In 2023, the Montana state legislature passed a bill (Bill) prohibiting any school or library that
receives state funding from allowing any “sexually oriented performance or drag
story hour” on their property. The Bill includes significant criminal and
civil penalties for both performers and institutions hosting these events. Just
months after the Bill passed, a group of individuals, organizations, and
businesses (plaintiffs) filed a lawsuit claiming the Bill violates the First
Amendment by restricting protected speech based on content. The federal district court
issued a preliminary injunction limiting the state’s enforcement of the
Bill during the lawsuit. The state appealed the court’s decision to the Ninth Circuit Court of Appeals in Imperial
Sovereign Court of the State of Montana, et al. v. Knudsen, et al.
After determining that the plaintiffs had standing to challenge the Bill, the Ninth Circuit evaluated
the constitutional claims raised in the case. In order to determine the proper
framework to evaluate the First Amendment claims, the Ninth Circuit considered whether
the Bill “regulates purely expressive activity or expressive conduct,” and
whether the regulations are content-based or content-neutral.
To start, the Ninth Circuit noted that the
Bill was not passed to regulate “obscenity,” which is a narrow category of
speech not protected by the First Amendment. Instead, the Bill was purportedly
enacted to limit children’s exposure to “indecent speech.” The Ninth Circuit noted that state legislative authority to regulate for the protection of minors must be considered against the long history of the First Amendment, which applies to
protect “sexual expression that is indecent but not obscene.”
Drag Story Hour
The Ninth Circuit determined that the plaintiffs
were likely to establish that the Bill’s restriction on drag storytelling
events is subject to strict scrutiny, because the restriction impacts purely
expressive activity and regulates based on content. First, the Court noted that these
performances (involving reading out loud while performing a drag persona) constitute
expressive activity, likening drag story hours to theatrical plays. Second, the Court asserted three reasons to support their
determination that the restriction was content-based: the Bill’s restriction (1)
applies only to people reading a particular type of content, (2) prohibits only
certain speakers from reading the book out loud or conveying a message, and (3)
draws a line between prohibited and permitted speakers based on the content of
their expression. The Court determined that these elements of the Bill were a content-based restriction on speech subject to strict scrutiny under the
First Amendment.
Using the strict scrutiny
framework, the Court next determined that the restriction on drag story
hour events was not narrowly tailored to address the State’s expressed interest
in preventing the exposure of minors to “indecent speech.” The Court found that
the plain language of the Bill would impact speech activity widely
accepted as appropriate under historic and contemporary standards. The Court
noted that the Bill’s definition of “drag queen” and “drag king,” which includes
the adoption of a “flamboyant or parodic male and female personas” using costumes
and makeup, could be applied to include popular, well-received characters from
G-rated children’s movies. As a result, the Ninth Circuit found that the Bill was not
tailored to limit children’s exposure to sexualized content and was overinclusive
in the content it purports to regulate. The Court also determined that the
provision was not narrowly tailored because it disregards minors’ own speech
rights and completely overrides parental authority to determine appropriate
content for their children. Thus, the Ninth Circuit upheld the preliminary
injunction award, finding that plaintiffs were likely to succeed on their claim
that the restriction on drag story hours violated the First
Amendment.
Sexually Oriented Performances
In addressing the Bill’s prohibition on “sexually oriented performances” in
schools and libraries, the Ninth Circuit again evaluated whether the
restriction limits purely expressive activity based on content. The Court found
that the performances are purely expressive and, when viewed as a whole, constitute
protected speech. The Court noted that, in the case of the statutory restriction
on “sexually oriented performances,” the legislature limited speech based on
its effect on young viewers. The Court characterized this
limitation as “the essence of a content-based speech restriction.”
After determining that the
restriction on sexually oriented performances was content-based, the Ninth
Circuit found that it was not narrowly tailored to meet the State’s interest in
protecting minors. The Court noted that the legislature’s use of the phrase “sexually
oriented” was vague and ambiguous, leaving schools and libraries to guess which
performances and events would be subject to the Bill’s prohibitions. Additionally,
the Court pointed out that the restriction on speech was not plausibly linked to
its impact on children, given that several of the Bill’s restrictions would
apply to limit performances in schools and libraries even when children are not
present. Therefore, the Ninth Circuit upheld the preliminary
injunction that limited state enforcement of the Bill while the case proceeded in court.
Post Authored by Natalie Cheung
and Erin Monforti, Ancel Glink