(CN) — A federal judge in Montana issued a temporary restraining order Friday blocking the implementation of a new law that would prohibit "minors from attending sexually oriented shows" and ban "Drag Story Hour," in which drag performers read to children, at public schools and libraries.
The ruling has the immediate effect of allowing the Montana Pride event in Helena to occur as scheduled this Sunday. Permits for the annual event had not been granted by the city, because officials thought doing so would “subject city employees to criminal and civil liability under" the new law.
Signed by Governor Greg Gianforte in May, HB 359 is the latest in a series of laws passed by Republican-controlled legislatures banning various kinds of drag performances, although bans in Tennessee and Florida — which are also facing legal challenges — only applied to performances that were "sexual in nature." Montana's ban does not necessarily require a sexual element.
Under the law, "owners, operators, managers, and employees of 'sexually oriented' businesses convicted under HB 359 face fines from $1,000 to $10,000 and, for a third or subsequent offense, mandatory revocation of business licenses." Librarians, teachers and other public employees convicted under the law face $5,000 fines for a first offense, and "permanent revocations" of teaching or administrative certificate for a second violation.
The law also allows a "minor who attends a drag story hour or 'sexually oriented performance' in violation of HB 359, or the minor's parent" to sue anyone "who knowingly promotes, conducts, or participates as a performer" for up to 10 years after the event.
After signing the bill, a spokesperson for Gianforte said the governor “believes it’s wildly inappropriate for little kids, especially preschoolers and kids in elementary school, to be exposed to sexualized content." The bill's sponsor, Braxton Mitchell, said in April, “In my humble opinion, there’s no such thing as a family-friendly drag show."
Attorney Constance Van Kley said HB 359 was "motivated by fear and hostility toward the LGBTQ+ community."
Van Kley represents the three individuals and a number of groups, including Montana Pride and the Imperial Sovereign Court of the State of Montana, who sued to block HB 359 earlier this month, arguing that the law violates the First, Fifth and Fourteenth Amendments of the Constitution.
In his ruling temporarily blocking the law, U.S. District Judge Brian Morris wrote that the plaintiffs stood a good chance of prevailing on First Amendment grounds.
"The First Amendment protects at least some of the speech and expression regulated by HB 359," the judge wrote in his 20-page ruling, noting that the law "contains no carveout for speech or expression with serious literary, artistic, political, or scientific value," and "fails to require that speech be 'patently offensive.'"
The judge also agreed with the plaintiffs that HB 359's vague and "overbroad" language was likely a violation of the Fifth Ammendment. The law, he wrote, fails to define a whole host of words and terms, including "lewd," "lascivious," "flamboyant or parodic persona," “salacious dancing" and “sexual manner.”
"The absence of definitions for these terms raises concerns for the Court about vagueness and overbreadth," the judge wrote, adding later, "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."
In issuing the temporary restraining order, the judge noted that "thousands of community members and the local businesses who wish to participate in or attend 2023 Montana Pride face the prospect of irreparable harm in the absence of a TRO."
The temporary injunction will last until the court holds a hearing on the preliminary injunction, likely a few months from now.
Van Kley said the ruling was a win for free speech.
"It reaffirms that you can’t use creative maneuvering in order to target people on the basis of what they want to say," Van Kley said. "The government simply can’t shut down the speech of any community, in this case the LGBTQ+ community, simply because they don’t like their speech."
Emails to Gianforte's office and the state attorney general requesting a comment were not returned.
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