Nicole Girten

(Daily Montanan) A federal court judge temporarily blocked the enforcement of Montana’s ban on drag performances on public property two days before Montana Pride events are set to begin.

“The time sensitivity of Plaintiffs’ (Temporary Restraining Order) request, the likelihood that significant constitutional violations to Plaintiffs have occurred and will continue without judicial intervention, and the absence of countervailing evidence currently before the court, together require the court to issue a TRO,” the conclusion in the filing Friday read.

Judge Brian Morris granted plaintiffs’ request for a temporary restraining order and enjoined the defendants, Montana Attorney General Austin Knudsen and Superintendent of Public Instruction Elsie Arntzen, from enforcing the drag ban until the court hears the plaintiff’s case for preliminary injunction, scheduled for August 25.

Montana Pride joined plaintiffs from around the state challenging, in part, the constitutionality of House Bill 359, sponsored by Rep. Braxton Mitchell, R-Columbia Falls, and signed into law by Gov. Greg Gianforte in May. The law bans drag on public streets or in places that receive public funds, explicitly Drag Story Hours at public schools or libraries during normal hours, with fines for businesses that host drag shows as well as avenues for civil litigation.

The LGBTQ+ organization joined the suit after event organizer and congressional candidate Kevin Hamm said the City of Helena was declining to grant permits for the event due to HB 359. The city later filed a response to the court saying it agreed with Montana Pride that the court should grant the TRO, saying the law would require they either deny organizers their constitutional right to speech or make their staff liable to litigation.

Morris agreed with plaintiffs’ argument in his ruling Friday.

“The court credits plaintiffs’ allegations that they must engage in self-censorship or abandon their organizational missions to avoid potential criminal and civil liability under HB 359,” he said.

Montana Pride is celebrating the 30th anniversary of the first Pride event held in Montana, with events slated to begin on Sunday. Spokesperson for the City of Helena
Jacob Garcin said Friday the city approved the permit and sent it to the organizer with no conditions.

Morris said House Bill 359 “appears to suffer from similar ‘constitutional maladies’” as the drag ban that was blocked in Tennessee earlier this year. He said courts that overturned drag bans in Tennessee as well as Florida confirmed that those laws constitute facially content-based restrictions.

“The court determines that H.B. 359’s focus on the communicative content of the speakers it seeks to regulate renders it a content-based restriction,” he said.

He said Montana law already protects minors from obscene material, and that the state conceded during the hearing held Wednesday that HB 359 regulates outside speech considered obscene under the Supreme Court’s “Miller test.”

Morris said the bill doesn’t contain a carveout for “speech or expression possessing ‘serious literary, artistic, political, or scientific value,’” saying the First Amendment protects at least some of the expression regulated by HB 359.

The plaintiffs, which included the PRIDE event organizers, claimed that the drag ban is unconstitutionally vague and overbroad and Morris said the lack of definitions for terms like “lewd” as well as “salacious dancing” raised concerns.

“A ‘flamboyant or parodic’ gendered persona with ‘glamorous or exaggerated costumes or makeup’ could be interpreted to include any number of theatrical and artistic performances,” Morris said.

Morris said the state had the opportunity to develop arguments regarding the definitions in their briefing.

When speaking about the private right to action in the bill, Morris said the assessment of what is a “flamboyant or parodic” gendered persona with “glamorous or exaggerated” clothing and makeup was personal as opposed to being defined in statute.

“The Court determines that H.B. 359’s statutory scheme likely will disproportionately harm not only drag performers, but any person who falls outside traditional gender and identity norms, including trans and Two-Spirit people,” Morris said.

In addressing the public interest aspect needed to grant the restraining order, Morris said defendants don’t need to attend drag events or events with sexual content.

“Constitutional violations, moreover, never serve the public interest,” he said.

Morris agreed the plaintiffs already suffered irreparable harm without the restraining order. He cited Adria Jawort, a transgender woman, having her lecture event canceled at a library in Butte and events that were canceled at Imagine Nation Brewing.

“The government possesses a compelling state interest in children’s wellbeing and safety,” he said. “The record before the court suggests, however, that this compelling interest remains untethered from the text and application of HB 359.”

Morris said plaintiffs as well as the estimated 15,000 Montanans slated to attend Montana Pride can’t avoid “chilled speech” or exposure to potential liability under HB 359 without the restraining order.

The court will wait for all parties to complete their briefing and conduct another hearing, slated for Aug. 25, before there will be a decision to enjoin the law for a longer period while the case is being litigated.