Lawsuit claims Montana law restricting drag performances limits free expression

Helena, Montana – In Montana, a new state law that places restrictions on drag shows is currently being contested in federal court. According to the plaintiffs, it is excessively broad and might limit their freedom of expression.

This year, the legislature approved and Governor Greg Gianforte signed House Bill 359. The rule forbids state-funded libraries and schools from holding “drag story hours” during regular business hours or as part of a sanctioned extracurricular activity. Additionally, it outlaws “sexually oriented performances” in front of children, whether they take place in a public space or a commercial establishment, and it outlaws them entirely in places that receive state financing.

This Thursday, nine plaintiffs filed a lawsuit, claiming that the bill’s definitions were overly ambiguous. They claimed it put them in a precarious position where they were unsure of what would expose them to legal jeopardy.

Adria Jawort, a Native American transgender woman and activist, is one of the plaintiffs. She was supposed to speak at the Butte Public Library last month about the history of “two-spirit” people in indigenous societies. However, due to worries that it would contravene HB 359, city-county authorities called off the event.

“This is a definite chilling of free speech,” said Jawort. “I’ve hosted lots of panels, reading events, and all types of things at libraries.”

According to the lawsuit, Jawort’s talk was canceled in violation of her rights to free speech and equal protection since it appeared to be motivated by either her identity or the lecture’s LGBTQ+ theme.

The plaintiffs’ complaint claims that since the law’s implementation, other organizations and businesses have also encountered concerns about whether scheduled activities can proceed.

“Jawort may be the first to have a planned event publicly canceled as a result of HB 359, but she will not be the last,” the complaint said. “No one knows what HB 359 actually prohibits.”

According to the lawsuit, HB 359’s definitions are excessively broad and could apply to much more than its backers claimed. Drag story hours, for instance, are described in the bill as times when a performer with “a flamboyant or parodic” demeanor and “glamorous or exaggerated costumes and makeup” reads children’s books or does other educational activities in front of kids. Plaintiffs questioned whether this may conflict with several other educational activities where teachers or other people wear costumes.

The term “sexually oriented” as used in the bill is defined to include “stripping, salacious dancing,” and any other “lewd or lascivious depiction or description.” However, the lawsuit claims that it might ban many works that aren’t obscene but have sexual themes because it doesn’t offer an exception for artistic, literary, or other qualities.

According to the lawsuit, Montana already has regulations in place to shield kids from pornographic content. “Thus, there are only two options: either HB 359 is superfluous, or it redefines ‘obscene’ beyond constitutional limits to include drag performances, drag story hours, and a spiraling list of nebulously defined ‘sexually oriented performances,’” it said.

Rep. Braxton Mitchell, R-Columbia Falls, sponsored HB 359 in the Legislature. On Friday he said that he wasn’t surprised by the lawsuit and that he didn’t believe most of the situations plaintiffs had proposed would actually be restricted by the law.

“I think it’s pretty clear what those definitions mean and what it entails,” he said.

During the debate on the bill, Mitchell frequently argued drag performances could not be separated from sexuality and that the state has a legitimate interest in regulating them when minors might be present and in publicly funded locations.

“As I said from the beginning, I don’t believe that there’s any type of First Amendment violation by saying that in a taxpayer-funded school or a library,” he said.