Federal judge holds hearing on challenge to Montana drag performance bill

HELENA — Montana’s new state law restricting drag performances is currently on hold. On Monday, a federal judge heard testimony in Helena, as he considers whether to put a longer-term block on the law.

Last month, District Judge Brian Morris put a temporary restraining order on House Bill 359. The decision ensured Montana Pride events in Helena would go on as originally scheduled. Now, plaintiffs have asked Morris for a preliminary injunction, to stop Attorney General Austin Knudsen and Superintendent of Public Instruction Elsie Arntzen from enforcing the law as the case continues.

HB 359, passed during the Montana Legislature’s 2023 session and signed by Gov. Greg Gianforte, 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.

The law 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.”

The plaintiffs include businesses, organizations and several individuals that said the law restricted their rights of free expression. During Monday’s hearing, their attorneys said there have already been cases showing the law will have a chilling effect on speech, from the canceling of activist Adria Jawort’s lecture in Butte to the fact that Pride events in Billings went forward without drag performances on public property.

Constance Van Kley, an attorney for the plaintiffs, said the law leaves open the possibility of selective enforcement, especially against members of the LGBTQ community. She argued the restrictions are impermissibly vague.

“It is absolutely impossible to know how to tailor one’s conduct to HB 359,” said Van Kley.

The plaintiffs are seeking an injunction based on two provisions in the law: one creating potential criminal penalties for businesses that violate the restrictions on sexually oriented performances, and the other subjecting teachers and other school staff to potentially have their license suspended for violating the ban on drag story hours. Attorneys argued the language could apply to businesses showing mainstream films or teachers dressing up in costumes while working with students.

Attorneys for the Montana Department of Justice, representing the state, said the plaintiffs were pointing to extreme cases and that the intention of the law is clear. They questioned whether Knudsen and Arntzen were the proper defendants in this case, and argued that, even if the judge put an injunction on them, local county attorneys and the Board of Public Education could still independently enforce the law.

State attorneys said plaintiffs haven’t shown immediate injury to justify an injunction. They said any limiting effects on speech should be considered in a balancing test, because the state has a legitimate interest in protecting minors from performances leaders believe are harmful for them – and that those restrictions can encompass more than what is ruled obscene.

“We’re arguing that they’re indecent and improper for minors only,” said Michael Russell, with the Department of Justice.

The state has asked for a jury trial on all factual issues in this case. Morris said he will consider that request in the coming days. He gave no specific timeline for when he might rule on it, or on the request for an injunction.