Neither a Collector Nor a Saver Be

In the course of selling books over the last eight years, I have had the good fortune to handle the letters and manuscripts of many authors. One of my favorites is a short note from J.B. Priestley, responding to a fan letter: “I am a writer and not a film star, and so have no signed photographs to give you or anybody else…As for the advice you ask for, I suggest that you should constantly practice writing, just as you would have to practice playing the violin if you wished to be a violinist.” I like the commonsense nature of the advice and the slightly peeved tone conveyed in just a few words. Technically the letter is for sale, but I’ve never catalogued it, exhibited it at a fair, or even priced it. Priestley, while rather out of favor with contemporary book collectors, wrote some fine novels, and I like the letter too much to let it go in a depressed market. It is carefully preserved in an acetate sleeve and an acid-free backing board and is stored with other as yet uncatalogued inventory.

On the occasions that I have prepared an author’s papers for acquisition by an institution, I have always marveled at how cavalierly very valuable letters and even manuscripts are kept: filed with yellowing newspaper clippings, employed as coasters with tell-tale coffee cup rings, and even used for grocery lists. Letters and manuscripts are, to most writers, the stuff of their trade. They exchange work with other writers for comments and encouragement. People who write for a living also tend to write a lot of letters-the writing just pours from them, the practice to which Priestley referred-and they often write to other writers. These relationships, these “associations” in book collecting terms, are perfectly natural to authors, and they generally think no more of them than you or I think about the letters that fill our mailbox.

In publishing OP magazine, I’ve exchanged letters with quite a few good writers, some of whom are collectible now and others who may turn out to be in the future. My partner and I believe that we should offer only the best prose about books. After all, booklovers love good writing.

Even though I know better as a bookseller and collector, I can’t seem to think about letters I have received in the course of publishing OP in collecting terms. They’re just pieces of the magazine puzzle. Perhaps the most egregious example of my own cavalier attitude is the essay Larry McMurtry sent us for the July/August issue, a short piece about why he no longer autographs books. Mr. McMurtry (we’re still on formal terms, not having met in person) and I wrote back and forth several times about possible topics for the essay. I sent computer-generated letters, and he always wrote back in long hand. The essay itself, “Why I Stopped Signing My Books,” is typed with handwritten corrections on every page. The book collector in me has taken stock of these details and their implications. The magazine editor, however, has not.

I realized that I had completely compartmentalized the two parts of my existence when I saw the McMurtry manuscript (yes, a four-page typescript, with handwritten corrections and a holograph letter, all in an envelope hand-addressed by a Pulitzer Prize-winning author who happens to be the finest Western writer of his generation) lying on the floor underneath a sleeping cat. I am not by nature very organized and while preparing OP for publication, I keep in-progress articles on my desk. When I have finished with them, I email electronic copies to my partner, Dee Stewart, for copyediting and layout. At that point, my working hardcopy goes on the floor next to my desk. When the issue is finally done, my desk is empty, and all the detritus of the magazine is in the pile on the floor. Eventually, I bundle it all up and put everything into storage. I suppose I should have shooed the cat away, gathered up the manuscript, placed it in an acid-free file folder, and put it into the special boxes I keep for these sorts of things. But I didn’t. Manuscripts go on the floor when I’m done with them, and the cat is free to sleep on them. Pulitzer or no Pulitzer, I couldn’t bring myself to give Mr. McMurtry special treatment.

For a time I wondered about this behavior, this carelessness that I scold authors for. I realized that moving Mr. McMurtry into “collected” status and the rarified realm of archival storage would change my relationship with him. Anyone, for a price, can have a Larry McMurtry typescript or an autograph letter. By putting his manuscript on the floor, by letting the cat nap on the pages, I can think of Mr. McMurtry as a colleague, a fellow traveler in the difficult world of publishing. Now where is that McMurtry envelope? I have a shopping list to make.

Scott Brown publishes OP – the magazine for used, out-of-print, and antiquarian booksellers and collectors. In addition to Larry McMurtry, Nicholas Basbanes, Dana Gioia (American Book Award winner and NEA Chair), Paul Collins (author of Sixpence House: Lost in a Town of Books), Roy Parvin (Best American Short Stories), Amy Stewart (Barnes & Noble Discover author), and Billy Collins (U.S. Poet Laureate) have graced OP’s pages.

For more information, visit http://www.opmagazine.com

#ephemera

The Supreme Court Upholds the Children’s Internet Protection Act

On June 23, 2003, the Supreme Court of the United States handed down its decision in United States v. American Library Association. The decision upheld the Children’s Internet Protection Act (CIPA) against a challenge based on the First Amendment to the U.S. Constitution. Inasmuch as the law at issue in the case involved a requirement that libraries install filtering software to block obscene or pornographic material involving children, it was bound to be of interest, to say the least, to those who sell books and who have a very soft spot in their hearts for libraries.

On one of the book related discussion lists on the Internet, the comments were critical of the decision, and asserted the view that this decision represented a significant assault on First Amendment values. A representative comment went something like this: …I just want to underscore that the US Supreme Court decision means that libraries are being forced to impose automated censorship tools upon adult patrons.

I responded with the statement that, as I understood the decision, which I had not yet read, this was not true. The editor of this newsletter asked if I would like to expand on my response, and I said that I would. I hope this isn’t too expansive. She asked, I suppose, because I have a law degree. Although I am blessedly free of the practice of law and now sell books, I once practiced law, and spent considerable time working in a partisan legislative advisory position, and also was a law clerk for a federal judge. I can still read a Supreme Court decision and figure out what it means.

I. The Law.

There are a couple of federal programs on the books which were designed to provide resources for libraries to offer their patrons access to the internet. The details of these programs aren’t particularly important to this discussion, but that fact is necessary background. The value of those resources amounted to about $200 million in 2002 (counting direct grants, and discounted access fees).

In response to the growth of the internet in the years since these programs were instituted, Congress (and everybody else who connects to the Internet) became aware that there was significant pornographic content to be had on the web. And Congress became politically aware (angry constituents, I’d imagine) that it was accessible to children, and viewable by children while being accessed by adults, all within public libraries. They responded by passing the CIPA, which required the installation of filtering software to block access to such material.

It is important to note that this law applied only to libraries that received funds or benefits from those federal programs. It is also a given that Congress is given wide latitude to attach conditions to the receipt of federal funds. However, the American Library Association (ALA) and several other plaintiffs filed suit contending that CIPA was unconstitutional on its face.

II. The Trial.

A three judge panel in the Eastern District Court of Pennsylvania agreed. It held that “any public library that complies with CIPA’s conditions will necessarily violate the First Amendment.” It is important to realize that this decision turned on the notion that the law was unconstitutional only because it forced the libraries to commit an unconstitutional act. In other words, a library governed or operated by a public entity – a state or local government or public school – could not, on its own, install filtering software without running afoul of the First Amendment. According to the District Court, libraries’ content-based decisions are subject to a “rational basis” test. However, because internet access was used in public libraries for “expressive activity,” it should be viewed as a “traditional public forum,” and as such, the law should be subjected to strict scrutiny. Under that standard, the Court concluded that while the government may have a compelling interest in preventing the subsidization of pornography, the software filters required by CIPA are not narrowly focused enough, presumably because the filters are hardly a precise weapon. No one reading this will be surprised that it was generally conceded by all the justices that the filters blocked a lot of unobjectionable material.

III. The Decision.

The Supreme Court’s decision overturning this decision is complex in that the decision of the Court was joined by only four justices (Renquist who wrote it, joined by O’Connor, Scalia and Thomas). That’s called a plurality opinion. Justice Kennedy concurred, as did Breyer, but each wrote a separate opinion. Stephens dissented with an opinion of his own, and Souter also dissented in an opinion joined by Ginsberg. Generally, a plurality opinion does not provide a particularly strong precedent, and the concurring opinions which establish the majority are significant in that they are usually more narrowly focused and provide a more compelling basis for decisions which follow. However, for simplicity’s sake, I’ll refer to the opinions in the decision as the “majority,” to include the plurality opinion as well as the concurring opinions, and the “dissenters,” to include each of those opinions, unless context requires otherwise.

The majority, and more pointedly, the concurring opinions, notes as crucial the fact that CIPA permits libraries to disable the filtering software in response to the request of an adult, or presumably a child when the software is blocking material that would be appropriate for the child. In fact, Kennedy’s decision intimates that he reads the law as requiring that action, and that the provision is constitutionally required.

As to the determination of which test to use to adjudicate this law (which I would suggest will almost always dictate the result), the majority (except Breyer) adopted the more permissive rational basis test. Breyer would have imposed an intermediate standard – “heightened scrutiny” – which requires a balancing of the government’s interest and the seriousness of the speech related activity. The balance, in Breyer’s opinion, tipped in favor of the government by virtue of the simplicity of getting the library to shut off the filters for adults.

The other members of the majority found the rational basis test appropriate, rejecting the trial court’s opinion to the contrary. The justices reasoned that the public forum doctrine that formed the basis of the trial court’s opinion was inapplicable because the provision of internet access to the public was simply not like the precedents that applied it. The easiest of those to understand is a couple of cases concerning restrictions on the use of student activity funds. The Court had held that such funds were designed and intended for providing the means to engender speech related activities. Under those circumstances, content-based regulations were subject to strict scrutiny. But libraries make content based decisions every day in choosing which materials to buy, and perhaps more importantly, which materials to segregate from easy public access. After all, the Court said, many libraries simply decline to stock pornography at all. Such decisions by libraries are not subjected to strict scrutiny according to well established precedent. The fact that the internet contains an especially broad range of information shouldn’t make any difference because it could hardly be suggested that libraries could not choose to limit access to some material on the same basis they do with respect to books, periodicals, or any other material they provide.

The dissents concentrated on the factual record, which discussed how poorly the filters performed, blocking perfectly harmless material (and valuable material as well), and failing to block pornographic material. This fact was as important to the dissents as the ease of having the filters turned off for adults was to the majority. It was this problem that made the CIPA unconstitutional in the view of the dissenters. Representative is the following from the Stevens dissent:

Because of “underblocking,” the statute will provide parents with a false sense of security without really solving the problem that motivated its enactment. . . . The effect of over-blocking is the functional equivalent of a host of individual decisions excluding hundreds of thousands of individual constitutionally protected messages from internet terminals located in public libraries throughout the nation.

Stevens also quoted the trial court’s finding that there were less intrusive alternatives to accomplish the purpose including imposition of access regulations and punishments for those who violate them; requiring parental consent during unfiltered access or the presence of library staff.

Conclusion.

It is curious that the more conservative justices in the majority based their opinions on the freedom regularly accorded libraries. In the posture of this case, the deference traditionally shown libraries in their choice of materials determined the loss of the suit brought by the ALA. Since libraries could most certainly install filtering software on their own without Constitutional problem, it can hardly be unconstitutional for the Congress to condition receipt of federal funds on doing just that.

The answer to the assertion cited at the beginning of this essay is certainly that the assumption forming the criticism of the decision was incorrect. There is plenty of room for argument on the wisdom of the CIPA. Nevertheless it is hard to see how it runs afoul of the Constitution. The language of the law itself leaves no doubt that adult access must be unfiltered if requested.

Those of us who spend time on the Internet are well aware of both how prevalent pornography is and how imprecise filtering software is. But I can’t help but wonder about both the efficacy and the appeal of the “less intrusive” ways of accomplishing a legitimate governmental purpose. Punishment for accessing forbidden materials and requiring parental presence or consent – these are hardly unobtrusive. It seems to me that they’re pretty heavy-handed.

There was certainly much more to the various opinions in this case. It runs about fifty single-spaced pages. I hope that I’ve covered the important points, but I would suggest that anyone interested give it a read. By: Don Gallagher gallabks@dimensional.com

Global Book Town, and Ken’s Book Rack

I am one of those newer booksellers who came into the market in the last ten years. My story starts back in 1995 or ‘6 when I was broker than broke, not working very much, and had started picking up little collectible pieces at garage sales that I could put in to the two consignment stores in town that would take stuff from me in an attempt to help cover some of my living expenses. I started to get fairly good at this and within a year was often paying most of my rent off of my sales. I noticed that both stores had consignment books and I started thinking about putting books somewhere to make a few more bucks.

The smaller consignment store had one of their book consignors pull out and so I approached them about my putting in a shelf of paperbacks in the available space and spent over half a year buying some assorted stock at garage sales while waiting for him to finally give me the OK. He finally gave me the word – he had sold his store to his biggest consignor of antiques and collectibles – so I went to work on the new owner. Unfortunately, the new owner decided to stock his own pocket books and I was left sitting on a pile of books with nowhere to put them.

I looked around and finally talked with the people who were running the local flea market and arranged for them to take my books on consignment, set up my first 5 foot wide 6 foot high bookshelf and quickly expanded to about 20 feet of shelving. It was making me a little bit of money but then all of the other permanent stalls in the market realized they could make a few bucks selling paperbacks at 25 or 50 cents and that market went a bit soft as I was asking the normal used bookstore half cover price.

In November of ’98 the larger antique and collectibles store had their main bookseller pull out leaving them with just one smaller antiquarian book dealer and I approached them about having my books in their store. They let 3 of us move in to an area about 16 feet square and I immediately expanded into hard covers and all sorts of other books that I thought were interesting. I soon discovered that even a very good or fine first edition hardcover just wouldn’t sell at even half cover in Vernon, which was quite depressing. The antiquarian seller and one of the other new sellers both told me that they were managing to sell books thru the internet and in October of ’99 I downloaded Homebase and started putting books in. By the end of March 2000, I had passed the hundred book level and took the plunge, listing on ABE. I soon expanded all the way up to about 400 books by the end of May and coasted from there to November.

In mid November, I hired my son to do data entry as he had been having challenges finding work that he could actually make a living at and my books online quickly expanded, reaching about 1000 books by the end of the year and just about 4200 by the end of May ’01 when my son accepted an invitation and plane ticket from a lady he had been chatting with online and escaped to Hawaii, never to return. At that point, I hired two college students and an older lady to do data entry for me and ended up with about 8400 books online by the end of ’01. The college students eventually left and my g/f moved to town and took up doing the majority of my data entry for me as an employee, and I now have about 18,000 books online.

Working on becoming a real book dealer, even though I only sell through the internet, has been a real learning process. I have made every mistake possible from mistaking book clubs as possible first editions to listing hundred dollar books for $5 or $10. I actively follow a number of online or email discussion groups about books where I often learn just how much I really don’t know. Many of the people who have been in the business for far longer than I have bemoan the loss of the time when the marketplace wasn’t swamped with all sorts of newcomers like myself. However, a lot of the old-timers have gone out of their way time and time again to help those of us who are relatively new in the business.

As time goes on, the actual selling venues for books continue to change and grow in many ways. There are large corporate style listing services and smaller co-op style sites and all sorts of other places selling books.

About a year ago, a number of people who were selling online decided to try a slightly different co-operative venture in bookselling by opening up a place for independent booksellers to show a unified front to book buyers while maintaining more of the flavor of independent stores, and Global Book Town was the end result.

It is still in its formative stages but has grown quite a bit from the dozen stores it had when it first opened a site on the net last December. It now lists over 50 independent stores offering books for sale through their own private sites where customers can browse or search within a single bookstore’s books or look through a category list to see who specializes in certain book types. Being involved in getting this new site off the ground was another learning experience for me and, luckily, a very capable person has shown up and taken over as webmaster during the summer to do most of the work.

The marketplace has definitely changed just in the three years I have been selling online. I am sure that it will continue to change as time goes on. By: Ken Dunn bookrack@shaw.ca