• by Wendy Davis , Staff Writer @wendyndavis, February 22, 2013

Last month, when McDonald's agreed to settle a class-action lawsuit about whether it falsely advertised meat as "halal," the deal didn't meet with everyone's approval. In particular, Dearborn, Mich. resident Majed Moughni thought the agreement was unsatisfactory -- and he said so on Facebook.

Moughni wrote on Facebook that the "backroom deal" wouldn't compensate the people who allegedly were misled by McDonald's about whether its food was prepared in accordance with Muslim dietary laws. The agreement itself, which was granted preliminary approval last month, called for McDonald's to pay a total of $700,000, of which around $425,000 would go to two outside organizations -- a Muslim health center in Detroit and the Arab American National Museum in Dearborn. Around $20,000 will go to the lead plaintiff, while more than $200,000 would go toward costs and attorneys' fees for the plaintiffs' lawyers. Any class members who didn't like the deal had until Feb. 15 to opt out.

Moughni took issue with those terms. "We think the money should go to you, the people who were lied to and bought and ate 'Haram' chicken sandwiches, not a medical center or museum who were not injured," Moughni wrote. The post also said that the lawyer for the plaintiffs "wants to pocket $230,000."

Moughni asked people to "like" the post if they agreed. Within a few days, the page had garnered around 1,300 likes, according to the Detroit Free Press. Moughni also said in the post that he intended to oppose the deal.

So far, this all seems like the type of dispute that comes up from time to time in class-action cases. Watchdogs, consumers and others who aren't happy with settlements occasionally accuse the plaintiffs' attorneys of selling out class members by forging deals that call for big attorney fees and inadequate compensation to the people who were most affected. The main difference in this case is that other critics don't typically take to Facebook to rally opposition.

But what happened next was unusual: The law firm representing the plaintiffs -- which has an obvious interest in seeing the deal go through -- filed papers complaining about Moughni's Facebook comments. They took issue with Moughni's characterization of the agreement as a "backroom deal," and also objected to Moughni's statement that they would get a "payout."

They said Moughni's comments were defamatory. They accused him of running a "shoot-from-the-hip social media campaign of misinformation and deception." They sought a court order directing Moughni to remove his own post and replace it with the court's order granting the deal preliminary approval. And they asked the judge to order Moughni to refrain from speaking with anyone about the subject matter of the case.

The next turn of events was even more extraordinary: Judge Kathleen Macdonald in Wayne County, Mich. granted the plaintiffs' attorneys request. On Feb. 7, she ordered Moughni to remove his Facebook comments and replace them with official court documents. She prohibited him from speaking about the case to any class members who might want to opt out of the settlement. She ordered him to identify anyone who "liked" his post. And she said he couldn't circulate any form that would allow class members to opt out.

The order is so obviously unconstitutional, that it's hard to believe it came from a law school graduate, let alone a judge. The ruling seems to reflect the mistaken impression that speech on Facebook is somehow not entitled to the same protection from censorship as speech on forums like newspapers, bulletin boards or other forums.

Today, the advocacy group Public Citizen filed a motion to vacate Macdonald's order. As Public Citizen points out, prior restraints on speech -- that is, injunctions issued before there's been a finding that the speech was defamatory -- are unconstitutional.

The group also rightly argues that statements aren't libelous if they're opinions, or if they're true. Calling an agreement a "backroom deal," or pointing out how much money was earmarked for attorneys' fees, isn't the kind of thing that can support a defamation finding. "Moughni’s characterization of the settlement was certainly unfriendly, but there was no evidentiary showing that the agreement was negotiated in public sessions, and it is simply a matter of fact that the lawyer was to receive a substantial fee while individual members would give up legal claims and get nothing in return," Public Citizen writes in its legal papers.

The organization also points out that the order didn't affect just Moughni. It also had an impact on people who might have read his Facebook page and opted out of the class before last week's deadline. For that reason, the group says, the court should re-open the period for opt-outs. "Because the class was deprived of a fair opportunity to consider arguments against the proposed settlement, the court should not bind those individuals, or indeed anybody else, to release their claims, until the marketplace of ideas has had a full opportunity to function, free of improper prior restraints," the group argues.