Ninth Circuit appears skeptical of Montana’s drag ban

A three-judge panel of the U.S. Ninth Circuit Court of Appeals wrestled on Tuesday with how Montana’s “drag ban law,” currently on hold from a federal judge, doesn’t violate the U.S. Constitution’s First Amendment, protecting free speech and viewpoints.

“Do you think that every word of this law is constitutional?” asked Judge Johnnie B. Rawlinson.

Montana Assistant Attorney General Michael Russell, who defended House Bill 359 before the court in Portland, Oregon, said he believed so, and that Montana has a compelling interest in protecting children against “conduct aimed at disrupting childhood education.”

Attorneys were part of an oral briefing that discussed the case because the Montana Attorney General’s Office has challenged federal court Judge Brian Morris’ decision to halt the law from going into effect, citing constitutional concerns. Ten different individuals, businesses and groups are part of the lawsuit challenging the bill. The named defendants include Attorney General Austin Knudsen as well as Superintendent of Public Instruction Elsie Arntzen who has regulatory control of Montana’s public education. Arntzen is is currently running to replace Rep. Matt Rosendale in Montana’s eastern Congressional district race.

However, Russell argued that Morris disregarded the state’s public responsibility to protect kids, especially in places where they congregate, like libraries and schools. Furthermore, he argued that the state should have the power to decide how public funds are used, therefore justifying why the law was written to enact punishments not just for drag performers, but for any business that receives state funds, including nonprofit theaters, private businesses or even private schools.

The judges seemed skeptical that the law could measure up to the First Amendment and questioned what type of judicial scrutiny should apply. Constance Van Kley, who argued the case for the Imperial Sovereign Court of Montana drag performers, pointed out that currently there was such ambiguity about the law that several Montana cities, including Helena and Butte, cancelled events for fear they might run afoul of the law, risking criminal penalties or having state funds cut off.

Judge Danielle J. Forrest asked if the State of Montana, through HB 359, wasn’t an example of a state restricting or limiting speech based on its content.

“It seems to me that Montana thinks there’s expression happening (at drag story reading) and that’s why this law exists,” she said.

Russell pushed back, saying that Montana lawmakers have a right to stop behavior or speech that is “disruptive to normative behavior and development.” The bill was sponsored in 2023 by Rep. Braxton Mitchell, R-Columbia Falls.

Van Kley told the court, though, that Montana’s laws weren’t narrowly tailored, instead she characterized them as “sweeping,” pointing out not only did they regulate speech in public areas and schools, but also at private businesses, and that could include movie theaters. It also added criminal penalties as well as the threat of losing funding.

Van Kley said that Morris needed to stop the law from going into effect because an average person could not tell what speech is unlawful because few of the terms, like “salacious dancing” are defined. She pointed to more than a dozen examples of words that weren’t defined, arguing the law didn’t give adequate notice about what behavior is illegal.

Darrell Ehrlick is the editor-in-chief of the Daily Montanan, a nonprofit newsroom.