Frisco A&W sign supported by the First Amendment |

Frisco A&W sign supported by the First Amendment

Michael S. Woodson/guest commentary

Should a national fast food franchisor be able to use a court to suppress the religious speech of its independent and locally owned franchises? In Frisco, that is the question.The importance of the answer goes beyond Frisco. The local A&W restaurant franchise’s highway sign for a while read, “Chili cheese fries/onion rings/praise Jesus with thanks giving!/Isaiah 12:2,” “Jesus is the reason for the season” and “Jesus, Our Immanuel.”The Scriptural verses change over time.According to media reports, the Jewish Anti-Defamation League (ADL) implied that Frisco A&W franchisees Reuben and Donna Drebenstedt, Messianic Jews, deceitfully showed an interest in Jewish practices to convert Jews to Christianity.The ADL and some individuals complained to A&W, owned by mega-corporation Yum! Foods Inc., asking that A&W silence the Drebenstedts’ religious messages. So A&W lawyers sent a “cease and desist” letter to the Drebenstedts.When the ADL told the press that the Drebenstedts’ faith involved a false interest in Jewish practices, it implied that the Drebenstedts’ religious faith was insincere.It made the statement connected with the Drebenstedts’ postings. By asking A&W to force the Drebenstedts to quit their religious expressions, the ADL may have interfered with the Drebenstedts’ contracts.In America you may convert to any faith and the faiths may compete for converts.However, these rights do not include threatening livelihoods to muzzle the religious expression of those we disagree with, or smearing their sincerity.Free religious expression scares some into preserving their traditions the wrong way. However, their fear belies the truth that free will is part of what makes religious traditions in America authentic.The ADL has sought to limit the religious expression of Jews for Jesus by pitting A&W against the Drebenstedts in a conflict of civil rights.Trademarked symbols like A&W double as commercial speech and private property. The Drebenstedts’ sign quintuples as religious exercise, religious speech content, a private property right, equal protection, and because of the controversy, symbolic political expression. Which should prevail in court?If courts squelch the Drebenstedts’ religious speech, they will favor large corporate commercial speech and property over the combined individual rights of the Drebenstedts.The U.S. Supreme Court has limited commercial speech more than individual political or religious speech.The court’s precedent also limits religious practice, yet only as needed for the public health, safety and welfare of others. Religious speech is different, being a hybrid of two individual rights in one.Franchisors like A&W may litigate trademark and contract law to censor their franchisees’ religious expression.If A&W does enjoin the Drebenstedts’ religious postings, it could trigger a surge of injunction suits by franchisors against religious and political speech.This abuse of law would chill speech in an entire small business sector.It may also violate equal protection and property rights of religious persons forced to choose between civil rights and independent franchise ownership suiting their living. Nonreligious franchisees would not face the choice.Then there is the question of control and independent contracts. If a corporate seller of franchise rights may control the speech of franchisees on royalty protection grounds, could this make A&W an employer of the Drebenstedts for tax purposes by weakening independence?Could it create greater vicarious liability against A&W corporate for all torts on franchise properties?In a free marketplace, all religious practitioners are free to buy their own franchises and post their own religious expressions.Given the diversity of franchisees and consumers, free religious expression by franchisees has little power to hurt a trademark. Possibly, as many people in the market may be offended by the removal of scripture from the Frisco A&W sign as are gratified by it. Notoriety in the courts and media may add to its value.Market freedom is in harmony with freedom of speech and religion so long as that speech does not defame the subject matter of the business and mark. So how does praising Jesus, Allah or Vishnu defame root beer?As for signs, isn’t the Drebenstedts’ sign as much their property right as A&W is Yum! Foods’? Whose property is more valuable to them?Michael S. Woodson is a Denver-based lawyer and writer on public affairs.

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