Attorneys ask for permanent injunction against Montana drag ban

Blair Miller

(Daily Montanan) After winning a preliminary injunction in October against Montana’s drag ban signed into law this year, attorneys for the people and businesses challenging the law on Tuesday asked a federal judge to permanently prohibit the government from enforcing the law.

Upper Seven Law attorneys filed the motion for summary judgment on two counts alleging that House Bill 359, sponsored by Rep. Braxton Mitchell, R-Columbia Falls, violates the U.S. Constitution’s First and Fifth amendments.

“Our community is ready to put this chapter behind us,” Andy Nelson, the executive director of The Center, an LGBTQ+ community center, said in a statement. “A ruling that HB 359 is unconstitutional won’t fix everything for LGBTQ+ Montanans, but it will send at least one clear message: the Constitution stands between lawmakers and targeted discrimination.”

A judge issued a temporary restraining order in July blocking the law so Montana Pride could go forward without issue with its celebrations in Helena as numerous organizations and Montanans wondered if, or how, the new law might be enforced.

Last month, Judge Brian Morris issued a preliminary injunction against the law, saying the state had not proven children face any harm from drag events and that the law was vague and overbroad, chilling protected speech.

In Wednesday’s request for a permanent injunction, attorneys Constance Van Kley and Rylee Sommers-Flanagan presented arguments in the same vein, suggesting there is no compelling state interest for the law to be on the books, that it violates people’s rights to free speech and expression, and is unconstitutionally vague as to how it could be interpreted and enforced.

“HB 359 is a content- and viewpoint-based restriction on speech; it advances no interest beyond animus; and it is not even tailored to that interest, sweeping in speech far beyond drag,” the attorneys wrote. “Second, HB 359 is more than confusing — it is impossible to understand and apply, leaving Montanans to guess whether their speech will subject them or others to jail time and criminal penalties. HB 359 is facially unconstitutional and should be permanently enjoined.”

The two counts the plaintiffs want summary judgment on were filed solely against Attorney General Austin Knudsen and Superintendent of Public Instruction Elsie Arntzen as the government officials who could enforce the law through legal matters and licensing.

Plaintiffs include a teacher who dresses up for class, a transgender woman who regularly speaks to groups about transgender and Two-Spirit issues, and nine organizations and businesses that are either aligned with or supportive of the LGTBQ+ community in Montana.

Their attorneys say the new law fails to meet any of the terms of the test for obscenity, that it specifically targets drag and freedom of expression, and is a prime example of a restriction on speech that serves no compelling government interest.

“In their eagerness to crack down on a purported ‘sick agenda’ to ‘hypersexualize’ children, legislators took a sledgehammer to citizens’ First Amendment rights,” the filing says.

The attorneys for the plaintiffs argue the law offers no clarity on what citizens can and cannot say, which makes them avoid speaking at all.

“The range of speech suppressed by HB 359 is unknowable,” the motion says. “Without necessary definitions, each individual — and each police officer and each prosecutor — is left to define for herself what is forbidden. This is impermissible.”