Fifteen years ago, Joyce Meskis, Owner of the Tattered Cover Book Store since 1974, stood up to federal and local law enforcement to defend the First Amendment rights of her customers. In exercising her own right to freedom of expression, Meskis achieved a unanimous ruling out of Colorado’s highest court, whereby a third-party bookstore is now entitled to a hearing before a warrant seeking its customers’ records can be executed. During such a hearing, the government must demonstrate a compelling interest that outweighs the harmful affects of government access to these records by applying a specific balancing test. The ruling was a resounding victory for freedom of speech that also propelled Meskis and the Tattered Cover into the pages of legal lore. Following the historic victory of City of Thornton v. Tattered Cover Bookstores, 44 P.3d 1044 (Colo. 2002), Meskis and her longtime attorney, Dan Recht of Recht & Kornfeld, garnered some well-deserved attention from the media; her story even became the focus of a PBS documentary called Reading Your Rights. In view of the stipulations provided in the First Amendment, the protection of privacy in the context of book purchase records has not been questioned by any U.S. court since.
July 1, 2015 marked the start of the Tattered Cover’s two-year transition into the ownership of longtime husband-and-wife booksellers, Len Vlahos and Kristen Gilligan. In 1974, Meskis purchased the small Cherry Creek bookstore, which was only three years old at the time, and transformed it into the present-day literary legend, which has boasted locations in LoDo, East Colfax, Union Station, Highlands Ranch (before relocating to Aspen Grove ~ Littleton) and Denver International Airport. The Tattered Cover is renowned worldwide for its dynamism as an independent bookstore in the Amazon Age and for its commitment to freedom of expression. When the Tattered Cover passes into the care of its new owners, Meskis will close the chapters of her successful and intrepid 40-year career.
However, don’t be fooled: Meskis is no one-hit wonder in the courtroom. In 1984, the Colorado General Assembly passed a set of statutes criminalizing the sale of obscene and sexual literature to minors in Colorado. The statutes also criminalized the display of such material at public newsstands and commercial establishments that minors might frequent. The Tattered Cover was one of several named plaintiffs that successfully declared the Act unconstitutional by citing its overbreadth and potentially chilling effect on content protected under the Constitution. The Denver District Court struck down several provisions as unconstitutional while severing and letting stand some portions of the Act. The Colorado Supreme Court declared the entire law unconstitutional in Tattered Cover, Inc. v. Tooley, 696 P.2d 780 (Colo. 1985). It remains Colorado’s preeminent case analyzing so-called “Ginsberg material,” which derives its name from the landmark obscenity case Ginsberg v. New York, 390 U.S. 629 (1968). The Tattered Cover’s victory also foreshadowed the larger legal triumph that would take place less than two decades later.
In the spring of 2000, a team of law enforcement agents from the North Metro Denver Drug Task Force and the federal Drug Enforcement Agency (DEA) investigated a suspected methamphetamine operation in Adams County. During a trash pull, officers discovered a mailer containing books sent to a suspect from the Tattered Cover Book Store. Officers also seized two books on methamphetamine manufacturing from the same suspect’s home; they reasoned that they could tie the illegal drug operations to the purchaser of the books.
Playing on this hunch, law enforcement agents descended on the Tattered Cover’s LoDo location one afternoon, brandishing a warrant for the suspect’s purchase records. Meskis immediately phoned Denver First Amendment lawyer Dan Recht for help. After some initial negotiating with the District Attorneys of Denver and Adams Counties, prosecutors agreed to a hearing before executing the warrant. That hearing culminated in a 54-page victory in the Colorado Supreme Court that was authored by Chief Justice Michael Bender. The power of the document’s words has not been undermined by any U.S. court since.
At first glance, the threat to freedom of expression might not be readily apparent. Justice Bender’s statement outlines the issue with coherent persuasion and is still worth a read. If the government can track what people read, expression becomes dangerously self-censored. If we don’t have the freedom to listen to or read certain material, then we don’t truly have the freedom to speak or write about it.
Recht, who is no stranger to high-profile cases, speaks highly of Joyce Meskis, whom he views as both a friend and a client. He recounts how the two met while serving on the Board of the Colorado chapter of the American Civil Liberties Union (ACLU) in the mid-1980s. To borrow his words, “Joyce has a wonderful and highly unusual combination of traits that has led to her success: She is a brilliant businesswoman, a zealous and passionate First Amendment advocate, and a compassionate, sensitive human being.”
In the trial court below, the ruling held that law enforcement could not access the suspect’s 30-day purchase history; police could only obtain information pertaining to the sender. Recht confesses that he considered the trial court’s ruling as a “half a loaf.” While deciding whether or not to continue on with an appeal, he remembers partaking in a war-room strategy session during which Meskis’ principled purity got him a bit choked up. The conference call included perhaps a dozen First Amendment experts, including law professors and practitioners, as well as Meskis herself. The question as to the outcome of an appeal, especially given the lack of favorable precedent, did not sway Meskis. She said, “Sorry guys, it’s just not right.” Recht followed his client’s instructions and helped to pave the path to what has been read as a historic triumph.
Meskis and her bookstore’s legal endeavor to protect her customers’ privacy under the First Amendment became even more remarkable when the truth came out that one of the books in question was not even criminal in nature: It was actually a book on Japanese calligraphy. Although Meskis and her legal team were aware of the exculpatory subject matter of the book, she still fought for her customer’s privacy and her own moral principles. She is an American hero of which stories are and should continue to be made.
Meskis makes the ordeal sound simpler than it undoubtedly was: “We stood firm the whole time.” As she elaborated, “The police were just so sure of themselves, and, according to my attorneys, they had plenty of other evidence to convict this guy.” That was her real problem with the situation — the fact that “the police could not let it go.”
Meskis is proud to be a First Amendment champion, although it is doubtful that she would ascribe herself that title. For her, it’s about freedom of information; it’s about hearing a range of ideas. “Whether you are in agreement or opposition to a political philosophy, you should know what the other side is thinking,” she says. Access and privacy are of paramount importance.
Weighing in on Meskis’ retirement, Recht regards representing Meskis as “one of the highlights of [his] career.” Without a doubt, the Tattered Cover will continue to thrive under its new ownership. In the end, Meskis’ legacy will be bookended by her efforts as a champion of freedom of expression and as the creator of one of the nation’s most admirable independent bookstores.
The author, Keith Lewis, is an attorney in Denver with his own appellate and trial litigation practice. He can be reached at Keith@LewisLawDenver.com.