Facebook has long been an issue in the domain of free speech. People post whatever they want in view of the whole world. This time, an attorney was ordered by a judge to stop posting information about a case on his Facebook page even though he was addressing important public concerns regarding what he perceived to be an unfair class action settlement. This type of issue of public concern should receive the highest First Amendment Protection. Judges like any other public official should not be free to squelch criticism just because they don’t like it and believe it is inaccurate. Vigorous debate on issues of public concern in a community should be encouraged.
The case involves two McDonald's locations in Detroit which serve McChicken sandwiches and Chicken McNuggets which are advertised as being halal. Halal is a form of preparing food in order to meet Islamic requirements. It includes invoking God's name before slaughtering an animal which is to provide meat for consumption.
Two McDonald's locations (13158 Ford Road and 14860 Michigan Ave.) are believed to be the only two McDonald's locations to serve halal chicken. According to the suit, McDonald's served non-halal chicken when it ran out of halal and failed to tell this to their customers. The class-action lawsuit, filed by Ahmed Ahmed of Dearborn Heights, includes anyone who ate non-halal chicken at one of the two McDonald's locations since September 2005. The defendants are McDonald's and franchise owner Finley's Management Co.
On January 18, Wayne County Circuit Court Judge Kathleen Macdonald approved a settlement where McDonald's and Finley must pay $700,000 to settle the suit. Ahmed was to receive about $20,000; the Health Unit on Davison Ave. in Detroit, also known as HUDA, was to get around $274,000; the Arab National Museum in Dearborn was to get about $150,000; and the attorneys were to get around $230,000.
Majed Moughni, an attorney who was not involved in the case before the settlement, posted on the Dearborn Area Community members Facebook page, which he runs, that he believed it was unfair that most of the money would go to those who ate the non-halal chicken. He asked for page members who had eaten the haram (or forbidden) chicken to leave contact information for themselves as well as for others who had eaten the meat
Kassem Dakhlallah, Ahmed's lead attorney, filed a motion for injunctive relief against Moughni. Judge Macdonald ruled in Dakhlallah's favor and order Moughni to remove information about the case from the Facebook page and to put her original class settlement and order against him on the page, which he did. She also forbade him to discuss the case with class members or the media without written permission from her and Jaafar & Mahdi Law Group, the firm representing Ahmed.
Moughni filed a motion to overturn the judge's ruling against him, which she dismissed.
Paul Alan Levy of the Public Citizen's Litigation Group of Washington D.C. filed a motion on behalf of Moughni to lift the order against him. They claimed that he was not acting as an attorney, but merely soliciting feedback and that his First Amendment rights had been violated.
Although the allegation that Moughni was soliciting clients through his Facebook page was never an issue when initially seeking the injunction, McDonald's used it as a reason for the injunction to remain, as well as allegations that the comments about the case which he posted on the Facebook page were misleading.
Levy argued that Moughni was not soliciting clients, but merely speaking as a concerned member of the community. He pointed out that there was no evidence that Moughni looked to be paid for gathering the feedback, but was merely rallying the community against what he perceived to be an injustice.
Judge Macdonald said that Moughni can't separate the fact that he's an attorney but she did agree to dissolve the injunction and extend the settlement period. She said that Moughni can continue to identify himself as a class member, but not an attorney in the case.
While McDonald's agreed to the removal of the injunction (having been satisfied that Moughni was not, in fact, soliciting new clients) they claimed that his misleading statements about the settlement were cause for reopening negotiations.
Levy is concerned however, that the fight may not yet be over. McDonald's has been complaining about the added cost of reopening the settlement period. They estimate that around $30,000 will be lost from the Arab National Museum's portion of the settlement, money which could finance ten scholarships through the charity. Levy worries that McDonald's may be leveraging to sue Moughni for damages after the current case has settled.
This may not be the smartest move for McDonald's, though. While Moughni's comments might have gone largely unnoticed if left alone, McDonald's has given the issue light by filing for the injunction. In the end, the company's image may be damaged by flaunting their dirty laundry and airing the fact that they are trying to preclude a member of the community from someone speaking out against a settlement that gives money to charity but not to the damaged class members. Judges should not be shutting down valuable speech rights. There has been a long tradition in this country that the First Amendment precludes public officials including judges from silencing criticism they don’t like. It is particularly troublesome that the Court attempted to shut off criticism on a matter of public interest. Moughni should have been permitted to freely voice his criticism of the settlement. That could never have interfered with the Court rendering a fair decision to approve or disapprove the settlement. Having already preliminarily approved the settlement, the Court appears to have had an interest in having its ruling upheld and let that concern over ride the public’s right to vigorously debate the settlement and even make material errors in that debate. The remedy to cure any false or erroneous statements in the debate is more rather than less speech.
The settlement period has been extended for another 28 days, which all sides agree with.
Continue reading "Prior Restraint on Lawyer's Free Speech Right to Criticize Class Action Settlement Lifted But For the Wrong Reasons" »