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Kramerbooks
Kramerbooks in Dupont Circle is among the stores fighting a request to turn over records of Monica S. Lewinsky's purchases. (The Washington Post)

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Bookstores Have Defenders, Skeptics in Bind Over Subpoenas

By David Streitfeld and Ann Gerhart
Washington Post Staff Writers
Friday, April 3, 1998; Page F01

Amid vigorous debate about whether independent counsel Kenneth Starr's subpoena of two Washington bookstores violates constitutional guarantees of privacy and freedom of speech, the nation's booksellers, publishers and librarians vowed defiance yesterday.

"Mr. Starr's subpoena is poisoning the atmosphere in bookstores throughout the country," said Avin Mark Domnitz, executive director of the American Booksellers Association. "If the First Amendment means anything, it means we have the right to purchase books without fear the government will inquire into our reading habits."

Starr has demanded all information about Monica Lewinsky's purchases at Kramerbooks, but lawyers for the Dupont Circle store have filed a motion to quash the subpoena. Bruce J. Ennis Jr., one of the country's foremost First Amendment lawyers, has filed a friend-of-the-court brief supporting the bookstore's position. Chief U.S. District Judge Norma Holloway Johnson will hold a hearing this morning.

"We are seeking to protect the privacy and First Amendment rights of our customers," Kramerbooks co-owner Bill Kramer said at a news conference in the store.

"This is an attack with a sledgehammer," said Pat Schroeder, president of the Association of American Publishers. The American Library Association is also lending its support to the bookstores.

Lewinsky, a former White House intern who has become a central figure in Starr's investigation of President Clinton, purchased books four times at Kramerbooks and at least 12 times at the Barnes & Noble outlet in Georgetown, according to the subpoenas.

In New York, Len Riggio, the chief executive officer of Barnes & Noble, said it wasn't clear if the titles of Lewinsky's purchases could be ascertained, but "we didn't even bother" to look.

Barnes & Noble, the country's largest bookseller, has never released information about customers' purchases, and isn't going to start now, Riggio said. "We don't want to set a precedent here."

However, Riggio stopped short of saying he would go to jail. "At the end of the day, we have to follow the law. We're asking the court to apply the law properly."

The chain, which has until April 14 to respond to Starr's subpoena, will, like Kramerbooks, ask for it to be quashed.

Lawyers and constitutional scholars disagreed yesterday about whether the First Amendment protects bookstores seeking to shield their customers' records.

American Civil Liberties Union lawyer Louis Bograd noted that the Supreme Court, in the 1963 case Bantam Books v. Sullivan, said freedom of the press embraces the circulation of books as well as their publication.

"The First Amendment does protect freedom to read," Bograd said.

Floyd Abrams, who successfully defended the New York Times in the Pentagon Papers case, agreed that the bookstore subpoenas raise "extremely serious First Amendment and privacy issues." He also criticized Starr's judgment for rooting around in relationships that should be sacrosanct.

"Whether it is a bookseller and a purchaser or a mother and a child or a White House spokesman and his press confreres, it seems to me deeply disturbing that the Office of the Independent Counsel has now become a laboratory for new incursions into important relationships," said Abrams. "Here we have a willingness to intrude into an area which by its nature is private, serious and important."

But Steven Shiffrin, a Cornell University law school professor and another First Amendment expert, said, "My gut feeling is that bookstores are not in a good position."

Unlike the freedom-of-speech protections afforded to the media, Shiffrin said, bookstores are merely vendors, and "are not making editorial decisions except for the books they put on their shelves, which is not compromised by revealing what customers bought. Given the state of the existing law, I don't know how they're going to get very far off the ground in writing their briefs."

The Constitution also says Americans have a right "to be secure in their persons, houses, papers and effects" against "unreasonable searches and seizures." However, this privacy protection has been shattered by court decisions permitting police searches of trash and phone records without demonstrating probable cause, Shiffrin noted.

But media attorney Bruce Sanford said the booksellers might enjoy the same qualified privilege as reporters, who are protected from giving up their notes and sources unless investigators can establish three things: relevancy, a compelling need for the information, and exhaustion of alternative ways to get the information.

Starr and his investigators "are not totally off-limits, of course," said Sanford. "If there were a bombing, you might want to see if the suspect bought a book about making a bomb." As for Starr's interest in Lewinsky's book-buying habits, "we don't know what he wants," he said. "Maybe he is seeking to corroborate information he has gained elsewhere, but if he is engaged in a fishing expedition, they could seek to quash on that basis."

This is not Starr's first foray into forcing information that may be protected by the First Amendment. He ordered White House adviser Sidney Blumenthal to reveal conversations he had with journalists, a move that prompted harsh criticism from the media and Starr's retort that "the First Amendment is interested in the truth."

And he subpoenaed the publisher William Morrow & Co. to turn over documents relating to a manuscript by Webster Hubbell, once a close Clinton friend and former associate U.S. attorney general.

After Morrow attorney Victor A. Kovner mounted a wide public relations and legal campaign to fight the broad order, Whitewater prosecutors abruptly dropped the efforts to get notes and the unpublished manuscript, settling instead for the financial documents related to Hubbell's book contract.

In the wake of that skirmish last summer, "I would have hoped they would have been chastened," said Kovner yesterday. "I find this shocking and outrageous."

Starr spokeswoman Deborah Gershman did not return a call for comment.

Kramerbooks, an independent store whose Afterwords cafe has been a popular meeting spot for decades, was served with Starr's subpoena March 23. Last week, a lawyer for the store said it was cooperating, a response that got it slammed.

"This sort of invasion of privacy . . . is so clearly a breach of our First Amendment rights that the idea that a member of our community would negotiate and then comply takes my breath away," Jack Shoemaker, the head of Washington's Counterpoint Press and a former bookseller, wrote to the store last week.

"I am disappointed that you did not check with other members of the publishing and bookselling community to judge whether you might not have secured sufficient support to fight this dreadful intrusion," Shoemaker added, noting that the store's attorney told The Washington Post that "it was the cost of such resistance that determined your course of action."

Sharon Kissel, a legislative librarian at the American Civil Liberties Union, was so outraged that she led a demonstration in front of Kramerbooks Saturday. About 30 people came, many of them librarians.

"It's pretty rare for librarians to picket anything, but we were troubled that Ken Starr was doing it, and very troubled that Kramer's looked like they were caving in," Kissel said yesterday. "I applaud the store for changing its mind."

Bill Kramer said that despite the widespread perception in the bookselling and publishing community, no decision was ever made to cooperate with Starr.

"There are two rumors running around: one, that we were going to cave in, and that we changed our minds; and two, that we've only changed our minds because we received support," Kramer said. "Both of those statements are false. There was never a point at which we determined to give over the information. When we educated ourselves, it was a snap decision."

One beneficiary of the controversy has been Nicholson Baker, whose novel about phone sex, "Vox," has been identified as one title Lewinsky bought at Kramerbooks. Marty Asher, the paperback publisher, said orders have been large enough to require a new printing of 2,500 copies.


© Copyright 1998 The Washington Post Company

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