Judge Extends Injunction Against Montana’s Anti-Drag Show Law

Free Speech

from the keep-on-losing,-bigots dept

Losing must be the new winning. With a single exception (and that was only a public college), every state (or city) that has passed an anti-drag show law has seen it blocked by a federal court. And yet, this string of losses doesn’t seem to be deterring performative legislators from trying to violate the First Amendment rights of certain performers.

These laws are all of a type. A very specific type. Pretending to be necessary revamps of existing obscenity laws, opportunistic bigots are hoping to prevent drag performers from performing, by criminalizing either the hosting of these shows or the very shows themselves.

They’re such an obvious violation of First Amendment rights they (almost never) survive a first review from a court before being hit with an injunction. The governments defending these absurd, abusive laws pretend it’s about protecting the children when it’s nothing more than a new wave of attempted oppression that has found way too many supporters among the elected and the electorate.

So they keep passing laws and they keep losing in court. Montana — “led” by Governor Greg Gianforte — passed an anti-drag law earlier this year. The law was immediately challenged. And that challenge led to an immediate injunction from a federal court, just in time to allow those who would have otherwise been punished by the law to carry out their annual Montana Pride celebration.

And punishment was definitely on tap. The law that specifically outlaws performances by “drag kings” and “drag queens” was backed by legislators like… well, Governor Gianforte, who has endless enthusiasm for performative lawmaking. Just take a look at his ridiculous TikTok ban, which will now take Montana residents’ money and convert it into things like… losing in court! And being ridiculed by non-idiots!

It was also backed by this legislator, who made it pretty clear that this bill was meant to criminalize something he just didn’t like.

Proponents, including bill sponsor Rep. Braxton Mitchell, R-Columbia Falls, said they were trying to shield Montana children from what they consider sexually charged performances. During legislative proceedings, Mitchell suggested that drag story hours and other drag performances promoted as family-friendly are part of a “sick agenda” and “damaging to a child’s psychology and general welfare.”

As for the punishment part, we’ll read from the second ruling [PDF] on this same subject handed down by federal judge Brian Morris, who extended the injunction indefinitely.

Owners, operators, managers, and employees of “sexually oriented” businesses convicted under H.B. 359 face fines from $1,000 to $10,000 and, for a third or subsequent offense, mandatory revocation of business licenses. Libraries, schools, public employees, and entities that receive any state funding face fines of $5,000 and mandatory suspension (first offense) or permanent revocation (subsequent offenses) of an applicable teaching, administrative, or specialist certificate if convicted of violating H.B. 359. H.B. 359 provides for a private right of action in addition to imposing criminal liability.

That’s the criminal side. That’s already a bit much. But that’s nothing compared to the civil side of the equation.

A minor who attends a drag story hour or “sexually oriented performance” in violation of H.B. 359 § 2, or the minor’s parent, may bring a civil action up to ten years after an alleged violation against any “person who knowingly promotes, conducts, or participates as a performer.”

It’s not just an immediate threat of punishment. It’s a decade-long threat of punishment. That’s insane. And that’s something not included in the state’s existing obscenity law, which actually targets at least some unprotected speech.

Citing rulings dealing with similar laws passed in Tennessee and Florida, the Montana court — once again — explains this law is so obviously unconstitutional the court has no choice but to block its enforcement. And the (at the moment temporary) grave this law lies in was dug by proponents of the law via their statements during the bill’s debate as well as their admissions in court.

Public testimony from proponents of H.B. 359 offered only anecdotal and/or unsupported evidence of a purported link between drag and gender nonconformity with harm to children. The legislative history includes extensive public concerns about the bill’s constitutionality raised by organizations, private individuals, and 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 expression of LGBTQ+ community members, particularly trans, Two Spirit, and gender non-conforming people. Strict scrutiny would apply even were H.B. 359’s statutory text content-neutral and viewpoint-neutral.

Here’s just one of the examples of this grave-digging listed before the court arrived at that conclusion. (There are plenty more included in the ruling, so definitely read the whole thing.)

Particularly concerning to the Court is the same proponent’s testimony that a 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 this claim, noting that it represents “[m]isleading, anti-LGBTQ rhetoric . . . used to target drag storytimes[.]” Ali Swenson, Man Charged for Child Porn Didn’t Work for Drag Queen Story Hour, AP (June 22, 2022), https://apnews.com/article/factcheck-drag-queen-story-hour-not-arrested-416945160416. Neither the proponent’s disagreement with the academic article, nor their reliance upon a disproved and inflammatory claim, provides a basis for a finding that drag harms children.

After picking apart all the bigoted assumptions these legislators somehow converted into a bill (that even its proponents doubted was Constitutional) — most of which simply presume non-binary people sexually exploit minors pretty much all the time — the court makes it explicitly clear this law is doomed, even if the injunction blocking it is (legally-speaking) temporary.

State Defendants finally argue that H.B. 359 complies with the First Amendment because it does not impose an outright ban. 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 schools after regular hours, or as part of non-school sanctioned extracurricular activities.” 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 narrowly tailored to serve a compelling government interest.

That’s just the First Amendment problem. The Fifth Amendment problem may somehow be even bigger. The Fifth Amendment protects people from being held “criminally responsible for conduct which [they] could not reasonably understand to be proscribed.” They say, “don’t do the crime if you can’t do the time.” But what if it’s impossible to understand what the crime is?

I’m going to quote at length here because this particular (and particularly hateful) law poses problems not observed elsewhere but ones that can be expected to crop up elsewhere as similarly-aligned idiots seek to punish non-binary people for being non-binary.

H.B. 359’s missing definitions and its definitions for “drag king,” “drag queen,” “drag story hour,” “nude,” “public property,” “sexually oriented,” “sexually oriented business,” “sexually oriented performance,” and “stripping” run a significant risk of vagueness and overbreadth. 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. A performer who removes no clothing or who removes only outer layers still might fall within H.B. 359’s definition of “[s]tripping.” H.B. 359 remains silent as to whether “depiction[s] or descriptions[s] of human genitals or of sexual conduct” encompass non-live content or literary, film, theatrical, or other artistic depictions. “Nude,” as defined by 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 uncovers the lower portion of a breast.

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 contains no carve-out for content possessing “serious literary, artistic, political, or scientific value.” 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. Parental consent proves irrelevant to potential criminal liability. H.B. 359 provides for no affirmative defenses.

The statute leaves the public in the dark about what conduct might carry criminal and civil sanctions. H.B. 359 fails to define the conduct that it criminalizes “with sufficient definiteness that ordinary people can understand what conduct is prohibited.” H.B. 359 additionally appears likely to “encourage arbitrary and discriminatory enforcement.” H.B. 359’s liability scheme, including a private right of action, creates a significant risk of arbitrary enforcement against people who are not drag performers but who do not conform to traditional gender and identity norms. Whether a performance qualifies as “sexually oriented,” for example, rests upon a distinction between “female” and “prosthetic” breasts.

A trans man who has undergone gender affirming surgery to remove breast tissue could face liability for showing his bare chest. 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 discrimination and gender-based discrimination.

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.” This assessment appears to hinge upon a personal, subjective determination about what qualifies as a “flamboyant or parodic” gendered persona with “glamorous or exaggerated” clothing and makeup, without any statutory definition of these terms for guidance. H.B. 359’s statutory scheme targets drag story hours and drag performances. It also targets trans, Two-Spirit, non-binary, intersex, and gender-nonconforming people, as well as others who dress or present in ways different from the gender assigned to them at birth.

This law has no chance of surviving. Unfortunately, many of the hateful people backing this bill will. The same kind of people that unkindly suggest that if you don’t like America you can just leave are the same kind of people that refuse to extend the rights they enjoy to people they don’t like.

Well, if they don’t like sharing freedom, maybe they should leave. The world is full of countries that punish LGBTQ people simply for existing. Maybe they’d feel more comfortable there, rubbing elbows with autocrats and extremists, rather than cluttering up our country with their irrational hatred.

Filed Under: 1st amendment, 5th amendment, drag shows, free speech, montana