June 13, 2007

Michael P. May
City Attorney
City of Madison
210 Martin Luther King Blvd.
Rm 401
Madison, WI 53703

Dear Mr. May:

            I am writing to you on behalf of the American Booksellers Foundation for Free Expression, the bookseller’s voice in the fight against censorship.  The City Council of Madison recently amended Section 9.24 of the General Ordinance.  If that ordinance is implemented and enforced, it will violate the First Amendment rights of booksellers and their customers.  We urge you to evaluate the ordinance and recommend its repeal.

            The amendments significantly alter the business of selling used textbooks in Madison.  They require secondhand textbook dealers to obtain a license from the city and to request identification from any person from whom they wish to purchase a used textbook.  Of particular concern is the requirement that dealers maintain records of their used textbook purchases with the title, author and name of the patron from whom the book was purchased and make these records available to the police upon demand and without a court order during the six months following the date of purchase.

            We are deeply concerned about the significant burden the ordinance will place upon access to First Amendment-protected material.  Any measure that allows for official inspection of the reading choices of bookstore patrons deters individuals from exercising their constitutionally protected right to receive information and will inevitably lead them to avoid books expressing new or controversial ideas.  When First Amendment rights are thus implicated, the government is required to show that it has a compelling need for the information it seeks and that there is a substantial nexus between the requested material and the particular criminal investigation in which it will be used.  By contrast, the Madison ordinance allows police officers immediate access to records that reflect reading choices.  It thus fails to satisfy either of these requirements and cannot be constitutionally enforced.

            The amendments to Section 9.24 seek to regulate activity that is clearly subject to the protection of the First Amendment.  The First Amendment safeguards the constitutional right to both send and receive information.  Reno v. ACLU, 521 U.S. 844, 874 (1997); Stanley v. Georgia, 394 U.S. 557, 564 (1969).  It thus encompasses the activity of both bookstores and bookstore patrons.  See Roaden v. Kentucky, 413 U.S. 496, 504 (1973) (noting that bookstore activity is considered to fall ‘presumptively’ under the protection of the First Amendment). 

            These First Amendment liberties are violated not only by a direct ban, but also by measures that create a ‘chilling effect’ through the placement of burdens or obstacles on the exercise of expressive rights.  United States v. Playboy Entertainment Group, Inc., 529 U.S. 803, 812 (2000); United States v. National Treasury Employees Union, 513 U.S. 454, 468 (1995). 

            The Supreme Court has consistently held that the ability to both send and receive information anonymously is vital to First Amendment rights, because the possibility of exposure as a creator or consumer of an unpopular idea creates just such a deterrent effect through risk of retaliation.  See, e.g., McIntyre v. Ohio Elections Comm’n, 514 U.S. 334, 357 (1995) (holding that statute banning distribution of anonymous political campaign literature was not justified by state interest); Talley v. California, 362 U.S. 60 (1960) (invalidating law prohibiting distribution of handbills that do not list names and addresses of their authors or sponsors); Bates v. City of Little Rock, 361 U.S. 516 (1960) (striking down ordinance requiring organizations to disclose their membership records).

            Laws that require disclosure of reading habits clearly jeopardize an individual’s ability to receive information in an anonymous manner and have thus been subjected to significant First Amendment scrutiny.  See, e.g., Lamont v. Postmaster General, 381 U.S. 301, 307 (1965) (striking down statute requiring those interested in receiving communist propaganda to affirmatively notify the post office of their wishes).

            Records of bookstore purchases also act as clear indicators of reading practices and efforts by law enforcement officials to gain access to such records have been evaluated under similar stringent standards.  In Tattered Cover v. City of Thornton, 44 P.3d 1044, 1053 (Colo. 2002), a Colorado court noted that “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,” and that a governmental measure “directed to a bookstore that authorizes seizure of records that reflect a customer's purchases necessarily intrudes into areas protected by this right,” before proceeding to hold that a search warrant seeking records of a particular customer’s purchases was not enforceable.

            Although the records available to the police under Madison’s Section 9.24 describe what a patron has sold to a bookstore, rather than what he purchased from it, the information at risk of disclosure is the same: a list of books that were, at some point, in the patron’s possession and reflect ideas in which the patron was interested.  Subjecting such information about an individual’s reading habits to police scrutiny clearly places just as great a burden on the exercise of First Amendment rights as would information relating to the individual’s book purchases or any other expressive activity, and thus should be evaluated under a similarly strict standard.

            It should be noted that the amendments to Section 9.24 will affect not only the reading choices of those who engage in used textbook transactions, but will likely also chill the First Amendment rights of all patrons of the affected stores.  Courts have previously determined that even the suggestion that a store may disclose any records that reveal an individual’s reading history imposes a deterrent effect on patrons.  For instance, in In re Grand Jury Subpoena to Kramerbooks & Afterwords, Inc., 26 Media L. Rep. (BNA) 1599, 1601 (D.D.C. 1998), the district court noted that following service of a grand jury subpoena upon independent bookstore Kramerbooks, “[m]any customers …informed Kramerbooks personnel that they will no longer shop at the bookstore because they believed Kramerbooks to have turned documents over…that reveal a patron’s choice of books” and that “[s]ales at the bookstore have also declined.” 

            Similarly, when the Tattered Cover Bookstore was faced with a search warrant seeking a patron’s book-buying records, the store received a large volume of letters from customers expressing their inability to comfortably explore and purchase a wide variety of reading material in a store that would be required to turn over records of their choices.  Tattered Cover, 44 P.3d at 1050.

            The First Amendment concerns at issue here necessitate a balancing of law enforcement needs against protected expressive rights.  Governmental entities have been required to make a showing of “compelling need” with regard to the requested information in order to outweigh the burden imposed on First Amendment liberties.  Kramerbooks & Afterwords, 26 Media L. Rep. (BNA) at 1601 (holding that compelling need for records of book purchases must be shown in order for subpoena to be enforceable); Gibson v. Florida Legislative Investigation Comm., 372 U.S. 539 (1963) (holding that compelling interest must be shown where subpoena of membership records burdened First Amendment right to free association).   Section 9.24 -- which gives police officers immediate access upon demand to the names of individuals and the textbooks they have sold without any showing of need or balancing analysis -- clearly falls far short of this stringent standard. 

            Moreover, merely asserting a “compelling need” for the material is not sufficient where First Amendment rights are at issue: the nexus between the material sought and the criminal investigation in which it will be used must be independently evaluated by the court.  In re Grand Jury Subpoena to First National Bank, 701 F.2d 115, 117 (10th Cir. 1983) (holding that disclosure of membership lists required showing of compelling interest and a substantial relationship between the material sought and legitimate government goals).

            Law enforcement officials cannot access these materials constitutionally unless they can demonstrate a genuine and significant connection between the demand and the relevant investigation.  U.S. v. R. Enterprises, Inc., 498 U.S. 292, 306 (1991); NAACP v. Alabama, 357 U.S. 449, 464 (1958); see also Branzburg v. Hayes, 408 U.S. 665, 710 (1972) (stating that the government should not be able to burden First Amendment rights where the requested information bears “only a remote and tenuous relationship to the subject of the investigation”).  The blanket right to demand such records without this balancing renders the ordinance unconstitutional.  As Justice Powell explained in Branzburg, “[t]he balance of these vital constitutional and societal interests” is to be made “on a case-by-case basis.” 408 U.S. at 710 (Powell J., concurring).

            The City of Madison has a long and distinguished history of protecting the rights of individuals, including the right to free speech.  On Oct. 15, 2002, the City Council passed a resolution that challenged the USA Patriot Act’s invasion of a citizen’s right of privacy in their bookstore and library records.  We believe that you will agree that the recent amendments to Section 9.24 are inconsistent with Madison’s history as well as the requirements of the First Amendment.  We urge you to recommend their repeal.

            Thank you.

                                                                                                Sincerely yours,

                                                                                                Christopher Finan
President