Why A More Nuanced First Amendment Test Is Necessary

Thursday, Feb. 21, 2002

Over the past few years, bookstores small and large — from the Tattered Cover in Denver, to and Borders — have, with increasing frequency, received and fought subpoenas for their customers’ book purchase records from prosecutors who say they need these documents to help prove their cases. Unfortunately, the booksellers have been forced to wage an uphill battle, hoping for a sympathetic judge.

That is largely because the legal standard that governs these disputes is fundamentally flawed. Due to First Amendment concerns, courts require prosecutors to prove a "compelling need," and a close nexus between the subpoena and the contemplated prosecution, before they will enforce a subpoena for bookstore purchase records.

The "close nexus" standard, which is similar to the requirement of "narrow tailoring" applied in many constitutional law cases, assesses whether the connection between the case and the subpoena is direct and obvious, or indirect and tenuous. Under this standard, a subpoena that is peripheral to the case, or that is drawn too broadly or vaguely, is unlikely to be enforced unless it is focussed and narrowed.

The problem with the current-two part standard is that it is just when prosecutors need bookstore records most, and when they are most closely related to the case, that the First Amendment harm from enforcement of the subpoena is often the greatest. We need a new test that offers better First Amendment protection.

After all, when do prosecutors have a "compelling need" for book purchase records that have a close nexus with the case? It is when they cannot prove their case without the records. Yet when book purchase records are a sine qua non of a case, there is a heightened risk that the defendant will, in effect, be convicted not for the crime he committed, but for what he might have been thinking when he made a particular book purchase or read a particular book.

Accordingly, satisfying the "compelling need"/"close nexus" standard should not be enough. The court should go on to make a further inquiry — one that focuses on what prosecutors want to prove with the records, and on whether allowing the records to be subpoenaed for this purpose will increase the risk of a "thought-crime" conviction. The court should also focus on the magnitude of the chilling effect that releasing book purchase records may have on other book purchasers.

Refusing to enforce subpoenas without this more detailed inquiry into possible First Amendment harms ought to give ordinary readers like you and me comfort that we will not be targeted for our purchases alone. It also ought to ensure that we prosecute people only for criminal acts, and not for unorthodox thoughts and beliefs.

The Many Different Ways Book Purchase Records Can Be Used

Book purchase records can, of course, be used by prosecutors in various ways. They can be used, for instance, to establish a particular suspect’s intent or motivation to commit a crime. They can be used to establish that a crime has been committed in the first place, differentiating an apparent accident from an intentional crime or providing evidence of a longstanding conspiracy. They can be used in a "dragnet" function to narrow down a list of suspects. They can also be used to show that the suspect bought a "how to" manual for illegal activity, and then scrupulously followed it.

Moreover, book purchase records can be used, more generally, to bolster the credibility of a witness who will testify against a defendant. Consider, for instance, Independent Counsel Kenneth Starr’s attempt to subpoena Monica Lewinsky’s book purchase records from the Washington, D.C. bookstore Kramerbooks, to show that she had bought Nicholson Baker’s Vox, a novel about phone sex. Apparently Starr hoped this subpoena would help corroborate Lewinsky’s claim that she had had phone sex with the President.

These are just a few examples of how book purchase records can be used. Amazingly, the "compelling need" and "close nexus" tests currently in use do not bother to carefully distinguish between these different types of scenarios. However, hypotheticals illustrating a few of these uses can show how different these varied scenarios really are — and how different, too, are the First Amendment risks and harms each presents.

Using Book Purchase Records to Show Intent, and Corroborate a Witness

Unfortunately, the witness who told them so is the suspect’s bitter ex-wife, who lost child custody to him due to her drug and alcohol abuse. Prosecutors don’t want to put her on the stand without corroboration, because her bias is so evident. But without her testimony, they will have trouble proving the suspect’s motivation to embezzle. So they subpoena the suspect’s book purchase records to see if, as the ex-spouse claims, he has bought a travel book for virtually every country in the world.

Is this subpoena problematic? In this case, not especially. For one thing, the prosecutors have some other evidence, weak though it is, of the suspect’s motivation; some evidence to connect this suspect to the crime; and strong evidence (money is missing) that a crime was committed in the first place. For another thing, it is unlikely that a jury would be prejudiced against a defendant, or tend to convict him, merely because he bought travel books.

Thus, the chance of a thought-crime conviction, or of a widespread chilling effect, in this type of instance is rare, and the First Amendment is not intensely implicated. This is a case where the evidence happened to be a record of book purchases — but it could just as easily have been, say, a plane ticket for travel abroad.

It would be different, though, if the ex-spouse claimed, for instance, that the defendant was embezzling in order to support his gay lover, and that the defendants’ book purchases — which included books on gay men’s health and sexuality, and how to improve a same-sex relationship — would prove the relationship’s existence.

Prosecutors unable to find any other proof that the lover existed might claim a "compelling need" to subpoena the records — again in an attempt to bolster the ex-spouse’s testimony and prove the suspect’s motivation to embezzle. They might also reasonably claim a close nexus. After all, the subpoena is focused to seek only books of this nature, and the books are sought to provide proof of a motivation that they already have reason to believe may have existed.

But in this case, the subpoena — which seeks records for books on subjects that readers might reasonably want to keep private — will have a serious chilling effect. Anyone who buys a book on a sexual topic will have reason to fear a subpoena, and gay men will have greater reason than most.

Moreover, due to the possibility of jury homophobia, the suspect’s reading list will likely increase the chances of his conviction much more than its evidentiary value would otherwise warrant. Circumstantial evidence that the suspect had the best opportunity to be the embezzler because he was the company’s main accountant and wrote its checks, plus the ex-wife’s testimony that he planned to embezzle to benefit his lover, plus the sex and relationship books, could at least conceivably amount to a conviction.

Without the books, however, the case would not even be brought; the ex-wife’s testimony would alone be too weak, and opportunity without motivation can mean little. For that very reason, the prosecutors might see the books as crucial. But for that same reason, the risk of First Amendment harm is great.

The subpoena would lead to a heightened risk of a conviction for what the jury took to be a thought-crime (reading about gay sexuality) or even simply for status (being a gay man). And this conviction might be rendered even if the actual evidence of the act of embezzlement was weak and circumstantial.

Book purchase records can also be used as a "dragnet" if the police have a crime but no suspects, and know that the criminal bought a given book. For instance, the online magazine Salon recently reported on a case in which, during the summer of 2000, prosecutors in Ohio subpoenaed for records of Ohio purchasers who bought two audio CDs of erotic music entitled "Cyborgasm I" and "Cyborgasm II."

Prosecutors knew that a stalker had sent these CDs to his victims, and thought they could find him via the subpoena. Amazon fought the subpoena, and the case took an interesting twist that seems to have mooted the issue (see the Salon article for details). But suppose the issue were still alive. Should the subpoena be enforced?

This is a case that underlines why "compelling need" and "close nexus" alone are not enough. Prosecutors couldn’t find the stalker, and the subpoena seemed sure to give them a reasonably reliable suspect list; that sounds like a "compelling need" to me. Moreover, the mention of the CDs in the stalker’s letter established a close nexus between the CD purchase records requests and the case. But should that be enough?

What about the huge chilling effect of turning over to police and prosecutors all "Cyborgasm" purchasers — especially given that all but at most one are certainly innocent of the crime? Would anyone feel totally comfortable ordering sexually explicit materials from Amazon ever again? And what if the police, frustrated over the lack of a suspect, decided to target a "Cyborgasm" purchaser with a criminal record and go after him for the stalking?

In short, this case seems to present risks somewhat similar to the risks posed by traditional dragnets, even though it takes a modern, cyber form. It might, nevertheless, be necessary to enforce the subpoena, particularly in the case of an exceptionally dangerous stalker. But "compelling need" and "close nexus" should not be the end of the inquiry as to whether the subpoena should be enforced; they should be the beginning. A judge should confront head on the difficult question whether protecting stalking victims must mean sacrificing the reading rights of many innocent people.

How-To Manuals

Prosecutors have also tried to use book purchase records subpoenas to ascertain whether a suspect purchased a "How To" manual that gives instructions for the very crime he is suspected of having committed.

As long as there is significant other evidence that the suspect may have committed the crime, and the subpoena is narrowly framed, a subpoena seeking to ascertain whether the suspect bought the manual may be relatively unobjectionable, at least as compared to other book records subpoenas. Yet unless there is other evidence to target a given suspect for a given crime, we are back to the dragnet described above — and a particularly dangerous kind of dragnet.

In the end, the reading of the manual, not the terrorism, might end up being the real "crime." If such a subpoena were to be enforced, and especially if a prosecution were to follow, the reading lists of Middle Eastern Americans would inevitably be sharply curtailed — with any controversial reading effectively carrying with it the threat of jail time.

Now consider another case. A terrorist attack that follows the al Qaeda manual as if it were a recipe book occurs, and a man is linked to it, but not definitively. His wallet was found at the scene, but he says it was stolen. Two witnesses also say that they saw him surveilling the scene weeks before. Prosecutors want to subpoena area bookstores and to see if he purchased the manual.

In this instance, the subpoena is less objectionable; the risk of a thought-crime conviction is less, and the chilling effect on those who want to read the manual to educate themselves, and not to plan an attack, is less too. Readers, at least, need not fear they will be targeted solely because of what they read, for the man is otherwise connected to the terrorist act, through his wallet and witness testimony. While this evidence does not amount to proof beyond a reasonable doubt, it probably amounts to enough proof to justify prosecutors in seeking more proof, even if the First Amendment is implicated.

All of these hypotheticals, however, are complex and difficult, and reasonable minds can differ as to whether each subpoena should be able to be enforced. The overarching point all of these scenarios make, though, is that subpoenas of book purchase records can fit into a case in many, many different ways, and pose many different risks. Our legal test to address such records now is too simple, and not protective enough of First Amendment freedoms.

Julie Hilden, a FindLaw columnist and a graduate of Yale Law School, is a freelance writer and the author of the memoir "The Bad Daughter." She practiced First Amendment law at the Washington, D.C. firm of Williams & Connolly from 1996-99.

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