A unanimous three-judge panel of the US Court of Appeals for the Ninth Circuit affirmed a decision by Montana’s Chief U.S District Judge, Brian M. Morris, to issue a preliminary injunction preventing a law imposing criminal penalties for presenting a drag show on public property from going into effect. Any school or library that receives state funding would be affected. The measure, known as H.B. 359, specifically targets drag story hours in schools and libraries for its prohibition.
Governor Greg Gianforte signed the measure, which was set to go into effect immediately, on May 22, 2023. A group of individuals and organizations that present and/or host drag events, led by the Imperial Sovereign Court of the State of Montana, filed a lawsuit and a motion for a temporary restraining order and preliminary injunction on July 17, 2023. Following a hearing, Judge Morris granted the TRO on July 28, and after another hearing granted a preliminary injunction on Oct. 13, 2023, which the state appealed to the Ninth Circuit, whose decision was issued on March 13, 2025.
Judge Morris concluded after these hearings that at least one member of the plaintiff group had standing to challenge every provision of H.B. 359 that was attacked in the complaint, and that the plaintiffs were likely to prevail on their free speech and due process arguments.
They had attacked the law as a content-based prohibition on communication (First Amendment), asserting that on its face and as possibly applied to their activities, it was unlikely to survive the strict scrutiny that courts apply to content-based speech prohibitions. Furthermore, they were likely to prevail on their claim that there was enough ambiguity and subjectivity in the measure’s description of the kind of activities that were prohibited to raise serious due process questions (14th Amendment), since the due process clause requires that criminal statutes clearly communicate their coverage sufficiently that reasonable members of the public as well as law enforcement officials will know whether something is or is not prohibited.
Circuit Judge Jennifer Sung wrote the panel opinion, which was joined by Circuit Judge Danielle J. Forrest. Circuit Judge Johnnie B. Rawlinson wrote a separate concurring in the panel’s judgment. Judge Sung was appointed by President Biden, Judge Forrest was appointed by President Trump, and Judge Rawlinson was appointed by President Clinton.
Judge Sung’s lengthy and detailed opinion devoted significant effort to rejecting the state’s argument that the plaintiffs lacked standing to bring a pre-enforcement challenge to the law, but the arguments made by both sides clearly showed that there was enough ambiguity about applicability of the statute that the plaintiffs could plausibly allege that the programs they put on or host could come within the scope of the law, especially with the statute’s specific mention of drag shows and drag story hours, but standing issues are tricky for pre-enforcement challenges and Judge Sung went through a detailed analysis of Supreme Court and Ninth Circuit precedents to buttress the conclusion that plaintiffs have a strong case. It was particularly significant that some libraries and schools had cancelled planned shows when the law was passed, even though no enforcement activity had taken place, so the very existence of the law appeared to be chilling the plaintiffs’ freedom of speech.
As to the merits, on a motion for pretrial relief the court has to determine whether it is likely that the plaintiffs will prevail, based on the limited information available before the parties have had an opportunity to conduct discovery. Here, the Ninth Circuit panel agreed with Judge Morris that although the Supreme Court has not directly addressed the issue of drag shows as free speech under the First Amendment, there is plenty of binding precedent to suggest that such productions enjoy as much constitutional protection as other theatrical presentations so long as they don’t cross the line into obscenity, and the plaintiffs’ descriptions of their performances suggested that they avoided that line.
The legislature had anticipated the likelihood of court challenges to the law by incorporating some language from Supreme Court opinions that could be quoted to claim that the law only applied to obscene shows, but the court pointed out that these quotations did not extend to all the factors that the Supreme Court has identified as relevant to determine whether something is obscene.
The court also found that failing to block the law while the case is being litigated would impose more harm on the plaintiffs than might be suffered by the state from having to delay implementation of a law that the court believed was likely to be found to be unconstitutional.
The state may seek “en banc” review, which in the Ninth Circuit would go to a panel of eleven circuit judges that would include the chief circuit judge and members of the three-judge panel, with others added by lottery. But the decision to grant en banc review is up to a vote by a majority of the 29 active judges of the circuit. The state also might eventually seek Supreme Court review. In recent years, states and the federal government defending statutes have increasingly asked the Supreme Court to intervene by granting a “stay” of a preliminary injunction, and a majority of that court has become more active in blocking preliminary relief against the government.
