The State of Utah versus the First Amendment played out this week in what legal scholars will eventually call “a hearing,” and what the rest of us will call a man in a robe telling another man that words are only permitted in certain rooms at certain volumes during certain moons. A judge held a prosecutor in contempt for talking to the media about a defendant. The prosecutor, in a case involving an alleged assassination attempt, said something outside the building that the judge did not care for inside the building. The solution, naturally, was to hold a proceeding about the proceeding.
Let us accept the premise entirely. The judge is correct. Words spoken outside the courthouse are dangerous. Words spoken inside the courthouse, by contrast, are the law. The distinction is architectural. Justice is not blind — she simply refuses to look out the window.
What we have here is a system so concerned with the integrity of the process that it has made the process its own defendant. The prosecutor is now in contempt for talking about a case in which a man is charged with planning a killing. The contempt, you see, is the loud part. The alleged assassination plot is the paperwork. One of these things warranted a formal finding. I will let you guess which one came with the gavel.
The judge did, in a flourish of even-handedness, leave the death penalty on the table — presumably because the table itself has not yet said anything to a reporter. Smart table. It knows the rules. You stay quiet, you stay eligible.
There is a phrase for this: due process. It means the government must follow its own rules before it does something irreversible to you. It is a genuinely good idea. The trouble is that “following its own rules” occasionally becomes the only thing actually happening, at which point the rules are no longer protecting anyone from the government — they are protecting the government from the embarrassment of being observed. A prosecutor in contempt for narrating the case is a courthouse that has taped a sign to its own door reading: We are open. Please do not notice.
The defendant remains charged. The death penalty remains available. The prosecutor remains held in contempt. And the judge, having restored perfect order, will now proceed with the case — just as soon as everyone agrees not to mention it.