Federal judge considers whether to block Montana bill restricting drag performances

Helena Federal Courthouse
Posted at 7:59 PM, Jul 26, 2023

HELENA — Wednesday in Helena, a lawsuit challenging Montana’s new state law restricting drag performances got an initial hearing in federal court. U.S. District Judge Brian Morris heard testimony from plaintiffs and the state of Montana, as he considered whether to issue a temporary restraining order to block enforcement of the law.

About 40 people were in the courtroom for Wednesday’s hearing.

The case centers on House Bill 359, passed during the 2023 Montana legislative session and signed by Gov. Greg Gianforte. The bill prohibits schools and libraries that receive state funding from hosting “drag story hours” during regular operating hours or a sponsored extracurricular activity. It defines drag story hours as when a performer with “a flamboyant or parodic” persona and “glamorous or exaggerated costumes and makeup” reads children’s books or does other learning activities with children present.

HB 359 also bans “sexually oriented performances” in front of minors – either on public property or at a business – and it bans them altogether in locations that receive state funding. It defines “sexually oriented” to include “stripping, salacious dancing,” and any other “lewd or lascivious depiction or description.”

A number of organizations and individuals filed suit earlier this month, saying the new law restricted their rights to free expression, and that the definitions in the bill were too vague and left them in an uncertain legal position.

“What today's hearing really solidified is that nobody seems to know exactly what it says, and with regard to the First Amendment, that is in and of itself a constitutional problem,” said Constance Van Kley, an attorney for the plaintiffs.

Van Kley said there’s been a “snowball effect” of planned events being canceled, moved or altered because of the law, and that’s one of the reasons a restraining order is justified. She said discussions during the legislative session indicated that the bill was specifically targeting drag performances because of their expression of non-traditional gender roles.

The plaintiffs argued Wednesday that the restrictions on drag story hours are improperly “chilling” speech based on content or viewpoint. They said the restrictions on “sexually oriented performances” were too broad, didn’t include carveouts for performances with artistic and other types of merit, and left businesses not knowing what they can and cannot do.

Plaintiffs said there was a particular need for a restraining order in this case because of the upcoming events planned for Montana Pride celebrations in Helena. They said the city of Helena still hasn’t issued a permit for Montana Pride, and that leaving the law in place would force participants to choose between limiting their expression and potentially running afoul of the new requirements.

This week, the city of Helena said in a filing with the court that it plans – and always has planned – to issue Montana Pride’s permit, but that they supported putting in a temporary restraining order. City Attorney Rebecca Dockter said during Wednesday’s hearing that, under the law, city staff would either have to base its permitting decision on an event’s content – a step they believed would be inappropriate – or leave themselves open for liability if the event was found to go against HB 359.

Attorneys for the Montana Department of Justice defended the law, arguing that there wasn’t a risk of “irreparable harm” to the plaintiffs. They said the passage of HB 359 was a justifiable action, and that the state has authority to restrict some conduct that may not be obscene in order to keep it away from minors.

“I think there’s some gray area as to what is obscene and what the state of Montana wants their children to see,” said Thane Johnson, an assistant attorney general.

Johnson said the state did not intend that drag story hours be prohibited at private businesses, and that they had more leeway to limit them at schools and libraries because it implicated public funding. He said the bill does not open performers or attendees of a Pride event to prosecution, so that should not be used as a justification for a restraining order. He said, if the city of Helena does issue a permit for Montana Pride, that issue also should be moot.

HB 359 did give minors or their parents the ability to sue anyone who “knowingly promotes, conducts, or participates as a performer” in an event that is prohibited by the bill, but Johnson argued that provision isn’t “ripe” for a challenge until someone actually sues.

Van Kley said, even if Montana Pride does get its permit, they still hope to receive a temporary restraining order. She said the bill is so broad that it opens the door to selective enforcement, based on how different law enforcement officers and prosecutors interpret it.

“We know Billings Pride happened, but there were no drag performances allowed on public property as a result of House Bill 359,” she said. “And so, again, the fact that there may be different interpretations of House Bill 359 is in and of itself evidence of a constitutional problem.”

Morris said at the end of the hearing that he planned to issue a ruling on the request for a temporary restraining order as soon as possible. The next hearing on the request for a longer-term injunction is likely to be scheduled sometime in late August.