Lawsuit Challenges Montana’s Sweeping New Ban on Drag Performances

A group of 10 plaintiffs filed a federal lawsuit last week challenging a new Montana state law that bans “drag story hours” in the state. In a 39-page filing, the plaintiffs, including local bookseller the Montana Book Company and local author Adria Jawort, say that the new law, known as HB 359, is “a breathtakingly ambiguous and overbroad” law that imposes an “unconstitutional content and viewpoint-based restriction” on free speech.

Filed on July 7 in federal court in Butte, the complaint alleges that the law was “motivated by anti-LGBTQ+ animus,” noting that lawmakers purposefully crafted legislation that seeks to “collapse the distinction between unprotected obscene speech and protected artistic and personal expression” by threatening “teachers, artists, small businesses, and cultural and scientific institutions” with criminal and professional sanctions.

“While proponents of HB 359 purported to support the bill’s unconstitutional limitations on speech to ‘protect’ children, they instead targeted protected forms of expression that made them uncomfortable,” the complaint states. It goes on to claim that the bill’s “confusing” and “draconian” provisions seek to “stifle the expression of individuals who do not conform to conventional gender presentations.”

According to the complaint, the sweeping new law would ban “reading to a child in a library in a superhero costume, conducting classroom activities dressed as Ms. Frizzle, inviting a Disney princess impersonator into the classroom, and staging a production of Shakespeare’s As You Like It.” And unlike the state’s existing obscenity statute, “HB 359 does not incorporate the Miller test—the classic definition of obscenity—which safeguards artistic expression, political speech, and science.”

The suit seeks a temporary injunction barring the state from enforcing the law, and a declaration striking the law down as unconstitutional. “HB 359’s restrictions are content and viewpoint-based. Thus it is ‘presumptively unconstitutional’ and subject to strict scrutiny,” the complaint states. “The government has no compelling interest in protecting children from drag story hours and/or drag performers.”

Montana governor Greg Gianforte signed the HB 359 into law on May 22. And in June, Jawort, now a plaintiff in the suit, had a scheduled talk at the Butte-Silver Bow Public Library canceled, with library officials citing the new law. Jawort is seeking damages.

The Montana law is one of a number of such anti-LGBTQ+ laws that emerged in state legislatures in 2023, which are now being challenged in court. Last month, a Trump-appointed judge blocked Tennessee’s drag ban from taking effect, holding that the law is “overly broad and violated the First Amendment.”