Outsourcing Justice? That's Obscene.

By Stephen Bates
Sunday, July 15, 2007

LAS VEGAS Privatization is all the rage these days. California Gov. Arnold Schwarzenegger wants the private sector to run the state's $1.1 billion-a-year lottery. Under a USAID contract, the Louis Berger Group is helping Iraq privatize formerly state-run government services. Pennsylvania Gov. Edward G. Rendell reluctantly gave up on his plans to lease the Pennsylvania Turnpike. But it's hard to top this step by Attorney General Alberto R. Gonzales: His Justice Department has put a privatized eye on American morality.

Let's say you happen upon an obscene Web site and want to report it to the feds. You go to the Justice Department Web site to pass along the details, under a section titled "What Citizens Can Do About Obscenity." But instead of letting you tip off the authorities, the site directs you elsewhere -- to the privately run, which offers an online form to fill out.

That's your sole option for filing a complaint online -- and it has been this way since 2004, according to Internet archives. A congressional earmark awarded the site's operators $147,996 in 2005, according to documents I obtained through the Freedom of Information Act.

Once you've filed your report, it is reviewed by "a team of two seasoned investigators," according to those documents. If they find merit to your allegations, the investigators will "conduct a thorough review," prepare a report and forward it to the Justice Department and your U.S. attorney. Sounds pretty official -- and yet, as you leave the Justice site, a disclaimer pops up saying that the department "does not endorse the organizations or views" of and "takes no responsibility for, and exercises no control over . . . the accuracy" or "legality of the material contained on this site."

In principle, I'm all for public-private partnerships. But as Justice's hand-wringing disclaimer suggests, this one goes too far. To start with, the Constitution requires the administration to "take care that the laws be faithfully executed." At a minimum, shouldn't that entail receiving and investigating citizens' allegations of crimes and not outsourcing those tasks to a private group? It's even dicier when citizens allege what are essentially speech crimes, and worse still when outside investigators seem to place the Bible above the Constitution. That toxic combination makes a mockery of the First Amendment -- chilling freedom of expression even as it erodes the separation of church and state.

The Web site is run by Morality in Media Inc., an "interfaith organization" that has battled pornography, profanity and blasphemy since 1962. It aims to "rid the world of pornography" -- most of which is constitutionally protected. The site blames porn for, among other things, the Virginia Tech massacre, international trafficking in women and the Abu Ghraib prison scandal. ("The pictures these soldiers produced at Abu Ghraib could have come out of porn valley in California," the group's site says. "In a real way, they did.") According to Morality in Media, Playboy promotes sibling incest, and even Cosmopolitan is nothing short of pornographic. The outfit also fulminates against "the hellish sexual revolution," R-rated movies, gangsta rap and Bratz dolls.

What about the First Amendment? It's merely part of "a framework of ordered liberty," the group said in a 2005 letter to President Bush, not "a license to publish pornography." Unfortunately, the site argues elsewhere, "a judicial oligarchy accountable to no one" has brushed aside considerations of decency in favor of the agenda of "pornographers and radical libertarians." If the Constitution protects consensual, private gay sex, what's next? asked Robert Peters, the group's president, in July 2003. "A right to bugger farm animals"?

You're not likely to find such rants in anything produced by the Justice Department. But you'll find them all at the department's online partner,

The Web beneficiary of that 2005 federal grant also features these statements: "The first source of law is God Himself." When recovering porn addicts face temptations, they should pray, "Thank you God. I appreciate your reminding me of my weakness. This will help me get well!!!" And, although Morality in Media was co-founded by a rabbi, the site offers this less-than-interfaith declaration: "In His death on the cross, Jesus gave the world the perfect model of what true love is. Simply put, true love means giving, not taking. How different that is from the concept of 'love' in much of our pop culture. Would a rapper give up anything, let alone his life, for his 'bitch' or his ' 'ho'?"

In its pro forma application for the earmarked grant to receive and review the Justice Department's online obscenity complaints, Morality in Media claimed it was performing a function similar to that of, where one can report certain crimes against children. But the similarities are limited. That site and its sponsor, the National Center for Missing and Exploited Children, help enforce the law as it stands, without declaring it -- as Morality in Media recently said of a judge's ruling in an Internet indecency case -- "utter nonsense."

Morality in Media has every right to promote its views. Raising two daughters in a place that proudly calls itself Sin City, I agree with some of them. Perhaps Morality in Media will ultimately win the battle of ideas, and we'll ban pornography of every sort -- even Cosmo. But while the battle still rages, the government shouldn't form alliances with the combatants -- whether religious or secular, tax-funded or privately funded, porn fans or porn foes.

Above all, the Justice Department shouldn't delegate even a thimbleful of its authority over free expression to an outfit with so much contempt for modern First Amendment doctrine. In his oath of office, Gonzales swore to "support and defend the Constitution of the United States." That's one task that he just can't outsource.

Stephen Bates teaches media law at the University of Nevada at Las Vegas.

© 2007 The Washington Post Company