Letter From Betsy Burton of the King's English to Sen. Orrin Hatch

April 2, 2004

Senator Orrin Hatch
Attn: Melanie Bowin and Roger Livingston
84042 Federal Building
125 South State St.
Salt Lake City, Utah 84138

Dear Senator Hatch,

As the longtime (26 years) owner of a bookstore in Salt Lake City, Utah, a longtime member of trade organizations in the book business locally, on a regional, and a national level, I'm all too familiar with Section 215 of the so-called 'Patriot Act" and find it chilling. It seems to me that any true patriot would adhere to and support the Constitution of the United States and our civil rights as detailed in the Bill of Rights and protected by our courts. Indeed, I've always believed that a bedrock conservative tenet was the sanctity of the Constitution. I find any threat to rights guaranteed by that precious document to be both unpatriotic and wrong-headed.

While believing that terrorism has to be fought both here and abroad, I question any measures that destroy the very thing we deem worth fighting for in our country -- freedom. Courts have already found police infringement on peoples' right to privacy in bookstores "chilling" in cases involving Monica Lewinsky and the Tattered Cover Bookstore in Denver, respectively. Said Joyce Meskis, owner of the Tattered Cover, in reference to her own actions when investigators demanded customer buying records, "If we turn over this information, our customers will start wondering if we would ever do the same to them. It will undermine their confidence that we will do everything we can to protect the privacy of their purchases and make them afraid to buy controversial titles. That would be a tragedy for us, for them -- and for free speech." Meskis and her attorney argued (quite logically in my view, the view of most booksellers and librarians I know) that since reading a book is not a crime, the reading of a book on the manufacture of drugs (or on terrorism) is not proof positive that the reader is a manufacturer of drugs (or a terrorist). Chris Finan, president of the American Booksellers Association Foundation for Free Expression, said "If the First Amendment means anything, it means we have the right to purchase books without fear that government will inquire into our reading habits." Added Meskis, on the argument of the chilling effect of the subpoena, "I strongly believe that they would immediately discontinue making purchases from my store if they learned that the Tattered Cover did not treat their purchases as private and constitutionally protected." (Press release from American Booksellers Foundation for Free Expression [ABFFE], April 13, 2000.)

Chilling is a good word to describe what occurs when government attempts to control or even to examine what people are reading -- which books they buy, which papers they subscribe to, which magazines they read. The King's English had the Vice-Squad in our store 25 years ago, and although they didn't find anything objectionable, the image of these officers perusing our books with an eye toward evidence gathering remains a chilling memory. Because, for a medium-sized (as in The King's English) or large (as in Tattered Cover) business, the intimidation inherent in the mere act of examination, investigation, could be enough to keep certain titles off shelves, limit choice, freedom. The question that must always be asked when government attempts to infringe on people's rights, for any reason, is: which is worse? A search which 'might' (I use the word 'might' advisedly, as there is no requirement under the "Patriot Act" to furnish 'specific and articulable facts' that the records in question belong to a spy terrorist or other foreign agent) help to build a case against an alleged terrorist, or the abrogation of a citizen's right to privacy; the abrogation of a bookseller's right to shelve a book without fear of search, seizure, prosecution; the abrogation of a customer's right to buy without fear?

In the end, The Colorado Supreme Court agreed with Joyce Meskis (and with the federal judge in the Monica Lewinsky case), just as I suggest you should side with the SAFE Act. In April of 2002, the court refused to force the Tattered Cover Book Store to turn over their sales records. In a 6-0 opinion the court said the ruling doesn't preclude law enforcement from ever getting the records, but that before such records are ordered turned over police must "demonstrate a compelling governmental need" for the records. Also, bookstores will be entitled to a hearing to challenge any request for records.

"We recognize that both the United States and Colorado constitutions protect an individual's fundamental right to purchase books anonymously, free from governmental interference. Bookstores are places where a citizen can explore ideas, receive information, and discover the 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."

In an ironic footnote, some months later, Joyce Meskis, with the permission of the defendant in the city's case, released to the media the actual titles purchased by that defendant. The title in question? A book on calligraphy. Not the best evidence in a drug (read terrorism) case.

Who could have guessed, two years after that case was decided, that our individual liberties could have been further eroded to such a degree -- that we could have traveled so far down the road from individual liberty? The sweeping changes instituted by the 'Patriot Act' have threatened longstanding precedents and effected basic alterations in our Bill of Rights. As a bookseller I find myself in the (at least potentially, according to 215) unfortunate position of having to turn over the buying records of my longtime customers, without the freedom to even notify them I am doing so. The fact that this can occur without the normal safeguards is terrifying to me. I honestly don't know what I'd do if placed in a position of having to choose between a right I feel to be sacred and a law I feel to be wrong. I hope I never have to find out.

Oliphant summed it up best in a recent cartoon in which two shadowy figures stand in a doorway, the wife saying to her husband (who is immersed in a fat tome and has his back turned to the door), "FARNSWORTH, THE PATRIOT ACT PEOPLE ARE HERE TO ASK WHY YOU BORROWED WAR AND PEACE FROM THE LIBRARY." Not to strike a serious (even self-important) note, one thing we booksellers do is to keep the bridge over the moat open, facts flowing in and out of the keep. We, along with universities, colleges, libraries, the media, are not only participants in the free flow of ideas, but also protectors of the right, which the first Amendment guarantees to all of us, to disseminate those ideas.

I beg and plead with you as my representative and as an avowed Conservative to, at the very least, vote for the SAFE act in order to limit some of the worst excesses of the "Patriot Act," as well as to enforce sunset provisions. To quote a classical author in support of my stand, "I disapprove of what you say, but I will defend to the death your right to say it" (Voltaire, Attrib. in S.G. Tallentyre, The Friends of Voltaire).

Patriotically Yours,
Betsy Burton