The Dearborn, Michigan-based attorney who was ordered to remove statements from his Facebook® page opposing a proposed class-action settlement in a case raising allegations that a McDonald’s Corp. franchisee purported to sell halal chicken when some of the products were not prepared according to Islamic law has filed a motion to vacate the order and to extend the period for filing objections or opting-out. Ahmed v. McDonald’s Corp., No. 11-014559 (Wayne Cnty. Cir. Ct., Mich., motion filed February 22, 2013). Represented by advocacy group Public Citizen, Majed Moughni claims that the court’s order “was a prior restraint forbidden by the First Amendment.” Additional information about the proposed settlement and Moughni’s criticism of it appear in issues 468 and 471 of this Update.

According to the brief accompanying the motion, Moughni, his wife and children have eaten at McDonald’s and are thus members of the class. The brief further contends, “Giving Moughni only a few days’ notice, the Court convened an emergency hearing; then, without hearing from Moughni, issued a prior restraint of unparalleled breadth, barring Moughni from making any public statements about an entire subject matter, even statements that were entirely truthful and not at all misleading. It further compelled him to place speech with which he fervently disagreed on his own web page; and it forbade him from dissemination, circulation or publication of any opt-out form or objection during the crucial ten-day period before the deadline for members of the class to decide whether to opt out or object. On a literal reading of the injunction, Moughni was barred even from speaking to his own wife and children about the settlement, and even from submitting an objection to the settlement on his own behalf.”

According to Moughni, the injunction not only constituted impermissible prior restraint, it also violated the strict rule against compelled speech. He argues that the plaintiff failed to show falsity or actual malice in what was posted on his Facebook® page. And he notes that no case law supports enjoining “a member of a class from urging other members of the class to oppose a settlement or a class action.” He reminds the court that he “was not speaking as a lawyer representing clients, or representing the class, but as a member of the class appealing to fellow members of the class. In those circumstances, plaintiff must meet the ordinary standards for relief against core, noncommercial speech that enjoys the highest level of [protection] under the constitution.”