Federal judge halts Montana ban on drag performances
(The Hill) — A federal judge in Montana issued a temporary restraining order on Friday, blocking the state from enforcing a law that bans certain drag performances, writing in an order that the law likely suffers from “constitutional maladies.”
Montana’s House Bill 359, passed by the state’s majority Republican legislature and signed into law by GOP Gov. Greg Gianforte in May, prohibits schools or libraries that receive state funding from hosting a drag story hour or “sexually oriented performance.” Performances are also prohibited from taking place in public or in the presence of a minor.
A group of 10 plaintiffs challenged the law in federal court earlier this month, arguing that the bill is “breathtakingly ambiguous and overbroad.” Plaintiffs include Adria Jawort, a transgender and two-spirit author whose lecture at a public library in Butte was canceled last month after officials determined that having her speak posed “too much of a legal risk” under the new law.
Montana Pride, the host of an annual LGBTQ Pride celebration in Helena, joined the lawsuit last week, arguing that city officials — as a result of the law — have withheld permits that are needed for this year’s Pride festival, which is slated to run from July 30 to August 6.
“The thirtieth annual Montana Pride is slated to begin in less than two days,” Chief Judge Brian Morris wrote in Friday’s order. “Plaintiffs, along with the approximately 15,000 Montanans who wish to attend the events, cannot avoid chilled speech or exposure to potential civil or criminal liability under H.B. 359 in the absence of the extraordinary remedy of a [temporary restraining order.]”
Republicans in the state legislature this session had argued the law was necessary to protect children from “mature themes” and obscene material.
But “Montana law already protects minors from obscene material,” Morris wrote Friday.
On top of that, the state conceded during a July 26 hearing that the statutory text of House Bill 359 regulates speech and expression outside of what is considered “legally obscene.”
The law additionally “contains no carveout for speech or expression with serious literary, artistic, political, or scientific value,” Morris argued, and the First Amendment protects “at least some of the speech and expression” regulated by the law.
Morris noted in the order that the only two other district courts to have considered First Amendment challenges to similar state drag bans in Tennessee and Florida “have confirmed that those laws constitute facially content-based restrictions” and are therefore discriminatory.
A federal judge in June ruled that a Tennessee law banning drag shows in public or where children could view them is unconstitutional. The same month, a federal judge in Florida temporarily blocked the state from enforcing a similar ban on drag performances.
Attorneys for the state had sought to distinguish the Montana law from those of Florida and Tennessee on the basis that those laws failed to define “lewd.” But Morris on Friday argued that Montana’s drag ban also failed to define it.
The measure also fails to define “lascivious,” “flamboyant or parodic persona,” “salacious dancing” and “sexual manner,” Morris wrote. “The absence of definitions for these terms raises concerns for the Court about vagueness and overbreadth.”
In a statement to the Montana Free Press following Friday’s order, Montana Pride’s lead organizer, Kevin Hamm, said the court “got it right.”
“As I said throughout the legislature, drag is art. And drag bans not only infringe on free speech, but they are crafted (by design) to be so broad to allow for discrimination against trans & nonbinary people as well,” state Democratic Rep. Zooey Zephyr posted Friday on X, the platform formerly known as Twitter, in response to Morris’s decision.
Zephyr, one of two openly transgender lawmakers in Montana, was censured by House Republicans in April after she said legislators who voted to pass a bill banning gender-affirming health care for transgender minors would have “blood on your hands.”
In a statement to The Hill, Emily Flower, a spokesperson for Montana Attorney General Austin Knudsen (R), who is a defendant in the case, said the state will present its response at an upcoming preliminary injunction hearing.
“We look forward to presenting our written response and full argument at the upcoming preliminary injunction hearing to defend the law and protect minors from sexually oriented performances,” she said.