Would You Like Unprincipled Prior Restraint With That?

When Ahmed Ahmed filed a class action against McDonald's on the theory that they advertised halal food but sold non-halal food, reactions fell into three familiar categories. There was incoherent Gellaresque pants-wetting about how this was the harbringer of SHARIA LAW being enforced on every man, woman, child, and chicken nugget in God's Country. There were impolite suggestions that one would have to be an idiot to rely on McDonald's to abide by complex gustatory or cultural rules, and rude speculation that the natural and probable consequence of driving through McDonald's and asking for a halal meal is winding up with a week-old McRib spat in by Menachem Begin. Then there were the legal realists who suggested — correctly, as it turns out — that whatever else happens, this means money in the pockets of lawyers.

Nobody expected a free speech fight. Yet they got one.

See, when a potential settlement was announced, attorney and class member Majed Moughni didn't think much of it. He thought that it gave too much money to lawyers and let McDonald's off the hook too easily and didn't really accomplish anything of substance for class members. That sounds like a classic class action settlement to me, but I'm a notorious cynic. Moughni created a Facebook page criticizing the proposed settlement and urging class members to opt out:

McDonald's was going to pay $700,000 for selling "Haram" chicken sandwiches and labeling it as "Halal". The current lawyer on the case wants the the [sic] majority of the money to go to a medical center ($275,000) and a museum ($150,000), that lawyer Kassem Daklallah, wants to pocket $230,000 and the plaintiff, Ahmed Ahmed will keep $20,000. 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 a museum who were not injured. …

Did somebody say injunction?

Jaafar & Mahdi, the law firm representing the class, was outraged. It reacted first by threatening Moughni with libel and a report to the state bar, and then with a motion seeking an injunction forcing him to take down the critical page and prohibiting him from criticizing the settlement. Incredibly, Judge Kathleen McDonald (no relation, apparently) granted a broad injunction, leading Paul Alan Levy and Public Citizen to step in to represent Moughni. The injunction purports to require Moughni to take down his criticism, replace it with Judge McDonald's orders and the class counsel's position, and refrain from any communications with class members without Jaafar & Mahdi's consent. As Public Citizen's brief convincingly demonstrates, the injunction is an unconstitutional prior restraint that misconstrues advocacy and opinion as false statements of fact — for instance, by suggesting that it is a false statement of fact to characterize Jaafar & Mahdi as "pocketing" substantial amounts of money. The same brief shows that the injunction not only violates Moughni's First Amendment rights by silencing him, but violates them by compelling him to say things he doesn't believe. The ACLU is backing Public Citizen and Moughni, and Judge McDonald's ruling has drawn substantial criticism.

Rather than vacating her lawless injunction promptly based on the compelling authorities submitted by Levy and Public Citizen, Judge McDonald has allowed the parties to dither and delay over whether or not to support the continued injunction. Meanwhile, as Levy points out, while Moughni is gagged by the court about class counsel Jaafar & Mahdi, Jaafar & Madhi has felt free to bad-mouth Moughni in the press.

I understand there is another hearing this week, perhaps that will produce results. Meanwhile, I understand that Judge McDonald has suggested that she will file a bar grievance against Moughni. If there are amongst our readers any Michigan attorneys who practice attorney discipline law, Public Citizen would appreciate your help.

Moughni's conduct — questioning the fairness of a settlement reached purportedly on behalf of a class of people, submitted for approval to a court — is at the heart of the First Amendment. It constitutes both petitioning the government and speaking freely about the government and its functions. Even if Judge McDonald lifts the injunction today, it is a travesty that it stood for even an hour.

Members of a class must necessarily repose great trust in the judgment of class counsel. Obviously the attorneys for the defendant corporation aren't looking out for the interests of the class, and judges have limited time and resources to delve into the truth of allegations and the fairness of a settlement. So ask yourself, class members: why would you possibly repose an iota of trust in a law firm like Jaafar & Mahdi that reacts to criticism by demanding a broad, lawless injunction silencing criticism of its judgment?

Last 5 posts by Ken White


  1. Grifter says

    So, would you say this was a….

    (Sunglasses on)

    Supersized violation of the First Amendment?

  2. Nilsson says

    There was incoherent Gellaresque pants-wetting about how this was the habringer of SHARIA LAW being enforced on every man, woman, child, and chicken nugget in God's Country.

    I guess you really meant to say hahabringer there, right? As in hahahalal? Ha. Hack. Somethintg stu-hahahack in my throat, excu-haha-me.

  3. tsrblke says

    Seriously, are judges particularly stupid?
    There's a lot of what I would consider (in my non-lawyerly way) marginal cases out there, where the line between "Defamation" and "opinion" really blurry.
    I'm totally flummoxed how this is even within sight distance of that line.
    Yet a judge felt the need to not only order it removed, but also doubled down on stupid (if I'm reading this correctly). And this isn't the first judge to make such remarkably (and obviously) stupid orders contravening the 1st amendment.
    So I guess I have a question. Were a lawyer this order of stupid they would likely get some form of punishment. What in the name off all things constitutional can we do to punish a judge for effectively violating the law?

  4. mojo says

    Just curious: How did they discover that the supposedly "halal" chicken was actually "haram"? It's not as if there would be a difference in taste, it's a hand-waving magic spell.

  5. Noah Callaway says

    Ken, you know damn well that I do not want unprincipled prior restraint.

    Seriously, though, what's going on here? I feel like this judge saw what happened to Apple in the UK (having to display a "we're sorry" note, saying they were wrong) and decided that'd be a great thing to do here.

    I trust Public Citizen to help make this right quickly. Still, reading your blog makes me feel like I need a law degree so I can actively help deal with these problems (as opposed to cheering from the comments section, and occasionally giving you Amazon referral traffic).

  6. TomB says

    Reading the links so graciously provided often yields answers (but more often leads to tears):

    Dakhlallah said he was approached by Ahmed, and they conducted an investigation. A letter sent to McDonald's Corp. and Finley's Management by Dakhlallah's firm said Ahmed had "confirmed from a source familiar with the inventory" that the restaurant had sold non-halal food "on many occasions."

  7. Kat says

    @tsrblke: I'm guessing there is not; I can imagine what impact such measures being available would have on rulings like, say, Roe v. Wade. The judge would probably spend a long amount of time dealing with complaints. Maybe I'm wrong though, I'm not a lawyer. :)


    As for the case itself, to me it's more along the lines of making sure restaurants sell what they advertise. Would people feel differently if it was McDonald's selling horse meat instead of beef? I've often seen that the level of disgust regarding accidentally ingesting non-halal or non-kosher food in religious people. I would and do support both suits. If McDonald's says they sell halal chicken, then they had better sell halal chicken.

  8. Nilsson says

    Oh and Ken, I do appreciate your much more gentle admonition of my own stoopid speling misteak. Someone has named a law for that, I tink.

  9. Josh C says

    "A handwaving magic spell," aside from being in poor taste, suggests an unfortunate ignorance of the beliefs and practices of a quarter of the world.

    I'm no expert, but: most of Halal is slaughter method and avoiding cross- contamination. There is also a requirement for who can perform the actual slaughter; it's (afaik) a little less clear-cut, and also unlikely to be the issue (e.g. sometimes kosher meat satisfies halal; sometimes it's an acceptable substitute; sometimes it's completely unacceptable, depending who you ask).

    I suspect without evidence that the problem was haram ("harmful", aka "non-halal" per wiki) food getting mixed in with halal. That's largely analogous to frying flour-covered fries in oil, then frying nominally wheat free fries in the same oil: no matter what they were like to start with, they are no longer wheat free, and folks with gluten intolerance may take issue with your labeling at that point. Likewise, for Halal food cooked with Haram, though perhaps with fewer exciting medical hijinks.

    Bottom line (for me) Is that McDonald's decision to offer halal was entirely voluntary, but having made that decision, they have an obligation to do what they advertised. If halal is too weird and arcane, don't offer it in the first place.

    The censorship douchebaggery is a separate issue.

  10. tsrblke says


    Roe V. Wade was a decision that arguably invented rights out of thin air to reach the conclusion it did. Arguably it violated earlier precedent, I'm not sure it's entirely comparable.
    Here we have a judge whose busy actively subverting the first amendment as it's written. IANAL and haven't read the briefs, but I can't think of anything closer to "Petition[ing] the Government for a redress of grievances" than this.
    He feels the settlement offer is unfair, he aired his complaints and urged the court (an arm of the government) not to accept it. And yet he's being punished (for what I'm still unsure, not going through the courts directly?)
    Also Roe V. wade was at the supreme court, I'm more curious if there's something a higher court can do in this case to specifically punish the judge.

  11. Dave says

    I think the issue is that the PI was issued on default. I'm not familiar with Michigan procedure, but in other states movants will seek an emergency TRO, followed by a PI, giving the non-movant an opportunity to oppose both. In this case, even if there wasn't a TRO, Moughni certainly could have opposed the PI application. The order doesn't say if he appeared or not at the initial hearing, but does say he didn't submit any written opp. That may be a big issue (assuming proper and timely service, etc.) as judges don't like being ignored.

  12. C. S. P. Schofield says

    What we have here is all to typical of the (largely self-nominated) Intellectual Class's normal reaction whenever some member of the Working Class (or other Lesser Being) dares to criticize what his Betters have done on his behalf. I am just vicious enough to take comfort from the historical pattern which shows that if these swine ever do manage to bring their dreams of control to fruition, they will quickly be supplanted by somebody like Stalin and summarily liquidated.

  13. says

    > prior restraint

    I get that it's restraint, but how is it prior restraint? Sounds more like post restraint, no?

  14. Sean says

    Also troubling:

    She also ordered Moughni to turn over a list of those who posted statements about the case, those who “liked” his post and all information in each response, including names and contact information.

    Seems calculated to have a chilling effect.
    Furthermore, Moughni was prohibited from communicating or distributing information concerning any opt-out procedure (since class-members get nothing, opting out would only advantage class members). Which would seem to be in line with a general prohibition on discussing the settlement, but really highlights the problem, and the fear of plaintiff's counsel.

  15. James Pollock says

    As best as I can figure, the true issue is counseling the class members to reject the settlement… which would, at least potentially, be a violation of the rule against contacting represented clients directly.

  16. Matthew Cline says

    As best as I can figure, the true issue is counseling the class members to reject the settlement… which would, at least potentially, be a violation of the rule against contacting represented clients directly.

    Wait, so class members aren't allowed to talk to each other about whether they should accept or reject a settlement?

  17. mojo says

    @JoshC: "A handwaving magic spell," aside from being in poor taste, suggests an unfortunate ignorance of the beliefs and practices of a quarter of the world.

    Or simply a disregard for the idiocies of the religious. Yeah, let's go with that.

    I'm not required to buy into your psychotic Big Daddy in the Sky, no matter how many do.

  18. James Pollock says

    "Wait, so class members aren't allowed to talk to each other about whether they should accept or reject a settlement?"

    Legal ethics rules only bind lawyers, not the general public.

  19. Matthew Cline says

    "Wait, so class members aren't allowed to talk to each other about whether they should accept or reject a settlement?"

    Legal ethics rules only bind lawyers, not the general public.

    Seems unfair to me that if you're a class member, but also happen to be a lawyer, that that prevents you from talking to your fellow class members.

  20. Luke G says


    While I'm sure you feel quite superior by bashing their rituals as idocy, magic, and psychoses, you're quite missing the point. McDonalds SAID they were selling a product that matched a given standard, and it didn't match that standard. People bought the product expecting it to match that standard and it didn't. Whether you think that standard is a useful one has nothing to do with anything.

    I just kickstarted a local band's live album, and will be getting the tie worn by the drummer during recording as an incentive. I won't be able to prove it's the real thing, but I'd be mad as hell if I found out they'd lied to me. If you don't know the band or like the music they play, does that negate my right to expect to be given the thing I was offered and requested?

  21. Lucy says

    The only thing I've heard of to do when a judge behaves badly, is to report to the judicial committee. There is a judicial code of conduct and a committee.

    I don't know at all how effective a practice it is to report a judge. I also don't know if the process is similar from state to state. I also don't know if it is a generally frowned upon practice in favor of other avenues. I only know that although a judge is the of the end of the line, they do actually answer to someone in cases of poor conduct.

  22. Henry says

    It seems to me that an order prohibiting one of the settlement's critics from criticizing it infringes on the right of class members to object or opt out, if they were so inclined, by depriving them of the information needed to make an informed decision. When (I hope) this order is finally overruled by a real court, will this create any issues for the settlement (say, a reset of the opt out period)?

  23. Wick says

    The part that, as a lawyer I find particularly appalling is that the Court entered an injunction against a person present in the Courtroom, and denied that person an opportunity to present his position before ruling. That is flunking Due Process 101.

  24. Jacob says

    @ chris, luke:

    Go back and read mojo's comments again. He never claims that it's ok for McD's to falsly represent their product. He just asked how they were exposed for doing so. In asking that question he pointed out that the taste would be no different (true), and that it involved religious superstition (also true). Don't assign him the straw man of pretending that he's saying that it is fine for McD's to lie about halal.

    I am sure that everyone here agrees that that's not ok; if McD's says that every chicken nugget they sell was gazed upon by Elton John, they better start buying up some budget dreamliners to get those nuggets to the UK. Whether that makes them somehow "better" can be disparaged freely.

  25. Mike says

    @James Pollock, he's a member of the class objecting to the settlement, not counsel for McDonalds.

  26. AK says

    "Meanwhile, I understand that Judge McDonald has suggested that she will file a bar grievance against Moughni."

    Is this backwards or is there something I'm not understanding? I would assume Moughni would file a grievance against Judge McDonald.

    Out of curiosity, what's the likelihood that the Judge will face any kind of sanction for what seems like blatant misconduct?

    Also, what would the consequences be if Moughni said "Fuck you, this is wrong," and violated the injunction?

  27. Lucy says

    Off topic: Prenda

    Pietz filed a newspaper article today containing the denial of Alan Mooney that he knows anything about participating in lawsuits or heading any companies. He's more or less a personal trainer who introduced Paul H to some people in the porn industry.

  28. Gigs says

    The rebuttal from the linked site states:

    As to the First Amendment concerns: there is no First Amendment right to deceive and mislead people about their rights under a class action settlement. Mr. Moughni attempted to do that by falsely giving off the impression that he was in some way shape or form able to procure compensation for someone if they simply hit the “like” button on his Facebook page. This conduct is a mockery of the class action process, which actually primarily exists to protect the rights of consumers against the abuses of large corporations.

    Is it true that he claimed that liking his post would allow him to provide compensation outside of the class action lawsuit?

  29. Chris R. says

    I am not referencing his first comment as much as his second. Rather than make any statement that was remotely on topic he continued with his "spaghetti monster in the sky" talk. Nor does challenging 95% of the world's beliefs as idiocy really conform to a discussion on the first amendment ramifications of Judge McDonald's order.

  30. Chris R. says

    @Gigs, he asked people to hit like and share their name and phone number to be put in contact with another attorney he had retained from my understanding.

  31. Jacob says

    No, but it was relevant to josh's response that it "suggests an unfortunate ignorance" about halal. He wasn't being "ignorant," just intolerant, an intolerance I share.

  32. htom says

    … Even if Judge McDonald lifts the injunction today, it is a travesty that it stood for even an hour. …

    c/it stood for even an hour./it was ever imposed./

  33. different Jess says

    Jacob/mojo: proselytizing for your wacky fringe beliefs on this board is rude.

  34. Jacob says

    I saw somebody being straw-manned, I called it out. No "proselytizing" involved. I don't know what "beliefs" you are assuming that I have, but it's that type of attempt at marginalization that is actually what is rude. This is my last comment on this thread

  35. Chris R. says


    Since Halal requires usually no use of MSG, different gelatins, or additives (all of which can come from pig fat etc.), it is possible that there could be a taste difference. (F**k if I know what they put in a chicken sandwich at McDonalds)

  36. Luke G says

    The strawman was unintentional if anything. How I read his comment was dismissive of the suit due to his personal antipathy toward the class and their reasoning. Question, then: IANAL, but what is the actual standard for "harm" required? If I am a vegan and am sold "vegan" fries cooked in beef tallow, am I harmed? (presuming it doesn't do awful things to my digestive system). What about those who buy "free range" chicken, picturing the birds leading a happy life before slaughter- would they be able to bring suit if it turned out to be a lie?

    If not, then it seems like there's a huge loophole for companies to tell all kinds of lies about their products and be immune from consequences, on the grounds that the customer wasn't directly harmed. If lying about your product to get people to buy it IS grounds for a suit even without direct physical harm, then what's the point of mocking it other than, well, mocking it?

  37. Jacob says

    ok, I said that was the last, but this will be.

    I would guess that it all comes down to false advertising for things that don't affect safety (prayers, for example, or that Elton John thing I said). In the case of "free range," there are USDA standards for labeling that govern those type of claims. There are rules (that are a lot looser than you might think) for calling something "free range," "cage free," "grass fed," or for that matter, "organic". I too ANAL (lol), but I would guess that other claims, like phony sports memorabilia eg, would be false advertising or fraud.

  38. Grifter says


    The original snark was in reference to wondering how they discovered the switch, since there's no "real" distinguishing difference between halal and non-halal at the consumer level.

  39. Jacob says

    I grew up in a strict kosher house, but I can't have an opinion about religious diets without being branded an athiest? You're a jerk.

  40. different Jess says

    How silly of me! You were only concurring with comments like

    I'm not required to buy into your psychotic Big Daddy in the Sky, no matter how many do.


    …it's a hand-waving magic spell.

    while offering your own

    Elton John-flavored bons mots

    . Why on earth would I call you an internet atheist?

    It isn't actually important what I assume about your personal idiosyncratic beliefs. You aren't "right" when clarifying (if one could call it that) the actual content of those beliefs, and your "intolerance" isn't any more special than any other sad religionist's intolerance. You obviously care that we don't share your correct beliefs, so that makes all of your windbaggery what I called it originally: proselytizing.

    Go ahead, correct me again. I dare you.

  41. Josh C says

    @JoshC: I'm not required to buy into your psychotic Big Daddy in the Sky, no matter how many do

    No-one suggested that you are, especially me.

    I implied that you were ignorant, which I know see is the case, and deliberately so to boot.

    Seeking to understand the world around you is a virtue; wallowing in priggish ignorance is a vice. You seem to have confused the two.

  42. Jacob says

    I never concurred with any of that. The EJ thing was just an attempt at a secular claim that some establishment could conceivably make falsely. Like my later sports memoribilia example. It was not in any was meant as a direct simile, but I guess you hear what you want to hear. Further, the only thing I said regarding any of that was that I was intolerant of religious diets. Interpret that as you wish, but I have my reasons. If those four words were too much for your fee-fees, I am truly sorry, but I still think you are a jerk. No matter how much you attempt to guilt-by-association me to death.

    also – you're the one referring to "sad religionists," and I'm the one accused of being a strident atheist?

  43. Jacob says

    no, you're right…your intolerance of "sad religionists" is much nobler than some atheist's is!

  44. David Schwartz says

    This is one of the worst settlements in a class action lawsuit I have *ever* seen. The lawyers get money. The class members get *nothing*, not even coupons, and they release the Defendant from reasonable claims for economic damages. I have never seen a settlement where one loses *nothing* by opting out of the settlement class.

  45. Anony Mouse says

    Is it just confirmation bias, or do class action suits never actually help the class and just line the pockets of lawyers? I suppose some might have affected social change, but the monetary rewards never seem to show up.

    Seems to me that a $0.50 coupon isn't going to address any wrongs, you know?

  46. mojo says

    @whoever: Nah. If I were a troll, I'd have a bridge.

    I just asked a logical question and got slapped for being a tasteless ignoramus.

    Well, pardon me.

  47. Luke G says


    You're right- when I read that the first time the "no difference" part struck me harder than the "how would they know?" part. My best guess? Some Islamic teenager got a job at McD's and saw how things were prepared, and told people. As far as that goes, though, it really does pique my non-lawyerly interest about when you can legitimately sue. My above example of free range was a poor choice, since there's government standards, but what about those places where rich people pick their own cow to be butchered, or pick your own lobster from a tank? As long as you served freshly butchered cow or lobster I doub't you'd realize the difference. If someone figured it out, though, would they have grounds for a suit?

    On the one hand, there's no real difference between given cows or lobsters. You'd get essentially what you wanted, a super-fresh meal. But part of the allure of such places is the novelty of selecting your meal personally. If you knew your choice wouldn't be followed you might not have eaten there- would that be considered false advertising and grounds for suit, even without actual harm? It seems to me that even if you discount all religious diet restrictions as pure superstition, you still have people buying from a location because of specific claims that are false.

  48. mojo says

    PS: "internet atheist"

    Nope. More of an agnostic: insufficient evidence, no conclusion possible.

    Your mileage may vary.