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Order Granting Preliminary Injunction - Drag Story Hour Ban
Order Granting Preliminary Injunction - Drag Story Hour Ban
Plaintiffs,
vs.
Defendants.
INTRODUCTION
Company (“Montana Book Co.”), Imagine Brewing Company, LLC d/b/a Imagine
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Pride, the Great Falls LGBTQ+ Community Center (“Great Falls LGBTQ+
Center”), the Roxy Theater (“the Roxy”), and the Myrna Loy (collectively
“Plaintiffs”), move the Court for a preliminary injunction. (Doc. 4.) Plaintiffs
challenge Montana House Bill 359 (“H.B. 359”) on the basis that the law violates
the First, Fifth, and Fourteenth Amendments of the U.S. Constitution. 2023 Mont.
Laws Ch. 719 (Doc. 3 at 38–43.) The Court issued a temporary restraining order
(“TRO”) on July 28, 2023, following an emergency hearing. (Doc. 13.) The Court
held a subsequent preliminary injunction hearing on August 28, 2023. (Doc. 26.) For
the reasons set forth below, the Court will grant Plaintiffs’ preliminary injunction
motion.
BACKGROUND
that include a parade, drag performances, a rally, and educational workshops. (Doc.
5-9 at 4.) More than 15,000 people from across the state and country attended the
events in 2022. (Id.) Montana Pride’s thirtieth-anniversary events took place from
July 30 to August 6, 2023. (Id. at 3–4.) Montana Pride applied for permits for the
2023 events on June 30 and July 13, 2023. (Id. at 3, 8–14, 16–22.) Montana Pride
represents that the applications proved “functionally identical” to those that the City
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that denying the requested permits would “infringe upon Plaintiff[s’] constitutional
rights.” (Doc. 10 at 2.) The City of Helena urged the Court to block enforcement of
H.B. 359 in time to allow Montana Pride to proceed without subject[ing] city
employees to criminal and civil liability under [] H.B. 359.” (Id. at 2–3.) The Court
granted a TRO to allow the City of Helena to issue Montana Pride’s requested
Spirit member of the Northern Cheyenne Tribe. (Doc. 5-2 at 3.) The term “Two-
Indigenous Montana history at the Butte Public Library on June 2, 2023. (Id.) Jawort
alleges that officers for the City-County of Butte-Silver Bow (“Butte-Silver Bow”)
ordered the library to cancel the lecture on June 1, 2023. (Id.) Plaintiffs attach the
cancellation email that the Butte Public Library sent to Jawort. (Id. at 7.) The email
explains that Butte-Silver Bow had determined that “hav[ing] a trans[] person in the
library” posed “too much of a legal risk” under H.B. 359. (Id. at 3, 7.) Butte released
PSA
(Id. at 10.) Jawort intended to present as herself and not in drag. (Id. at 5.) Jawort
further alleges that her lecture lacked “anything resembling ‘prurient interest.’” (Id.)
and historical characters as a learning tool. (Doc. 5-10 at 3–4.) Corcoran represents
that dressing up serves “to foster a successful and welcoming learning environment,”
“celebrate the success of [her] students, cultivate a sense of community, and further
encourage learning in the classroom.” (Id. at 4.) Corcoran selects characters to dress
up as without regard for “the gender or sex of the person being portrayed.” (Id.)
perform at Pride events across Montana, including the 2023 Montana Pride events.
(Id. at 5–7.) Imperial Court also fundraises for local causes and hosts educational
bookstore in Helena, Montana, that hosts author readings, book clubs, drag story
The Center and the Great Falls LGBTQ+ Center are LGBTQ+ community
centers in Missoula and Great Falls, Montana, respectively. (Doc. 3 at 9.) Both
BumbleBee operates an aerial arts and pole fitness studio in Helena, Montana. (Id.
at 8.) Imagine Nation is a brewery and community center in Missoula, Montana, that
at 10.) The Myrna Loy is an independent nonprofit arts and culture center in Helena,
Montana. (Id.) Montana Book Co., the Roxy, the Myrna Loy, and Imagine Nation
have received state funds, lease space from an entity that has received state funds,
and/or expect to receive state funds in the future. (Doc. 5-7 at 4; Doc. 5-5 at 3; Doc.
Austin Knudsen (“Knudsen”) is the Attorney General for the State of Montana
Butte-Silver Bow’s Chief Executive. (Doc. 3 at 11.) The City of Helena is the state
capital and an incorporated municipality. (Id. at 12.) The City of Helena evaluates
January 29, 2023. The Montana state legislature passed H.B. 359 on May 11, 2023.
Montana Governor Greg Gianforte signed H.B. 359 into law on May 22, 2023. The
statute took immediate effect. H.B. 359 § 7. The text of H.B. 359 criminalizes a wide
range of conduct, including “drag story hours” in schools and libraries that receive
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any amount of state funding. Id. § 3(2). The statute prohibits minors from attending
certain “sexually oriented shows.” Id. § 2(1). H.B. 359 proscribes all “sexually
oriented” performances in libraries or schools that receive public funding, id. § 3(1)–
(2), on public property “in the presence of” a minor, id. § 3(3)(a), and in any location
H.B. 359 defines “drag story hour” as “an event hosted by a drag queen or
drag king who reads children’s books and engages in other learning activities with
minor children present.” Id. § 1(3). The statute defines “drag king” and “drag queen”
persona with glamorous or exaggerated costumes and makeup.” Id. § 1(1), (2). H.B.
sex and features” any of the following: “the purposeful exposure, whether complete
or partial, of . . . a human genital, the pubic region, the human buttocks, or a female
breast, if the breast is exposed below a point immediately above the top of the areola”
1(10).
whether nudity results. Id. § 1(11). The statute contains no definition for “sexual
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criminal child abuse statute, Mont. Code Ann. § 45-5-625. H.B. 359 § 1(8) (2023).
genitals or of sexual conduct[.]” Id. “Lewd” and “lascivious” are not defined. Id.
H.B. 359 similarly fails to define “in the presence of” a minor. Id. § 3(3)(a).
businesses convicted under H.B. 359 face fines from $1,000 to $10,000 and, for a
Libraries, schools, public employees, and entities that receive any state funding face
certificate if convicted of violating H.B. 359. Id. § 3(4). H.B. 359 provides for a
private right of action in addition to imposing criminal liability. Id. § 4. A minor who
359 § 2, or the minor’s parent, may bring a civil action up to ten years after an alleged
Plaintiffs filed this action on July 7, 2023. (Doc. 1.) Plaintiffs filed an
Amended Complaint on July 17, 2023. (Doc. 3.) Plaintiffs sue Knudsen and Artnzen
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in their official capacities, Gallagher in his individual and official capacity, and the
City of Helena in its capacity as a municipal entity. (Doc. 3 at 5.) The Amended
Complaint contains the following five causes of action: (I) First Amendment Free
applied to Montana Pride; (IV) First Amendment Facial Free Speech Violation; and
(V) Fifth Amendment Facial Due Process Violation. (Doc. 3 at 38–43.) In addition
to injunctive relief, Plaintiffs seek declaratory judgment that H.B. 359 proves
facially unconstitutional; damages in favor of Jawort and Montana Pride and against
Gallagher and the City of Helena, respectively; and attorney’s fees and costs. (Id. at
44.)
4.) Plaintiffs sought an emergency TRO on or before July 30, 2023, so that Montana
Pride could take place without requiring the thousands of attendees, performers, and
other community members to chill their protected speech or face criminal and civil
liability. (Doc. 5 at 8.) The City of Helena filed a Response in support of Plaintiffs’
TRO request on July 24, 2023. (Doc. 10.) The Court held an emergency TRO hearing
on July 26, 2023. (Doc. 12.) The Court issued a limited TRO pending its
(Doc. 13.) Knudsen and Arntzen (“State Defendants”), filed a Response on August
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2, 2023. (Doc. 17.) Gallagher filed his Response and Answer on August 4, 2023, and
August 8, 2023, respectively. (Doc. 18; Doc. 21.) Gallagher takes no position on the
preliminary injunction motion. (Doc. 18 at 2.) The State and the City of Helena filed
their Answers on August 10, 2023. (Doc. 22; Doc. 23.) The Court conducted a
preliminary injunction hearing on August 28, 2023. (Doc. 26.) The Court dismissed
Defendant City of Helena without prejudice and dismissed Count III of the Amended
Complaint with prejudice on September 6, 2023, upon motion of the parties. (Docs.
29 and 30.)
Arntzen from enforcing H.B. 359 pending this Court’s resolution of the Plaintiffs’
Count IV and Count V regarding the constitutionality of H.B. 359. (Doc. 4.) The
Court’s analysis will focus on whether H.B. 359 facially violates Plaintiffs’ First
Amendment free speech rights and facially violates Plaintiffs’ Fifth Amendment due
process rights.
LEGAL STANDARD
relief. Envtl. Prot. Info. Ctr. v. Carlson, 968 F.3d 985, 989 (9th Cir. 2020). A party
seeking a preliminary injunction must establish the following four elements: (1) that
they are likely to succeed on the merits; (2) that they are likely to suffer irreparable
harm in the absence of a preliminary injunction; (3) that the balance of equities tips
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in their favor; and (4) that a preliminary injunction would be in the public interest.
Winter v. Natural Res. Def. Council, 555 U.S. 7, 20 (2008). “[H]arm to the opposing
party and the public interest[] merge when the Government is the opposing party.”
Nken v. Holder, 556 U.S. 418, 435 (2009). The Ninth Circuit evaluates the above
factors under a sliding scale. All. for the Wild Rockies v. Cottrell, 632 F.3d 1127,
1131–35 (9th Cir. 2011). A stronger showing on one factor may offset a weaker
DISCUSSION
Plaintiffs urge the Court to issue a preliminary injunction to extend the TRO
and prevent enforcement of H.B. 359 until the Court decides the case on the merits.
The Court will address each of the Winter factors with respect to Plaintiffs’ request
merits of the following two claims: (Count IV) First Amendment facial challenge to
to H.B. 359. (Doc. 5 at 18, 37.) Plaintiffs assert that H.B. 359 has chilled their speech
speech and expression. The Court must evaluate whether Plaintiffs have established
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success on the merits of Counts IV and V. Lujan v. Def. of Wildlife, 504 U.S. 555,
560–61 (1992).
A. Standing.
(1) that they suffered an injury to a legally protected interest that is concrete,
particularized, and actual or imminent; (2) that the defendant likely caused the
injury; and (3) that judicial relief likely would redress the injury. Id. at 560–61. The
U.S. Supreme Court has “altered its traditional rules of standing” for overbreadth
Defendants first contend that all Plaintiffs fail to allege a cognizable injury because
the State is not prosecuting any current enforcement actions under H.B. 359. (Doc.
tmp, 2023 WL 3790583, *16 (W.D. Tenn. June 2, 2023). The harm of censorship
Ass’n, 484 U.S. 383, 393 (1988). Plaintiffs also have alleged concrete injury in the
form of chilled speech and cancelled and modified events, as discussed below.
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“[S]tate officials who enforce[] an unconstitutional law ‘come[] into conflict with
the superior authority of [the] Constitution.’” Ex Parte Young, 209 U.S. 123, 159–
60 (1908).
responsible for enforcing Montana’s criminal laws. The Attorney General must
perform the following functions pursuant to statutory duties: prosecute all causes in
the supreme court “in which the state has an interest,” Mont. Code Ann. § 2-15-
501(1) (2023); “exercise supervisory powers over county attorneys [including] the
power to order and direct county attorneys in all matters pertaining to the duties of
their office” upon which order a county attorney must “promptly institute and
diligently prosecute in the proper court and in the name of the state of Montana any
(2023); “when required by the public service or directed by the governor, [] assist
the county attorney of any county in the discharge of the county attorney's duties,”
Mont. Code Ann. § 2-15-501(6) (2023); “when required by the public service or
directed by the governor, [] prosecute [] appropriate cases […] in which the state has
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an interest,” Mont. Code Ann. § 2-15-501(6) (2023); and “perform all other duties
The Montana Code fails to define the statutory phrases “required by the public
service” and “in which the state has an interest.” These phrases encompass “broad
and abstract terms that necessarily result in deference to the superseding state
Power Balance Between Local Prosecutors and State Officials, 68 Emory L.J. 95,
116 (2018). The Montana Supreme Court has interpreted the phrase “in which the
state has an interest” in the context of the Attorney General’s broad power to
determine when to institute legal action: “as an executive officer of the State of
which the State has an interest.” W. Tradition P'ship, Inc. v. Att'y Gen. of State, 291
The prosecutorial powers of the Montana Attorney General are vast. The
Montana Constitution and the Montana Code do not clearly demarcate the
boundaries of this power. For example, the Attorney General may “direct, in a
binding fashion,” the prosecutorial powers of any county attorney and “may in effect
deputize himself (or be deputized by the governor) to stand in the role of a county
prosecutor, and in that role exercise the same power to enforce the statute the
prosecutor would have.” Planned Parenthood of Idaho, Inc. v. Wasden, 376 F.3d
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908, 919, 920 (9th Cir. 2004) (state attorney general was a proper party in a challenge
to a state criminal statute where state law empowered the attorney general to “assist”
county attorneys and so “do every act that the county attorney can perform”).
The Attorney General’s authority to prosecute under H.B. 359 has not been
tested. “[T]he consequence of [the U.S. Supreme Court’s] departure from traditional
rules of standing in the First Amendment area is that any enforcement of a statute
thus placed at issue is totally forbidden until and unless a limiting construction or
U.S. at 613. The question of whether the Attorney General does indeed possess legal
authority to prosecute under H.B. 359 might remain open unless and until the officer
chose to attempt to prosecute under H.B. 359. This uncertainty does not shield the
Attorney General from the equitable power of this Court to belay the attempt.
Taken together, the ambiguity of state law and the sensitivity of First
Amendment expressive rights instruct that the threat of attempted prosecution by the
Attorney General proves equivalent, in its capacity to chill speech, to the threat of
prosecution by any county attorney in the state, whose authority to prosecute under
the statute is not in question. “[A] federal court may] command[] a state official to
do nothing more than refrain from violating federal law” without violating the state’s
sovereign immunity. Virginia Off. for Prot. & Advoc. v. Stewart, 563 U.S. 247, 255
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authority to channel the powers of the Board of Public Education (“the Board”) over
the certification of educators in the state. Montana law empowers the Board to
initiate proceedings under Mont. Code Ann. § 20-4-110 (2023) to revoke or suspend
certificates, but that power is not unlimited. The Board “may initiate proceedings
(2023) (emphasis added), or, in limited circumstances, on the request of the trustees
The Board may suspend or revoke certificates only for a finite list of reasons
once those proceedings are set in motion. Mont. Code Ann. § 20-4-110(1) (2023). If
a person were convicted under H.B. 359 § 3, the law requires that “proceedings []
be initiated to suspend the teacher [. . .] certificate of the offender under [Mont. Code
Ann. §] 20-4-110.” H.B. 359 § 3(4). Upon conviction under H.B. 359 § 3 after an
teacher [. . .] certificate of the offender under [Mont. Code Ann. §] 20-4-110.” Id.
represents a proper party to enjoin. H.B. 359 authorizes the Superintendent of Public
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nothing in Montana law limits the power of the Superintendent of Public Education
certificate, Montana law limits the Board to the list of reasons set forth in Mont.
Public Instruction in deciding whether “the [B]oard may initiate proceedings” under
the section. The Superintendent of Public Instruction could permit the Board to
initiate proceedings that eventually would fail. The hassle and embarrassment of
initiation of proceedings under Mont. Code Ann. § 20-4-110 (2023) includes the
i. Individual Standing.
The Court next will consider whether Plaintiffs have established individual
actual injury to her First and Fourteenth Amendment rights flowing from the
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cancellation of her June 2, 2023, lecture on trans and Indigenous Montana history at
the Butte Public Library. (Doc. 5-2 at 3, 7, 10.) Jawort has proffered evidence that
the event cancellation occurred in response to H.B. 359 and because of her status as
a trans person and the LGBTQ+-related message she wished to deliver. (Doc. 5-2 at
3–5, 7, 10.)
prosecution under the plain text of H.B. 359 for dressing up in gendered costumes
in the classroom. (Doc. 5-10 at 3–4.) Jawort and Corcoran directly link their speech-
based injuries to H.B. 359. Blocking enforcement of H.B. 359 would remedy Jawort
and Corcoran’s actual and imminent injuries. See Elrod v. Burns, 427 U.S. 347, 373
interests [of moving parties] were either threatened or in fact being impaired at the
time relief was sought.”) Jawort and Corcoran each have established individual
An entity possesses standing to sue on its members’ behalf when it can satisfy
the following three elements: (1) that its members otherwise would have standing to
sue in their own right, (2) that the interests at stake prove germane to the entity’s
purpose, and (3) that neither the claim asserted nor the relief requested requires the
participation of the individual members in the suit. Hunt v. Wash. State Apple Advert.
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Plaintiffs allege that Imperial Court, the Center, and the Great Falls LGBTQ+
Center are membership organizations. (Doc. 5-3 at 2–3; Doc. 3 at 31.) Plaintiffs
allege that all members of these organizations have suffered violations of their First
Amendment rights to free speech and expression. (Doc. 3 at 32.) Imperial Court
members allegedly have suffered from drag show cancellations, postponements, and
modifications. (Doc. 5-3 at 5–7.) Imperial Court members also have dropped out of
scheduled drag performances due to fear of criminal and civil sanctions under H.B.
359. (Doc. 3 at 30.) These alleged injuries prove cognizable and satisfy the causation
and redressability prongs for the same reasons as Jawort’s and Corcoran’s alleged
speech-based injuries. The Court, the Center, and the Great Falls LGBTQ+ Center
performances that explore multiple gender expressions” and to “create a safe and
welcoming environment.” (Doc. 5-3 at 2.) The Center and the Great Falls LGBTQ+
Center each seek to support LGBTQ+ people and communities. (Doc. 3 at 9.) The
interests asserted in this action prove “germane” to the purposes of the Imperial
Court, the Center, and the Great Falls LGBTQ+ Center. Hunt, 432 U.S. at 343.
Plaintiffs, aside from Jawort, seek only declaratory and injunctive relief rather
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than damages. (Doc. 3 at 44.) The Imperial Court, the Center, and the Great Falls
LGBTQ+ Center members need not be party to this action. Hunt, 432 U.S. at 343;
see also Garcia v. City of Los Angeles, 611 F. Supp. 3d 941, 952 (C.D. Cal. 2020).
The Court determines that the Imperial Court, the Center, and the Great Falls
LGBTQ+ Center have established associational standing and may assert claims on
Asociacion de Trabajadores de Lake Forest v. City of Lake Forest, 624 F.3d 1083,
that its “ability to further its goals has been ‘perceptively impaired’ so as to constitute
far more than simply a setback to the organization’s abstract social interests.”
Montana Pride, Imperial Court, BumbleBee, the Center, the Great Falls
LGBTQ+ Center, Montana Book Co., Imagine Nation, the Roxy, and the Myrna Loy
at 32.) Organizational Plaintiffs further allege a fear of prosecution under H.B. 359,
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a statute that they argue proves unconstitutionally vague and overbroad. (Id. at 30–
drag shows and pole modeling events, respectively. (Doc. 5-3 at 5–7; Doc. 5-4 at 5–
6.) Organizational Plaintiffs’ alleged injuries prove cognizable and satisfy the
causation and redressability prongs for the same reasons as Jawort’s and Corcoran’s
alleged injuries.
one basis for standing. Lujan, 504 U.S. at 560–61; Broadrick, 413 U.S. at 612. The
Court will proceed to evaluate the first Winter factor: likelihood of success on the
California, 413 U.S. 15, 24 (1973). Speech must meet the following three criteria to
qualify as legally “obscene”: (1) the speech, “taken as a whole, appeal[s] to the
speech “portray[s] sexual conduct in a patently offensive way”; and (3) the speech,
“taken as a whole, do[es] not have serious literary, artistic, political, or scientific
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obscenely exposing one’s body, and giving obscene performances to minors, among
other conduct. Mont. Code Ann. § 45-8-201(1) (2023). This statute employs a
the prurient interest.” See generally H.B. 359. The statute similarly fails to require
that speech be “patently offensive.” Id. H.B. 359 contains no carveout for speech or
State Defendants conceded during the July 26, 2023, hearing that the statutory
text of H.B. 359 regulates speech and expression outside that considered “obscene”
under Miller. The Court determined in its July 28, 2023, TRO that H.B. 359 regulates
rather than the standard First Amendment scrutiny analysis. Courts apply an
including threats, “fighting words,” obscenity, and child pornography. See Marc
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Overbreadth and ‘Scrutiny’ Analysis in the Law of Freedom of Speech, 11 ELON L.J.
95, 100 (2017). A statutory prohibition that conforms to the specific test for that
category of unprotected speech (e.g., the Miller test for obscenity) proves
facially overbroad. The U.S. Supreme Court invalidated, for example, a Georgia
“fighting words” statute that exceeded the judicially approved definition of that
category of unprotected speech. Gooding v. Wilson, 405 U.S. 518, 528 (1972).
Apart from unprotected “low value speech,” federal courts reviewing restrictions on
scrutiny. R.A.V. v. St. Paul, 505 U.S. 377, 382 (1992). H.B. 359 does not regulate
obscenity or child pornography. The Court applies the First Amendment tiered
represents “a central tenet of the First Amendment.” F.C.C. v. Pacifica Found., 438
U.S. 726, 745–46 (1978). Courts subject content- and viewpoint-based restrictions
on speech or expression to strict scrutiny. Reed v. Town of Gilbert, 576 U.S. 155,
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163 (2015). Content discrimination takes place when the government selects “the
subjects that may be discussed[.]” Perry Educ. Ass’n v. Perry Local Educators’
Ass’n, 460 U.S. 37, 59 (1983) (Brennan, J., dissenting). Viewpoint discrimination,
thereby suppressing a particular view about a subject.” Id. The Court will consider
particular speech because of the topic discussed or the idea or message expressed.’”
City of Austin v. Reagan Nat’l Advert. of Austin, LLC., 596 U.S. 61, 69 (2022)
The only two other district courts to have considered First Amendment
challenges to similar state “drag bans” concluded that those laws constitute facially
2023 WL 4157542, at *7. The district court in Friends of George’s issued a TRO
blocking the Adult Entertainment Act (“AEA”), Tennessee’s drag ban, the day
before it would have taken effect. 2023 WL 3790583, at *3. The Florida drag ban at
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issue in HM Florida, by contrast, had come into effect at the time of the district
H.B. 359 bans drag story hours during “regular operating hours and at any
public funding. H.B. 359 § 3(2). The law imposes significant restrictions on
broad definitions of sexual and gendered content. Id. §§ 2, 3. State Defendants argue
that the codification instruction contained in H.B. 359 § 5(1) narrows the sweep of
civil and criminal liability. (Doc. 17 at 20–21.) Section 5(1) of H.B. 359 incorporates
Public Order.” H.B. 350 § 5(1) (citing Mont. Code Ann. § 45-8 (2023)). State
Defendants note that the definition of “performance” contained in Mont. Code Ann.
H.B. 359 still restricts a broad range of other speech and expression even with
the carveout for rated films. This other speech and expression ranges from theatre
productions to book readings to drag shows, based upon their content. The
constitutional problems with H.B. 359 statutory scheme identified by the Court in
its TRO persist. (Doc. 13 at 14–16.) H.B. 359 does not qualify as a neutral time,
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State Defendants also argue that H.B. 359 proves content-neutral because it
addresses the Montana legislature’s concern with the “secondary effects of sexually
expressive conduct on minors.” (Doc. 17 at 19–20.) None of the three cases cited by
State Defendants supports this conclusion. City of Erie v. Pap’s upheld a municipal
ordinance in Pennsylvania that banned nudity in public places. 529 U.S. 277, 282–
83 (2000). The U.S. Supreme Court determined that the regulation proved “unrelated
harmful “secondary effects” of nude dancing and bore no relation to the expressive
message of the conduct. Id. at 296. City of Erie evaluated the regulation under a “less
stringent” standard that applies only to regulations that are unrelated to the content
of the expression being limited. Id. The plaintiff in City of Erie also failed to dispute
the validity of the city council’s findings about harmful secondary effects on public
WL 3790583, at *26. The district court in Friends of George’s concluded that its
“determination that the AEA was enacted for an impermissible purpose is broad
enough to reject the notion that the AEA is aimed not at the content of expressive
speech but rather at its secondary effects.” Id. As in Friends of George’s, H.B. 359
targets speech based upon content. Unlike in City of Erie, Plaintiffs vehemently
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dispute the validity of the Montana legislature’s findings relating to drag, gender
nonconformity, and harm to minors. The secondary effects doctrine does not apply.
The two other cases upon which Defendants rely prove equally inapposite.
certain public parks. 468 U.S. 288, 289–90 (1984). The plaintiffs sought to sleep
overnight in Lafayette Park and the National Mall as a protest of housing insecurity.
Id. The parties agreed that the regulation was content-neutral. Id. at 295. The U.S.
Supreme Court upheld the restriction as a valid time and place restriction “designed
to limit the wear and tear on park properties” and “unrelated to suppression of
expression.” Id. at 299. Ward v. Rock Against Racism involved a challenge to New
York City’s sound-amplification ordinance for Central Park. 491 U.S. 781, 784
(1989). Ward upheld the ordinance as a content-neutral place and manner restriction
governmental interests of avoiding excessive sound volume” in the park. Id. at 803.
H.B. 359 focuses on the communicative content of the speakers. H.B. 359
imposes a content-based restriction. City of Austin, 596 U.S. at 69. Strict scrutiny
applies.
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Rector & Visitors of Univ. of Va., 515 U.S. 819, 828–29 (1995). Viewpoint-based
restrictions on speech “raise the specter that the Government may effectively drive
certain ideas or viewpoints from the marketplace.” R.A.V., 505 U.S. at 387 (1992)
“adult cabaret entertainment.” Tenn. Code Ann. §§ 7-51-1401(2), (12). H.B. 359
similarly restricts “drags king[s]” and “drag queen[s],” defined as “male or female
glamorous or exaggerated costumes and makeup.” H.B. 359 § 1(1)–(3). The district
those who wish to [portray or express] a gender that is different from” that assigned
to them at birth. 2023 WL 3790583, at *21. The same reasoning applies to H.B. 359
H.B. 359 goes even further than the AEA. H.B. 359 places a near-blanket ban
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on “drag story hour” in schools and libraries receiving public funds. H.B. 359 §§
1(3), 3(2). The AEA, by contrast, made no mention of “drag story hour.” See Tenn.
Code Ann. §§ 7-51-1401 et seq., 39-17-901. The AEA incorporated the Miller
obscenity test into its definitions for “harmful to minors” and “obscene.” Tenn. Code
Ann. §§ 39-17-901(6), (10)–(11). H.B. 359 fails to track the Miller obscenity factors
artistic, political, or scientific value.” Miller, 413 U.S. at 24. H.B. 359, like the AEA,
Austin, 596 U.S. at 76. A court considering this question evaluates a statute’s
animates the law. Reed, 576 U.S. at 166. This investigation proves particularly
George’s, 2023 WL 3790583, at *22 (citing Reed, 576 U.S. at 166). State
Defendants contend that H.B. 359’s legislative history demonstrates that the
Montana legislature possessed legitimate concerns about drag events causing harm
to children, in part because the public expressed “significant public concern” about
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drag as harmful to children. (Doc. 17 at 19.) The Court, like the district court in
Friends of George’s, will examine H.B. 359’s legislative history. 2023 WL 3790583,
at *23–27.
The Montana legislature held public meetings on February 9, 2023, and April
4, 2023. H.B. 359 sponsor Rep. Mitchell’s opening remarks for the bill during the
http://sg001-harmony.sliq.net/00309/Harmony/en/PowerBrowser/PowerBrowserV
times during his opening. Rep. Mitchell explicitly stated that “[t]he reason I’m
bringing this bill is because . . . drag shows in recent years have been specifically
aimed at children.” Id. at 08:21:57. Rep. Mitchell stated that “there’s no such thing
warned that “there’s clearly a sick agenda being pushed here” and that “[d]rag shows
08:23:16–19; 08:23:52.
Rep. Mitchell delivered the same introductory comments for H.B. 359 at the
Senate Judiciary Committee Hearing on April 4, 2023. Mont. Leg., Sen. Jud. Comm.
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PowerBrowser/PowerBrowserV2/20170221/-1/47987?agendaId=269135. Rep.
Id. at 11:09:40. State Senator Carl Glimm (“Sen. Glimm”), the Senate carrier for the
bill, focused his opening remarks in support of H.B. 359 during a Senate Floor
Session on April 17, 2023, on the danger that drag events sexualize children,
Google search.” Mont. Leg., Sen. Floor Sess., 18:09:01–18:10:14 (Apr. 17, 2023),
http://sg001-harmony.sliq.net/00309/Harmony/en/PowerBrowser/PowerBrowserV
2/20170221/-1/46256?agendaId=273842.
Amendment Process.
Montana House first amended H.B. 359 on February 15, 2023. The amendment
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interest.” H.B. 359.2 § 1(1). The amendment added a definition for “prurient
interest” as anything “having a tendency to excite lustful thoughts.” Id. § 1(3). The
children are present and in locations owned by an entity that receives any form of
The second amendment to H.B. 359 added “obscene” to the definition of “drag
performance.” H.B. 359.3 § 1(1). The amended version of the bill defined “obscene”
according to Mont. Code Ann. § 45-8-201 (2023), which incorporates the three-part
Miller obscenity test. H.B. 359.3 § 1(7). It also defined “prurient interest” under
Mont. Code Ann. § 45-8-205 (2023) and added an effective date. H.B. 359.3 §§ 1(8),
6.
The Montana Senate adopted an amendment from State Senator Chris Friedel
(“Sen. Friedel”) on April 17, 2023 (“Friedel amendment”). Sen. Floor Sess. at
18:17:07 (Apr. 17, 2023). The Friedel amendment removed each reference to “drag”
H.B. 359.3 § 1(1)–(2). Sen. Friedel asserted that his amendment proved necessary
because a reviewing judge would “strike [H.B. 359] down for unconstitutionality.”
Id. at 18:11:23–18:11:59. Sen. Glimm cautioned that the Friedel amendment would
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“allow[] all these [drag events] under art and so it really just completely guts the
bill[.]” Id. at 18:12:40. State Senator Brad Molnar (“Sen. Molnar”) expressed
concern that the Friedel amendment would “hurt the original intention of the bill”
because it would not apply to some or all drag story hours. Id. at 18:13:40–18:14:27.
The Montana House considered the Friedel amendment to H.B. 359 during a
House Floor Session on April 24, 2023. Mont. Leg., H. Floor Sess. 16:54:20 (Apr.
floor session that the Friedel amendment had “completely derailed the intent of this
legislation.” Id. at 16:54:42. Rep. Mitchell also expressed concern that the changes
unconstitutional.” Id. at 16:55:12. The House rejected the Friedel amendment and
The conference committee submitted a report two days later, on April 26,
2023. The House adopted the conference committee’s report on May 1, 2023, after
less than four minutes of discussion. Mont. Leg., H. Floor Sess., 14:28:43 (May 1,
2023), http://sg001-harmony.sliq.net/00309/Harmony/en/PowerBrowser/PowerBro
added the “drag story hour” ban in publicly funded schools and libraries; added
definitions for “drag king” and “drag queen;” replaced “adult oriented” with
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“sexually oriented;” and added a private right of action. Id. at 14:21:40; 14:22:32.
Rep. Mitchell explained that the “only time drag is referenced in this bill now
is for the story hour aspect. When these folks try to perform in schools and libraries
it’s usually conducted in a very sexual manner.” Id. at 14:21:52. Rep. Mitchell stated
that that the reason “we have to specifically state [‘drag story hour’] in the bill . . . is
because all that [drag performers] have to do is just call it ‘art story hour’ and they
get away with it[.]” Id. at 14:22:08. Rep. Mitchell characterized opponents’ concerns
that H.B. 359 would be applied to artistic and theatrical productions like “Ms.
following less than three minutes of discussion. Mont. Leg. Sen. Floor Sess.
Matt Regier (“Rep. Regier”) closed discussion of H.B. 359 by stating that “H.B. 359
doesn’t stop drag, it only protects youth from it.” Id. at 14:04:49.
Public Testimony.
Defendants additionally contend that public testimony on H.B. 359 during the
potential harm to minors.” (Doc. 17 at 19.) Members of the public testified at both
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State Defendants first cite testimony from a private person during the House
(Feb. 9, 2023). The proponent expressed concern about an out-of-state drag event
that allegedly had sexualized children. Id. The Court lacks sufficient information to
evaluate these allegations. The Court notes that anecdotal evidence about an event
outside Montana, even if verified, would fail to support a causal relationship between
State Defendants also highlight the testimony of a proponent of H.B. 359 who
referenced an academic article about “drag pedagogy” during the Senate Judiciary
excerpt from the article that drag, queer, and trans pedagogies seek to “destabilize
children. Sen. Jud. Comm. Hrg. at 08:58:50 (Apr. 4, 2023); see Harper Keenan &
Lil Miss Hot Mess, Drag Pedagogy: The Playful Practice of Queer Imagination in
mischaracterizes the article. The authors critique traditional schooling models that
they claim limit critical thinking and participatory learning. The article supports the
academic and developmental merits of drag in early childhood education on the basis
that drag “promotes a spirit of creative inquiry and world making” and “a vision of
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Drag Queen Story Hour employee had been arrested on child pornography charges.
Sen. J. Comm. Hrg. at 08:59:38 (Apr. 4, 2023). The Associated Press has refuted
target drag storytimes[.]” Ali Swenson, Man Charged for Child Porn Didn’t Work
disagreement with the academic article, nor their reliance upon a disproved and
inflammatory claim, provides a basis for a finding that drag harms children.
Twenty-eight proponents spoke in favor of H.B. 359 during the House and
(Feb. 9, 2023); Sen. Jud. Comm. Hrg. at 08:55:42–09:04:09 (Apr. 4, 2023). Speakers
Family Foundation, Moms for Liberty Yellowstone County (“Moms for Liberty”),
proponent offered evidence-based support for a link between drag and the
Eighty-seven total opponents spoke against H.B. 359 during the hearings. H.
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Against Domestic and Sexual Violence, American Civil Liberties Union (“ACLU”)
Policy Center, Montana Women Vote, and Montana Human Rights Network); three
LGBTQ+ and/or drag-focused orgs (Montana Pride, Imperial Court, and the Jedi
Theater, Holter Museum of Art, Alpine Theater Project, and Grand Street Theater).
Analysis.
purpose animates H.B. 359. Sponsor Rep. Mitchell uniformly described the purpose
of the law as restricting drag story hours and performances. See, e.g., H. Jud. Comm.
Hrg. at 08:21:57 (Feb. 9, 2023); H. Sen. Jud. Comm. Hrg. at 08:53:08 (Apr. 4, 2023);
H. Floor Sess. at 14:21:52–14:22:08 (May 1, 2023). Rep. Mitchell has affirmed that
H.B. 359 does not aim to restrict non-drag-related artistic content that the Court has
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determined to fall within the statutory text. H. Floor Sess. at 14:22:27 (May 1, 2023).
Rep. Mitchell, Sen. Glimm, Rep. Regier, and Sen. Molnar repeated arguments
that “there’s no such thing as a family-friendly drag show,” that drag performers are
“hyper-sexualized,” that opponents to the bill were pushing “a sick agenda,” that
“[d]rag shows are damaging to a child’s psychology and general welfare,” and that
H. Jud. Comm. Hrg. at 08:22:52; 08:23:16–19; 08:23:52 (Feb. 9, 2023); Sen. Floor
speech and expression of drag performers and gender non-conforming people. The
Montana legislature considered and ultimately rejected incorporating the Miller test
(Apr. 17, 2023). The legislature later restored the references in a subsequent version
of the bill after Rep. Mitchell and other supporters expressed concerns that the
amendment would preclude H.B. 359’s application to drag performances and drag
story hours and thereby had “completely derailed” the bill’s purpose. See, e.g., H.
The Court also takes notice of Rep. Mitchell’s acknowledgement that the
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16:55:12. H.B. 359 as enacted substitutes “sexually oriented” for “adult oriented”
undefined “presence of minors.” Compare H.B. 359.4 § 3(3), with H.B. 359 § 3(3).
Public testimony from proponents of H.B. 359 offered only anecdotal and/or
with harm to children. The legislative history includes extensive public concerns
legislators. H.B. 359’s public testimony adds further support to the Court’s finding
that the legislature passed the law for an impermissible purpose. The legislative
history of H.B. 359 evinces an overt and impermissible purpose to target the speech
and gender non-conforming people. Strict scrutiny would apply even were H.B.
359’s statutory text content-neutral and viewpoint-neutral. Reed, 576 U.S. at 166.
proves “narrowly tailored to serve compelling state interests.” Reed, 576 U.S. at 163
alternatives.” Ashcroft v. ACLU, 542 U.S. 656, 666 (2004). State Defendants
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provided no evidence during the July 26, 2023, TRO hearing to support a finding
State Defendants assert in their Response that H.B. 359 addresses the Montana
legislature’s concern that “sexually oriented performances and drag story hours are
“indecent” and “potentially harmful to minors.” (Doc. 17 at 19.) The Court does not
protecting the safety and welfare of children. State Defendants have failed to
H.B. 359 bear any connection to this interest. Reed, 576 U.S. at 163.
State Defendants urge the Court to accept a purported link between drag
performances and adverse outcomes for children’s wellbeing. (Doc. 17 at 19, 22.)
State Defendants emphasize that Imperial Court acknowledges that some drag
performances are not appropriate for children and that the organization crafts
4).) The fact that drag organizations carefully tailor performers’ costumes and
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legislature and witnesses at the hearings on H.B. 359 to support their claims of
potential harm to children. The Montana legislature’s justification for H.B. 359 relies
and gender expression. State Defendants’ claim that H.B. 359 is “not aimed at
In fact, the research indicates that sexual orientation, gender identity, and
people are no more likely than heterosexual people to sexually abuse children. Gene
G. Abel & Nora Harlow, Child Molestation Prevention Study, in THE STOP CHILD
MOLESTATION BOOK (2001). Ninety percent of people who sexually abuse children
Against Juveniles, CRIMES AGAINST CHILDREN RESEARCH CTR. & OFF. JUVENILE J.
& DELINQUENCY PREVENTION (2012). The conflation of gender and sexual minority
LGBTQ+ youth, for example, are 3.8 times more likely to experience
childhood sexual abuse and 1.2 times more likely to experience parental physical
40
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Robert W.S. Coulter, & Emily F. Rothman, Sexual Assault Risk and Prevention
Orchowski & Christine A. Gidycz eds. 2018); see also Nathaniel M. Tran, Laura
Trans people are over four times more likely than cisgender people to be
victims of violent crime. Andrew R. Flores, Ilan Meyer, Lynn L. Langton, & Jody
Victimization Survey, 2017–2018, 111 AM. J. PUB. H. 726 (2022). Trans and
nonbinary youth, while no more likely than cisgender youth to perpetrate sexual
violence, are more than twice as likely to experience sexual violence. Michele L.
Ybarra, Kimberly L. Goodman, Elizabeth Saewyc, Jillian R. Scheer, & Ida Frugård
Transgender Boys and Girls, Cisgender Boys and Girls, and Nonbinary Youth, 5 J.
performers as “groomers” feeds animus against LGBTQ+ people. This animus has
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LGBTQ children and adolescents experience is not the result of their gender non-
conformity or LGBTQ identity . . . but rather the way they are treated for being
Conversion Therapy: Supporting and Affirming LGBTQ Youth, U.S. DEP’T H. &
A recent study found that nearly one-third of LGBTQ youth reported that their
mental health was poor most of the time or always due to anti-LGBTQ+ policies and
legislation. TREVOR PROJECT, 2023 U.S. National Survey on the Mental Health of
seriously considered attempting suicide in the past year. Id. at 4. Most youth who
are out as trans or perceived as trans while in school (K–12) experience some form
(24 percent), and/or sexually assaulted (13 percent) because they are trans. Sandy E.
James, Jody L. Herman, Susan Rankin, Mara Keisling, Lisa Mottet, & Ma’ayan
Anafi, 2015 U.S. Transgender Survey, NAT’L CTR. FOR TRANSGENDER EQUALITY, 4
(Dec. 2016). Seventeen percent of trans youth surveyed experienced such severe
mistreatment that they left a school as a result. Id. The Court rejects the State’s
attempt to invoke a professed concern for children’s welfare as cover for government
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Contracting, Inc. v. Becerra to assert that H.B. 359 represents a valid exercise of the
173, (1991); 898 F.3d 879 (9th Cir. 2018). “Congress may selectively fund a
at the same time funding an alternative program which seeks to deal with the
clinics that received Title IX funding from discussing abortion with their patients.
500 U.S. at 203. Interpipe involved a challenge to SB 954, a California statute that
consent. 898 F.3d at 903. The Ninth Circuit upheld the law on the basis that it
“trim[med] a state subsidy rather than infringe[d] a First Amendment right.” Id. at
898. The Ninth Circuit additionally determined that SB 954 did not discriminate
Both cases prove distinguishable. Nothing about H.B. 359 allocates or places
conditions upon state funding. Receipt of any amount of state funding instead serves
as a prerequisite for criminal and civil liability under sections three and four. H.B.
359 §§ 3(1–(2), (3)(b), 4. A school, library, or business that has received any amount
of public funding at any time proves subject to H.B. 359 regardless of the dollar
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amount, ratio of state to private funding, or time elapsed since receipt of the funding.
State Defendants finally argue that H.B. 359 complies with the First
Amendment because it does not impose an outright ban. (Doc. 17 at 23–24.) State
Defendants note that H.B. 359 “does not prevent [drag shows on] non-publicly
funded private property” and “does not restrict drag show story hours at libraries or
activities.” (Id. at 23.) State Defendants explained during the hearing on July 26,
2023, that a drag story hour still could take place at a library at 11:00 P.M. Forcing
protected expression to take place under cover of darkness, rather than banning it
outright, does not save H.B. 359 from constitutional infirmity. H.B. 359 is not
666. Plaintiffs likely will succeed on the merits of their First Amendment claim in
Count IV.
Plaintiffs assert that H.B. 359 proves unconstitutionally vague and overbroad.
(Doc. 5 at 37.) The Fifth Amendment to the U.S. Constitution requires that no person
may “be held criminally responsible for conduct which [they] could not reasonably
understand to be proscribed.” United States v. Harriss, 347 U.S. 612, 617 (1954)
(internal citations omitted). Criminal laws must define an offense “with sufficient
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definiteness that ordinary people can understand what conduct is prohibited and in a
Kolender v. Lawson, 461 U.S. 352, 357 (1983). A statute that fails to meet either of
these requirements violates the Due Process Clause and proves facially invalid. City
Plaintiffs argue that H.B. 359 contains numerous vague and overbroad
definitions. (Doc. 5 at 33–35, 38.) Plaintiffs additionally highlight that the statute
fails to define other terms. (Id.) State Defendants assured the Court during the July
26, 2023, TRO hearing that H.B. 359’s statutory language proves sufficiently
definite and tailored and that Plaintiffs face no risk of criminal prosecution under its
terms. State Defendants distinguished H.B. 359 from the analogous Tennessee and
Florida drag bans, each deemed unconstitutionally vague and overbroad, on the basis
that those laws failed to define “lewd.” H.B. 359 fails, however, to define “lewd and
lascivious.” H.B. 359 § 1(8). H.B. 359 additionally fails to define the terms
State Defendants neglect to explain the absence of definitions for these terms
in their Response. State Defendants instead offer the conclusory statement that “the
vast majority of [H.B. 359’s] intended applications” cover the “intentional exposure
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where such exposure is likely to occur.” (Doc. 17 at 25–26.) State Defendants further
note that H.B. 359’s “defined terms, other terms defined in law, the plain meaning
of its terms, narrowing context, and the Legislature’s obvious underlying intent”
together clarify that the law is sufficiently clear and definite. (Id. at 26.) The Court
disagrees.
H.B. 359’s missing definitions and its definitions for “drag king,” “drag
queen,” “drag story hour,” “nude,” “public property,” “sexually oriented,” “sexually
significant risk of vagueness and overbreadth. H.B. 359 § 1(1)–(4), (6), (8)–(11). A
removes only outer layers still might fall within H.B. 359’s definition of
H.B. 359, could apply both to someone fully clothed, with part of their buttocks
visible through partially sheer fabric, and to someone in a bathing suit that partially
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H.B. 359’s broad private right of action allows any minor or their parent to
bring a suit against someone whom they believe has violated the statute up to ten
years after the alleged violation. H.B. 359 § 4. H.B. 359 contains no carveout for
413 U.S. at 24. The law makes no reference to geographical limitations. A minor
could be considered “present” in a public park even if they were hundreds of yards
away and out of earshot. Id. § 3(3)(a). Parental consent proves irrelevant to potential
criminal liability. H.B. 359 provides for no affirmative defenses. See generally H.B.
359. The statute leaves the public in the dark about what conduct might carry
H.B. 359 fails to define the conduct that it criminalizes “with sufficient
Kolender, 461 U.S. at 357. H.B. 359 additionally appears likely to “encourage
arbitrary and discriminatory enforcement.” Id. H.B. 359’s liability scheme, including
people who are not drag performers but who do not conform to traditional gender
example, rests upon a distinction between “female” and “prosthetic” breasts. H.B.
A trans man who has undergone gender affirming surgery to remove breast
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tissue could face liability for showing his bare chest. Id.; see also H.B. 458. A trans
woman who receives medically necessary hormone replacement therapy and who
has developed breast tissue or who has undergone gender affirming surgery to
receive breast implants could face similar liability. Authorizing members of the
public and state authorities alike to draw such a distinction with respect to the bodies
of other people likely would all but require them to engage in identity-based
H.B. 359 also permits private citizens and state authorities to pursue legal
action based upon a judgment as to who qualifies as a “drag king” or “drag queen.”
definition of these terms for guidance. Id. H.B. 359’s statutory scheme targets drag
story hours and drag performances. It also targets trans, Two-Spirit, non-binary,
in ways different from the gender assigned to them at birth. Butte-Silver Bow’s
decision to cancel Jawort’s history lecture on the basis that “hav[ing] a trans[]
person” in the Butte Public Library posed “too much of a legal risk” under H.B. 359
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Kolender, 461 U.S. at 357. Its terms also “encourage arbitrary and discriminatory
legislative history. Id. As with the Florida drag ban enjoined in HM Florida, H.B.
the merits of Count V. Morales, 527 U.S. at 56. The Court determines that Plaintiffs
Plaintiffs assert that irreparable harm has occurred and will continue in the
Plaintiffs have experienced no irreparable injury for the same reasons that they
possess no standing. (Doc. 17 at 33.) The Court has considered and rejected these
however, from the text and application of H.B. 359. “The loss of First Amendment
injury.” Roman Cath. Diocese v. Cuomo, 592 U.S. ___, 141 S. Ct. 63, 67 (2020).
The harm of censorship “can be realized even without an actual prosecution.” Am.
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preliminary injunction. Plaintiffs cannot avoid potential criminal and civil liability
under H.B. 359 unless they engage in self-censorship or abandon their organizational
missions. Imperial Court has curtailed its speech and expression, including at other
recent Pride events across the state, in response to H.B. 359. (Doc. 5-3 at 5–7.)
Imperial Court and BumbleBee have experienced irreparable harm due to cancelled,
postponed, or modified events. (Id.; Doc. 5-4 at 5–6.) The Roxy represents that it is
“unsure how [it] can possibly comply” with the statute. (Doc. 5-5 at 10.) The Myrna
Loy similarly alleges that it “is unable to determine how we can come into
compliance with H.B. 359 while still serving our mission[.]” (Doc. 5-6 at 6.)
Corcoran, the Roxy, the Myrna Loy, Montana Book Co., BumbleBee, and Imagine
Nation all allege fear of the potential revocation of their professional licenses or
reasonable fear of criminal and civil liability under H.B. 359 constitute irreparable
injury. Roman Cath. Diocese, 592 U.S. at ___, 141 S. Ct. at 67; Am. Booksellers
Ass’n, 484 U.S. at 393. Plaintiffs have demonstrated irreparable harm and have
Defendants assert that “[t]he State, and the public at large, maintains a
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public interest. See HM Fla., 2023 WL 4157542, at *9; Friends of George’s, Inc.,
2023 WL 2755238, at *7. Plaintiffs have presented evidence that drag story hours,
drag performances, and gender expansive speech and expression serve the public
interest. (See Doc. 5-3 at 3–4; Doc. 5-9 at 3–4; Doc. 5-10 at 4.) No evidence before
the Court indicates that State Defendants have suffered any harm following the
obscenity. Mont. Code Ann. § 45-8-201 (2023). Parents simply can decide not to
take their children to drag story hours or drag performances. The public interest
CONCLUSION
“Fear . . . cannot alone justify suppression of free speech and assembly. Men
feared witches and burnt women. It is the function of speech to free [people] from
the bondage of irrational fears.” Whitney v. California, 274 U.S. 357, 376 (1927)
U.S. 444 (1969). “[S]peech that is neither obscene as to youths nor subject to some
other legitimate proscription cannot be suppressed solely to protect the young from
ideas or images that a legislative body thinks unsuitable for them.” Erznoznik v.
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H.B. 359 targets protected speech and expression. The statutory text and
indicates that minors face any harm from drag-related events or other speech and
expression critical of gender norms. H.B. 359’s terms prove vague and overbroad,
trans, Two-Spirit, and gender nonconforming people. Morales, 527 U.S. at 56.
U.S. at 22. The Court will enjoin Defendants from enforcing H.B. 359.
The parties stipulate that Defendants Knudsen and Arntzen are not entitled to
a jury trial on Plaintiffs’ claims for declaratory and injunctive relief raised in Counts
IV and V. (Doc. 31.) The parties stipulate, however, that Defendant Gallagher is
entitled to a jury trial on Plaintiffs’ claims under § 1983 raised in Counts I and II.
(Doc. 31.) These claims relate to alleged violations of Plaintiff Jawort’s rights under
the First and Fourteenth Amendments. (Doc. 3.) Plaintiffs’ Counts I and II also
Amendment] rights.” Id. The parties have not stipulated that Defendant Knudsen is
entitled to a jury trial on these claims, but instead represent to the Court that they
“intend to identify those issues that are purely legal—and suitable for judicial
resolution” as to Knudsen re Counts I and II—if indeed any such issue exists. (Doc.
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31.)
reputational, and dignitary harm flowing from the cancellation of her June 2, 2023,
history lecture at the Butte Public Library. (Doc. 3.) Butte-Silver Bow’s decision to
cancel the lecture occurred despite Jawort’s express intent to present as herself rather
than in drag. (Doc. 5-2 at 4–5.) Jawort likely will rely on this fact in arguing that
ORDER
GRANTED.
53