699 F.Supp.3d 1018
D. Mont.2023Background
- Plaintiffs (individuals and organizations including Montana Pride, Imperial Sovereign Court, Montana Book Company, theaters, community centers, and individual presenters) challenge Montana H.B. 359 after alleged cancellations, postponements, and self-censorship of events involving drag, gender-nonconforming presentations, and related programming.
- H.B. 359 (enacted May 22, 2023) forbids "drag story hour" in publicly funded schools and libraries, broadly defines "drag queen/king" and "sexually oriented" performances, authorizes criminal penalties, license/certificate suspensions or revocations, and creates a private right of action.
- Specific examples of alleged chilling: Butte-Silver Bow cancelled a lecture by Jawort (a transgender Two-Spirit presenter) citing H.B. 359; several organizations curtailed programming or modified performances out of fear of liability.
- Plaintiffs sued state officials (AG Knudsen; Superintendent Arntzen), a county executive, and the City of Helena; the court issued a TRO on July 28, 2023, and held a preliminary injunction hearing on August 28, 2023.
- The court focused on Plaintiff's facial First Amendment (Count IV) and Fifth Amendment vagueness/overbreadth (Count V) challenges and granted a preliminary injunction (Oct. 13, 2023) enjoining Knudsen and Arntzen from enforcing H.B. 359.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Standing to challenge H.B. 359 | Plaintiffs allege concrete injury (cancellations, chill, imminent fear of prosecution); associational and organizational standing asserted | State says no prosecutions pending and challenges appropriateness of state officials as defendants | Court found individual, associational, and organizational standing adequate; AG and Superintendent are proper defendants under Ex Parte Young principles |
| First Amendment facial challenge (content/viewpoint) | H.B. 359 targets drag and gender-expression speech, is content- and viewpoint-based, and lacks Miller obscenity limits; must survive strict scrutiny | State claims content-neutrality, secondary-effects justification, and that statute is not an outright ban | Court held H.B. 359 is content- and viewpoint-based (and legislative history shows impermissible purpose), so strict scrutiny applies and the State failed to show narrow tailoring |
| Fifth Amendment vagueness/overbreadth | Statute uses undefined or vague terms ("flamboyant or parodic," "salacious dancing," "in the presence of") and risks arbitrary enforcement and overbreadth against protected expression | State contends plain meaning, cross-references, and legislative intent supply sufficient clarity | Court held statute is unconstitutionally vague and overbroad and likely to encourage standardless, discriminatory enforcement |
| Preliminary injunction factors (irreparable harm/public interest) | Loss of First Amendment freedoms and ongoing chill constitute irreparable harm; public interest favors protecting constitutional rights | State argues interest in protecting children justifies the law and enforcement | Court found irreparable harm and that public interest favors enjoining enforcement; granted preliminary injunction enjoining enforcement by AG and Superintendent |
Key Cases Cited
- Lujan v. Defenders of Wildlife, 504 U.S. 555 (standing requirements for federal actions)
- Broadrick v. Oklahoma, 413 U.S. 601 (overbreadth doctrine and standing in First Amendment challenges)
- Ex parte Young, 209 U.S. 123 (equitable relief against state officials enforcing unconstitutional laws)
- Miller v. California, 413 U.S. 15 (definition/limits of obscene speech)
- Reed v. Town of Gilbert, 576 U.S. 155 (content- and viewpoint-based speech regulation standard)
- R.A.V. v. City of St. Paul, 505 U.S. 377 (limitations on content-based restrictions)
- Rosenberger v. Rector & Visitors of Univ. of Va., 515 U.S. 819 (viewpoint discrimination prohibition)
- City of Austin v. Reagan Nat'l Advert. of Austin, LLC, 596 U.S. 61 (content-based regulation test)
- Gooding v. Wilson, 405 U.S. 518 (invalidating statutes that exceed narrow categories of unprotected speech)
- City of Erie v. Pap's A.M., 529 U.S. 277 (secondary-effects rationale for content-neutrality in adult entertainment context)
- Ward v. Rock Against Racism, 491 U.S. 781 (time, place, manner review for content-neutral regulations)
- Ashcroft v. ACLU, 542 U.S. 656 (strict-scrutiny tailoring and least-restrictive-means analysis)
- Kolender v. Lawson, 461 U.S. 352 (vagueness and risk of arbitrary enforcement)
- City of Chicago v. Morales, 527 U.S. 41 (void-for-vagueness doctrine)
- Virginia v. American Booksellers Ass'n, 484 U.S. 383 (chilling effect and prior restraint principles)
- Elrod v. Burns, 427 U.S. 347 (pre-enforcement injuries and irreparable harm to First Amendment interests)