Lawsuit claims Montana law restricting drag performances limits free expression

Montana State Capitol Drag Show
Posted at 6:26 PM, Jul 07, 2023
and last updated 2023-07-07 20:26:08-04

HELENA — A new state law putting limits on drag performances in Montana is now being challenged in federal court. Plaintiffs say it’s too broad and could restrict their rights to free expression.

House Bill 359 was passed by the Legislature and signed by Gov. Greg Gianforte this year. 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.

Nine plaintiffs filed suit this week, saying the definitions in the bill were too vague. They said it left them in an uncertain position – unable to know what might put them at risk of legal liability.

One of the plaintiffs, Adria Jawort, is a Native American transgender woman and activist. She was scheduled to give a talk on the history of “two-spirit” people in tribal cultures at the Butte Public Library last month. However, city-county authorities canceled the event out of concern that it would violate HB 359.

“This is a definite chilling of free speech,” said Jawort. “I’ve hosted lots of panels, reading events and all types of things at libraries.”

The lawsuit says canceling the talk was discriminatory and violated Jawort’s rights to free speech and equal protection, as it appeared to be based either on her identity or the LGBTQ+ theme of her lecture.

According to the plaintiffs’ complaint, other organizations and businesses have also had to face questions about whether planned events can go forward since the law took effect.

“Jawort may be the first to have a planned event publicly cancelled as a result of HB 359, but she will not be the last,” the complaint said. “No one knows what HB 359 actually prohibits.”

The lawsuit says the definitions in HB 359 are impermissibly broad and could encompass much more than supporters said it was intended to. For example, the bill 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. Plaintiffs questioned whether that could interfere with a variety of other educational events where teachers or others use costumes.

The bill defines “sexually oriented” to include “stripping, salacious dancing,” and any other “lewd or lascivious depiction or description.” However, because it doesn’t include an exception for artistic, literary or other merit, the lawsuit says it could restrict many works that aren’t obscene but contain sexual themes.

The lawsuit says Montana already has laws that protect children from obscene materials.

“Thus, there are only two options: either HB 359 is superfluous, or it redefines ‘obscene’ beyond constitutional limits to include drag performances, drag story hours, and a spiraling list of nebulously defined ‘sexually oriented performances,’” it said.

Rep. Braxton Mitchell, R-Columbia Falls, sponsored HB 359 in the Legislature. He told MTN Friday that he wasn’t surprised by the lawsuit, and that he didn’t believe most of the situations plaintiffs had proposed would actually be restricted by the law.

“I think it's pretty clear what those definitions mean and what it entails,” he said.

During debate on the bill, Mitchell frequently argued drag performances could not be separated from sexuality and that the state has a legitimate interest in regulating them when minors might be present and in publicly funded locations.

“Like I said from the beginning, I don't believe that there's any type of First Amendment violation by saying that in a taxpayer-funded school or a library,” he said.