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Last month Kenneth Starr issued a subpoena to a Washington bookstore and, more recently, a Washington Barnes & Noble seeking a list of the books Monica Lewinsky has purchased in the past. The NewsHour looks into what rights people have under the First Amendment to protect the privacy of their book purchases.

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MARGARET WARNER: Last month special prosecutor Kenneth Starr issued a subpoena to a Washington bookstore, seeking the book-buying records of Monica Lewinsky. The former White House intern is a key figure in Starr's probe into whether President Clinton committed perjury in his Paula Jones case deposition or encouraged others, including Lewinsky, to lie in theirs. Lewinsky's attorney, William Ginsburg, was outraged.

WILLIAM GINSBURG, Attorney for Monica Lewinsky: Now we have the government in our reading material. This is too much. This is an executive of the government out of control. Where does this stop? Government is reaching right into our minds. This is like "Brave New World." It's got to be stopped.

MARGARET WARNER: But the lawyer for Kramerbooks & Afterwords, a small, independent bookstore, initially indicated a willingness to cooperate. The lawyer told the Washington Post that she had negotiated with Starr's office to narrow the subpoena but wasn't in a position financially and otherwise to fight it outright. There was an immediate outcry from civil liberties groups and a group of librarians picketed the store to protest. Store owner Bill Kramer says the Post story was misleading. He said he openly decided to fight the subpoena after hearing from some upset customers.

BILL KRAMER, Owner, Kramerbooks & Afterwords: They were naturally and rightfully unhappy and concerned, as we are concerned for their right to privacy. And so there was an immediate and chilling impact on our business. We had people coming in to tell us that they did not want to shop with us if we would--if we were going to comply with the subpoena.

MARGARET WARNER: Starr in the meantime had subpoenaed the records of Lewinsky's purchases at a second bookstore, the Washington outlet of Barnes & Noble, the nation's largest bookseller. Barnes & Noble vowed to resist it. The American Booksellers Associations offered financial help for the legal fight. Kenneth Starr hasn't said anything publicly on the issue. But at an April 3rd hearing at the federal courthouse in Washington senior Starr deputy Robert Bittman aid the independent counsel wasn't interested in the content of what Lewinsky was reading but in corroborating whether Lewinsky had given the president certain books as gifts. Lewinsky reportedly told Linda Tripp about such gifts in phone conversations secretly taped by Tripp. The president also mentioned receiving a book from Lewinsky in his Paula Jones deposition. Bittman also cited the government's recent cases against Oklahoma City bomber Timothy McVeigh and unabomber Theodore Kaczynski as evidence that prosecutors in the past have sought and obtained records of individuals' private reading habits. Last Monday, April 6th, Judge Norma Hollaway Johnson issued a preliminary ruling saying, in part, "The court finds that the First Amendment is, indeed, implicated by the subpoenas to Kramerbooks and Barnes & Noble." "The bookstores and Ms. Lewinsky have persuasively alleged a chilling effect on their First Amendment right," she added. She gave Starr's office a few days to demonstrate to the court that it has a compelling need for the materials its seeks and that there is a sufficient connection between that information and the grand jury's investigation. According to public reports Starr's deadline was extended until today.

MARGARET WARNER: Does the First Amendment protect the privacy of our book purchases? We get two views now. Joe Whitley is a former federal prosecutor in Georgia and was deputy assistant attorney general in the Justice Department during the Bush administration. He's now in private practice. And Bruce Ennis is a First Amendment attorney in Washington. He filed a friend of the court brief in this case on behalf of the American Booksellers Foundation for Free Expression. Mr. Ennis, what was your argument in this case? How was the First Amendment violated by these subpoenas?

BRUCE ENNIS, First Amendment Lawyer: These subpoenas have an immense chilling effect on bookstores, not just Kramerbooks and Barnes & Noble, but all bookstores across America and all bookstore patrons. The First Amendment is thought of as preserving a marketplace of ideas. And bookstores are the quintessential markets where those ideas can flourish. If patrons have no privacy in what they are purchasing in a bookstore, their right to be exposed to new ideas and the bookstore's right to sell and communicate new ideas will be severely chilled.

MARGARET WARNER: So you're saying the First Amendment protects here both the seller of the books and also the purchaser of the books?

BRUCE ENNIS: Well, that's right. And that's settled law. The United States Supreme Court and courts across the country have already held that.

MARGARET WARNER: Mr. Whitley, how do you see it?

JOE WHITLEY, Former Federal Prosecutor: I think this is all connected to the investigation that Judge Starr is conducting, and the grand jury certainly has already heard all these tapes that Linda Tripp made of Monica Lewinsky and also they've heard from lots of other witnesses about what she said about the gifts she's given the president. And I think this is corroborative evidence of that. Certainly, this is not a subpoena for the content of those books but really to show that these books were purchased. And I can think of other situations where subpoenas could go out to bookstores. In a divorce situation one spouse might subpoena information about the purchases another spouse might make for someone else, or, as we heard earlier, in the Kaczynski and Timothy McVeigh situations you could have purchases made there that should be and could be obtained via subpoena lawfully, constitutionally. And there's a balancing act that Judge Johnson is going to have to engage in here, and I believe that she will decide in favor of Judge Starr and the grand jury--actually the grand jury--not Judge Starr--seeing the purchases that were made by Monica Lewinsky.

MARGARET WARNER: Are you saying, in other words, that because they're not really interested in the content, which is an argument that Bob Bittman also made, that this could be subpoenaing the records of what kind of a tie she bought, that it's the same thing?

JOE WHITLEY: Well, bookstores today are a lot different. I don't know about these two bookstores in particular but they sell lots of things. And we don't know really what items are actually being subpoenaed. I know I need reading glasses, and I bought a set of reading glasses at a bookstore recently. So information about that might be something that's sought. Any number of things could be sought. I don't think--the "Tale of Two Cities" was purchased, for example. I don't think there's going to be any issue about the content of that book, I don't believe at least, as far as I'm aware. Now there could be some reference that Monica Lewinsky made about the content of certain books to some of her colleagues, but I think that that's really not the issue here. The issue is what gifts were given by Monica Lewinsky to the president. And so far, Monica Lewinsky is not in a position to share that with anyone, not even the grand jury, because her lawyer and independent counsel have not worked out any arrangement for the sharing of that information.

MARGARET WARNER: All right. What about that point, because Starr's offices made the same point. This isn't really about reading matter. It's about a gift.

BRUCE ENNIS: I don't think there's anything to that point at all. It's like saying suppose a parent is concerned that maybe their child is developing a drug problem or might have a learning disability and they go to a bookstore to get a book about clues as to whether your child might be developing a drug problem. They don't want other people to know about that until they themselves have made their own decision about what's going on. To say that they may not be looking at the contents of the book doesn't answer the question. The title of the book is revealing in its own right. The critical point you have to understand here is that the office of legal counsel took the position that the First Amendment is irrelevant, that a subpoena to a bookstore should be treated no differently than a subpoena to a grocery store. And that just ignores the First Amendment interests of booksellers and book patrons. The court has put a stop to that by holding clearly and squarely that the First Amendment is implicated and Ken Starr has to make a showing. He has to make a showing that the subpoena requests information that is really relevant and needed for this grand jury investigation. Now, if you look at the subpoena, itself, it's unimaginable that that showing could be made in the circumstances of this case.

MARGARET WARNER: Why?

BRUCE ENNIS: Because the subpoena does not ask, did Monica Lewinsky buy X book; it asks all books that Monica Lewinsky bought in the last 30 months. If she bought a "Winnie the Pooh" for a young relative, what conceivable interest does the grand jury have in finding out that? You cannot possibly justify as a focus investigation close nexus to a grand jury investigation, a subpoena asking for everything that's ever been purchased.

MARGARET WARNER: As a former prosecutor, Mr. Whitley, do you agree with that, that that's going to be a hard showing to make, that they need all these records?

JOE WHITLEY: This is a very narrow subpoena for a very narrow period of time, and it sounded like one of the attorneys for one of the bookstores was trying to resolve this through working it out, and in my experience, we subpoenaed bank records; we subpoenaed telephone toll records; we subpoenaed information about what sort of mail people received when those people were under criminal investigation. In this case there are people under criminal investigation by this grand jury and it's certainly appropriate to do it. It's a very narrow situation. I certainly believe and support the First Amendment, but the First Amendment is not unlimited. And I think there are certain limitations the Supreme Court has acknowledged exist on the First Amendment. In this case I think they certainly exist, and I think Ken Starr will be able to show a compelling need and a connection between the information he's going to obtain through the subpoena to his investigation. It really is not such a high test, but I agree with those people who say the First Amendment should be highly valued, and it certainly is the most important part of the Constitution. We wouldn't be speaking here today if we didn't have those rights. But at the same time, the role that he has, he's sworn to uphold the Constitution and investigate these charges, is to go after these issues associated with the obstruction of justice, perjury, and suborning perjury. And they certainly relate to what she's going to ultimately say to the grand jury, and if she goes into the grand jury and lies about this, I think this is why Ken Starr is trying to corroborate everything she said previously.

MARGARET WARNER: All right. Mr. Ennis you and Mr. Whitley have both referred to Supreme Court precedent. Broaden this out now for our viewers, for you or me, how broad is the First Amendment protection for any of us in terms of the books we take from the library, books we buy, videos we rent, under what circumstances has the Supreme Court said the government can get those kinds of records?

BRUCE ENNIS: Well, the Supreme Court has not actually handled very many of these cases. It handled a case called Brandsburg many years ago and most of the case laws in the lower court since then. So the law is not completely clear. It is clear that the Supreme Court has held that the First Amendment, whenever the First Amendment is implicated, whenever government action of any kind burdens First Amendment rights, the government must bear a--make a showing that that interference with First Amendment rights is justified. Some cases the government has to show a compelling need for the information. Other cases the government needs to show only a substantial need for the information. It varies from case to case based on the circumstances. The critical point again here is that the office of independent counsel was taking the position in its arguments that they did not need to make any First Amendment showing at all in this case simply because it was a grand jury subpoena.

MARGARET WARNER: Which is why the judge gave them extra time to make this?

BRUCE ENNIS: That's right.

MARGARET WARNER: Mr. Whitley, how would you explain it to an average viewer, how well protected he or she is from having the government look at these kinds of records, about sort of private book and video consumption habits?

JOE WHITLEY: Well, as a practical matter there's not enough hours in the day frankly for the few federal prosecutors and investigators there are out there to do this sort of thing. This is a very focused investigation on a very narrow issue Starr's been looking at now for the last 60 days. The average consumer of books has absolutely no concerns. Certainly we want to be careful in any situation like this to make sure people's rights are upheld, but there are no situations in my experience would randomly send out a grand jury subpoena for the information on books purchased by the average citizen; it just would not have happen, and there are sanctions within the Department of Justice for people who overreach. And there are also sanctions among the bar associations for people who overreach. And there are also--all of these people associated with this investigation--all of these people, all of this experience, all the FBI agents who have all sworn to uphold the Constitution, so we're protected to some extent by their conduct. Hopefully, their conduct is appropriate. We really won't know any of this until after this investigation is concluded and Judge Starr presents his report to Congress or seeks an indictment.

MARGARET WARNER: All right, Mr. Ennis, earlier Mr. Whitley said that maybe even in a civil case. How about in a civil case, in a divorce case, could one spouse subpoena the book buying records of the other spouse?

BRUCE ENNIS: People can always obtain the information if it's relevant to either a civil proceeding or a criminal proceeding. In both instances, whenever the government is going to enforce that subpoena, there must be a showing that the need for the information outweighs the harm to First Amendment interests. I must really disagree that this is a narrow subpoena. It's all book purchases within the past 30 months. And I really disagree that this is not of any significant concern to American book buying public. That is precisely why the American Booksellers Foundation for Free Expression, the American Library Association, the Association of American Publishers, and many other groups joined together in an amicus brief challenging this subpoena. They did that because they know that book patrons and library patrons around the country will be severely chilled--they will be afraid to access information that may not be considered politically correct or to buy a book that their next door neighbors might disapprove of if they know that that kind of information can be turned over to the government without any showing of necessity whatsoever.

MARGARET WARNER: Mr. Whitley, would you say that this decision could be precedent setting?

JOE WHITLEY: Well, as has been the case--

MARGARET WARNER: Briefly because we're just about out of time.

JOE WHITLEY: --as has been the case certainly in many of these other opinions rendered by Judge Johnson, it's possible that appeal may be taken up to the courts of appeal and then ultimately to the Supreme Court. Hopefully, this will happen quickly and she'll be able to render a decision and the bookstores will abide by whatever that decision is.

MARGARET WARNER: All right. Well, thank you both very much.

BRUCE ENNIS: Thank you.

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