Federal Appeals Court Upholds Injunction Preventing Enforcement of Law That Limits “Drag Story Hour” and Similar Events
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
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