Federal appeals court blocks Montana drag performance ban, citing free speech violations

A federal appeals panel recently blocked a Montana law prohibiting drag performances in public places, marking another win for the groups who took the first-of-its kind policy to court.

House Bill 359 garnered national headlines when it passed the 2023 Legislature, controlled by a Republican supermajority, and was signed into law by GOP Gov. Greg Gianforte. Not only does the measure limit where drag performances could take place; it prohibits any person dressed in drag from reading books to children at public schools and libraries, no matter the nature of the presentation, making it the first state law to paint with such a broad brush.

Lawyers for the plaintiffs argued that the law violates freedom of speech and expression; whereas the state argued that it’s necessary to shield kids from inappropriate sexual content.

In a 97-page opinion penned by U.S. Circuit Judge Jennifer Sung on March 13, the three-judge panel on the Ninth Circuit Court of Appeals upheld the decision blocking the law’s enforcement, saying HB 359 improperly seeks to regulate behavior that is expressive activity rather than conduct.

“The Supreme Court has also long recognized that the First Amendment extends protection to ‘expressive conduct,’ that is, a message ‘delivered by conduct’ that is not purely expressive activity, but which is ‘intended to be communicative,’” she wrote in the opinion. “… the government ‘may not, however, proscribe particular conduct because it has expressive elements.’”

Through a spokesperson, Montana Attorney General Austin Knudsen’s office suggested it would continue to defend the constitutionality of the legislation in court even while the preliminary injunction remains in place, putting enforcement on hold. The office had not yet determined whether it will appeal the Ninth Circuit opinion to the Supreme Court.

“We are disappointed the Court ruled in favor of leftists who would rather prioritize sexual grooming in schools and libraries than protect children, which is exactly what HB 359 intended to do,” said Amanda Braynack. “At this time, we are still reviewing the opinion and determining our options.”

HB 359 was in effect for a little under two months before plaintiffs, which include theaters in Helena and Missoula, a now-closed Missoula brewery and multiple LGBTQ+ centers throughout the state were granted a temporary restraining order in July 2023.

During that time, there were reports that uncertainty around how the law would be implemented and who would be held legally accountable had already created a chilling effect. The City of Helena, for example, questioned whether or not it would be able to host a LGBTQ+ Pride celebration.

U.S. District Judge Brian Morris granted both the temporary restraining order and the preliminary injunction later that year.

Judges on the appeals court sided with Morris’ finding that HB 359 could not be cast as a way to regulate obscenity because “Montana already prohibits the display or dissemination of material that is obscene for minors under a different statute,” and that defendants failed to prove there had been deleterious secondary effects such as crime or declining property values from drag story hours or other performances.

“Montanans believe in freedom, privacy, and independent thinking,” said Rylee Sommers-Flanagan, executive director of Helena-based Upper Seven Law and one of the plaintiffs’ attorneys. “We will not stand for government interference in the exercise of free speech. We will always stand with and for the rule of law, its equal application to all people, and with costumes, drag, and joy—every time.”

The two courts also agreed that HB 359 is too vague to pass constitutional muster.

For the law to legally restrict protected speech, the state’s attorneys must prove that the measure identifies an actual problem in need of solving and that government action to curtail speech is the best way to solve it.

“To the extent Defendants claim that the state has a legitimate and compelling interest in restricting minors’ access to any protected speech that the government deems ‘indecent’ – regardless of whether the content is sexually explicit and regardless of whether the minors’ parents agree with the government’s views regarding the property of the content – defendants go too far,” Sung wrote.

The court recognized Montana has a compelling interest in protecting children from indecent, even if not obscene, speech, that authority doesn’t extend to any expression the government takes issue with on those grounds but is not sexually explicit.

To that end, HB 359 is not written narrowly enough to clear legal scrutiny, Sung wrote, pointing to its inclusion of terms such as “flamboyant,” “glamorous,” and "exaggerated” to describe who can and cannot read stories to children in public realms.

“Because it covers expression that is not sexualized, it is overinclusive. Dolly Parton … has committed to giving a free age-appropriate book to every child under the age of five in Montana,” she continued in the opinion. “Under HB 359, she could not visit a library in Montana to read one of those books to children if she wore glamorous clothing and makeup consistent with her famously flamboyant feminine persona.”

Rep. Braxton Mitchell, the Columbia Falls Republican who sponsored the bill, said the ruling was an example of what motivates another GOP priority – creating a partisan judiciary.

“Montanans have resoundingly rejected this kind of insanity election after election,” he said in a text message. “This is another example of activist judges legislating from the bench.”

Correction: A misspelling in Mitchell's quote has been updated.