Federal prosecutors are seeking to obtain a gag order against Dr. Eithan Haim, a Texas surgeon charged with violating HIPAA after exposing evidence of child transgender surgeries at Texas Children’s Hospital.
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Haim’s attorneys claim the gag order would be an unconstitutional effort to suppress his free speech.
The prosecutors filed the motion to silence Dr. Haim and his legal team insist that their posts on social media could “interfere with a fair trial” and “prejudice the Government or the administration of justice.”
Haim’s posts include “inflammatory language” criticizing the prosecution and referring to pretrial proceedings. However, The Federalist noted that “a review of the various posts” shows they simply reiterate “the same legal points made in briefing and argument before the court.”
Nevertheless, prosecutors claim the posts “encourage the online bullying of prosecutors and create heightened safety risks.”
Other critics have slammed the government for sealing filings that accompanied the motion. Not the Bee filed a motion to publicize the filings, arguing that they “inhibit the public and press’ ability to access judicial records, in violation of their constitutional rights.”
The news outlet also pointed out that “The government fails to establish that there is a compelling government interests in secrecy, or that the proposed protective order is narrowly tailored to protect that interest.”
Not the Bee’s filing argues that the state should unseal four docket entries related to the prosecution of Dr. Haim. “This case warrants maximum transparency,” the organization insisted.
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Among the sealed documents are a motion to withdraw by a government attorney and exhibits tied to the Justice Department’s request for the gag order. The news outlet notes that the exhibit contains “public postings to social media” that are already widely accessible.
The filing asserts that the public “has a right to know why Mrs. Ansari withdrew from this case,” referring to the motion to withdraw.
The motion added, “The government’s argument is that those posts are so public that they risk ‘tainting the jury pool,’” which appears to contradict the necessity of sealing them in the first place.
“The Court should unseal these documents speedily to ensure that the government does not accomplish by delay what it cannot by right,” Not the Bee argued.
Dr. Haim’s attorneys accuse the government of trying “to suppress public reaction to the Government’s use (or abuse) of prosecutorial discretion in this action.”
The Fifth Circuit Court of Appeals, which oversees the Texas federal district court adjudicating the case, has historically opposed gag orders, according to The Federalist.
The Fifth Circuit, in which the Texas federal district court resides, takes a dim view of gag orders, however, holding gag orders “face a well-established presumption against their constitutionality.” Accordingly, a court should only “gag” a party or his attorney if there is a “substantial likelihood” that extrajudicial commentary will undermine a fair trial, and only then if the order is narrowly tailored and represents the least restrictive means available to protect the integrity of the trial.
Haim’s counsel presents a strong argument against the gag order, and in doing so provides a devastating review of all of the missteps and abuse prosecutors have meted out against the Texas doctor — explaining that the only power Haim has to defend himself and his reputation against the Goliath of the government is to exercise his right to free speech.
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While the decision regarding the gag order is pending, the controversy over Haim’s case and the overall debate over “gender-affirming care” for minors continues to dominate political discussions.