State argues Montana’s drag restriction should take effect

An attorney representing the Montana Attorney General’s Office and the Office of Public Instruction argued in federal court Monday that a state law restricting drag story hours and certain performances should take effect while a legal challenge against it continues — and that the lawsuit itself is misguided.

The groups bringing the case against House Bill 359, including private businesses, individuals, arts organizations and LGBTQ+ community groups, countered that the law should remain on hold for the time being, citing concerns about free speech violations and unconstitutional vagueness in the law’s definitions and restrictions.

The hearing came weeks after U.S. District Court Judge Brian Morris issued a temporary restraining order against enforcement of HB 359. That ruling was handed down days before the annual Montana Pride celebration was scheduled to take place in Helena. 

In that August ruling, Morris wrote that the law “sweeps beyond obscene conduct already proscribed by [state law]” and risked chilling the speech of Pride attendees and exposing them to possible civil and criminal penalties if it was not temporarily blocked. The ruling also reflected the “untenable choice” that the city of Helena faced when deciding whether to issue permits for the Pride events involving public drag shows. 

With the Helena Pride events now in the past, the plaintiffs on Monday sought to convince Morris to continue blocking Attorney General Austin Knudsen and Superintendent of the Office of Public Instruction Elsie Arnzten from enforcing HB 359 through a preliminary injunction. 

“The threat of criminal prosecution, and the attendant self-censorship, is an injury in the First Amendment context,” said Constance Van Kley, an attorney representing the plaintiffs. “… The question is not whether harm is going to happen right now but whether or not harm is likely to occur during the pendency of the lawsuit if a preliminary injunction is not in place.” 

State assistant attorney general Michael Russell argued that the law properly regulates speech the state Legislature has decided is inappropriate for minors — sexually oriented performances in public and at certain businesses, and drag story hours at public schools and libraries during regular hours or at school-sponsored events. 

“I think it’s clear when read in its entirety … what conduct is proscribed,” Russell said. “That is sexually oriented performances that are not necessarily obscene but are inappropriate for minors and drag story hours in this very limited context.”

Russell also questioned why plaintiffs had named Knudsen and Arntzen as defendants in the case. Individual county attorneys and school districts could bring action against individuals to enforce the law, he said, whereas Knudsen and Arntzen’s roles are more supervisory. Blocking HB 359 based on the appearance of a free speech violation would require more concrete evidence of likely harm from the plaintiffs, he argued.

“There has to be something more concrete. There simply is not here,” Russell said. 

Van Kley countered that both state officials named in the lawsuit have duties outlined in state law that give them power in enforcing HB 359. The attorney general, for example, could direct a county attorney to take action against violators, a demand that the local official would not have the power to deny.

Although the court’s ruling on a preliminary injunction would likely not delve deeply into the merits of the law and the arguments about its constitutionality, both sides referenced the concerns about vagueness during Monday’s hearing. 

Morris’ ruling in the temporary restraining order noted that the law “fails to define the terms ‘flamboyant or parodic [male or female] persona’” and “glamorous or exaggerated costumes and makeup” when describing drag story hours. The definitions for terms including “nude” and “sexually oriented performance,” Morris wrote, “run a significant risk of vagueness and overbreadth.”

Russell said the law is understandable “when read in its entirety” and put in the context of other related state laws.

Van Kley rejected the state’s assertion, describing the law as inherently confusing and difficult to implement.

The defense’s argument is that “the law can’t mean what we say it means because that would be too crazy,” she said. “But the question is, what do the words say?”

Morris did not rule on the request for a temporary injunction Monday and did not say when he anticipated his order would be ready. Until that ruling, plaintiffs’ attorneys said the temporary restraining order for the bill remains in effect.