Judge hears arguments over preliminary injunction in drag ban lawsuit

By: - August 28, 2023 8:18 pm

U.S. District Court in Helena on August 28, 2023. (Photo by Nicole Girten)

Anyone in costume reading to children, even someone dressed up as a Disney princess, would run afoul of the state drag ban, plaintiffs argued Monday in U.S. District Court in Helena.

But defendants held the ban, currently under a temporary restraining order, falls within the state’s interest to protect minors.

Federal Judge Brian Morris didn’t make a decision the same day as the hearing for the requested preliminary injunction. However, state defendants requested a jury trial in this case, and Morris asked attorneys to work on a joint filing to that end.

At the hearing, lawyers made arguments previously heard in court surrounding a temporary restraining order (TRO) that ultimately was granted by Judge Morris, allowing Montana Pride to move forward as originally planned in July. The TRO is in effect until Morris decides whether to grant the preliminary injunction.

House Bill 359, sponsored by Rep. Braxton Mitchell, R-Columbia Falls, bans drag performances on public property in view of minors and would label any business that hosts drag events a sexually oriented business, with potential for up to $5,000 fines if a minor is present and provides an avenue for civil litigation for minors in attendance. The bill, signed into law by Republican Gov. Greg Gianforte, also bans Drag Story Hour events at public schools and libraries during normal hours and bans drag anywhere that receives state funds.

In court, the state argued that the ban on drag in public spaces falls within its obligation to protect minors, while the attorney for plaintiffs said that the state already has definitions and mechanisms in place to protect minors from obscene materials and the law is unconstitutional.

Assistant Attorney General Michael Russell represented state defendants Attorney General Austin Knudsen and Superintendent of Public Instruction Elsie Arntzen. Attorney Constance Van Kley represented 11 plaintiffs, made up of businesses that host drag shows, a Billings teacher who dresses as characters in the classroom and a transgender woman who had her lecture canceled with local officials pointing to the ban.

Plaintiffs are calling into question the constitutionality of the law, claiming it violates the First Amendment in having a “chilling effect” on speech – in that its very existence may impede on expression even without a violation. They also argued the law is unclear in its enforcement, but it’s ultimately “the hammer” coming down on the LGBTQ+ community. Van Kley said the law being overbroad means it affects “innocent speech” and is far outside the zone of obscenity.

Russell argued for the state that the law is clear and falls within the state’s interest in protecting minors. He said in a response to a question about facilities that have taken state funds that the state is not required to subsidize conduct deemed inappropriate for minors.

Van Kley said plaintiffs were only seeking the preliminary injunction against the state defendants. The City of Helena was brought into the lawsuit after Montana Pride requested permits for events in Helena that involve drag performances in the street, and ultimately supported plaintiffs’ TRO request, and once granted, issued the permits.

Van Kley said that Butte-Silver Bow County Executive JP Gallagher, who canceled transgender woman Adria Jawort’s lecture at a library due to concerns over conflicts with the ban, was not an imminent threat to First Amendment rights.

Russell argued, as he did in court filings, that Knudsen and Arntzen aren’t the enforcing entities for the ban and are not the correct defendants in the case, rather that county attorneys and the Montana Board of Public Education are where enforcement action would take place. Van Kley pushed back, saying that Knudsen has the power to direct county attorneys to enforce statute and that Arntzen has the power to initiate disciplinary cases before the board, therefore making them the accurate defendants in the case.

Our stories may be republished online or in print under Creative Commons license CC BY-NC-ND 4.0. We ask that you edit only for style or to shorten, provide proper attribution and link to our web site. Please see our republishing guidelines for use of photos and graphics.

Nicole Girten
Nicole Girten

Nicole Girten is a reporter for the Daily Montanan. She previously worked at the Great Falls Tribune as a government watchdog reporter. She holds a degree from Florida State University and a Master of Science from the Medill School of Journalism at Northwestern University.