, we now apply them to this case. We consider whether the City has demonstrated that it has a compelling need for the Tattered Cover's book purchase record that outweighs the chilling effect likely to result if the search warrant is executed.
Through its arguments to the trial court and us, as well as through the testimony of Officer Goin and DI McFarland, the City describes three reasons that it is important for it to know
whether Suspect A purchased the two "how to" books found at the scene of the crime. First, the City states that this will help them to prove the mens rea of the crime, that Suspect A "intentionally or knowingly" operated the methamphetamine lab. Second, the City contends that proof that Suspect A purchased the "how to" books will help them to prove that Suspect A occupied the master bedroom, the place where the books and methamphetamine lab were found. Finally, the City asserts that the Tattered Cover invoice "connects" Suspect A to the crime. We consider each of the City's three justifications in turn, despite the fact that the boundaries between the justifications overlap in some ways.
With respect to the argument that evidence that Suspect A purchased the books will help prove that he knowingly or intentionally operated a methamphetamine lab, we note that the City's search of the bedroom revealed a fully operational and functional methamphetamine lab as well as a small quantity of the manufactured drug. The two "how to" books were found in the immediate vicinity of the lab. The physical presence of the lab itself, and of these books, goes a long way towards proving that the operator of the lab did not accidentally manufacture methamphetamines. These facts leave no doubt that the person or persons who operated this lab did so intentionally.
We must also consider the chilling effect that would be caused by execution of the search warrant. The Tattered Cover presented unrefuted testimony that the execution of the search warrant in this case would have a substantial chilling effect on the willingness of its customers to purchase controversial books. As discussed earlier, Joyce Meskis, the owner of the Tattered Cover, stated that she had received an "enormous amount of feedback" from customers about this case, including over one hundred letters from customers in support of the Tattered Cover's position. Many customers told Meskis that they shopped at the Tattered Cover because of the Tattered Cover's policy of not disclosing customer book purchase records. Meskis testified that if book purchase records were made available to investigative authorities, customers would not feel at ease perusing, buying, or reading a wide variety of books. Meskis pointed out that "people who read books are very concerned about First Amendment issues, and their privacy as it relates to First Amendment issues. This is not an uninformed society, they care."
Additionally, an official from the American Library Association testified about the chilling effect that results from disclosure of library circulation records and a bookstore owner from the State of Washington testified about the concerns expressed by his customers about their privacy rights while the Kramerbooks case was pending.
On balance, we conclude that the City's need for the invoice, in order to help them prove the statutorily required mens rea element, is not sufficiently compelling to outweigh the harm that would be caused by execution of the search warrant.
Thus, we turn to the City's second justification, that the invoice will help them to demonstrate that Suspect A occupied the master bedroom and, hence, must have operated the methamphetamine lab. In essence, the City wishes to use the purchasing record to place Suspect A at the scene of the crime.
As discussed above, it will be difficult for law enforcement officials to demonstrate that their need for a customer's book purchase record is sufficiently compelling to outweigh the harms caused by forced disclosure of the record if there are reasonable alternative means by which the officials can meet their asserted need. We emphasize that our inquiry is focused on the question of whether the City had reasonable alternative ways of discovering who operated the methamphetamine lab, not on the question of who bought the "how to" books.
One direct way to identify the operator of the lab is to analyze the fingerprints that Officer Goin found on the glassware from the lab to see if they match to Suspect A. However, the record made at the time of the hearing, nine months after the search of the trailer was executed, does not reflect that the City ever followed up on these fingerprints. Certainly that evidence would be more indicative of the identity of the operator of the drug lab than any connection that might be established by proof that Suspect A ordered books that were subsequently found in the room.
If the City needs evidence of who occupied the master bedroom, as indirect evidence of who must have operated the lab, the record reveals a number of alternative ways in which this information could have been ascertained. The master bedroom in the trailer, apart from the presence of the methamphetamine lab, appears to have been a typical bedroom containing clothes, furniture, papers, and other personal objects. Clothes and shoes could have been examined to see if the sizes matched Suspect A. Objects could have been fingerprinted. The bed and flooring could have been examined for hair or other DNA samples. Beyond this physical evidence, there are numerous witnesses that the City likely could have interviewed without compromising the integrity of their criminal investigation. The parties hotly contest whether it would have been appropriate for the government to interview Suspects A, B, C, or D. This is an issue that neither we nor the trial court is equipped to resolve. However, neighbors, trailer park managers, and other visitors to the trailer, including Persons E and F, may know or have known who occupied the master bedroom. The record does not indicate that these persons were interviewed to determine who lived in the master bedroom.
Finally, we note that the Tattered Cover customer purchase record does not contribute much to the City's attempt to show that Suspect A occupied the master bedroom. Objects belonging to several different people were found in the bedroom. Thus, assuming that the two "how to" books belonged to Suspect A, their presence in the bedroom does not necessarily mean that Suspect A occupied that room.
In arguing that it needs the Tattered Cover invoice to identify Suspect A as the occupant of the master bedroom, the City suggests that the Tattered Cover customer purchase record is not sought for a reason related to the content of the two "how to" books. As explained above, a non-content related purpose for seeking a customer book purchase record will ordinarily result in a lesser chilling effect than experienced when such a record is sought for a content-related purpose. However, the content-related uses of the book purchase record in this case are not easily separated from the non-content related uses. Thus, we reiterate our earlier conclusion that the enforcement of this search warrant is likely to result in a substantial chilling effect.
Hence, we conclude that the City's need to obtain the Tattered Cover invoice in order to identify Suspect A as the occupant of the bedroom is not sufficiently compelling to outweigh the harm to fundamental constitutional rights that would result if the search warrant was executed.
The City's final justification is that proof that Suspect A bought the two books will "connect" him to the crime. The City's argument is somewhat amorphous because it never elaborates on the specific reason as to why the connection exists. At its core, however, the argument rests on the premise that if Suspect A bought the "how to" books, he must have operated the lab. The rationale for this argument is thus directly tied to the contents of the books Suspect A may have purchased. This is precisely the reason that this search warrant is likely to have chilling effects on the willingness of the general public to purchase books about controversial topics.
The dangers, both to Suspect A and to the book-buying public, of permitting the government to access the information it seeks, and to use this proof of purchase as evidence of Suspect A's guilt, are grave. Assuming that Suspect A purchased the books in question, he may have done so for any of a number of reasons, many of which are in no way linked to his commission of any crime. He might have bought them for a friend or roommate, unaware that they would subsequently be placed in the vicinity of an illegal drug lab. He might have been curious about the process of making drugs, without having any intention to act on what he read. It may be that none of these scenarios is as likely as that suggested by the City, that Suspect A bought the books intending to use them to help him make an illegal drug. Nonetheless, Colorado's long tradition of protecting expressive freedoms cautions against permitting the City to seize the Tattered Cover's book purchase record.
We acknowledge that the Tattered Cover invoice helps the City to connect Suspect A to the crime and constitutes "a piece of the evidentiary puzzle." However, because of the strength of other evidence at the City's disposal and because of the substantial chilling effects that are likely to result from execution of the warrant, we hold that the City has failed to demonstrate that its need for this evidence is sufficiently compelling to outweigh the harmful effects of the search warrant.
Good old Blues Brothers method of doing things. Watch out for cops with SCMODs.
Whoops! I call Goodwin's Law!
I'm trying to teach myself to set people on fire with my mind... Is it hot in here?
V. CONCLUSION
For the reasons discussed above, we reverse the judgment of the district court and remand for further proceedings consistent with this opinion
In this day and age of Bush and Ashcroft, it is nice to see that our civil iberties are somewhat standing. As a libertarian, I have gotten sick of the amount that ppl have been willing to give up to obtain a truley false sense of security.
In czar russia there were forbidden books, about political thought. There was police that was monitoring political groups, basically thought police. If some was found reading an illegal book, the punishment would range from beating to life imprisonment in siberia. While two countries are not same, and should not really be compated, if we defocus, we would see strikingly similar pattern here, where government builds up legal power behind itself to control citizens with whatever force required to do anything needed. ...
Remember it got this bad because we did not fight every case, sum of which has eroded public freedoms of individual citizens. I think it is too late, we should fight for our rights anyway, but it is all careening towards loud, poisonous stinky explosion that will fracture social infrastructure and trust in government. It is already edges closer and closer with "borderless" war and unlimited control in the white house, underhanded dealing of Mr Bush and his friends(namely Enron?)
Let's get this straight - if the government gives you the right to speak on the corner soapbox but sends jackbooted thugs to beat anyone who dares to listen to you to a bloody pulp before dragging them off to jail, YOUR FREEDOM OF SPEECH IS WORTHLESS. The right to speech includes, as a necessary component, the right of others to listen to you in peace.
That's Civil Liberties 101, and should be familiar to anyone arguing this case.
That's why the American Library Association (ALA) has long held that patron's reading selections should be considered Constitutionally protected. Just as it is unconstitutional for the government to prevent the publication or distribution of a book, it should be considered unconstitutional for the government to post a cop in the stacks whose icy stare and hand on the butt of his gun must be endured to pick up a book, and even the threat of the cops reviewing a list of who has read a book should be done with great caution.
The Tattered Cover sells books, instead of just lending them out, but the same arguments apply. IMHO, the ONLY reason this case has gotten as far as it has is that the Thornton police are asking for records about a specific purchase with evidence left at a crime scene, not just asking for a list of all purchasers of a specific book.
For every complex problem there is an answer that is clear, simple, and wrong. -- H L Mencken
I had no idea how they were applying the first amendment to the case, but that line of reasoning makes a lot of sense, thanks for the reply clearing this up.
Way to split an infinitive.
If this is indeed the case, then what is the fuss about? Can not the police search your house and gain access to your records if they have obtained a warrant?
And no, this is not a flame or troll. I really just don't understand it yet. I have not followed this, so I figured people here could give a nice 'low down' of the case.
To any maverick mod's out there, please read the moderation guidelines and learn that moderation is _not_ for purposes of censorship and shouting out others, if you disagree with any post (this one has no view to disagree with, it is questions) then try and respond like adults instead of marking down like children lashing out.
The court's decision is chock full of some very significant ideas and quotes from previous cases, many of which directly apply to another free speech issue - the DMCA.
For example: "Without the right to receive information and ideas, the protection of speech under the United States and Colorado Constitutions would be meaningless."
Or: "Everyone must be permitted to discover and consider the full range of expression and ideas available in our 'marketplace of ideas.'"
Footnote 14 in the text of the decision is an absolutely brilliant quotation of Supreme Court Justice Louis Brandeis regarding the "freedom to think as you will and speak as you think".
The decision is well worth reading. It's not in some sort of complex legalese. Far from it, it is very clearly stated.
-h-
It relates to the First Ammendment in that it would create "substantial chilling effects" towards a person's freedom to be exposed to free speech.
The actual excerpt from the court documents:
As this states, bookstore records are not always protected by the First Ammendment, but when searches start to target people who seek specific ideas, they begin to encroach upon First Ammendment rights, even when the searches meet the "scrupulous exactitude" requirements for the Fourth Ammenment and Article II, Section 7 of the Colorado Constitution.
Something most independent bookstores have in common is that they will fight tooth and nail to preserve your First Amendment rights. What Tattered just did was fight back what could easily be the first step on a slippery slope to eroding our rights. Think of what might happen next if Tattered lost. Publishers might become reluctant to publish so-called "subversive" material. Readers would have to be wary about which books they bought, knowing that the records could be subpeonaed.
Think about that the next time you buy books. The big chains, amazon, et. al do not have this tradition of protecting your information - in fact they are looking at ways to make use of it for marketing purposes. Its the independent bookstores around the country who really care about defending the First Amendment, because that reflects in the quality of literature we will see, and ultimately reflects on our individual freedom to write and speak as we choose. When was the last time you saw "Banned Books week" at amazon.com or Barnes & Noble?
Now we have a good legal precedent to back us up. Thanks, Tattered Cover!
No, Thursday's out. How about never - is never good for you?
Note that under the so-called "Patriot Act", not only will the FBI be able to seize these kinds of records, but it will be illegal for the media to report on any such seizure. How's that for the ability to rewrite history, Soviet-style?
Details here.
The FBI was never here, go about your business.
If the state can't harass speakers, but can harass listeners, then the right to speak is pretty worthless.
That's why the right to listen (or read) in peace is considered an integral part of the freedoms of speech and press. The government can't send the cops to harass listeners, or the FD to hit them with a fire hose, or even the FBI with sound gear they used in Waco.
For a counterpoint, you should still be able to find people with living memory of fascist and communist regimes which had "freedom of speech"... but anyone foolish enough to be caught listening would be sent to the Gulag. Or the death camps.
For every complex problem there is an answer that is clear, simple, and wrong. -- H L Mencken
In the future, instead of linking to Amazon when you want to refer someone to a book, link to The Tattered Cover, like this:
The Termcap Manual, by Richard Stallman.
Support the folks that regard as important the same ideals you regard as important. Amazon is not your friend. The Tattered Cover is. They are fighting the good fight, and at no small cost to themselves. You should thank them by sending them your business and your friends' business.
Edith Keeler Must Die
Does the freedom of speech include the freedom to listen to the speech of others?
Does the chilling effect of someone cataloguing that speech which you are privy to, and using it against you, obliviate that right?
Caveat Emptor is not a business model.
If it was prima facie not valid, then no crime was committed. Since the court has struck down the warrant (subpoena?), no compliance is required.
Requiring compliance regardless of merit would allow any police officer to search any home at any time, just because they felt like it. They could write their own warrant, sign it, and then force their way in. Without demonstrated merit, it is not enforceable.
Does the freedom of speech include the freedom to listen to the speech of others?
Does the chilling effect of someone cataloguing that speech which you are privy to, and using it against you, abridge that right?
Caveat Emptor is not a business model.
This is "civil liberties," and this case is relatively tame. You should be able to find a decent introductory textbook on any large college campus.
For every complex problem there is an answer that is clear, simple, and wrong. -- H L Mencken
This decision is a %^*** WORD file - windows users only.
I can't read the damn thing.
Can some US citizen (since I am not) complain to the court about this please on behalf of all of us?????
Yes, this question has been addressed elsewhere. I'm sure other answers
have been more eloquent and informed. But the question, here, even when
answered elsewhere, begs to be answered here.
This actually falls, in a roundabout way, under both abridgements of the
right to speech without punishment (And how that has been weakened), and
the right of the press to print without the editorial oversight of those
who would be our moral parents.
It ought, however, to also fall under the 4th amendment right you placed
in bold. This has to do with the blurring of "papers" and "effects", as
the constitution was written before so many agencies that would not have
been considered protected regions for personal privacy started keeping a
huge amount of private information.
Honestly, there is a justification for, and a general acceptance of, the
right of parties charged with maintaining peace, order, law, and justice
to obtain certain information, in restricted circumstances, regarding an
otherwise private detail of an individual being investigated in criminal
matters. With public oversight of the process, and without a willful or
careless dissemination of that private information, this becomes a valid
and sensible tool.
The problem here, in this case, is that the agency in question failed to
reasonably limit the scope of their search. The key is "and no warrants
shall issue
is some degree of lattitude, and in many cases, they may have been right
in their blanket request for "purchase records of X from store Y", where
store Y was of a particular class of store and one of those records was,
with a reasonable degree of probability, known to contain information on
a specific purchase. It's a double bind, you see. They know the record
in question exists, but not the date, and if the case is still uncertain
and the suspect still just that (in theory, until conviction), a privacy
argument (protecting against careless dissemination) could justify their
blanket request. Local police might even be thought of as unable to, in
most cases at least, abuse this particular data, though there are cases,
especially where "Christian Values" is a buzzword for "We're going to be
a little facist state here, and if you don't like it, you can go move to
some big city, you hear?", where that is decidedly not true.
So... had they asked only for documentation of that specific purchase, a
reasonable request if not made spuriously as part of a trolling attempt,
they would have been right. But they asked for all records, which is an
obvious troll.
Now the first ammendment comes into the issue, and compounds the search,
which was already iffy, with what could easilly fall under harassment of
the free press. Amending the rights of the press doesn't just mean that
the publication of a paper which says, "Bush is utterly incompetant, and
that was painfully obvious from his original strategy in Afghanistan, as
all of you should have seen, and would have, if you weren't so blind and
stupid with rage. And I'm sure, if he were carefully investigated, that
it would turn out he was still snorting coke," which exercises the free
criticism of a public personage, even to the point of near slander (that
would be the coke line, the first part was a fact, not an accusation) is
protected. It also means that the publisher of said paper has the right
not to have goons hired by a corrupt and facist president harassing him,
or police spending more time investigating him (as opposed to more time,
in the case of someone who has publicly voiced an intention to kill that
devolved primate in question, and done so in a credible manner, checking
very carefully to make sure the second individual is not actually trying
to do so... but not, for example, checking to see if he smokes pot), and
in that respect, monitoring the consumption of published goods is indeed
a 1st amendment issue. It is an issue of principal. I read. I read in
great volume, and from a great many fields. A watchdog agency might get
some funny ideas from what I read, though not internally consistant ones
if they tried to make a criminal pattern of it. But more important than
whether they might get suspicious (and the degrees in physics and a wide
range of hobbies and my current work in artificial nerves explain all of
the nonfiction, aside from the anthropological elements, which are taken
from my dad, an anthropologist... so they can just back off, thank you,)
is whether they might try to profile. I have a friend who the DEA tried
to harrass because he'd been purchasing botanical books and supplies, of
a potentially drug related (and RPGs lead to satanic cults) nature. The
SOBs just ignored the fact that he was a botanist (PhD) and worked for a
legal agricultural hemp research program on the big island of Hawai'i, a
tendancy that's common with those criminal thugs.
He ceased to do business with Barnes N Noble after that visit.
Now, would you trust an agency like the DEA to be honest, or even legal,
in its use of personal information about your reading habits? Would you
purchase books that might be "considered suspicious"? Even if they were
not for criminal purposes? What about books that might be embarassments
if publicly displayed? I buy certain books relating to recovering from,
and dealing with, certain severe forms of child abuse. I don't but them
for myself. I'm recovered just fine, thank you, thanks to some luck and
a few remarkable people... but some of the people I buy them for are not
yet able to admit that it happened to them, at least in the face of this
judgemental and often revolted public, and don't believe that there will
never be some suspicious and unscupled person snooping through the books
they have purchased, and outing them.
Hell, the same probably applies to gay rights books...
And you want an agency with that track record pushing the limit of this?
The people who publish such books might as well hang their hats, if that
happens. No one will risk buying the books if big brother is watching.
-- Still waiting for the Nike endorsement
It's a bookstore, therefore, it must fall under free press.
Ouch! Would you like to fall under
a press, however free?
Considered harmful.
RTFA
zero. The UCLA probably picked up the tab.
Tattered Cover charges full list for everything.
This decision is IMHO yet another reason to shop elsewhere.
The First Amendment regards freedom of the press; the government is not making a law denying you that freedom if they choose to know what you're reading...
Don't get too excited. This one will likely end up in front of the Bush family retainers on the US Supreme Court. Scalia and his buddy "Coca-Cola" Clarence like nothing better than to tap-dance on the graves of what used to be our privacy.
It's simple: I demand prosecution for torture.
Hmm...
In the general case of "file transfer" it actually might be covered.
The specific idea of copyright violation is obviously NOT covered.
But how do you tell if copyright violation is happening, unless you monitor, and violate the judge's order?
It's a great bookstore. A "destination retail establishment" worth making room in an itinerary for. I go back whenever I am in Denver.
The committment to free speech is very strong there.
Customer service is great, too. We used to field all sorts of queries like, "I'm looking for that lemon colored book..." "You mean the lime-colored one on Bipolar Disorder and color-blindness?"
"That's it!"
"2nd floor, medical/psychology section."
but at least they gave the book titles:
:)
Advanced Techniques of Clandestine Psychedelic and Amphetamine Manufacture, by Uncle Fester, and The Construction and Operation of Clandestine Drug Laboratories, by Jack B. Nimble.
I'm sure you can find them online somewhere...
But maybe we just found a better place to buy books. I know I just switched bookstores
Support these people, please!
put the what in the where?
Have a nice life tin man!
Was the point flying over your head at Mach 2, grammar bitch.
As long as the police followed due process in obtaining a warrent, I don't see a problem.
Believe it or not sometimes it is necessary for law enforcement officials to invade our privacy and that's why a warrent is required. A warrent must be issued by a Judge and if the warrent isn't given out capriciously then it should be honored.
The race isn't always to the swift... but that's the way to bet!
The constitution may not explicitly say that the govt cannot get the records, BUT it does say that you can read whatever the hell you want, meaning that the order is useless and would just be a waste of the bookstores time and a LARGE breach of the constitution.
It's a nuanced point, but the 4th Amendment usually applies to the subject of a criminal investigation, not witnesses.
The guy with the meth lab could claim 4th Amendment rights since he was being investigated for a criminal act.
But the Tattered Cover, technically, was a witness whether he legally purchased a legally published book on criminal acts. They were not, and could never be, charged with any crime. Since they weren't in jeopardy, the 4th Amendment doesn't apply.
In contrast, had the "anti-pornography" amendment passed a few years ago then they could be charged with a criminal act for selling certain books, and the 4th Amendment would apply. Fortunately that Amendment was shot down, in part due to the efforts of the owner of the Tattered Cover.
For every complex problem there is an answer that is clear, simple, and wrong. -- H L Mencken
The First Amendment guarantees "freedom of speech" and "freedom of the press".
The Supreme Court has decided that this entails a "freedom to read" without supervision of the government.
The Supreme Court has further decided that libraries and bookstores have the right to defend this "freedom to read", both as a matter of public policy and to further their own economic interests, to prevent the "chilling effect" of governmental monitoring.
Incidentally, the Court's opinion noted that the local cops(Thornton, CO) were unable to get a warrant from the local DA's office, even after approaching numerous ADAs, because they all thought it was improper; they eventually got their warrant from the Denver DA, despite the fact that the crime was not committed in that jurisdiction.
Subject-predicate, asshole. Way to write a complete sentence.
Actually, the last time I was at Barnes & Noble they had a table featuring "banned" books. (Mind you, this was a couple of months ago.) Nothing too radical, but your usual fare of classics: Farenheit 451, Huckleberry Finn, Wizard of Oz, etc.
-- Yekrats
Ceci n'est pas une pipe.
...I have came for a cup of coffee and ricochet-covered location (long story) to the Tattered Cover bookstore, and first thing I see on my notebook on slashdot is... a story about tattered cover ;-).
Contrary to the popular belief, there indeed is no God.
My mom is the director of a public library, and I know for a fact she regularly refuses requests to disclose the borrowing habits of suspects. I beleive there is precedence for this. I remember a little something about a supreme court judge and video rentals...
I have the right to write a book on "How To Make Methamphetamine".
You have the right to buy and read this book. In a raid on a meth lab, the cops found this book. Now if the state can, in the investigation of this crime (running a meth lab), subpoena the records of the bookstore to get a list of everyone who bought "How To Make Methamphetamine", they know you bought that book even though you have no connection at all with the crime, and were never a suspect.
I think you'll agree that this will tend to make you not buy that book. Your privacy has been invaded.
And this impacts my freedom to write and publish that book.
Any restriction on writing, publishing, selling, and lending books will infringe authors' First Amendment rights. When we pass laws that infringe, we must be very sure that there is a clear and compelling reason to do so, viz. "shouting 'fire!' in a crowded theatre". Routine fact-gathering during a criminal investigation does not qualify (IMHO).
(Note: your video renting records are protected thanks to the Clarence Thomas confirmation brouhaha.)
Unlimited growth == Cancer.
While you're at it, here's one RMS would like: "The right of freedom of speech and press includes . . . the right to read . . ." (footnote 11)
the one in Lo-Do (what us natives call lower down town) is *5-stories*. granted, not a heck of a lot of square footage, but that place is HUGE for a books store. when you say "They have a second branch in LoDo (Lower-Downtown) which is smaller but still of quite a respectable size." what are you comparing it to, and auto plant?
Same as always - anyone who really really wants to be a lawyer, politician or police should absolutely not be allowed to hold such a job.
The problem here isn't that government is trying to violate my first amendment rights by looking at what I buy, it's that the booksellers aid and abet them by keeping a list of what I bought in the first place!!!!!
I'm 100% behind the Tattered Cover and their fight. However, I wonder why the information is being collected in the first place and how that information is being used.
Right, let's outlaw the manual's on how to fly a plane. Cause, I'm pretty sure that the bookstores around here don't have manual's on how to fly a plane into a building.
Also, remember, it's not like they made the planes, that's probably Boeing's fault, so crucify them as well please
Do you think the court missed this or do they really not care about his anonymity?
Ahhh yess, the obligatory sigh oh, did you say sig?
It is argued that the 1st Amendment protects the general exchange of information. This case appears to argue from this general principle that not only can people exchange information, but the use of that information in the execution of a crime is also protected. It seems to me that discovering that a person suspected of a crime had learned how to commit the crime is a justifiable pursuit of law enforcement. If a suspect having no previous training is suspected of poisoning another person, it should be relevant that the suspect had immediately prior learned how to poison someone. Likewise, if a suspect with no prior training had been found to have learned how to make bombs immediately prior to being the suspect in a bombing, it should be relevant information for a court. In a contemporary example, the fact that some suspects with no previous training had immediately prior to hijacking several jets taken several months of flight school, it would seem relevant legal information. So, it should be relevant that a suspect in a case of illegal drug manufacture had immediately prior bought a book on illegal drug manufacturing. I do not see how the right to exchange information can prohibit the legal system from learning the connection between a suspect and the source of information in a relevant case.
Taking stuff apart since 1969 (TM)
I'm not sure it should apply everywhere. The search warrant was too broad from what I've read (IANAL) and they wanted evidence of anyone who'd purchased the books. I choose to disclose what I read on my website, but that's my choice. I don't think Amazon or anyone else should be disclosing what I've bought.
However, if the search warrant was seeking purchase records for specific books by a specific individual for whom there was other INDEPENDENT evidence of criminal activity, then I think the record request is justified and should be released.
Not records of everyone who purchased that book and probably not evidence of other books you've purchased. But if you are arrested for counterfeiting. You have books in your possession that relate to counterfeiting (like Counterfieting for Dummies) and a bookstore receipt, the police have a duty to relate that book to you through a purchase record.
Besides, only users lose drugs :)
this seems to be all about being able to consume protected speech, and the implication that anonymity is required to achieve that.
so I wonder what good these records would do if once suppeonead, they showed that the books in question were purchased with cash, and no further information on the purchaser was taken?
remember folks: for the near future, small amounts of cash are still anonymous.
Addison St. is 3600 N. If you drove to 3600 N Clark, you would be in front of Wrigley Field.
However, Wrigley field's address is not on Clark, it is on Addison. 1060 West Addison, to be precise.
I live two blocks from there.
I thought that that "if" is what started this thread.
then a "red-flags" list of very certain books is understandable in my eyes.
So, does that mean you monitor IP addresses of those who access the same content off an off-coast web site as well?
The problem is that the gun is a physical object. Making a copy would be very expensive (though not outright impossible) and "isn't worth it" for most people. Information (and that's what we're really talking about here - the "book" is just a medium) is easily able to be duplicated, making monitoring them impractical.
If such "red-flags" were implemented, I guarantee the information would just move to another medium.
Sleep is just a poor substitute for caffeine, anyway. -Bob Lehmann