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Judge temporarily blocks Montana law restricting drag performances

Montana State Capitol Drag Show
Posted at 1:56 PM, Jul 28, 2023

HELENA — A federal judge has temporarily blocked Montana’s new state law restricting drag performances from being enforced.

U.S. District Judge Brian Morris issued the temporary restraining order Friday preventing the state from enforcing House Bill 359 pending the plaintiffs' request for a preliminary injunction. His reasoning was based upon potential impacts on the upcoming Montana Pride events in Helena and potential constitutional violations if the court doesn’t interfere.

“[HB 359] contains no carveout for speech or expression with serious literary, artistic, political, or scientific value,” wrote Morris.

HB 359 was passed by the Legislature and signed by Gov. Greg Gianforte on May 22. The law prohibits schools and libraries that receive state funding from hosting “drag story hours” during regular operating hours or a sponsored extracurricular activity. It 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.

The plaintiffs also said there was a particular need for a restraining order because of events planned in Helena next week for Montana Pride. Pride organizers said they may be forced to choose between limiting their expression and potentially running afoul of the new requirements.

“Nothing in the record currently before the Court indicates that speech and expression associated with Montana Pride has harmed minors or any other community members,” stated Morris in the ruling.

At the Wednesday TRO hearing, 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 the authority to restrict some conduct that may not be obscene in order to keep it away from minors.

The next hearing on the request for a longer-term injunction is likely to be scheduled sometime in late August.