Imperial Sovereign Court of the State of Montana v. Knudsen

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

IMPERIAL SOVEREIGN COURT No. 23-3581

OF THE STATE OF MONTANA;

D.C. No.

ADRIA JAWORT; RACHEL

2:23-cv-00050-

CORCORAN; MONTANA BOOK

BMM

COMPANY; IMAGINE BREWING

COMPANY, LLC; BUMBLEBEE

AERIAL FITNESS; WESTERN

MONTANA COMMUNITY OPINION

CENTER; GREAT FALLS

LGBTQ+ CENTER; THE MYRNA

LOY; MONTANA PRIDE; ROXY

THEATER,

Plaintiffs - Appellees,

v.

AUSTIN KNUDSEN; ELSIE

ARNTZEN,

Defendants - Appellants,

and

J.P. GALLAGHER, CITY OF

HELENA,

Defendants.

2 IMPERIAL SOVEREIGN COURT OF MT V. KNUDSEN

Appeal from the United States District Court

for the District of Montana

Brian M. Morris, Chief District Judge, Presiding

Argued and Submitted June 4, 2024

Portland, Oregon

Filed March 13, 2026

Before: Johnnie B. Rawlinson, Danielle J. Forrest, and

Jennifer Sung, Circuit Judges.

Opinion by Judge Sung;

Concurrence by Judge Rawlinson

SUMMARY *

Preliminary Injunction / Standing / First Amendment

The panel affirmed the district court’s preliminary

injunction enjoining Defendants—the Montana Attorney

General and the Montana Superintendent of Public

Education—from instituting, maintaining, or prosecuting

any enforcement proceedings under Montana House Bill 359

(H.B. 359), which restricts statutorily defined “drag story

hours” and “sexually oriented performances.”

Plaintiffs—a group of individuals, business, and

nonprofits—allege that H.B. 359 violates their First

*

This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.

IMPERIAL SOVEREIGN COURT OF MT V. KNUDSEN 3

Amendment right to freedom of speech and their Fifth

Amendment right to due process.

The panel held that Plaintiffs have standing to challenge

H.B. 359 because (1) at least one Plaintiff has shown injury-

in-fact for each statutory provision of H.B. 359 at issue,

(2) Plaintiffs have demonstrated that their injuries are fairly

traceable to H.B. 359, and (3) Plaintiffs have demonstrated

that their injuries would likely be redressed by a favorable

decision.

Applying the preliminary injunction standard set forth in

Winter v. Natural Resources Defense Council, 555 U.S. 7,

20 (2008), the panel held that Plaintiffs are likely to succeed

on the merits of their facial First Amendment challenge to

H.B. 359’s drag-story-hour provision—which provides that

a school or library that receives any form of funding from

the state may not allow a drag story hour on its premises

during regular operating hours or at any school-sanctioned

extracurricular activity—because (1) the drag-story-hour

provision is a content-based restriction of purely expressive

activity, and (2) the drag-story-hour restriction is not

narrowly tailored to further a compelling governmental

interest.

The panel also held that Plaintiffs are likely to succeed

on the merits of their facial First Amendment challenge to

H.B. 359’s provisions restricting sexually oriented

performances because (1) the sexually-oriented-

performance provisions are content-based restrictions on

purely expressive activity, and (2) the sexually-oriented-

performance restrictions are not narrowly tailored to further

a compelling governmental interest.

4 IMPERIAL SOVEREIGN COURT OF MT V. KNUDSEN

The panel held that the district court did not abuse its

discretion in concluding that the remaining Winter factors

weigh in favor of a preliminary injunction.

Accordingly, the panel held that the district court did not

abuse its discretion in granting Plaintiffs’ motion to

preliminarily enjoin Defendants from instituting,

maintaining, or prosecuting any enforcement proceedings

under H.B. 359.

Concurring in the result, Judge Rawlinson

acknowledged the limited nature of review of a preliminary

injunction issued by a district court, which is to preserve the

status quo rather than to decide the merits of the case.

Unrestrained by the limited review, she would have opted to

delve more deeply into other considerations of the

legislation.

IMPERIAL SOVEREIGN COURT OF MT V. KNUDSEN 5

COUNSEL

Constance Van Kley (argued) and Rylee Sommers-

Flanagan, Upper Seven Law, Helena, Montana; Niki

Zupanic, Zupanic Law PLLC, Helena, Montana; for

Plaintiffs-Appellees.

Michael D. Russell (argued), Alwyn Lansing, Michael J.

Noonan, and Thane Johnson, Assistant Attorneys General;

Austin Knudsen, Montana Attorney General; Office of the

Montana Attorney General, Helena, Montana; Emily Jones,

Special Assistant Attorney General, Jones Law Firm PLLC,

Billings, Montana; for Defendants-Appellants.

Joshua A. Block and Emerson J. Sykes, American Civil

Liberties Union Foundation, New York, New York; Alex

Rate, ACLU of Montana Foundation Inc., Missoula,

Montana; for Amici Curiae the American Civil Liberties

Union and the ACLU of Montana Foundation Inc..

Megan S. Shaw, Cohen Weiss and Simon LLP, New York,

New York, for Amicus Curiae Actors' Equity Association.

6 IMPERIAL SOVEREIGN COURT OF MT V. KNUDSEN

OPINION

SUNG, Circuit Judge:

Montana House Bill 359 (H.B. 359) restricts statutorily

defined “drag story hours” and “sexually oriented

performances.” Violations of H.B. 359 are subject to

criminal and civil penalties. Plaintiffs are individuals,

nonprofits, theaters, and other organizations. They bring a

pre-enforcement challenge to H.B. 359, contending the

statute violates their First Amendment right to freedom of

speech and their Fifth Amendment due process right, both

facially and as applied to their speech. Defendants are

Montana Attorney General Austin Knudsen and Montana

Superintendent of Public Instruction Elsie Arntzen. The

district court granted Plaintiffs’ motion for a preliminary

injunction, enjoining Defendants from instituting,

maintaining, or prosecuting any enforcement proceedings

under H.B. 359. Defendants timely appealed. We conclude

that Plaintiffs have Article III standing to bring their claims,

and the district court did not abuse its discretion by issuing

the preliminary injunction. Accordingly, we affirm.

I. FACTUAL AND PROCEDURAL BACKGROUND

The Montana legislature passed H.B. 359 on May 11,

2023, and the governor signed it into law on May 22, 2023,

with immediate effect. H.B. 359 prohibits any school or

library that receives “any form of state funding” from

allowing a “sexually oriented performance or drag story

hour” on its premises. See H.B. 359, 2023 Gen. Assemb.,

68th Sess. (Mont. 2023). Both “drag story hour” and

“sexually oriented performance” are statutorily defined. Id.

H.B. 359 also prohibits statutorily defined “sexually oriented

businesses” from allowing minors to enter their premises

IMPERIAL SOVEREIGN COURT OF MT V. KNUDSEN 7

during a sexually oriented performance. H.B. 359 § 2. And

it prohibits sexually oriented performances (1) in a library

that receives any form of state funding; (2) on public

property when a minor is present; and (3) “in a location

owned by an entity that receives any form of funding from

the state.” H.B. 359 §§ 3(1), 3(3)(a), 3(3)(b).

H.B. 359 prescribes significant criminal, civil, and

professional penalties. The restriction on sexually oriented

businesses, H.B. 359 § 2, is codified in the Montana

Criminal Code and carries a minimum $1,000 criminal fine. 1

See H.B. 359 § 2(2); Mont. Code. Ann. § 45-8-118(2). A

third offense carries a mandatory $10,000 fine and results in

the revocation of an offender’s business license. See H.B.

359 § 2(2); Mont. Code. Ann. § 45-8-118(2). Section 3,

which includes the restriction on drag story hours, is codified

in Title 20, the Montana Education Code. See Mont. Code.

Ann. § 20-7-135. A person who violates a provision under

that title is guilty of a misdemeanor. Mont. Code. Ann. § 20-

1-207. Additionally, Section 3(4) mandates a $5,000

criminal fine for any public employee, library or school

employee, or employee of an entity that receives any state

funding who is convicted of violating any Section 3

restriction. H.B. 359 § 3(4). If that employee is a school

employee with a certification, H.B. 359 requires the

initiation of proceedings “to suspend the teacher,

1

H.B. 359 is codified across multiple titles. See H.B. 359 § 1 (codified

at Mont. Code Ann. § 45-8-117); H.B. 359 § 2 (codified at Mont. Code.

Ann. § 45-8-118); H.B. 359 § 3 (codified at Mont. Code. Ann. § 20-7-

135); H.B. 359 § 4 (codified at Mont. Code Ann. § 27-1-521). For

consistency, we cite to H.B. 359, as the parties did in their briefs, rather

than to the Montana Code.

8 IMPERIAL SOVEREIGN COURT OF MT V. KNUDSEN

administrator, or specialist certificate of the offender” for

one year (for a first offense). Id.

H.B. 359 also provides a private right of action. Any

minor (or their parent or legal guardian) who attends a drag

story hour or sexually oriented performance can sue any

“person who knowingly promotes, conducts, or participates

as a performer in the performance” and collect actual

damages, attorney fees and costs, and $5,000 in statutory

damages. H.B. 359 § 4. The private right of action carries a

ten-year statute of limitations. Id.

Plaintiffs are a group of individuals, businesses, and

nonprofits: individual plaintiffs Adria Jawort and Rachel

Corcoran and organizational plaintiffs Imperial Sovereign

Court of the State of Montana, Montana Book Company,

Imagine Brewing Company, Bumblebee Aerial Fitness, the

Western Montana Community Center, Montana Pride, the

Great Falls LGBTQ+ Community Center, the Roxy Theater,

and the Myrna Loy theater. Plaintiffs filed their complaint

on July 7, 2023, alleging that H.B. 359 facially violates the

First Amendment because it is a content- and viewpoint-

based restriction that does not satisfy strict scrutiny. They

also allege that H.B. 359 facially violates the Fifth

Amendment because it is unconstitutionally vague.

Plaintiffs filed a motion for a temporary restraining order

and preliminary injunction on July 17, 2023, naming

Attorney General Knudsen and Superintendent Arntzen as

defendants. 2 Following a hearing, the district court granted

a TRO on July 28, 2023. The district court held a hearing on

the motion for a preliminary injunction on August 28, 2023,

2

The complaint also named two additional defendants who are not

parties to this appeal.

IMPERIAL SOVEREIGN COURT OF MT V. KNUDSEN 9

and granted a preliminary injunction in a written order on

October 13, 2023.

The district court found that Plaintiffs had standing to

challenge H.B. 359. Applying the standard set forth in

Winter v. Natural Resources Defense Council, 555 U.S. 7,

20 (2008), the district court found that Plaintiffs were likely

to succeed on the merits of their First Amendment claim.

The court determined that H.B. 359 was a content-based and

viewpoint-based restriction on speech subject to strict

scrutiny. Applying strict scrutiny, the district court

concluded that H.B. 359 was not narrowly tailored to serve

a compelling governmental interest. The court also found

that Plaintiffs were likely to succeed on the merits of their

Fifth Amendment vagueness claim because the statute

included several indefinite terms and “could be interpreted

to include any number of theatrical and artistic

performances.”

Defendants Knudsen and Arntzen timely appealed the

district court’s preliminary injunction. We have jurisdiction

to review Defendants’ interlocutory appeal of the district

court’s order granting a preliminary injunction. 28 U.S.C.

§ 1292(a)(1).

II. ARTICLE III STANDING

We first address whether Plaintiffs have standing to

challenge H.B. 359. Plaintiffs challenge six different

restrictions enacted as part of H.B. 359. Because each

restriction has different elements, at least one plaintiff must

have standing to challenge each restriction. See, e.g., Ctr. for

Biological Diversity v. Bernhardt, 946 F.3d 553, 560 (9th

Cir. 2019); Get Outdoors II, LLC v. City of San Diego, 506

F.3d 886, 892 (9th Cir. 2007). But one plaintiff with standing

to challenge each restriction is enough. See Planned

10 IMPERIAL SOVEREIGN COURT OF MT V. KNUDSEN

Parenthood of Idaho, Inc. v. Wasden, 376 F.3d 908, 918 (9th

Cir. 2004) (“Where the legal issues on appeal are fairly

raised by ‘one plaintiff [who] had standing to bring the suit,

the court need not consider the standing of the other

plaintiffs.’” (alteration in original) (citation omitted)).

To establish “the irreducible constitutional minimum of

standing,” Plaintiffs must demonstrate: (1) that a plaintiff

has suffered an injury-in-fact, (2) that the injury is fairly

traceable to a defendant’s conduct, and (3) that the injury

would likely be redressed by a favorable decision. Lujan v.

Defs. of Wildlife, 504 U.S. 555, 560–61 (1992). However,

because Plaintiffs claim that H.B. 359 restricts their First

Amendment right to freedom of expression, we “appl[y] the

requirements of ripeness and standing less stringently.”

Twitter, Inc. v. Paxton, 56 F.4th 1170, 1173 (9th Cir. 2022)

(alteration in original) (quoting Wolfson v. Brammer, 616

F.3d 1045, 1058 (9th Cir. 2010)). See also Cal. Pro-Life

Council, Inc. v. Getman, 328 F.3d 1088, 1094 (9th Cir. 2003)

(“Particularly in the First Amendment-protected speech

context, the Supreme Court has dispensed with rigid

standing requirements.”).

A. Injury-in-Fact

Generally, “[t]o establish injury in fact, a plaintiff must

show that he or she suffered ‘an invasion of a legally

protected interest’ that is ‘concrete and particularized’ and

‘actual or imminent, not conjectural or hypothetical.’”

Spokeo, Inc. v. Robins, 578 U.S. 330, 339 (2016) (quoting

Lujan, 504 U.S. at 560). But courts have long “recogniz[ed]

the validity of pre-enforcement challenges to statutes

infringing upon constitutional rights.” Getman, 328 F.3d at

1094. The “direct injury requirement is tempered . . . in that

‘[o]ne does not have to await the consummation of

IMPERIAL SOVEREIGN COURT OF MT V. KNUDSEN 11

threatened injury to obtain preventive relief.’” Ariz. Right to

Life Pol. Action Comm. v. Bayless, 320 F.3d 1002, 1006 (9th

Cir. 2003) (alteration in original) (quoting Blanchette v.

Conn. Gen. Ins. Corps., 419 U.S. 102, 143 (1974)). “Were it

otherwise, ‘free expression—of transcendent value to all

society, and not merely to those exercising their rights—

might be the loser.’” Id. (quoting Dombrowski v. Pfister, 380

U.S. 479, 486 (1965)).

Where, as here, plaintiffs bring a pre-enforcement

challenge, they satisfy the injury-in-fact requirement by

alleging “an intention to engage in a course of conduct

arguably affected with a constitutional interest, but

proscribed by a statute, and there exists a credible threat of

prosecution thereunder.” Susan B. Anthony List v. Driehaus,

573 U.S. 149, 159 (2014) (quoting Babbitt v. United Farm

Workers Nat’l Union, 442 U.S. 289, 298 (1979)).

Importantly, however, “a challenger need not ‘confess that

he will in fact violate th[e] law.’” Matsumoto v. Labrador,

122 F.4th 787, 797 (9th Cir. 2024) (quoting Susan B.

Anthony List, 573 U.S. at 163). Further, Plaintiffs do not

need to show that their intended course of conduct would

definitely violate the challenged law; they need only show

that it is “arguably proscribed.” Susan B. Anthony List, 573

U.S. at 162. See also Getman, 328 F.3d at 1095 (holding

plaintiff had standing because its intended ballot-measure

advocacy “was arguably subject to” the challenged law’s

requirements); Babbitt, 442 U.S. at 302 (holding a plaintiff

may bring a pre-enforcement challenge “when fear of

criminal prosecution under an allegedly unconstitutional

statute is not imaginary or wholly speculative”).

Because courts have long recognized that some plaintiffs

cannot allege an intention to engage in conduct arguably

proscribed by a challenged statute because they would rather

12 IMPERIAL SOVEREIGN COURT OF MT V. KNUDSEN

self-censor than risk prosecution, a plaintiff has the option of

establishing injury by showing that the challenged

prohibition is causing them to self-censor. See Getman, 328

F.3d at 1095; Ariz. Right to Life Pol. Action Comm., 320 F.3d

at 1006 (“In an effort to avoid the chilling effect of sweeping

restrictions, the Supreme Court has endorsed what might be

called a ‘hold your tongue and challenge now’ approach

rather than requiring litigants to speak first and take their

chances with the consequences.” (citation omitted)). Self-

censorship qualifies as injury-in-fact when the plaintiff has

“an actual and well-founded fear that the law will be

enforced against [them].” Getman, 328 F.3d at 1095

(quoting Virginia v. Am. Booksellers Ass’n, 484 U.S. 383,

393 (1988)). “In the free speech context, such a fear of

prosecution will only inure if the plaintiff’s intended speech

arguably falls within the statute’s reach.” Id.

Moreover, where, as here, plaintiffs “challeng[e] a new

law whose history of enforcement is negligible or

nonexistent, either a ‘general warning of enforcement’ or a

‘failure to disavow enforcement’ is sufficient to establish a

credible threat of prosecution.” Matsumoto, 122 F.4th at

797–98 (quoting Tingley v. Ferguson, 47 F.4th 1055, 1068

(9th Cir. 2022)). See also Holder v. Humanitarian L. Project,

561 U.S. 1, 16 (2010) (emphasizing that “[t]he Government

has not argued to this Court that plaintiffs will not be

prosecuted if they do what they say they wish to do”). That

is, plaintiffs may suffer injury-in-fact sufficient for standing

even if no prosecuting authority has evinced an intent to

prosecute and even in the absence of any investigation or

warning of prosecution. See Getman, 328 F.3d at 1093–94

(explaining district court erred in holding that, under Thomas

v. Anchorage Equal Rights Commission, 220 F.3d 1134 (9th

Cir. 2000) (en banc), plaintiff lacked standing to challenge

IMPERIAL SOVEREIGN COURT OF MT V. KNUDSEN 13

the statute “because California never evinced an intent to

prosecute [plaintiff] for its voter publications”).

We turn to considering whether there is at least one

plaintiff who has shown injury-in-fact for each statutory

provision at issue.

1. Section 2(1)

Section 2(1) prohibits a “sexually oriented business”

from “allow[ing] a person under 18 years of age to enter the

premises of the business during a sexually oriented

performance.” H.B. 359 § 2(1). Section 1(9) defines

“[s]exually oriented business” as “a nightclub, bar,

restaurant, or similar commercial enterprise that:

(a) provides for an audience of two or more individuals:

(i) live nude entertainment or live nude performances; or

(ii) a sexually oriented performance; and (b) authorizes on-

premises consumption of alcoholic beverages.” H.B. 359

§ 1(9). Section 1(10) defines a “[s]exually oriented

performance” as “a performance that, regardless of whether

performed for consideration, is intended to appeal to a

prurient interest in sex and features: (a) the purposeful

exposure, whether complete or partial, of: (i) a human

genital, the pubic region, the human buttocks, or a female

breast, if the breast is exposed below a point immediately

above the top of the areola; or (ii) prosthetic genitalia,

breasts, or buttocks; (b) stripping; or (c) sexual conduct.”

H.B. 359 § 1(10). Section 1(11) further defines “[s]tripping”

as the “removal or simulated removal of clothing in a sexual

manner for the entertainment of one or more individuals.”

H.B. 359 § 1(11).

Plaintiff Roxy Theater is a nonprofit theater that receives

state funding from the Montana Arts Council. It authorizes

on-premises alcohol consumption and hosts events for

14 IMPERIAL SOVEREIGN COURT OF MT V. KNUDSEN

audiences of two or more, and it “has historically displayed

films and events” that it fears qualify as “‘sexually oriented

performances’ under [H.B.] 359.” The parties dispute

whether some of the examples provided by the Roxy Theater

qualify as sexually oriented performances. The Roxy

Theater shows films rated PG-13 or R by the Motion Picture

Association of America (MPAA) that include scenes

involving nudity or stripping. Consistent with MPAA PG-13

and R ratings, the Roxy Theater allows minors under the age

of 18 to see such films (while enforcing the requirement that

minors be accompanied by a parent or guardian when

applicable). The Theater fears that allowing minors to view

such films (even when accompanied by a parent or guardian)

would violate H.B. 359 § 2(1). Defendants, however,

represent without qualification that H.B. 359’s definition of

“sexually oriented performance” incorporates by reference

Mont. Code Ann. § 45-8-205(6)’s definition of

“performance,” which expressly excludes films rated PG-13

or R by the MPAA. Because Plaintiffs do not meaningfully

dispute that § 45-8-205(6) narrows the statutory definition of

“sexually oriented performance,” we do not rely on the fact

that the Roxy Theater shows PG-13 and R-rated films to

determine its standing to challenge Section 2(1).

Even so, the Roxy Theater also attests that it has

presented, and intends to continue presenting, films and live

performances that are not rated by the MPAA but appear to

qualify as sexually oriented performances for the same

reasons as the MPAA-rated PG-13 and R films. For

example, it has hosted a live theater event featuring comedy

and dance routines, “some of which included the stripping of

outer layers of clothing and the use of prosthetic breasts.”

This event was open to a general audience with no age

restrictions. Unlike the MPAA-rated films, Defendants do

IMPERIAL SOVEREIGN COURT OF MT V. KNUDSEN 15

not specifically represent that such unrated films and live

performances are exempt from the definition of sexually

oriented performances. Nor do Defendants dispute the Roxy

Theater’s reasons for concluding that such films and live

performances meet the definition of “sexually oriented

performance.” Consequently, we agree with Plaintiffs that

these unrated films and performances are arguably

proscribed by Section 2(1). Further, because H.B. 359 is too

new to have a “history of enforcement,” and Defendants

have never disavowed enforcement of any provision of H.B.

359 against the Roxy Theater, the threat of enforcement

against it is credible. Matsumoto, 122 F.4th at 797. Thus, the

Roxy Theater has demonstrated the injury-in-fact required to

bring a pre-enforcement challenge to Section 2(1).

2. Section 3(1)

Under Section 3(1), “[a] library that receives any form of

funding from the state may not allow a sexually oriented

performance as defined in [Section 1] on its premises.” H.B.

359 § 3(1). Plaintiff Imperial Court has shown that it intends

to engage in a course of conduct arguably protected by the

First Amendment but proscribed by Section 3(1). Imperial

Court attests that it is a nonprofit organization that “produces

drag shows at small businesses and public spaces”

throughout Montana, including “public libraries.” Imperial

Court’s performances “are strictly tailored based on age

group, with some performances for adults only and other

performances for all ages.” At all-ages shows, Imperial

Court performers do not “perform burlesque style drag or

striptease” but instead “power lip sync[] to uplifting songs.”

Imperial Court has “exhaustive guidelines outlining what is

and is not appropriate costuming for an all ages show.” “[I]f

a performer could not wear [a costume] into a kindergarten

class, they cannot wear it to an all-ages show.” Still, Imperial

16 IMPERIAL SOVEREIGN COURT OF MT V. KNUDSEN

Court fears that some of its drag shows could be deemed

sexually oriented performances, as defined under H.B. 359,

because they involve the “use of prosthetic cleavage.” See

H.B. 359 § 1(10)(a)(ii) (including prosthetic breasts in the

statutory definition). Defendants do not dispute Imperial

Court’s reasons for concluding that some of its drag shows

could qualify as sexually oriented performances under H.B.

359. In addition, event organizers have canceled Imperial

Court’s shows, refrained from advertising them, placed them

on hold indefinitely, or required modifications in response to

H.B. 359. Imperial Court has also shown that it has self-

censored to avoid prosecution under Section 3(1). For

example, it has modified the content of its performances,

adopted new costume restrictions, and limited advertising of

its shows.

The threat of prosecution against Imperial Court is

credible. Defendants argue that Imperial Court’s delineation

between all-ages and adult-only performances proves it is

“well within [Imperial Court’s] ability to produce drag

shows under [H.B. 359].” But Defendants have not

disavowed enforcement of this new law against Imperial

Court with respect to any of its performances, whether

family friendly or not. Imperial Court has shown the injury-

in-fact required to bring a pre-enforcement challenge to

Section 3(1).

3. Section 3(2)

Section 3(2) states that “[a] school or library that

receives any form of funding from the state may not allow a

sexually oriented performance or drag story hour, as defined

in [Section 1], on its premises during regular operating hours

or at any school-sanctioned extracurricular activity.” H.B.

359 § 3(2). Plaintiff Adria Jawort has demonstrated that she

IMPERIAL SOVEREIGN COURT OF MT V. KNUDSEN 17

intends to engage in a course of conduct arguably protected

by the First Amendment but proscribed by Section 3(2), and

that the threat of enforcement against her is credible.

Jawort is a transgender woman and a member of the

Two-spirit community. According to Jawort, “Two-spirit is

a term used within some Indigenous communities to refer to

tribal members who have both male and female traits” and

“reflects traditional Indigenous acceptance of trans and non-

binary definitions of gender.” Jawort regularly lectures at

libraries and other organizations for educational purposes,

including on the topic of Indigenous and transgender history.

Jawort was scheduled to lecture on the history of transgender

and Two-spirit people in Montana at the Butte Public

Library on June 2, 2023. Although Jawort does not perform

in drag, and her lectures do not include any content that

appeals to a prurient interest, the Butte Public Library

canceled her lecture.

On the Library’s Facebook page, it explained that it

canceled Jawort’s lecture because it feared that the lecture

would violate Section 3(2): “In accordance with Governor

Gianforte signing HB359 into law, our county cannot allow

an event where a drag king or queen reads children’s books

and engages in other learning activities with minor children

present. Due to this law, we have had to cancel the speaker

at the Butte-Silver Bow Library that was scheduled for

Friday.” Defendants do not argue that Jawort’s library

lectures are outside the scope of H.B. 359, and they have not

disavowed enforcement of H.B. 359 against her. Jawort has

demonstrated the injury-in-fact required to bring a pre-

enforcement challenge to Section 3(2).

18 IMPERIAL SOVEREIGN COURT OF MT V. KNUDSEN

4. Sections 3(3)(a) and 3(3)(b)

Sections 3(3)(a) and 3(3)(b) are closely related and both

restrict statutorily defined sexually oriented performances.

Section 3(3)(a) prohibits sexually oriented performances “on

public property in any location where the performance is in

the presence of an individual under the age of 18.” H.B. 359

§ 3(3)(a). Imperial Court attests that it regularly produces

drag performances at “public spaces across the state,”

including public parks and schools. But after H.B. 359 was

enacted, Imperial Court was “unable to perform any drag on

public property” at the 2023 Billings Pride event.

Section 3(3)(b) prohibits sexually oriented performances

“in a location owned by an entity that receives any form of

funding from the state,” regardless of whether a minor is

present. H.B. 359 § 3(3)(b). Imperial Court attests that it

regularly produces drag shows at a variety of venues that

receive state funding, including public libraries, museums,

schools, the Montana State Capitol building, and Zoo

Montana. For the same reasons discussed above, Imperial

Court has shown the requisite injury-in-fact to bring a pre-

enforcement challenge to Sections 3(3)(a) and 3(3)(b).

5. Section 3(4)

Finally, Section 3(4) requires that “[a] library, a school,

or library or school personnel, a public employee, or an

entity described in subsection (3)(b) or an employee of the

entity convicted of violating the prohibition [of drag story

hours or sexually oriented performances] under this section

shall be fined $5,000 and, if applicable, proceedings must be

initiated to suspend the teacher, administrator, or specialist

certificate of the offender under 20-4-110 for 1 year.” H.B.

359 § 3(4). Plaintiff Rachel Corcoran has shown that she

IMPERIAL SOVEREIGN COURT OF MT V. KNUDSEN 19

intends to engage in a course of conduct arguably protected

by the First Amendment but proscribed by Section 3(4).

Plaintiff Corcoran is a licensed teacher in Montana who

works in the Billings Public Schools. As a teacher and

instructional coach, she has “frequently used costumes and

props in her classroom lessons,” and she continues to “dress

up as fictional and historical characters without regard to the

gender or sex of the person being portrayed.” Corcoran fears

that Section 3(4) prohibits her, as a public school employee,

from “reading to or engaging in learning activities with

students while dressed up in a gendered costume,” and that

she “could face criminal, civil, and occupational penalties.”

Because Defendants do not disavow enforcement of this new

statute against Corcoran, the threat of enforcement is

credible. Corcoran has demonstrated the injury-in-fact

required to bring a pre-enforcement challenge to Section

3(4). 3

6. Defendants’ Additional Injury-in-Fact Arguments

Before we turn to the remaining elements of standing, we

address Defendants’ cross-cutting arguments about injury-

in-fact. Defendants first argue that a “key element” of H.B.

3

Defendants argue that “because Corcoran is a public employee whose

alleged speech-related activities at issue occur on the job in the scope of

her duties, there is no First Amendment protection for her in this

context,” citing Garcetti v. Ceballos, 547 U.S. 410, 426 (2006). While

Garcetti may be relevant to the merits of Corcoran’s claim, it has no

bearing on her standing. Corcoran’s intended “‘course of conduct’ must

. . . be ‘arguably affected with a constitutional interest,’ but this inquiry

does not require us to engage in a mini litigation of the claims. Rather,

‘the Supreme Court has cautioned that standing “in no way depends on

the merits.”’” Peace Ranch, LLC v. Bonta, 93 F.4th 482, 488 (9th Cir.

2024) (first quoting Arizona v. Yellen, 34 F.4th 841, 849 (9th Cir. 2022);

and then quoting Warth v. Seldin, 422 U.S. 490, 500 (1975)).

20 IMPERIAL SOVEREIGN COURT OF MT V. KNUDSEN

359’s “sexually oriented performance” restrictions is the

requirement that the performance be “intended to appeal to

a prurient interest in sex,” and that Plaintiffs fail to show

injury because they “do not allege any intention of putting

on or facilitating performances in the presence of minors that

are intended to appeal to a prurient interest in sex.” 4

Defendants are correct that no Plaintiff specifically

alleges that they present or participate in shows that are

intended to appeal to a prurient interest in sex. That

omission, however, does not mean Plaintiffs have failed to

show that their conduct is arguably proscribed by H.B. 359.

The Supreme Court’s standing analysis in Babbitt is

instructive. In Babbitt, plaintiffs brought a pre-enforcement

challenge to a statute that made boycotting an “agricultural

product by the use of dishonest, untruthful and deceptive

publicity” an unfair labor practice. 442 U.S. at 301 (internal

quotation marks omitted). Plaintiffs had “actively engaged

in consumer publicity campaigns in the past” and alleged “an

intention to continue” those campaigns in the future—but

they did not “plan to propagate untruths.” Id. By alleging that

they did not plan to be untruthful, the Babbitt plaintiffs

effectively denied that their speech would satisfy an element

of the challenged restriction. But the Babbitt Court

concluded that the plaintiffs’ fear of prosecution was not

“imaginary or wholly speculative” and determined that they

had Article III standing. Id. at 302.

Here, as in Babbitt, Plaintiffs’ fear of prosecution is not

imaginary or wholly speculative, even though they do not

intend to appeal to a prurient interest in sex. For one, because

4

Because H.B. 359’s definition of “drag story hour” does not require an

intent to appeal to a prurient interest, this argument does not affect

Plaintiff Jawort’s standing to challenge Section 3(2).

IMPERIAL SOVEREIGN COURT OF MT V. KNUDSEN 21

H.B. 359’s definition of “sexually oriented” does not include

a comparable intent requirement, § 1(8), and Defendants

concede that the definition of “sexually oriented” affects the

definition of “sexually oriented performance,” some

performances arguably would qualify as sexually oriented

performances despite the absence of any intent to appeal to

a prurient interest. See infra Section V.B.2. Further, H.B.

359 does not specify whose—if anyone’s—intent matters.

See H.B. 359 § 1(10). Thus, for example, the Roxy Theater

could show a film without intending to appeal to a prurient

interest in sex but could be charged with violating Section

2(1) if a factfinder determined that the filmmaker intended

to appeal to a prurient interest in sex. Alternatively, the Roxy

Theater could be liable if a factfinder determined that the

film, viewed objectively, was intended to appeal to a prurient

interest in sex. These interpretations of H.B. 359 are

plausible enough that Plaintiffs’ fear of prosecution is not

imaginary or wholly speculative. Indeed, even though none

of the Plaintiffs intend to appeal to a prurient interest in sex,

Defendants have never disavowed enforcement against any

of them.

Next, Defendants generally argue that Plaintiffs have not

shown a credible threat of prosecution because they allege

they have engaged in conduct proscribed by H.B. 359, but

there has been “no interference by the State Defendants.” As

discussed above, the absence of an enforcement action does

not defeat standing where coverage is arguable and there has

been no disavowal of enforcement. If Defendants are

arguing that Plaintiffs must show that Defendants in

particular have interfered with Plaintiffs’ expressive

activities, Defendants are incorrect. As we recently

explained in Matsumoto, “when a statute distributes

enforcement authority across multiple actors, and a plaintiff

22 IMPERIAL SOVEREIGN COURT OF MT V. KNUDSEN

brings a pre-enforcement challenge, the threat of that

enforcement is properly analyzed as a collective assessment

of the threat posed by all the potentially enforcing

authorities, together.” 122 F.4th at 798 (discussing Susan B.

Anthony List, 573 U.S. at 164). And here, as in Matsumoto,

Defendants have neither disavowed enforcement against

Plaintiffs, nor “attempted to ‘prevent county attorneys from

enforcing the statute.’ Quite the opposite—[Montana] is

vigorously defending the constitutionality of the statute.” Id.

(quoting Isaacson v. Mayes, 84 F.4th 1089, 1100 (9th Cir.

2023)). Plaintiffs have therefore shown a credible threat of

future enforcement, which “is all that is needed to show

imminent injury to a constitutional interest in a pre-

enforcement challenge.” Id.

B. Traceability and Redressability

“The next inquiry in the standing sequence is whether

[Plaintiffs’] injuries are fairly traceable to the challenged

[Montana law] and whether those injuries are likely to be

redressed by a favorable decision.” Id. at 799; see also

Lujan, 504 U.S. at 560. To show traceability, “there must be

a causal connection between the injury and the conduct

complained of.” Lujan, 504 U.S. at 560. “An injury is fairly

traceable to a challenged action as long as the links in the

proffered chain of causation are not hypothetical or tenuous

and remain plausible.” Matsumoto, 122 F.4th at 799 (quoting

Ass’n of Irritated Residents v. EPA, 10 F.4th 937, 943 (9th

Cir. 2021)).

Plaintiffs have demonstrated that their injuries are fairly

traceable to H.B. 359. “The statute supplies all the trace

needed.” Id. at 799. The legislature passed a bill that

authorizes civil and criminal penalties for expression

arguably protected by the First Amendment. Montana law

IMPERIAL SOVEREIGN COURT OF MT V. KNUDSEN 23

authorizes the Attorney General and the Superintendent of

Public Instruction, among others, to enforce H.B. 359’s

penalties. “At bottom, [Plaintiffs] reasonably assert that the

course of conduct they wish to engage in would put them at

risk of prosecution under [H.B. 359]. [Montana], for its part,

does not disabuse them of that notion.” Id. at 801.

Defendants argue that Plaintiffs’ injuries are not

traceable to the named defendants, Attorney General

Knudsen and Superintendent Arntzen, in particular. We

disagree. “[O]ur precedent makes clear that [an] Attorney

General’s authority to assist county prosecutors in the

enforcement of penal statutes . . . ‘demonstrates the requisite

causal connection for standing purposes.’” Planned

Parenthood Great Nw., Haw., Alaska, Ind., Ky. v. Labrador,

122 F.4th 825, 839 (9th Cir. 2024) (quoting Planned

Parenthood of Idaho, Inc. v. Wasden, 376 F.3d 908, 920 (9th

Cir. 2004)). Here, Attorney General Knudsen has that

authority—and more.

Montana law authorizes Attorney General Knudsen to

assist or act as a county attorney in any case “in which the

state has an interest.” Mont. Code. Ann. § 2-15-501(6).

Montana law also authorizes the Attorney General to direct

any of the state’s 56 county prosecutors to bring a criminal

or civil action for violations of H.B. 359. See Mont. Code

Ann. § 2-15-501(5) (conferring upon the attorney general

“supervisory powers over county attorneys” and “the power

to order and direct county attorneys in all matters pertaining

to the duties of their office”). Indeed, Section 2-15-501(5)

expressly gives the Attorney General the power to direct

county prosecutors in a binding fashion. See id. (“The county

attorney shall, when ordered or directed by the attorney

general, promptly institute and diligently prosecute in the

proper court and in the name of the state of Montana any

24 IMPERIAL SOVEREIGN COURT OF MT V. KNUDSEN

criminal or civil action or special proceeding.”). Further,

under Montana law, “the Attorney General determines when

to prosecute or to defend cases in which the State has an

interest. Thus, if a challenge is brought to a state statute, the

Attorney General has discretion to decide whether or not to

defend its constitutionality.” W. Tradition P’ship, Inc. v.

Att’y Gen. of State, 291 P.3d 545, 550 (Mont. 2012). As this

case shows, Attorney General Knudsen is vigorously

defending H.B. 359.

Superintendent Arntzen has authority to enforce Section

3(4) of H.B. 359. Under Section 3(4), if a public school

employee is convicted of violating any prohibition under

Section 3, “proceedings must be initiated to suspend the

teacher, administrator, or specialist certificate of the

offender under [Mont. Code Ann.] § 20-4-110 for 1 year.”

H.B. 359 § 3(4). Section 20-4-110 details the process by

which the Board of Public Education can suspend, revoke,

or deny a certificate. The statute authorizes the Board to

initiate suspension and revocation proceedings upon the

request of the Superintendent of Public Instruction or the

trustees of a school district. See Mont. Code Ann. § 20-4-

110(2). Because Section 3(4) requires that suspension

proceedings be initiated against any public school employee

convicted of violating Section 3, and the Superintendent of

Public Instruction is authorized to initiate those proceedings,

Plaintiff Corcoran’s injury is fairly traceable to Defendant

Arntzen.

Finally, “it must be ‘likely,’ as opposed to merely

‘speculative,’ that the injury will be ‘redressed by a

favorable decision.’” Lujan, 504 U.S. at 561 (quoting Simon

v. E. Ky. Welfare Rts. Org., 426 U.S. 26, 38, 43 (1976)). “[A]

plaintiff satisfies the redressability requirement when he

shows that a favorable decision will relieve a discrete injury

IMPERIAL SOVEREIGN COURT OF MT V. KNUDSEN 25

to himself. He need not show that a favorable decision will

relieve his every injury.” Larson v. Valente, 456 U.S. 228,

243 n.15 (1982). Here, the preliminary injunction prevents

Defendants from directing, pursuing, or initiating

enforcement actions against Plaintiffs. This is sufficient to

show redressability. “[I]f a court decision can provide a

‘small incremental step’ to reduce the risk of harm to the

plaintiffs ‘to some extent,’ that is enough to show causation

as well as redressability.” Matsumoto, 122 F.4th at 801–02

(quoting Massachusetts v. EPA, 549 U.S. 497, 524–26

(2007)). Defendants argue that Plaintiffs have not shown

redressability because Montana’s 56 county attorneys

“remain free to prosecute under HB359.” They are incorrect.

“[O]ur courts adhere to the simple principle that, absent an

express statutory provision to the contrary, a plaintiff need

not sue every defendant that may cause her harm.” Id. at 802.

“Partial amelioration of a harm . . . suffices for

redressability.” Id. at 801.

We conclude that Plaintiffs have standing to challenge

H.B. 359.

III. REVIEW OF PRELIMINARY INJUNCTION

“We review a district court’s decision to grant or deny a

preliminary injunction for abuse of discretion. We review

the district court’s legal conclusions de novo, and the district

court’s findings of fact for clear error. When reviewing

under this standard, we will not reverse the district court’s

decision ‘simply because [we] would have arrived at a

different result if [we] had applied the law to the facts of the

case.’” Doe v. Harris, 772 F.3d 563, 570 (9th Cir. 2014)

(alterations in original) (citation omitted) (quoting

Thalheimer v. City of San Diego, 645 F.3d 1109, 1115 (9th

Cir. 2011), overruled in part on other grounds by, Bd. of Trs.

26 IMPERIAL SOVEREIGN COURT OF MT V. KNUDSEN

of Glazing Health & Welfare Tr. v. Chambers, 941 F.3d

1195, 1199 (9th Cir. 2019) (en banc)).

“The standard for issuing a preliminary injunction is well

established.” Id. “A plaintiff seeking a preliminary

injunction must establish that he is likely to succeed on the

merits, that he is likely to suffer irreparable harm in the

absence of preliminary relief, that the balance of equities tips

in his favor, and that an injunction is in the public interest.”

Winter, 555 U.S. at 20. When evaluating a preliminary

injunction “in the First Amendment context, the moving

party bears the initial burden of making a colorable claim

that its First Amendment rights have been infringed, or are

threatened with infringement, at which point the burden

shifts to the government to justify the restriction.”

Thalheimer, 645 F.3d at 1116.

IV. LEGAL FRAMEWORK FOR ASSESSING

PLAINTIFFS’ CONTENT-BASED CLAIMS

Because H.B. 359 contains distinct definitions for “drag

story hours” and “sexually oriented performances” and

imposes some restrictions only on sexually oriented

performances, some individualized analysis of the

restrictions is required. Before turning to those restriction-

specific analyses, we discuss the framework of legal

standards that we must apply, and we address the parties’

disputes about those standards.

IMPERIAL SOVEREIGN COURT OF MT V. KNUDSEN 27

A. Application of Tiered Scrutiny to Facial

Content-Based Claims 5

Defendants first argue that the district court erred in

applying “tiered scrutiny” to H.B. 359 because Plaintiffs

bring a facial overbreadth claim. It is unclear whether

Defendants argue that the district court applied the wrong

standard for an overbreadth claim, or that the district court

applied the wrong standard for facial claims (as opposed to

as-applied claims). Regardless, Defendants are incorrect on

both points. To explain why, we begin by identifying each

of the facial claims raised in Plaintiffs’ complaint and the

applicable standards. Then, we address Defendants’

arguments.

First, Plaintiffs claim that H.B. 359 is facially invalid

because it restricts protected speech based on content or

viewpoint, in violation of the First Amendment. “Content-

based laws . . . target speech based on its communicative

content.” Reed v. Town of Gilbert, 576 U.S. 155, 163 (2015).

They “are presumptively unconstitutional and may be

justified only if the government proves that they are

narrowly tailored to serve compelling state interests.” Id.;

see also United States v. Playboy Ent. Grp., Inc., 529 U.S.

803, 813 (2000) (holding that “a content-based speech

restriction . . . can stand only if it satisfies strict scrutiny”).

Discrimination based on viewpoint is “an egregious form of

content discrimination.” Rosenberger v. Rector and Visitors

of Univ. of Va., 515 U.S. 819, 829 (1995).

5

Plaintiffs’ complaint includes three as-applied claims that are not at

issue in this appeal because they were not addressed by the district court

in its preliminary injunction order.

28 IMPERIAL SOVEREIGN COURT OF MT V. KNUDSEN

Second, Plaintiffs claim that H.B. 359 is facially invalid

because it is an overbroad speech restriction. “In the First

Amendment context, . . . a law may be invalidated as

overbroad if ‘a substantial number of its applications are

unconstitutional, judged in relation to the statute’s plainly

legitimate sweep.’” United States v. Stevens, 559 U.S. 460,

473 (2010) (quoting Wash. State Grange v. Wash. State

Republican Party, 552 U.S. 442, 449 n.6 (2008)). 6

Third, Plaintiffs claim that H.B. 359 is facially invalid

because it is unconstitutionally vague. A statute is

“impermissibly vague” on its face if “it fails to establish

standards for the police and public that are sufficient to guard

against the arbitrary deprivation of liberty interests.” City of

Chicago v. Morales, 527 U.S. 41, 52 (1999). A vague statute

violates the Fifth Amendment because it “may fail to provide

the kind of notice that will enable ordinary people to

understand what conduct it prohibits” or “may authorize and

even encourage arbitrary and discriminatory enforcement”

due to its nebulous terms. Id. at 56. A statute may be facially

void for vagueness “even if [it] does not reach a substantial

amount of constitutionally protected conduct.” Id. at 52. A

vagueness challenge is properly brought under the Fifth

Amendment, not the First. United States v. Williams, 553

U.S. 285, 304 (2008) (“Vagueness doctrine is an outgrowth

not of the First Amendment, but of the Due Process Clause

6

The First Amendment facial overbreadth doctrine allows litigants to

depart from traditional rules of standing. A litigant has standing to

challenge a statute as facially overbroad even if the statute could be

“lawfully applied” to his conduct. See United States v. Hansen, 599 U.S.

762, 769 (2023). Courts “have justified this doctrine on the ground that

it provides breathing room for free expression.” Id.

IMPERIAL SOVEREIGN COURT OF MT V. KNUDSEN 29

of the Fifth Amendment.”). 7 But when a “law interferes with

the right of free speech or of association,” we apply “a more

stringent [Fifth Amendment] vagueness test.” Vill. of

Hoffman Ests. v. Flipside, Hoffman Ests., Inc., 455 U.S. 489,

499 (1982).

We turn to Defendants’ argument that “the district court

incorrectly applied a tiered scrutiny analysis to plaintiffs’

overbreadth claim.” This is not an accurate reading of the

district court’s order. The district court applied a tiered

scrutiny analysis to Plaintiffs’ claim that H.B. 359 is facially

invalid because it restricts speech based on content and

viewpoint. See Imperial Sovereign Ct. v. Knudsen, 699

F. Supp. 3d 1018, 1038 (2023) (“H.B. 359 imposes a

content-based restriction. Strict scrutiny applies.” (citation

omitted)); id. (“H.B. 359’s facially viewpoint-based

regulation subjects it to strict scrutiny.”). The district court

correctly concluded that courts apply a tiered scrutiny

analysis to a claim that a law is content or viewpoint based.

Although Plaintiffs’ content-based claim and

overbreadth claim are legally distinct, Defendants insist that

the district court should have applied the standard for a First

Amendment overbreadth challenge to both claims. 8 As best

7

Although vagueness is a Fifth Amendment claim, we still may consider

a speech restriction’s vagueness when analyzing a First Amendment

claim. See, e.g., Reno v. ACLU, 521 U.S. 844, 864, 871–74 (1997)

(discussing statute’s vagueness “because of its relevance to the First

Amendment overbreadth inquiry,” “without reaching the Fifth

Amendment issue”); see also discussion infra Section V.B.2.

8

To address a possible basis for Defendants’ confusion, we note that,

while “overbreadth” is a particular type of First Amendment claim,

courts also use the term “overbreadth” when applying tiered scrutiny,

30 IMPERIAL SOVEREIGN COURT OF MT V. KNUDSEN

as we can tell, Defendants argue that the district court erred

by using a tiered scrutiny analysis because Plaintiffs bring a

facial challenge instead of an as-applied claim. That

argument is legally incorrect. To explain why, it is important

to pinpoint where Defendants’ arguments go astray.

Defendants begin by correctly citing the standard we

generally apply to facial claims outside the First Amendment

context. Generally, “a plaintiff cannot succeed on a facial

challenge unless he establish[es] that no set of circumstances

exists under which the [law] would be valid, or he shows that

the law lacks a plainly legitimate sweep.” Moody v.

NetChoice, LLC, 603 U.S. 707, 723 (2024) (alterations in

original) (citations and internal quotation marks omitted).

Defendants then correctly note that we lower that standard

in the First Amendment context, so a facial challenge can

succeed if the plaintiff shows that a substantial number of

the law’s applications are unconstitutional, judged in

relation to its plainly legitimate sweep. Stevens, 559 U.S. at

473. And Defendants correctly note that this lower standard

is the standard we apply when analyzing a First Amendment

facial overbreadth claim. But Defendants then appear to

argue that these cases mean that the district court erred by

applying strict scrutiny to Plaintiffs’ facial content-based

including in the context of First Amendment content-based claims. For

example, when determining whether a restriction is narrowly tailored to

a governmental interest, we typically consider whether the restriction is

overinclusive or underinclusive, and we may use “overbreadth” as a

synonym for “overinclusiveness.” See, e.g., Brown v. Ent. Merchs.

Ass’n, 564 U.S. 786, 805 (2011) (concluding legislation restricting sale

of violent video games was “seriously underinclusive” “[a]s a means of

protecting children from portrayals of violence,” and “seriously

overinclusive” “as a means of assisting concerned parents,” and that “the

overbreadth in achieving one goal is not cured by the underbreadth in

achieving the other”).

IMPERIAL SOVEREIGN COURT OF MT V. KNUDSEN 31

claim. 9 This is the point at which Defendants’ argument goes

in the wrong direction.

It is well established that plaintiffs may bring a facial

First Amendment challenge on the ground that a statute is

content or viewpoint based. See, e.g., Brown v. Ent. Merchs.

Ass’n, 564 U.S. 786, 799 (2011) (holding that a California

statute restricting the sale of violent video games to children

was a facially invalid content-based speech restriction);

Playboy, 529 U.S. at 807, 834 n.3 (holding that a signal bleed

provision in the Telecommunications Act of 1996 was a

facially invalid content-based speech restriction); R.A.V. v.

City of St. Paul, 505 U.S. 377, 380–01 (1992) (holding that

a city cross-burning ordinance was a facially invalid content-

based speech restriction).

It is also well established that if a plaintiff shows that a

statute is content based and the government fails to show that

the restriction satisfies strict scrutiny, the plaintiff prevails

on their facial challenge. See, e.g., Brown, 564 U.S. at 799

(When a law “imposes a restriction on the content of

protected speech, it is invalid unless [the government] can

demonstrate that it passes strict scrutiny.”); R.A.V., 505 U.S.

at 395 (“[T]he danger of censorship presented by a facially

content-based statute requires that that weapon be employed

only where it is necessary to serve the asserted [compelling]

interest.” (second alteration in original) (citation and internal

quotation marks omitted)). Thus, if a court concludes that a

9

In their reply brief, Defendants appear to concede that Plaintiffs’

complaint includes both a facial challenge to H.B. 359 on the ground that

it is content and viewpoint based, and a facial overbreadth claim. To the

extent that Defendants argue Plaintiffs cannot facially challenge a statute

on both content-based and overbreadth grounds, they are incorrect.

Plaintiffs may bring facial challenges on both grounds and often do. See,

e.g., Stevens, 559 U.S. at 467.

32 IMPERIAL SOVEREIGN COURT OF MT V. KNUDSEN

content-based speech restriction fails strict scrutiny, the

analysis ends. The law is facially invalid and cannot be

enforced against anyone. See, e.g., Brown, 564 U.S. at 799

(concluding, in a facial challenge, that a statute was a

content-based speech restriction that failed strict scrutiny

and affirming district court’s order declaring the statute

unconstitutional and permanently enjoining its enforcement,

without applying overbreadth analysis); Playboy, 529 U.S.

at 813 (same); see also Iancu v. Brunetti, 588 U.S. 388, 398–

99 (2019) (rejecting government’s argument that the Court

should apply the First Amendment overbreadth standard and

uphold a viewpoint-discriminatory statute against a facial

attack because “this Court has never applied that kind of

analysis to a viewpoint-discriminatory law”).

We recognize that in Moody, the Supreme Court

explained that to avoid “short circuit[ing] the democratic

process,” it has “made facial challenges hard to win, . . . even

when a facial suit is based on the First Amendment.” 603

U.S. at 723 (quoting Wash. State Grange, 552 U.S. at 451).

After the Court reiterated the general standard for a facial

challenge and the lower standard for a First Amendment

overbreadth challenge, the Court held that the lower courts

in the underlying cases erred by not applying the facial

overbreadth standard and instead “treat[ing] these cases

more like as-applied claims than like facial ones.” Id. at 724.

Moody, however, did not displace the longstanding and

myriad precedents setting forth the tiered scrutiny analysis

we apply to a facial claim challenging a law on the ground

that it is an unconstitutional content-based restriction on

speech. See, e.g., Free Speech Coal., Inc. v. Paxton, 606 U.S.

461, 477–85 (2025) (applying tiered-scrutiny analysis to

facial content-based claim after Moody).

IMPERIAL SOVEREIGN COURT OF MT V. KNUDSEN 33

B. Determining the Applicable Level of Scrutiny

“When the [g]overnment restricts speech, the

[g]overnment bears the burden of proving the

constitutionality of its actions.” Playboy, 529 U.S. at 816.

The standard for the government’s burden—the level of

scrutiny—depends on various threshold determinations.

Here, Plaintiffs contend that H.B. 359 restricts purely

expressive activity based on its content and therefore strict

scrutiny applies. Defendants argue that H.B. 359 is a

content-neutral regulation of expressive conduct and

therefore only intermediate scrutiny applies. 10 Thus, in this

case, there are two threshold issues in dispute: first, whether

the restriction regulates purely expressive activity or

expressive conduct, and second, whether the restriction is

content based or content neutral. 11

1. Purely Expressive Activity or Conduct with an

Expressive Component

“The First Amendment literally forbids the abridgment

only of ‘speech,’ but we have long recognized that its

10

Although Defendants primarily argue that tiered scrutiny is

inapplicable to Plaintiffs’ claims, they alternatively argue that we should

apply intermediate scrutiny. Further, although Defendants argue that

H.B. 359 regulates only conduct, they concede it is at least expressive

conduct. Although rational basis review or the equivalent, see, e.g.,

Zauderer v. Off. of Disciplinary Couns. of Sup. Ct. of Ohio, 471 U.S.

626, 651 (1985), may apply in the First Amendment context, there is no

basis for concluding it applies in this case, and Defendants do not argue

that it does.

11

The type of forum (public, limited public, or non-public) is another

threshold consideration that can affect the applicable level of scrutiny in

the First Amendment context. See, e.g., Cornelius v. NAACP Legal Def.

& Educ. Fund, Inc., 473 U.S. 788, 802 (1985). In this case, however,

neither party argues that a forum analysis is required.

34 IMPERIAL SOVEREIGN COURT OF MT V. KNUDSEN

protection does not end at the spoken or written word.”

Texas v. Johnson, 491 U.S. 397, 404 (1989). “All manner of

speech—from pictures, films, paintings, drawings, and

engravings, to oral utterance and the printed word—qualify

for the First Amendment’s protections.” 303 Creative LLC

v. Elenis, 600 U.S. 570, 587 (2023) (citations and internal

quotation marks omitted). “[T]he Supreme Court and our

court have recognized various forms of entertainment and

visual expression as purely expressive activities, including

music without words, dance, topless dancing, movies,

parades with or without banners or written messages, and

both paintings and their sale.” Anderson v. City of Hermosa

Beach, 621 F.3d 1051, 1060 (9th Cir. 2010) (internal

citations omitted). See also id. (holding that the tattoo, the

tattooing process, and the business of tattooing are all purely

expressive activities). Operating a beauty pageant and

staging a play are both purely expressive activities. Green v.

Miss U.S.A., LLC, 52 F.4th 773, 777, 780–82 (9th Cir. 2022).

In the First Amendment context, “purely expressive

activit[ies]” are a form of “speech” and are “entitled to full

First Amendment protection.” Anderson, 621 F.3d at 1059.

The Supreme Court has also long recognized that the

First Amendment extends protection to “expressive

conduct,” that is, a message “delivered by conduct” that is

not purely expressive activity but which is “intended to be

communicative.” 12 United States v. Swisher, 811 F.3d 299,

310–11 (9th Cir. 2016) (en banc) (quoting Clark v. Cmty. for

Creative Non-Violence, 468 U.S. 288, 294 (1984)); see also

12

Courts sometimes refer to expressive conduct as “symbolic speech.”

See, e.g., Virginia v. Black, 538 U.S. 343, 358 (2003) (“The First

Amendment affords protection to symbolic or expressive conduct as well

as to actual speech.”); Swisher, 811 F.3d at 311 (discussing “symbolic

speech”).

IMPERIAL SOVEREIGN COURT OF MT V. KNUDSEN 35

Anderson, 621 F.3d at 1059 (explaining that expressive

conduct is “conduct that can be used to express an idea but

does not necessarily do so”). “[C]onduct intending to

express an idea is constitutionally protected only if it is

‘sufficiently imbued with elements of communication to fall

within the scope of the First and Fourteenth Amendments.’”

Anderson, 621 F.3d at 1058 (quoting Spence v. Washington,

418 U.S. 405, 409 (1974)). Examples of expressive conduct

include burning the American flag, Johnson, 491 U.S. at

406, burning a draft card, United States v. O’Brien, 391 U.S.

367, 376–77 (1968), affixing a peace sign to the American

flag, Spence, 418 U.S. at 406, and wearing a military medal,

Swisher, 811 F.3d at 314.

When a generally applicable conduct regulation

incidentally burdens expressive conduct, we typically apply

the four-part test announced in O’Brien, 391 U.S. at 377, “a

less stringent test than those established for regulations of

pure speech” or “purely expressive activit[ies].” Anderson,

621 F.3d at 1059. The government “may not, however,

proscribe particular conduct because it has expressive

elements.” Johnson, 491 U.S. at 406. The Court has

therefore “limited the applicability of O’Brien’s relatively

lenient standard to those cases in which ‘the governmental

interest is unrelated to the suppression of free expression.’”

Id. at 407 (quoting O’Brien, 391 U.S. at 377). That is, “[t]he

O’Brien framework governs First Amendment claims when

evaluating government regulations that have ‘only an

incidental effect on protected speech.’” Green, 52 F.4th at

790 (quoting Boy Scouts of Am. v. Dale, 530 U.S. 640, 659

(2000)).

When a law is “directed at the communicative nature of

conduct,” it “must, like a law directed at speech itself, be

justified by the substantial showing of need that the First

36 IMPERIAL SOVEREIGN COURT OF MT V. KNUDSEN

Amendment requires.” Johnson, 491 U.S. at 406 (citation

and internal quotation marks omitted). In Johnson, the Court

applied the “most exacting scrutiny” to Texas’s flag-burning

law and concluded that the law was unconstitutional as

applied to political expression. Id. at 412 (quoting Boos v.

Barry, 485 U.S. 312, 321 (1988)). 13

2. Content Based or Content Neutral

A content-based speech restriction is “presumptively

invalid.” R.A.V., 505 U.S. at 382. “[I]t can stand only if it

satisfies strict scrutiny.” Playboy, 529 U.S. at 813. That is,

“[i]f a statute regulates speech based on its content, it must

be narrowly tailored to promote a compelling [g]overnment

interest. If a less restrictive alternative would serve the

[g]overnment’s purpose, the legislature must use that

alternative.” Id. (citation omitted). By contrast, a content-

neutral regulation of the time, place, and manner of speech

is subject to the test set forth in Clark, 468 U.S. at 293, which

“is little, if any, different from the [O’Brien test].” Id. at 298.

“Government regulation of speech is content based if a

law applies to particular speech because of the topic

discussed or the idea or message expressed.” Reed, 576 U.S.

at 163. To determine whether a speech restriction is content

based, we first must consider whether it “‘on its face’ draws

distinctions based on the message a speaker conveys.” Reed,

13

“Most exacting scrutiny” is the same test as “strict scrutiny.” Compare

Boos, 485 U.S. at 321 (holding that to satisfy “most exacting scrutiny,”

the government must “show that the ‘regulation is necessary to serve a

compelling state interest and that it is narrowly drawn to achieve that

end’” (citing Perry Educ. Ass’n v. Perry Loc. Educators’ Ass’n, 460 U.S.

37, 45 (1983))), with Playboy, 529 U.S. at 813 (holding that a statute

“must be narrowly tailored to promote a compelling Government

interest” to satisfy strict scrutiny).

IMPERIAL SOVEREIGN COURT OF MT V. KNUDSEN 37

576 U.S. at 163 (quoting Sorrell v. IMS Health Inc., 564 U.S.

552, 567 (2011)). “Some facial distinctions based on a

message are obvious, defining regulated speech by particular

subject matter, and others are more subtle, defining regulated

speech by its function or purpose. Both are distinctions

drawn based on the message a speaker conveys, and,

therefore, are subject to strict scrutiny.” Id. at 163–64. “[A]

speech regulation targeted at specific subject matter is

content based even if it does not discriminate among

viewpoints within that subject matter. For example, a law

banning the use of sound trucks for political speech—and

only political speech—would be a content-based regulation,

even if it imposed no limits on the political viewpoints that

could be expressed.” Id. at 169 (citation omitted).

Additionally, “[b]ecause speech restrictions based on the

identity of the speaker are all too often simply a means to

control content, we have insisted that laws favoring some

speakers over others demand strict scrutiny when the

legislature’s speaker preference reflects a content

preference.” Id. at 170 (citations and internal quotation

marks omitted); see also Sorrell, 564 U.S. at 565 (applying

strict scrutiny to content- and speaker-based restriction). “A

law that is content based on its face is subject to strict

scrutiny regardless of the government’s benign motive,

content-neutral justification, or lack of ‘animus toward the

ideas contained’ in the regulated speech.” Reed, 576 U.S. at

165 (quoting Cincinnati v. Discovery Network, Inc., 507

U.S. 410, 429 (1993)).

The general rule that a facially content-based speech

restriction is subject to strict scrutiny has two exceptions.

The first is the secondary-effects doctrine, which has been

applied to uphold zoning restrictions aimed at specific types

of businesses, such as adult theaters. See, e.g., City of Renton

38 IMPERIAL SOVEREIGN COURT OF MT V. KNUDSEN

v. Playtime Theatres, Inc., 475 U.S. 41 (1986); Young v. Am.

Mini Theaters, Inc., 427 U.S. 50 (1976). The zoning laws at

issue in these cases were content neutral because they were

aimed at the secondary effects of the businesses, not the

content of their expression. Renton, 475 U.S. at 47–48. The

Supreme Court has made clear that the secondary-effects

doctrine is a narrow exception that is generally limited to

zoning regulations. See Reno v. ACLU, 521 U.S. 844, 867–

68 (1997) (rejecting government argument that a statute

targeting online speech was a form of “cyberzoning”);

Playboy, 529 U.S. at 815 (discussing Renton).

The second exception was most clearly articulated by the

Supreme Court in City of Austin v. Reagan Nat’l Advert. of

Austin, LLC, 596 U.S. 61, 69 (2022). There, the Court

explained that a speech regulation that applies only to speech

of certain content is content based, but a regulation that

merely requires some evaluation of speech content to

determine whether a content-neutral regulation applies is

content neutral. Compare Reed, 576 U.S. at 159–61 (holding

that a sign code was content based because it distinguished

between ideological, political, and temporary directional

signs), with Reagan Nat’l Advert., 596 U.S. at 69 (holding

that a regulation was content neutral because it “require[d]

an examination of speech only in service of drawing neutral,

location-based lines”). See also Project Veritas v. Schmidt,

125 F.4th 929, 950 (9th Cir. 2025) (en banc) (holding that

statute restricting unannounced recording was content

neutral); Porter v. Martinez, 68 F.4th 429, 443 (9th Cir.

2023) (concluding that vehicle code restriction on honking

was content neutral).

To determine whether a speech restriction is content

based or content neutral, we also must consider its

justification and purpose, because even laws that are

IMPERIAL SOVEREIGN COURT OF MT V. KNUDSEN 39

“facially content neutral[] will be considered content-based

regulations of speech” if they “cannot be ‘justified without

reference to the content of the regulated speech,’ or . . . were

adopted by the government ‘because of disagreement with

the message [the speech] conveys.’” Reed, 576 U.S. at 164

(quoting Ward v. Rock Against Racism, 491 U.S. 781, 791

(1989)). “Those laws, like those that are content based on

their face, must also satisfy strict scrutiny.” Id. “Because

strict scrutiny applies either when a law is content based on

its face or when the purpose and justification for the law are

content based, a court must evaluate each question before it

concludes that the law is content neutral and thus subject to

a lower level of scrutiny.” Id. at 166.

C. Restrictions of Speech Deemed “Indecent” but

not “Obscene”

Defendants do not argue that H.B. 359 targets obscenity.

Nor do Defendants argue that H.B. 359 can be narrowly

construed to restrict only obscenity. 14 Rather, Defendants

maintain that the Montana Legislature enacted H.B. 359

because it determined that drag story hours and sexually

oriented performances are “indecent and inappropriate for

minors.” And in Defendants’ view, H.B. 359 withstands

constitutional scrutiny because “a State may regulate what

may be indecent to minors,” even where “not legally

obscene.” In making this argument, Defendants rely

primarily on two related and sometimes overlapping lines of

First Amendment cases: (1) cases involving statutes that

14

Montana already has criminal statutes that prohibit obscenity, both as

to adults and as to minors. See Mont. Code. Ann. §§ 45-8-201

(criminalizing the offense of obscenity and incorporating the Miller

definition), 45-8-206 (criminalizing the public display or dissemination

of obscene material to minors).

40 IMPERIAL SOVEREIGN COURT OF MT V. KNUDSEN

used the term “indecent” to define the scope of restricted

speech, see, e.g., FCC v. Pacifica, 438 U.S. 726 (1978), and

(2) cases involving a statute that used other terms to define

the scope of restricted speech and a claim by defendants that

the restricted speech was “indecent” or “unsuitable” for

minors, see, e.g., Erznoznik v. City of Jacksonville, 422 U.S.

205 (1975). For ease, we refer to these cases collectively as

“indecent-speech cases.”

Although Defendants do not argue that H.B. 359 is an

“obscenity” restriction, to understand the Supreme Court’s

indecent-speech cases, we must read them in the context of

the Court’s jurisprudence regarding obscenity and other

categories of “unprotected speech.” As the Court explained

in Brown, “[a]s a general matter, government has no power

to restrict expression because of its message, its ideas, its

subject matter, or its content. . . . [But] [f]rom 1791 to the

present, the First Amendment has permitted restrictions

upon the content of speech in a few limited areas.” 564 U.S.

at 790–91 (2011) (citations and internal quotation marks

omitted). “These limited areas” of unprotected speech

include obscenity, Roth v. United States, 354 U.S. 476, 483

(1957); incitement, Brandenburg v. Ohio, 395 U.S. 444,

447–49 (1969) (per curiam); and fighting words, Chaplinsky

v. New Hampshire, 315 U.S. 568, 572 (1942). “Prevention

and punishment” of these “well-defined and narrowly

limited classes of speech . . . have never been thought to

raise any Constitutional problem.” Brown, 564 U.S. at 791

(quoting Chaplinsky, 315 U.S. at 571–72). However, statutes

aimed at restricting unprotected speech must be drawn

carefully to reach only unprotected speech. See Ashcroft v.

Free Speech Coal., 535 U.S. 234, 239, 247–48, 256 (2002)

(holding unconstitutional a statutory provision that would

ban “sexually explicit images that appear to depict minors

IMPERIAL SOVEREIGN COURT OF MT V. KNUDSEN 41

but were produced without using any real children” as

covering materials that did not meet Miller’s obscenity

standard, such as films with themes of teenage sexual

activity). 15 Further, “new categories of unprotected speech

may not be added to the list by a legislature that concludes

certain speech is too harmful to be tolerated.” Brown, 564

U.S. at 791 (citing United States v. Stevens, 559 U.S. 460

(2010)).

The Supreme Court first set the standard for obscenity in

Roth v. United States, 354 U.S. 476 (1957), and later revised

it in Miller v. California, 413 U.S. 15 (1973). Under Miller,

the standard for determining whether speech qualifies as

“obscenity” is: “(a) whether the average person, applying

contemporary community standards would find that the

work, taken as a whole, appeals to the prurient interest;

(b) whether the work depicts or describes, in a patently

offensive way, sexual conduct specifically defined by the

applicable state law; and (c) whether the work, taken as a

whole, lacks serious literary, artistic, political, or scientific

value.” Miller, 413 U.S. at 24 (citations and internal

quotation marks omitted).

In Ginsberg v. State of New York, which followed Roth

but preceded Miller, the Court set forth an obscenity

standard as to minors that was a variation of the adult

obscenity standard enunciated in Roth. 390 U.S. 629, 635

15

A statute that expressly proscribes only unprotected speech “is not

necessarily subject to strict scrutiny,” even though it is “content based.”

Swisher, 811 F.3d at 313. But a statutory proscription that restricts both

protected and unprotected speech based on content generally is subject

to strict scrutiny. See, e.g., Erznoznik, 422 U.S. at 209–10. And a statute

that selectively prohibits a subset of an unprotected speech category

based on content may also be subject to strict scrutiny. See R.A.V., 505

U.S. at 381.

42 IMPERIAL SOVEREIGN COURT OF MT V. KNUDSEN

(1968). In Erznoznik, the Court noted that it had not had

occasion to decide the effect of Miller on the “Ginsberg

formulation” but explained that “it is clear . . . that under any

test of obscenity as to minors not all nudity would be

proscribed. Rather, to be obscene ‘such expression must be,

in some significant way, erotic.’” 422 U.S. at 214 n.10

(quoting Cohen v. California, 403 U.S. 15, 20 (1971)).

In Free Speech Coalition, Inc. v. Paxton, the Court

clarified the effect of Miller on the Ginsberg formulation of

obscenity for minors. 606 U.S. at 472–74. At issue in Free

Speech Coalition was a First Amendment challenge to a

Texas statute that required websites with more than one-third

content qualifying as “sexual material harmful to minors” to

verify their users’ age, to prevent minors from accessing

certain sexually explicit content. Id. at 466–67 (quoting Tex.

Civ. Prac. & Rem. Code Ann. § 129B.002(a)). The statute

defined restricted content as “material that: (1) ‘is designed

to appeal to or pander to the prurient interest’ when taken ‘as

a whole and with respect to minors’; (2) describes, displays,

or depicts ‘in a manner patently offensive with respect to

minors’ various sex acts and portions of the human anatomy,

including depictions of ‘sexual intercourse, masturbation,

sodomy, bestiality, oral copulation, flagellation, [and]

excretory functions’; and (3) ‘lacks serious literary, artistic,

political, or scientific value for minors.’” Id. at 467

(alteration in original) (citing Tex. Civ. Prac. & Rem. Code

Ann. § 129B.001(6)). The Court concluded that the statute

restricted only obscenity for minors because the statute’s

definition of restricted content conformed to the Miller-

Ginsberg obscenity for minors standard, which “broaden[s]

Miller’s ‘definition of obscenity’ to cover that which is

IMPERIAL SOVEREIGN COURT OF MT V. KNUDSEN 43

obscene from a child’s perspective.” Id. at 474 (quoting

Ginsberg, 390 U.S. at 638). 16

As noted above, Montana already prohibits the display

or dissemination of material that is obscene for minors under

a different statute, Mont. Code Ann. § 45-8-206, and

Defendants do not contend that H.B. 359 restricts only

obscenity for minors. Although the briefing in this case was

complete before Free Speech Coalition was decided, that

case makes only more clear that Defendants could not

defend H.B. 359 on that ground, because neither of the

statute’s categories of restricted speech (drag story hours and

sexually oriented performances) conform to the Miller-

Ginsberg obscenity for minors standard. See Free Speech

Coal., 606 U.S. at 472–74 (describing three-part obscenity

test for minors).

We turn next to the Court’s indecent-speech cases.

Although there are a fair number of such cases, the Court has

never expressly defined “indecent speech.” Yet, the Court

has repeatedly emphasized that legislatures are not free to

16

The Court also clarified that the category of “obscene to minors”

constitutes partially protected speech, not wholly unprotected speech like

“obscenity.” Free Speech Coal., 606 U.S. at 492. Content that qualifies

as “obscene for minors” but does not qualify as “obscenity” is

“protected” for adults: adults have a First Amendment right to access

such speech. Id. at 492–93. Content that is obscene to minors is

“unprotected” only for minors, meaning that minors (but only minors)

do not have a First Amendment right to access such speech. Id. Finally,

the Court considered what level of scrutiny to apply to the Texas statute.

Id. at 477–78. The Court reasoned that rational basis review did not apply

because the age-verification requirement burdened adults’ First

Amendment rights. Id. at 478. But because the burden was only

“incidental,” intermediate scrutiny (like the O’Brien test) applied rather

than strict scrutiny. Id. at 482–85. The Court held the age-verification

requirement survived intermediate scrutiny. Id. at 499.

44 IMPERIAL SOVEREIGN COURT OF MT V. KNUDSEN

label any speech “indecent” and restrict it on that basis. As

explained in Brown, a legislature’s “legitimate power to

protect children from harm . . . does not include a free-

floating power to restrict the ideas to which children may be

exposed.” 564 U.S. at 794. “Much that we encounter offends

our esthetic, if not our political and moral, sensibilities.

Nevertheless, the Constitution does not permit government

to decide which types of otherwise protected speech are

sufficiently offensive to require protection for the unwilling

listener or viewer.” Erznoznik, 422 U.S. at 210; see also

Reno, 521 U.S. at 871–74 (holding that a criminal statute

restricting “indecent” speech without defining the term

“indecent” was too ambiguous and not narrowly tailored).

If “indecent speech” cannot mean anything the

government decides is inappropriate for children, what can

it mean? When the Court has considered “indecent speech”

restrictions, it generally has used the term “indecent” to refer

to speech that is similar in kind to obscene speech (i.e.,

sexually explicit) but does not qualify as obscene speech.

See, e.g., Playboy, 529 U.S. at 808–11, 814 (using the term

“indecent” to describe cable television programming that

was “sexually explicit” but not “obscene”); Reno, 521 U.S.

at 873 (where statute restricted “indecent” and “patently

offensive” speech without defining “indecent,” assuming

that the terms were “synonymous”); Denver Area Educ.

Telecomms. Consortium, Inc. v. FCC, 518 U.S. 727, 737,

752 (1996) (plurality opinion) (noting that a regulation

permitting cable operators to prohibit “indecent”

programming tracked some, but not all, of the Miller

obscenity test); Sable Commc’ns of Cal. v. FCC, 492 U.S.

115, 126 (1989) (using the term “indecent” to describe “dial-

a-porn” that was sexually explicit but “not obscene”); FCC

v. Pacifica Found., 438 U.S. 726, 740 (1978) (observing, in

IMPERIAL SOVEREIGN COURT OF MT V. KNUDSEN 45

the context of radio broadcasting, that obscenity requires a

prurient appeal while indecency does not). In Pacifica, the

FCC regulation at issue defined indecent language as

“language that describes, in terms patently offensive as

measured by contemporary community standards for the

broadcast medium, sexual or excretory activities and organs

at times of the day when there is a reasonable risk that

children may be in the audience,” and the case involved

speech “that concededly [wa]s not obscene.” Id. at 732,

735. 17 In Bethel School District No. 403 v. Fraser, the Court

held that a school district was permitted to discipline a

student for “offensively lewd and indecent speech.” 478 U.S.

675, 685 (1986). The Court distinguished Tinker v. Des

Moines Independent School District, 393 U.S. 503 (1969),

which held that a school regulation prohibiting students from

wearing armbands violated their freedom of speech, because

the speech at issue in Bethel was “sexually explicit.” Id.

The Supreme Court has also suggested that the meanings

of both “indecent speech” and “obscene speech” are limited

to the historical understandings of those categories, i.e., that

both are limited to sexually explicit content. In Winters v.

17

Pacifica involved an as-applied challenge to the FCC’s determination

that a particular radio broadcast was actionably “indecent” under 18

U.S.C. § 1464 (1976), not a facial challenge to the statutory restriction.

See generally 438 U.S. 726. Although Section IV.B. of the Pacifica

opinion discussed “whether the First Amendment denies government

any power to restrict the public broadcast of indecent language in any

circumstances,” that section was not joined by a majority of the Court.

See id. at 729, 744. Further, in Pacifica and subsequent cases, the Court

has emphasized that its holding was narrow and depended on many case-

specific factors, including the role of the FCC, the nature of the

adjudicatory proceeding, the fact that the FCC’s order was non-punitive,

and the medium of radio broadcasting. See id. at 748–51; Playboy, 529

U.S. at 815; Reno, 521 U.S. at 866–67; Sable, 492 U.S. at 127–28.

46 IMPERIAL SOVEREIGN COURT OF MT V. KNUDSEN

New York, the Court rejected the government’s view that

violent speech is a form of “indecent or obscene” speech.

333 U.S. 507, 512–19 (1948). In doing so, the Court noted

that the violent speech reached by New York’s statute

contained “no indecency or obscenity in any sense

heretofore known to the law.” Id. at 519. The Court

reaffirmed that view in Brown. 564 U.S. at 793 (“Our

opinion in Winters . . . made clear that violence is not part of

the obscenity that the Constitution permits to be regulated.”).

See also Video Software Dealers Ass’n v. Schwarzenegger,

556 F.3d 950, 967 (9th Cir. 2009) (declining to “read

Ginsberg as reaching beyond the context of restrictions on

sexually-explicit materials or as creating an entirely new

category of expression—speech as to minors—excepted

from First Amendment protections”), aff’d, Brown, 564 U.S.

786. In Free Speech Coalition, the Court also repeatedly

indicated that the partially protected category of “obscene to

minors” reaches only “sexually explicit” content. 606 U.S.

at 465, 478 (describing statute that restricts content that is

obscene for minors as prohibiting the distribution of

“sexually explicit content to children”); id. at 473–74

(same). Reading these cases together, we conclude that, in

the First Amendment context, the term “indecent speech”

generally refers to sexually explicit content that is similar in

kind to obscenity, but does not qualify as obscenity.

Because “obscenity for minors” is not protected speech

for minors, a restriction that limits only minors’ access to

this content is not subject to strict scrutiny. See id. at 492; cf.

id. at 478 (a restriction aimed at limiting only minors’ access

to obscenity for minors that incidentally burdens adult access

is subject to intermediate scrutiny). But sexually explicit

speech that is “indecent but not obscene” is fully protected

by the First Amendment. See Playboy, 529 U.S. at 813–14;

IMPERIAL SOVEREIGN COURT OF MT V. KNUDSEN 47

Sable, 492 U.S. at 126 (“[S]exual expression that is indecent

but not obscene is protected by the First Amendment.”);

Reno, 521 U.S. at 871–74.

When the government restricts sexually explicit speech

that is not obscene because it considers the content

“indecent” for young viewers, the restriction is “content

based.” See Playboy, 529 U.S. at 811. The statute challenged

in Playboy required cable television operators to completely

block “channels primarily dedicated to ‘sexually explicit

adult programming or other programming that is indecent’”

or to limit transmission of such channels “to hours when

children are unlikely to be viewing,” in order “to shield

children from hearing or seeing images resulting from signal

bleed.” Id. at 806, 811. Because “[t]he overriding

justification for the regulation [wa]s concern for the effect of

the subject matter on young viewers,” the regulation was

“content based.” Id. at 811. As the Court explained: “[The

statute] is not justified without reference to the content of the

regulated speech. It focuses only on the content of the speech

and the direct impact that speech has on its listeners. This is

the essence of content-based regulation.” Id. at 811–12

(citations and internal quotation marks omitted).

Further, a content-based restriction of sexually explicit

speech that is indecent but not obscene is subject to strict

scrutiny. See id. at 814. Because the restricted programming

in Playboy was “indecent” but “not obscene,” it was

“protected speech; and the question [wa]s what standard the

Government must meet in order to restrict it.” Id. The Court

responded: “As we consider a content based regulation, the

answer should be clear: The standard is strict scrutiny. This

case involves speech alone; and even where speech is

indecent and enters the home, the objective of shielding

children does not suffice to support a blanket ban if the

48 IMPERIAL SOVEREIGN COURT OF MT V. KNUDSEN

protection can be accomplished by a less restrictive

alternative.” Id. See also Sable, 492 U.S. at 126 (“We have

recognized that there is a compelling interest in protecting

the physical and psychological well-being of minors. This

interest extends to shielding minors from the influence of

literature that is not obscene by adult standards. The

[g]overnment may serve this legitimate interest, but to

withstand constitutional scrutiny, it must do so by narrowly

drawn regulations designed to serve those interests without

unnecessarily interfering with First Amendment freedoms. It

is not enough to show that the [g]overnment’s ends are

compelling; the means must be carefully tailored to achieve

those ends.” (citations and internal quotation marks

omitted)).

When determining whether an indecent speech

restriction withstands strict scrutiny, the Court has carefully

considered the extent to which the targeted speech invades

the home, and the extent to which an unwilling viewer or

listener can simply avoid it without government restriction.

The Court summarized this principle in Erznoznik: “[W]hen

the government, acting as censor, undertakes selectively to

shield the public from some kinds of speech on the ground

that they are more offensive than others, the First

Amendment strictly limits its power. Such selective

restrictions have been upheld only when the speaker intrudes

on the privacy of the home, or the degree of captivity makes

it impractical for the unwilling viewer or auditor to avoid

exposure.” 422 U.S. at 209 (citations omitted); see also

Cohen, 403 U.S. at 21 (“The ability of government,

consonant with the Constitution, to shut off discourse solely

to protect others from hearing it is . . . dependent upon a

showing that substantial privacy interests are being invaded

in an essentially intolerable manner.”).

IMPERIAL SOVEREIGN COURT OF MT V. KNUDSEN 49

Since Erznoznik, the Court has continued to emphasize

these contextual factors when determining the constitutional

validity of an indecent speech restriction. See Playboy, 529

U.S. at 813–15; Reno, 521 U.S. at 868–69 (distinguishing

the internet from broadcast media and noting that “special

justifications for regulation of the broadcast media . . . are

not present in cyberspace”); Sable, 492 U.S. at 128 (“Placing

a telephone call is not the same as turning on a radio and

being taken by surprise by an indecent message. Unlike an

unexpected outburst on a radio broadcast, the message

received by one who places a call to a dial-a-porn service is

not so invasive or surprising that it prevents an unwilling

listener from avoiding exposure to it.”); Pacifica, 438 U.S.

at 750 (emphasizing that “context is all-important” and that

“differences between radio, television, and perhaps closed-

circuit transmissions, may also be relevant” in determining

the lawfulness of an FCC indecency sanction); Denver Area,

518 U.S. at 757–78 (majority opinion) (concluding that

provision requiring leased channel operators to “segregate

and block” “patently offensive” or indecent programming

violated the First Amendment in part because a less

restrictive alternative would allow “parents to ‘lock out’

those programs or channels that they did not want their

children to see”).

In Playboy, the Court reaffirmed the First Amendment

principle that when the aim of a law is to protect the

sensibilities of listeners, the onus is generally on the listener

to avert his eyes. 529 U.S. at 813 (first citing Cohen, 403

U.S. at 21; and then citing Erznoznik, 422 U.S. at 210–11).

The Court also underscored that the invasiveness of the

medium by which speech is conveyed is an important factor

to consider when applying strict scrutiny. Id. at 813–15. For

example, it noted that both cable television and broadcast

50 IMPERIAL SOVEREIGN COURT OF MT V. KNUDSEN

media “present[] unique problems” because they are

“transmitted to some homes where they are not wanted and

where parents often are not present to give immediate

guidance,” which “may justify restrictions that would be

unacceptable in other contexts.” Id. But the Court ultimately

distinguished cable television from broadcast television

because the former was less invasive than the latter. Id. at

815. When concluding that the signal bleed provision did not

withstand strict scrutiny, it explained that the case turned on

“a key difference between cable television and the

broadcasting media”: cable systems’ ability “to block

unwanted channels on a household-by-household basis.” Id.

With this legal framework in mind, we turn to assessing

H.B. 359’s restrictions.

V. PLAINTIFFS’ CONTENT-BASED CLAIMS

A. Drag Story Hours

Under H.B. 359 § 3(2), “[a] school or library that

receives any form of funding from the state may not allow a

. . . drag story hour, as defined in [Section 1], on its premises

during regular operating hours or at any school-sanctioned

extracurricular activity.”

1. The drag-story-hour provision is a content-based

restriction of purely expressive activity.

Plaintiffs argue that the drag-story-hour provision is a

“content-based restriction on protected speech and

expression” subject to strict scrutiny. Defendants argue that

drag story hours are conduct, not inherently expressive

speech, and that H.B. 359’s drag-story-hour provision is a

content-neutral restriction on the secondary effects of drag

story hours subject only to intermediate scrutiny. For the

reasons explained below, we conclude that drag story hours

IMPERIAL SOVEREIGN COURT OF MT V. KNUDSEN 51

are purely expressive activity and that the drag-story-hour

provision is a content-based restriction subject to strict

scrutiny.

H.B. 359 defines a “drag story hour” as “an event hosted

by a drag queen or drag king who reads children’s books and

engages in other learning activities with minor children

present.” H.B. 359 § 1(3). H.B. 359 defines a “drag king” as

“a male or female performer who adopts a flamboyant or

parodic male persona with glamorous or exaggerated

costumes and makeup,” and a “drag queen” as “a male or

female performer who adopts a flamboyant or parodic

feminine persona with glamorous or exaggerated costumes

and makeup.” H.B. 359 §§ 1(1), (2).

A drag story hour is purely expressive activity. Reading

a book out loud is purely expressive activity. See Brown, 564

U.S. at 790 (holding that video games, “[l]ike the protected

books, plays, and movies that preceded them . . .

communicate ideas—and even social messages—through

many familiar literary devices”). Performing or expressing a

particular persona is indistinguishable from performing a

character in a play or film or competing in a beauty pageant,

all of which is undoubtedly purely expressive activity. See

Se. Promotions, Ltd. v. Conrad, 420 U.S. 546, 557 (1975)

(live drama is protected under the First Amendment and is

not subject to different standards than other forms of

expression); Green, 52 F.4th at 780–83, 783 n.10 (“[B]eauty

pageants combine speech with live performances such as

music and dancing to express a message” and pageant

competitors are “performers” who “deliver . . . a message to

an audience.”). Performing a male or feminine persona that

expresses a view about masculinity or femininity is also

expressive activity. See Green, 52 F.4th at 803 (“[A] pageant

consisting of speeches, costumes, and elaborate ceremonies

52 IMPERIAL SOVEREIGN COURT OF MT V. KNUDSEN

in furtherance of its ideal vision of femininity certainly

qualifies” as “expressive activity”) (VanDyke, J.,

concurring). Applying these precedents, we have no trouble

concluding that drag story hours, as defined by H.B. 359, are

purely expressive activity, not conduct.

H.B. 359’s restriction of drag story hours is content

based on its face. See H.B. 359 § 3(2). First, it applies only

to people reading a particular type of content—children’s

books. Second, it restricts who can read the children’s

books—only certain speakers (drag kings and queens) are

prohibited from conveying a message by reading books out

loud. Third, Section 3(2) draws a line between prohibited

and permitted speakers based on the content of their

expression: the statute prohibits only speakers who express

“flamboyant or parodic” male or feminine personas with

“glamorous or exaggerated costumes and makeup.” H.B.

359 §§ 1(1), 1(2). An individual who expresses a modest or

serious male or female persona—or any other type of

persona—may host a story hour. Because H.B. 359’s facial

speaker preference reflects a content preference, it is content

based on its face and subject to strict scrutiny. See Playboy,

529 U.S. at 813; Sorrell, 564 U.S. at 564.

Further, the drag-story-hour restriction cannot be

justified without reference to the content of the targeted

expression. Defendants repeatedly emphasize that the

Legislature restricted drag story hours because it considers

them “indecent” for children. When “[t]he overriding

justification for the regulation is concern for the effect of the

subject matter on young viewers,” the restriction is content

based. Playboy, 529 U.S. at 811 (citation and internal

quotation marks omitted). See also Reno, 521 U.S. at 868

(explaining that when the purpose of a restriction is to

“protect children from the primary effects of ‘indecent’ and

IMPERIAL SOVEREIGN COURT OF MT V. KNUDSEN 53

‘patently offensive’ speech,” the restriction is “content-

based” and subject to “the most stringent review of its

provisions” (first citing Boos, 485 U.S. at 321; and then

citing Forsyth Cnty. v. Nationalist Movement, 505 U.S. 123,

134 (1992))).

Defendants incorrectly assert that this is a secondary-

effects case. Defendants do not cite any evidence that H.B.

359 was aimed at any secondary effects, “such as crime and

deteriorating property values,” caused by drag story hours.

See Reno, 521 U.S. at 867 (discussing secondary effects

zoning cases). Rather, the legislative history shows that the

Legislature was concerned about the effect that seeing and

hearing drag story hours had on children in the audience. See

Prohibit Minors from Attending Drag Shows: Hearing on

H.B. 359 Before the S. Judiciary Comm., 2023 Leg., 68th

Sess. (Mont. 2023) (statement of bill sponsor, Rep. Braxton

Mitchell) (“This bill is to protect children from

hypersexualized events that are meant for adults, not

children.”).

Defendants concede that the Legislature enacted the

drag-story-hour restriction because it had “heard many

concerns about the effects of ‘sexually oriented

performances’ and ‘drag story hours’ on children,” but

contend that those effects are “secondary,” not “primary.”

Defendants are incorrect. When the government restricts

speech because of concerns about its effects on the audience,

it is targeting the primary effects of the speech. See Playboy,

529 U.S. at 815 (“We have made clear that the lesser scrutiny

afforded regulations targeting the secondary effects of crime

or declining property values has no application to content-

based regulations targeting the primary effects of protected

speech.”); Forsyth Cnty., 505 U.S. at 134 (“Listeners’

reaction to speech is not a content-neutral basis for

54 IMPERIAL SOVEREIGN COURT OF MT V. KNUDSEN

regulation.”); Reno, 521 U.S. at 868. In Reno, the

government similarly argued that the Communications

Decency Act (CDA) was a form of “cyberzoning” aimed at

the secondary effects of speech. 521 U.S. at 867–68. The

Supreme Court squarely rejected this argument, explaining

that “the purpose of the CDA is to protect children from the

primary effects of ‘indecent’ and ‘patently offensive’

speech, rather than any ‘secondary’ effect of such speech.”

Id. at 868. Further, because the CDA was aimed at the

primary effects of indecent speech, the Court concluded it

was a content-based restriction subject to strict scrutiny, not

a content-neutral time, place, and manner restriction subject

to intermediate scrutiny. Id.

Defendants also argue that the drag-story-hour provision

restricts only the kind of clothes and costumes story-hour

hosts can wear, and that wearing clothes or dressing in a

particular style is at most expressive conduct, not purely

expressive activity. Therefore, Defendants contend, the

drag-story-hour provision is a conduct regulation subject

only to the O’Brien test. We disagree. We must consider the

activity regulated by the drag-story-hour provision as a

whole. We do not separate “[t]he process of expression

through a medium” from “the expression itself.” Anderson,

621 F.3d at 1062. By its express terms, H.B. 359 regulates a

particular type of event—a drag story hour, in which an

individual wears a costume to express a persona and reads

stories as that persona. When determining which level of

scrutiny to apply, we do not separate the conduct element

(wearing clothes) from the expressive elements (conveying

a persona and reading a story) and then consider only the

conduct element. See Animal Legal Def. Fund v. Wasden,

878 F.3d 1184, 1203 (9th Cir. 2018) (declining to separate

“the creation of [a] video” from the recording itself where

IMPERIAL SOVEREIGN COURT OF MT V. KNUDSEN 55

the challenged statute restricted recordings at agricultural

production facilities); Project Veritas, 125 F.4th at 945–46

(declining to separate the conduct of recording from the

expressive activity of making newsworthy audio recordings

in an as-applied challenge); Green, 52 F.4th at 780 (noting

that the “interdependent dynamic between medium and

message is well-established and well-protected in our

caselaw”).

Even when we assume that H.B. 359’s drag-story-hour

restriction merely limits the clothing that story-hour hosts

may wear and that wearing clothing is expressive conduct,

we still conclude that H.B. 359 regulates speech based on its

content. A content-neutral clothing regulation prohibits

certain forms of clothing without reference to the message

expressed by the clothing. For example, a regulation that

requires a person to wear shoes or prohibits public nudity is

content neutral. See, e.g., City of Erie v. Pap’s A.M., 529

U.S. 277, 282 (2000). But a regulation that restricts clothing

because of the message it expresses is content based. See

Swisher, 811 F.3d at 314. Swisher concerned a defendant’s

First Amendment challenge to his conviction for wearing

unauthorized military medals in violation of the Stolen Valor

Act, 18 U.S.C. § 704(a). Id. at 305–06. We concluded that

wearing a medal is expressive conduct because “[w]earing a

medal, like wearing a black armband or burning an

American flag, conveys a message by conduct that is

intended to be communicative and that, in context, would

reasonably be understood by the viewer to be

communicative.” Id. at 314 (citation and internal quotation

marks omitted). We then concluded that the challenged

restriction was aimed at the expressive aspect of the conduct

of wearing a medal. Id. (concluding that § 704(a)

“suppresses expression out of concern for its likely

56 IMPERIAL SOVEREIGN COURT OF MT V. KNUDSEN

communicative impact” (quoting United States v. Eichman,

496 U.S. 310, 317 (1990))). Consequently, we held that

§ 704(a) was a content-based restriction and that “the tests

applicable to content-neutral regulations (the time, place, or

manner test, and the O’Brien test) [were] not applicable.”

Id. 18

Here, even assuming the drag-story-hour restriction

merely prohibits story-hour hosts from wearing certain

clothing, it nonetheless restricts expressive conduct because

it prohibits only “glamorous or exaggerated costumes” that

express “flamboyant or parodic” “male” or “feminine”

personas. H.B. 359 §§ 1(1), (2). The expression of certain

masculine or feminine personas through clothing is

protected speech under the First Amendment. See Green, 52

F.4th at 780, 782 n.8 (noting that pageant contestants express

“their message [about ideal womanhood] through certain

decisions such as ‘their choice of gown and swimsuit’”).

Because a restriction of expressive conduct that is aimed at

the expressive aspect of the conduct is content based,

characterizing the drag-story-hour restriction as an

expressive-conduct restriction does not change our

conclusion: it remains a content-based restriction subject to

strict scrutiny.

18

After holding that the O’Brien test was inapplicable to a “content-

based regulation of false symbolic speech,” we looked to the standards

applied by the Supreme Court in United States v. Alvarez, 567 U.S. 709,

which involved a similar provision. Because the Supreme Court there

was divided over whether “most exacting scrutiny” or a form of

intermediate scrutiny applied to content-based regulations of false

speech, we determined that § 704(a) was unconstitutional under either

standard. See Swisher, 811 F.3d at 317 n.13; Alvarez, 567 U.S. at 724

(plurality opinion), 730 (Breyer, J., concurring).

IMPERIAL SOVEREIGN COURT OF MT V. KNUDSEN 57

Finally, Defendants argue that the drag-story-hour

restriction only regulates school and library employees’ and

administrators’ conduct of allowing drag story hours to

occur. This is not an accurate characterization of the

provision. Because H.B. 359 expressly provides a private

right of action against anyone who participates in a

prohibited drag story hour, it also reaches the expressive

activity of the drag-story-hour hosts. H.B. 359 § 4(1). But

even if H.B. 359 were only directly enforceable against

library and school employees, it would still restrict access to

speech based on content and therefore, it would still be

subject to strict scrutiny. 19 See, e.g., Playboy, 529 U.S. at

811–15 (concluding law that required cable operators to

restrict access to sexually explicit channels was a content-

based restriction subject to strict scrutiny).

2. The drag-story-hour restriction is not narrowly

tailored to further a compelling governmental interest.

“Because [HB 359] imposes a restriction on the content

of protected speech, it is invalid unless [Defendants] can

demonstrate that it passes strict scrutiny—that is, unless it is

justified by a compelling government interest and is

narrowly drawn to serve that interest.” Brown, 564 U.S. at

799. “The [s]tate must specifically identify an actual

problem in need of solving, and the curtailment of free

speech must be actually necessary to the solution. That is a

demanding standard. It is rare that a regulation restricting

19

Plaintiffs also argue that the drag-story-hour provision discriminates

based on viewpoint. Because we conclude that Plaintiffs are likely to

succeed in showing that the provision is a content-based restriction that

does not satisfy strict scrutiny, we do not need to assess whether the

provision is also viewpoint based. See INS v. Bagamasbad, 429 U.S. 24,

25 (1976). We therefore decline to reach this alternative argument.

58 IMPERIAL SOVEREIGN COURT OF MT V. KNUDSEN

speech because of its content will ever be permissible.” Id.

(citations and internal quotation marks omitted).

Defendants assert two governmental interests. Although

Defendants do not concede that H.B. 359 regulates speech

and thus assert only governmental interests in regulating

“conduct,” for the purpose of this analysis, we assume

Defendants would assert the same interests as they apply to

speech. Viewed in this light, Defendants first contend that

Montana has a compelling interest in protecting the well-

being of minors by preventing their exposure to speech that

is “indecent and potentially harmful to minors.” Second,

Defendants assert that Montana has an interest in

“prevent[ing] [public funds] from being used to support or

subsidize the presentation of [speech] that is indecent and

potentially harmful to minors.” We address each asserted

interest in turn.

a. Preventing minors from being exposed to indecent

speech

To the extent Defendants claim that the state has a

legitimate and compelling governmental interest in

restricting minors’ access to any protected speech that the

government deems “indecent”—regardless of whether the

content is sexually explicit and regardless of whether the

minors’ parents agree with the government’s views

regarding the propriety of the content—Defendants go too

far. Defendants primarily rely on Sable, where the Supreme

Court agreed that “the Government has a legitimate interest

in protecting children from exposure to indecent dial-a-porn

messages” and stated: “We have recognized that there is a

compelling interest in protecting the physical and

psychological well-being of minors. This interest extends to

shielding minors from the influence of literature that is not

IMPERIAL SOVEREIGN COURT OF MT V. KNUDSEN 59

obscene by adult standards.” 492 U.S. at 126 (first citing

Ginsberg, 390 U.S. at 639–640; and then citing New York v.

Ferber, 458 U.S. 747, 756–757 (1982)). In Sable, however,

the restricted speech was “sexually explicit,” and the Court’s

references to Ginsberg and Ferber indicate that, when the

Court approved of the government’s interest in protecting

children from “potentially harmful” speech “that is not

obscene by adult standards,” it had in mind content that is

obscene for minors, or at least sexually explicit and akin to

obscenity. See id. at 122–23, 126. Following Sable, the

Supreme Court has confirmed that the legitimate interest

recognized in Sable should be viewed in context. See Reno,

521 U.S. at 875 (“Sable thus made clear that the mere fact

that a statutory regulation of speech was enacted for the

important purpose of protecting children from exposure to

sexually explicit material does not foreclose inquiry into its

validity.” (emphasis added)). 20 See also Brown, 564 U.S. at

792–96, 799 (distinguishing cases regarding restrictions of

sexually explicit “indecency or obscenity” and holding

restriction of violent video games was not narrowly tailored

to compelling government interest in protecting minors

because government could not “show a direct causal link

between violent video games and harm to minors”).

Moreover, even when considering restrictions that

applied only to sexually explicit speech, the Supreme Court

has strongly suggested that the government does not have a

broad and undifferentiated interest in shielding all minors

from any non-obscene protected speech that the government

deems “indecent,” regardless of their parents’ views. In

20

In Reno, the plaintiffs-appellees did “not dispute that the Government

generally has a compelling interest in protecting minors from ‘indecent’

and ‘patently offensive’ speech.” Id. at 863 n.30.

60 IMPERIAL SOVEREIGN COURT OF MT V. KNUDSEN

Reno, the Court explained that it “need neither accept nor

reject the Government’s submission that the First

Amendment does not forbid a blanket prohibition on all

‘indecent’ and ‘patently offensive’ messages communicated

to a 17-year-old—no matter how much value the message

may contain and regardless of parental approval,” because it

was “at least clear that the strength of the Government’s

interest in protecting minors [wa]s not equally strong

throughout the coverage of this broad statute.” 521 U.S. at

878. See also Playboy, 529 U.S. at 811 (noting at the outset

that “the [g]overnment disclaim[ed] any interest in

preventing children from seeing or hearing [the targeted

sexually explicit programming] with the consent of their

parents”); Brown, 564 U.S. at 795 n.3 (expressing strong

disapproval of laws that “do not enforce parental authority

over children’s speech and religion,” but instead “impose

governmental authority, subject only to a parental veto”).

Thus, while we recognize that Montana has a compelling

interest in shielding minors from sexually explicit speech

that is “indecent” but not obscene (for minors or adults), we

do not agree that this compelling interest extends to any

speech deemed “indecent” by the government, regardless of

whether that speech is sexually explicit. Further, while we

recognize that the legitimacy of the government’s interest in

shielding minors from sexually explicit indecent speech may

depend on their parents’ views, we do not need to resolve the

questions left open by the Court in Reno. Instead, we may

assume that Montana has a broad interest in shielding minors

from sexually explicit speech that is indecent but not

obscene, while recognizing that the strength of the state’s

interest “is not equally strong” throughout H.B.359’s

coverage, and that “[t]he breadth of this content-based

restriction of speech imposes an especially heavy burden on

IMPERIAL SOVEREIGN COURT OF MT V. KNUDSEN 61

the Government to explain why a less restrictive provision

would not be as effective.” Id. at 879.

We turn to explaining why the drag-story-hour

restriction is not narrowly tailored to that governmental

interest.

First and foremost, the drag-story-hour restriction does

not actually restrict sexually explicit speech that could be

deemed “indecent speech” under the Court’s indecent-

speech cases and the historical understanding of that term.

H.B. 359 restricts the story-hour expression of flamboyant

or parodic male and female personas by the use of

“glamorous or exaggerated costumes and makeup.”

Defendants urge us to interpret these terms using dictionary

definitions. “Flamboyant” means that something is “marked

by or given to strikingly elaborate or colorful display or

behavior.” 21 A “parody” is a work that imitates a style “for

comic effect or in ridicule” or, alternatively, as “a feeble or

ridiculous imitation.” 22 “Glamorous” means “full of

glamour” or “excitingly attractive.” 23 “Exaggerated” means

21

Flamboyant, Merriam-Webster, https://www.merriam-

webster.com/dictionary/flamboyant [https://perma.cc/8QGR-9AQV]

(last visited Mar. 5, 2026).

Parodic, Merriam-Webster, https://www.merriam-

22

webster.com/dictionary/parodic [https://perma.cc/W88Q-4PMN] (last

Mar. 5, 2026).

23

Glamorous, Merriam-Webster, https://www.merriam-

webster.com/dictionary/glamorous [https://perma.cc/6AVY-NYGU]

(last visited Mar. 5, 2026).

62 IMPERIAL SOVEREIGN COURT OF MT V. KNUDSEN

“excessively or inappropriately heightened, inflated, or

overstated” or “enlarged or increased beyond the normal.”24

Defendants assert that the expression of such personas is

“indecent.” But the state does not have free license to label

expression “indecent” and restrict it in the name of

protecting children. See supra Section IV.C. “Speech that is

neither obscene as to youths nor subject to some other

legitimate proscription cannot be suppressed solely to

protect the young from ideas or images that a legislative

body thinks unsuitable for them.” Erznoznik, 422 U.S. at

213–14. The readings, personas, and costumes restricted by

the drag-story-hour provision have no apparent relationship

to the historical understanding of “indecent speech.” See

supra Section IV.C. For example, the provision does not bar

sexually explicit content, nudity (full or partial), or even

revealing clothing. Defendants provide no evidence of a

historic understanding that flamboyant or parodic

expressions of male or female personas, or glamorous or

exaggerated costumes and makeup, are “indecent”

generally, or for children specifically. In Brown, the

Supreme Court explained that there was no “longstanding

tradition in this country of specially restricting children’s

access to depictions of violence” and held that this militated

against the state’s argument that it could restrict children’s

access to violent video games. 564 U.S. at 795–96. As in

Brown, Defendants fail to show that the flamboyant or

parodic expression of a gendered persona falls within the

historical ambit of speech that may be restricted with respect

to minors.

24

Exaggerated, Merriam-Webster, https://www.merriam-

webster.com/dictionary/exaggerated [https://perma.cc/KKJ3-QYRS]

(last visited Mar. 5, 2026).

IMPERIAL SOVEREIGN COURT OF MT V. KNUDSEN 63

To the contrary, the drag-story-hour restriction plainly

reaches speech that is widely accepted as appropriate even

for young children under historic and contemporary

standards. Many characters from children’s movies rated G

by the MPAA would meet H.B. 359’s definition of a “drag

king” or a “drag queen.” Cinderella, Elsa from Frozen, and

many other Disney princesses could be described as

adopting flamboyant feminine personas when they dress up

in glamorous ballgowns and bejeweled tiaras. See generally

Cinderella (Disney 1950); Frozen (Disney 2013); Snow

White and the Seven Dwarfs (Disney 1937). Many Disney

villains, such as Cruella de Vil from 101 Dalmatians and the

Evil Queen from Snow White and the Seven Dwarfs, could

be described as expressing both flamboyant and parodic

feminine personas with both glamorous and exaggerated

costumes. See generally 101 Dalmatians (Disney 1961); 101

Dalmatians (Disney 1996); Snow White and the Seven

Dwarfs (Disney 1937). In Beauty and the Beast, Gaston

expresses a flamboyant and parodic male persona, wearing

masculine clothing that reveals bulging muscles while

declaring that he has “biceps to spare.” See generally Beauty

and the Beast (Disney 1991). The G-rated Disney movie

Mulan centers on a girl who is derided for not being feminine

enough, adopts a male persona by wearing a soldier’s

uniform, and becomes a war hero. See generally Mulan

(Disney 1998). This movie also features a scene in which

other soldiers parody feminine personas by wearing fancy

dresses and exaggerated make-up. See id. Defendants assert

that such characters are not covered by H.B. 359’s drag king

and drag queen definitions but do not explain why,

considering the plain meaning of the statutory text. Rather,

Defendants simply ignore the statutory definitions and claim

64 IMPERIAL SOVEREIGN COURT OF MT V. KNUDSEN

that “any person of ordinary intelligence knows what drag is

and knows it when they see it.”

Defendants appear to be arguing that popular characters

from G-rated children’s movies will not be covered by the

statutory definitions of “drag king” and “drag queen”

because those characters do not meet the common

understanding of a drag king or queen. The problem with this

argument is that the Montana Legislature chose to

specifically define “drag king” and “drag queen” in HB 359.

And “[w]hen ‘a statute includes an explicit definition’ of a

term, ‘we must follow that definition, even if it varies from

a term’s ordinary meaning.’” Van Buren v. United States,

593 U.S. 374, 387 (2021) (quoting Tanzin v. Tanvir, 592

U.S. 43, 47 (2020)).

Thus, even accepting Defendants’ assertion that drag

queens and kings “typically wear flamboyant or parodic

attire, or glamorous and exaggerated costumes, while

engendering the opposite sex,” that common understanding

does not control. The statutory definitions expressly cover

any person who performs a “flamboyant or parodic”

“feminine” or “male” persona and wears “glamorous and

exaggerated costumes or makeup”—regardless of whether

they are engendering the opposite sex. H.B. 359 §§ 1(1),

1(2). If, as Defendants seem to suggest, the Montana

Legislature intended to cover only people who meet the

statutory definition of drag queen or drag king and engender

the opposite sex, then the express scope of the drag-story-

hour restriction is broader than its intended scope, it is not

narrowly tailored to the asserted interest, and it fails strict

scrutiny.

Even if we could disregard the text of H.B. 359’s drag

king and drag queen definitions and narrow their scope to

IMPERIAL SOVEREIGN COURT OF MT V. KNUDSEN 65

the asserted “common understanding” of “drag,” that

narrowing construction would not cure the constitutional

deficiencies. Rather, it would only make it more clear that

the restriction is content based, prohibiting the expression of

disfavored views about gender, including expression that

“caricature[s] or challenge[s] gender stereotypes.” 25

Defendants also assert that the drag-story-hour

restriction merely prevents children from accessing

“sexualized content” or content that “sexualizes children.”

But the drag-story-hour provision does not actually restrict

“sexualized content” or content that “sexualizes children.”

The statute defines “drag story hour” as “an event hosted by

a drag queen or drag king who reads children’s books and

engages in other learning activities with minor children

present.” H.B. 359 § 1(3). Nothing in that definition restricts

the reading of “sexualized content” or content that

“sexualizes children.” Likewise, nothing in H.B. 359’s

definitions of drag queen and king restricts sexualized

costumes or personas.

The drag-story-hour restriction is plainly over- and

underinclusive when judged against this asserted

justification. Because it covers expression that is not

sexualized, it is overinclusive. Dolly Parton, through her

25

In support of this argument, Defendants cite the Merriam-Webster

definition of drag, as well as definitions provided by the National Center

for Transgender Equality and the website Outcoast. Merriam-Webster

defines “drag” as “entertainment in which performers caricature or

challenge gender stereotypes (as by dressing in clothing that is

stereotypical of another gender, by using exaggeratedly gendered

mannerisms, or by combining elements of stereotypically male and

female dress) and often wear elaborate or outrageous costumes.” Drag,

Merriam-Webster, https://www.merriam-webster.com/dictionary/drag

[https://perma.cc/2ZPL-T56A] (last visited Mar. 5, 2026).

66 IMPERIAL SOVEREIGN COURT OF MT V. KNUDSEN

Imagination Library, has committed to giving a free age-

appropriate book to every child under the age of five in

Montana. 26 But under H.B. 359, she could not visit a library

in Montana to read one of those books to children if she wore

glamorous clothing and makeup consistent with her

famously flamboyant feminine persona. The drag-story-hour

restriction is also underinclusive. It places no restrictions on

the content of books read during story hour. Thus, a person

who is not a “drag king” or “drag queen” could host a story

hour and apparently read any content they choose, including

sexually explicit material, to young children without

violating H.B. 359. Further, the drag-story-hour restriction

does not actually prohibit story-hour hosts from dressing in

a sexually explicit manner. As discussed, it only bars the host

from performing a flamboyant or parodic male or feminine

persona using glamorous or exaggerated costumes or

makeup. A person dressed in any other manner—including

a person wearing highly revealing or sexually explicit

clothing—is not restricted from hosting a story hour. Such

gross “[u]nderinclusiveness raises serious doubts about

whether the government is in fact pursuing the interest it

invokes, rather than disfavoring a particular speaker or

viewpoint.” Brown, 564 U.S. at 802.

Second, the drag-story-hour restriction is not narrowly

tailored to the asserted interest of protecting minors from

indecent speech because it disregards minors’ own speech

rights and completely overrides parental authority. In Reno,

the Court held that the statute at issue—which was “enacted

26

Montana Kicks Off Statewide Expansion of Dolly Parton’s

Imagination Library, Imagination Libr. (June 2, 2023),

https://imaginationlibrary.com/montana-kicks-off-statewide-expansion-

of-dolly-partons-imagination-library/ [https://perma.cc/6ZKN-XTFG]

(last visited Mar. 5, 2026).

IMPERIAL SOVEREIGN COURT OF MT V. KNUDSEN 67

to protect minors from ‘indecent’ and ‘patently offensive’

communications on the Internet”—was not narrowly

tailored because “neither the parents’ consent—nor even

their participation—in the communication would avoid

application of the statute.” 521 U.S. at 849, 865. Similarly,

in Brown, the Court rejected California’s argument that a

statute that prohibited minors from purchasing violent video

games aided “parental authority” by “ensur[ing] that parents

can decide what games are appropriate” for their minor

children. 564 U.S. at 802. The Supreme Court reiterated that

“[m]inors are entitled to a significant measure of First

Amendment protection, and only in relatively narrow and

well-defined circumstances may government bar public

dissemination of protected materials to them.” Id. at 794

(quoting Erznoznik, 422 U.S. at 212–13). Then, while

acknowledging that “parents have traditionally had the

power to control what their children hear and say,” id. at 795

n.3, the Court explained that it “doubt[ed] that punishing

third parties for conveying protected speech to children just

in case their parents disapprove of that speech is a proper

governmental means of aiding parental authority.” Id. at

802–03. And, “[w]hile some of the legislation’s effect may

indeed be in support of what some parents of the restricted

children actually want, its entire effect is only in support of

what the State thinks parents ought to want. This is not the

narrow tailoring to ‘assisting parents’ that restriction of First

Amendment rights requires.” Id. at 804.

Here, as in Brown and Reno, the drag-story-hour

restriction cannot withstand strict scrutiny because there are

a number of alternatives that would be both less restrictive

of speech and more respectful of parental authority, such as

requiring covered schools and libraries to give parents notice

of a drag story hour and an opportunity to opt out, as many

68 IMPERIAL SOVEREIGN COURT OF MT V. KNUDSEN

routinely do with other events. See Mahmoud v. Taylor, 145

S. Ct. 2332, 2362–63 (2025) (holding school board’s refusal

to provide parents with notice and opportunity to “opt out”

from “LGBTQ+-inclusive” story times was not narrowly

tailored to compelling interest where board “continue[d] to

permit opt outs in a variety of other circumstances” and

“[s]everal States across the country permit broad opt outs

from discrete aspects of the public school curriculum

without widespread consequences”). Defendants assert that

“a parent should not be forced to opt-out their child to a

school day” or a “trip to the library.” There are two problems

with this assertion. First, the drag-story-hour restriction does

not even allow parents to “opt in” to a drag story hour.

Second, Defendants bear the heavy burden of proving that

the less restrictive alternative of allowing parents to opt out

from a drag story hour would not be as effective, and they

have not done so. See Reno, 521 U.S. at 878–89.

Third, the drag-story-hour restriction is not narrowly

tailored to the asserted governmental interest in shielding

children from “indecent” speech because it employs a blunt

and draconian instrument to further that interest: heavy civil

and criminal sanctions. Courts have often considered

whether a statute imposes criminal penalties when assessing

whether it is narrowly tailored. See, e.g., Sable, 492 U.S. at

128 (rejecting as “quite unpersuasive” the argument that a

criminal “ban on indecent commercial telephone

communications is justified because nothing less could

prevent children from gaining access to such messages”);

Reno, 521 U.S. at 872 (“The severity of criminal sanctions

may well cause speakers to remain silent rather than

communicate even arguably unlawful words, ideas, and

images.”). In Pacifica, the Court upheld the FCC’s

determination that a particular radio broadcast was

IMPERIAL SOVEREIGN COURT OF MT V. KNUDSEN 69

actionably indecent. 438 U.S. at 733–34, 741, 751. Even

though the Court held that broadcast radio allows content to

invade the home and reach minor listeners without parental

consent, the Court was careful “to emphasize the narrowness

of [its] holding”: It upheld the FCC’s order because the

agency had engaged in a case-specific, contextual

adjudication, and it imposed no criminal penalties. Id. at 750.

Indeed, the Court noted that the FCC was not statutorily

authorized to impose criminal penalties. Id. at 747 n.25

(“Even the strongest civil penalty at the Commission’s

command does not include criminal prosecution.”). In Reno,

by contrast, the Court concluded that the CDA, a criminal

statute, was not narrowly tailored and underscored that the

“increased deterrent effect” of criminal sanctions “poses

greater First Amendment concerns than those implicated by

. . . civil regulation.” 521 U.S. at 872. Defendants bear the

burden of showing that a less burdensome alternative to the

criminal and civil penalties authorized by H.B. 359 would be

ineffective, and they have not made that showing here.

Finally, Defendants argue that the drag-story-hour

restriction is narrowly tailored because it applies only at

schools or libraries during regular operating hours or school-

sanctioned extracurricular activities. But those time-and-

place limits do not negate the problems discussed above. If

Defendants are trying to argue that the drag-story-hour

provision is a time, place, and manner restriction subject

only to intermediate scrutiny, that argument fails because the

restriction is not content neutral. Ward, 491 U.S. at 791–92.

And unlike the special context of broadcast media, which is

“invasive” to the home and therefore subject to “special

justifications for regulation,” the drag-story-hour provision

restricts live book readings that are limited to the physical

confines of libraries and schools. Reno, 521 U.S. at 868

70 IMPERIAL SOVEREIGN COURT OF MT V. KNUDSEN

(quoting Sable, 492 U.S. at 128). In this context, the

government bears a heavy burden to show that its restriction

is narrowly tailored because “the burden normally falls upon

the viewer to ‘avoid further bombardment of (his)

sensibilities simply by averting (his) eyes’”—or averting his

child’s eyes. Erznoznik, 422 U.S. at 210–11 (quoting Cohen,

403 U.S. at 21); see also supra Section IV.C. The

government has not met that burden.

To the extent Defendants assert a compelling interest in

protecting the physical and psychological well-being of

minors by shielding them from speech that is not sexually

explicit “indecent” speech, as that term has been understood

historically, the state must show “a direct causal link”

between the restricted speech—here, drag story hours—and

harm to children. Brown, 564 U.S. at 799 (analyzing

restriction of violent speech); see also Alvarez, 567 U.S. at

725 (“There must be a direct causal link between the

restriction imposed and the injury to be prevented.”).

The standard for demonstrating a direct causal link is a

demanding one. In Brown, California sought to support its

restriction on violent video games by citing social-science

studies and expert testimony “purport[ing] to show a

connection between violent video games and harmful effects

on children.” 564 U.S. at 800. The Court did not find this

evidence compelling. Id. It firmly rejected California’s

argument that “the legislature c[ould] make a predictive

judgment that such a link exists, based on competing

psychological studies.” Id. at 799. Because the state “bears

the risk of uncertainty,” the Court held that “ambiguous

proof will not suffice.” Id. at 799–800. The Court determined

that the studies “show at best some correlation between

exposure to violent entertainment and miniscule real-world

effects” and concluded that this correlation was insufficient.

IMPERIAL SOVEREIGN COURT OF MT V. KNUDSEN 71

Id. at 800. Without unambiguous evidence of a causal link,

the Court rejected California’s assertion that violent video

games harmed minors. Id. at 799–801.

Here, there is no evidence of a causal link between drag

story hours and harm to the physical and psychological well-

being of children. To show that drag story hours harm

children, Defendants rely only on testimony from

proponents of H.B. 359 at a legislative hearing on the bill.

Twenty-eight proponents testified in favor of H.B. 359,

including five organizations. 27 The bill’s proponents

provided anecdotal descriptions of drag performances and

expressed their personal opinions that such performances are

harmful to children. See generally Prohibit Minors from

Attending Drag Shows: Hearing on H.B. 359 Before the S.

Judiciary Comm., 2023 Leg., 68th Sess. (Mont. 2023). None

of the proponents cited any study that would qualify as

causation evidence under the Brown standard, and no one

who testified was a qualified medical or psychological

expert. 28 The district court found that one proponent

advanced a claim of harm that was demonstrably false.

Comparing Defendants’ evidence with the evidence the

Supreme Court rejected in Brown, it is clear that Defendants

have fallen far short of meeting their burden to show a causal

link between drag story hours and minors’ well-being. The

anecdotal opinion testimony of bill proponents is neither

unambiguous nor “compelling” evidence of causation.

Brown, 564 U.S. at 800. Because Defendants have failed to

27

Eighty-seven opponents testified against the bill, including seventeen

organizations, two of which were medical providers.

28

While some proponents identified themselves as members of the

medical profession, they did not testify as experts or cite medical or

scientific studies to support their testimony.

72 IMPERIAL SOVEREIGN COURT OF MT V. KNUDSEN

show a causal link between the restriction they seek to

impose and the injury they seek to prevent, they have not met

their burden with respect to their asserted interest in

protecting minors’ physical and psychological well-being.

b. State subsidy interest

Defendants assert that the drag-story-hour restriction

furthers the government’s interest in not subsidizing

“conduct” it considers “indecent and potentially harmful to

minors.” Relying on Rust v. Sullivan, 500 U.S. 173 (1991),

Defendants argue that Montana has a legitimate interest in

not subsidizing conduct it considers indecent and potentially

harmful to minors, and they assert that H.B. 359 “simply

den[ies] state subsidies for the covered conduct.”

Defendants’ reliance on the Rust line of cases is misplaced.

In Rust, the challenged federal law applied only to clinics

that voluntarily accepted Title X grant funding for particular

projects and prohibited the clinics from engaging in abortion

advocacy only when they were carrying out Title X-funded

projects. Rust, 500 U.S. at 179. The clinics remained free to

engage in abortion advocacy through programs “separate

and independent from the project that receives Title X

funds.” Id. at 196. As the Supreme Court has explained, Rust

and its progeny stand for the narrow proposition that the

government can “selectively fund certain programs to

address an issue of public concern, without funding

alternative ways of addressing the same problem,” and in

doing so, it may set “conditions that define the limits of the

government spending program.” Agency for Int’l Dev. v. All.

for Open Soc’y Int’l, Inc., 570 U.S. 205, 214–15, 217 (2013).

The government may not, however, “seek to leverage

funding to regulate speech outside the contours of the

program itself.” Id. at 214–15. For example, in Agency for

IMPERIAL SOVEREIGN COURT OF MT V. KNUDSEN 73

International Development, the Court held that a law

requiring organizations that receive federal funding to

explicitly oppose prostitution and sex trafficking violated the

First Amendment because it “compel[ed] . . . the affirmation

of a belief that by its nature cannot be confined within the

scope of the Government program.” Id. at 208, 221. For

another example, in F.C.C. v. League of Women Voters of

California, the challenged statute forbade broadcast stations

that received a grant from the Corporation for Public

Broadcasting (CPB) from engaging in editorializing, and the

Government (much like Defendants here) argued “that by

prohibiting noncommercial educational stations that receive

CPB grants from editorializing, Congress has, in the proper

exercise of its spending power, simply determined that it

‘will not subsidize public broadcasting station editorials.’”

468 U.S. 364, 399 (1984). The Court rejected that argument

because “a noncommercial educational station that receives

only 1% of its overall income from CPB grants is barred

absolutely from all editorializing,” “such a station is not able

to segregate its activities according to the source of its

funding,” “[t]he station has no way of limiting the use of its

federal funds to all noneditorializing activities, and, more

importantly, it is barred from using even wholly private

funds to finance its editorial activity.” Id. at 400.

Consequently, the Government’s interest in not subsidizing

the targeted speech was “not served in a sufficiently limited

manner” to justify the substantial abridgement of the First

Amendment freedom of speech. Id. at 402.

Here, as in Agency for International Development and

League of Women Voters, Montana is trying to leverage

government funding to regulate speech far beyond the

confines of any government-funded program. Indeed, the

drag-story-hour restriction is not tied to any particular state-

74 IMPERIAL SOVEREIGN COURT OF MT V. KNUDSEN

funded program. A school or library that receives “any form

of funding from the state,” in any amount, is prohibited from

allowing a drag story hour to occur on its premises during its

regular operating hours or any school-sanctioned

extracurricular activity. H.B. 359 § 3(2). Here, as in League

of Women Voters, the school or library has no way of

limiting the use of government funds and it is barred from

using even wholly private funds to finance a drag story hour.

Consequently, the drag-story-hour restriction is not narrowly

tailored to the state’s interest in denying state subsidies for

the targeted expression.

B. Sexually Oriented Performances

We turn next to the H.B. 359 provisions that restrict

“sexually oriented performance[s],” namely, Section 2 and

all subsections of Section 3. The same statutory definition of

“sexually oriented performance” applies to all these

restrictions: Under H.B. 359 § 1(10), a “sexually oriented

performance” is “a performance that, regardless of whether

performed for consideration, is intended to appeal to a

prurient interest in sex and features: (a) the purposeful

exposure, whether complete or partial, of: (i) a human

genital, the pubic region, the human buttocks, or a female

breast, if the breast is exposed below a point immediately

above the top of the areola; or (ii) prosthetic genitalia,

breasts, or buttocks; (b) stripping; or (c) sexual conduct.”

H.B. 359 § 1(11) defines “stripping” as the “removal or

simulated removal of clothing in a sexual manner for the

entertainment of one or more individuals.”

H.B. 359 § 1(8) also defines “sexually oriented” as “any

simulation of sexual activity, stripping, salacious dancing,

any lewd or lascivious depiction or description of human

genitals or of sexual conduct as defined in 45-5-625.” H.B.

IMPERIAL SOVEREIGN COURT OF MT V. KNUDSEN 75

359 § 1(8). The cross-referenced definition in Mont. Code.

Ann. § 45-5-625 defines “sexual conduct” as “(i) actual or

simulated: (A) sexual intercourse, whether between persons

of the same or opposite sex, as defined in 1-1-201;

(B) penetration of the vagina or rectum by any object, except

when done as part of a recognized medical procedure;

(C) bestiality; (D) masturbation; (E) sadomasochistic abuse;

(F) lewd exhibition of the genitals, breasts, pubic or rectal

area, or other intimate parts of any person; or (G) defecation

or urination for the purpose of the sexual stimulation of the

viewer; or (ii) depiction of a child in the nude or in a state of

partial undress with the purpose to abuse, humiliate, harass,

or degrade the child or to arouse or gratify the person’s own

sexual response or desire or the sexual response or desire of

any person.” Mont. Code. Ann. § 45-5-625(5)(b). The cross-

referenced code section also defines “simulated” as “any

depicting of the genitals or pubic or rectal area that gives the

appearance of sexual conduct or incipient sexual conduct.”

Mont. Code. Ann. § 45-5-625(5)(c).

Defendants represent that H.B. 359 also incorporates the

existing statutory definition of “performance,” which

includes movies but excludes those that are MPAA-rated G,

PG, PG-13, or R. See Mont. Code. Ann. § 45-8-205(6)

(defining “performance” as “any motion picture, film, or

videotape (except a motion picture or videotape rated G, PG,

PG-13, or R by the [MPAA]); phonograph record; compact

disk; tape recording; preview; trailer; play; show; skit;

dance; or other exhibition played or performed before an

audience of one or more, with or without consideration”).

Defendants further represent that H.B. 359 incorporates the

existing statutory definition of “prurient interest in sex,”

which is defined as “a shameful or morbid interest in sex or

excretion.” Mont. Code Ann. § 45-8-205(8).

76 IMPERIAL SOVEREIGN COURT OF MT V. KNUDSEN

H.B. 359 § 1(9) defines a “sexually oriented business” as

“a nightclub, bar, restaurant, or similar commercial

enterprise that: (a) provides for an audience of two or more

individuals: (i) live nude entertainment or live nude

performances; or (ii) a sexually oriented performance; and

(b) authorizes on-premises consumption of alcoholic

beverages.”

1. The sexually-oriented-performance provisions

are content-based restrictions on purely expressive

activity.

As above, whether we apply intermediate or strict

scrutiny turns on two disputed issues: (1) whether a

“sexually oriented performance,” as defined by H.B. 359, is

purely expressive activity or expressive conduct, and

(2) whether the “sexually oriented performance” restrictions

are content based or content neutral.

As defined by H.B. 359, sexually oriented performances

are purely expressive activities. Montana’s statutory

definition of “performance” encompasses various purely

expressive activities, including skits, dances, and plays

“performed before an audience of one or more.” Mont. Code.

Ann. § 45-8-205(6). Performances in front of an audience

are purely expressive activities. See, e.g., Berger v. City of

Seattle, 569 F.3d 1029, 1034–35 (9th Cir. 2009) (street

performances are expressive activity); Ward, 491 U.S. at

790–01 (musical performances and speeches at a public

bandshell are expressive activity); Green, 52 F.4th at 780

(“theatrical productions that ‘frequently mix[] speech with

live action or conduct’” are expressive activities (quoting

Conrad, 420 U.S. at 558) (alteration in original)).

“Performance” also includes “any motion picture, film, or

videotape,” which are also “speech” under the First

IMPERIAL SOVEREIGN COURT OF MT V. KNUDSEN 77

Amendment. See Project Veritas, 125 F.4th at 942–43, 945–

46.

Defendants argue that the sexually-oriented-

performance provisions regulate conduct, not expression,

because they restrict only performances that are intended to

appeal to a prurient interest in sex and feature an activity that

could be characterized as merely expressive conduct, such

as exposure of a body part. Defendants’ approach to

determining whether the restricted activity is speech or

conduct is incorrect. We do not disaggregate the restricted

activity and then focus only on the conduct components. See

supra Section V.A.1; Anderson, 621 F.3d at 1062; Wasden,

878 F.3d at 1203; Project Veritas, 125 F.4th at 945–46.

Rather, we look at the restricted activity as a whole. See

Erznoznik, 422 U.S. at 211 n.7 (applying the Miller

obscenity test and concluding that “[s]cenes of nudity in a

movie, like pictures of nude persons in a book, must be

considered as part of the whole work”). Viewed as a whole,

sexually oriented performances, as broadly defined by H.B.

359, are speech, not conduct.

Further, sexually oriented speech is still speech. See

Playboy, 529 U.S. 803. In Playboy, the challenged law

required cable television operators to scramble or limit the

transmission of channels “primarily dedicated to sexually-

oriented programming.” Id. at 806. The Court held that this

programming was “protected speech” and that the

challenged law was “a content-based speech restriction”

subject to strict scrutiny. Id. at 811–13. The sexually oriented

performances restricted by H.B. 359 are not meaningfully

distinguishable from the sexually explicit programming at

issue in Playboy.

78 IMPERIAL SOVEREIGN COURT OF MT V. KNUDSEN

Our conclusion is confirmed by comparing H.B. 359’s

sexually-oriented-performance restrictions to laws that are

correctly characterized as regulations of conduct, not speech.

For example, in City of Erie, the Supreme Court held that a

public nudity law was a generally applicable conduct

regulation because it “does not target nudity that contains an

erotic message; rather, it bans all public nudity, regardless of

whether that nudity is accompanied by expressive activity.”

529 U.S. at 290, see also Barnes v. Glen Theatre, Inc., 501

U.S. 560, 565–66 (1991). Because the public nudity law was

aimed generally at the conduct of being nude and prohibited

nudity regardless of whether it was part of a performance,

the burden on expression was incidental. See City of Erie,

529 U.S. at 301 (explaining the public nudity ordinance

“regulates conduct, and any incidental impact on the

expressive element of nude dancing is de minimis”). Unlike

the public nudity law at issue in City of Erie, H.B. 359’s

sexually-oriented-performance provisions do not generally

restrict sexually explicit conduct in public, whether part of a

“performance” or not. Rather, H.B. 359’s restrictions are

aimed only at “performances.” Because H.B. 359’s

restriction on expression is direct, not merely incidental, it is

not a generally applicable conduct regulation subject to the

O’Brien test.

The sexually-oriented-performance restrictions are also

content based. Here, as in Playboy, it is undisputed that the

overriding justification for H.B. 359’s sexually-oriented-

performance restrictions is “concern for the effect of the

subject matter on young viewers.” Playboy, 529 U.S. at 811.

IMPERIAL SOVEREIGN COURT OF MT V. KNUDSEN 79

This is the essence of a content-based speech restriction. See

id. at 811–12. 29

Defendants nonetheless argue that the sexually-oriented-

performance restrictions are content neutral because they are

aimed at the secondary effects of the disfavored speech. But,

as explained above, Defendants misunderstand the

secondary-effects doctrine. The stated purpose of these

restrictions is to prevent minors from viewing performances

the government considers “indecent,” and the effects of a

performance on its viewers are its “primary” effects, not

“secondary.” Reno, 521 U.S. at 868.

Because the sexually-oriented-performance restrictions

regulate protected expressive activity based on content, strict

scrutiny applies, and the burden shifts to Defendants to show

that the restrictions are narrowly tailored to further a

compelling interest.

2. The sexually-oriented-performance restrictions

are not narrowly tailored to further the asserted

state interests.

Defendants assert that the sexually-oriented-

performance restrictions further the same governmental

interests as the drag-story-hour restriction. See supra Section

V.A.2. And here, as above, we begin by assuming that the

state has a legitimate and compelling interest in protecting

the physical and psychological well-being of minors by

shielding them from sexually explicit speech that is indecent

29

As discussed above, sexually explicit content that is not obscene for

minors or adults remains fully protected by the First Amendment, and

Defendants do not argue that H.B. 359 limits “sexually oriented

performances” to content that qualifies as unprotected “obscenity for

minors.” See supra Section IV.C.

80 IMPERIAL SOVEREIGN COURT OF MT V. KNUDSEN

but not obscene (for minors or adults), and we consider

whether Defendants have met their heavy burden to show

that the sexually-oriented-performance restrictions are

narrowly tailored to that interest.

Plaintiffs contend that H.B. 359 defines “sexually

oriented performance” so broadly that it reaches content that

is not sexually explicit. Defendants respond by noting that

H.B. 359 covers only performances that are “intended to

appeal to a prurient interest in sex,” H.B. 359 § 1(10), which

is statutorily defined as a “shameful or morbid interest in sex

or excretion,” Mont. Code Ann. § 45-8-205(8). We do not

need to resolve this interpretive dispute because, even

assuming that H.B. 359’s definition of “sexually oriented

performance” reaches only sexually explicit content, the

restrictions still do not survive strict scrutiny.

Reno provides substantial guidance. Recall that in Reno,

the plaintiffs facially challenged two provisions of the

Communications Decency Act as violative of the First

Amendment, the “indecent transmission” provision and the

“patently offensive display” provision, which essentially

prohibited the transmission of “indecent” or “patently

offensive” materials to any recipient under 18 years of age

through the internet. 521 U.S. at 858–59. The CDA did not

define “indecent,” id. at 865, but it defined “patently

offensive” communication as that which “in context, depicts

or describes, in terms patently offensive as measured by

contemporary community standards, sexual or excretory

activities or organs,” id. at 860, and the Court assumed that

“indecent” and “patently offensive” were synonymous, id. at

873. The Court concluded that the challenged provisions

were “content-based” restrictions of protected speech

“subject to the most stringent review,” id. at 868, and it

ultimately held that the provisions were facially invalid

IMPERIAL SOVEREIGN COURT OF MT V. KNUDSEN 81

because they were not narrowly tailored to the government’s

interest in protecting minors, id. at 878–79. The Court

identified several ways in which the CDA was broader than

the restriction approved in Ginsberg and the order upheld in

Pacifica, id. at 864-67, as well as several additional reasons

for concluding that the CDA’s restrictions were not narrowly

tailored, id. at 868–82. Much of what the Court said about

the CDA is equally applicable here.

First, the statute upheld in Ginsberg did not bar parents

from buying their children magazines that could be

considered obscene for minors, whereas the CDA had no

exception for parental consent. Id. at 865–66 (noting that

“neither the parents’ consent—nor even their participation—

in the communication would avoid the application of the

[CDA]”). Like the CDA, H.B. 359’s restrictions apply

regardless of parental approval. See H.B. 359 §§ 2, 3; Mont.

Code. Ann. §§ 45-8-118, 20-1-207. Additionally, in Reno,

the Court noted there were alternatives to the CDA’s

prohibitions on transmissions to minors that were both less

restrictive of speech rights and more respectful of parental

authority, such as “requiring that indecent material be

‘tagged’ in a way that facilitates parental control of material

coming into their homes.” 521 U.S. at 879. The same is true

in this case: For example, instead of prohibiting a business

from permitting a minor to enter its premises during a

sexually oriented performance regardless of parental

consent, as H.B. 359 § 2 does, the state could require that the

minor be accompanied by a parent or guardian. See also

supra Section V.A.2.a (discussing notice and opt-out

alternative).

Second, the Ginsberg statute “applied only to

commercial transactions, whereas the CDA contain[ed] no

such limitation.” Reno, 521 U.S. at 865 (citation omitted). In

82 IMPERIAL SOVEREIGN COURT OF MT V. KNUDSEN

explaining that “[t]he breadth of the CDA’s coverage [was]

wholly unprecedented,” the Court noted, “[u]nlike the

regulations upheld in Ginsberg and Pacifica, the scope of the

CDA is not limited to commercial speech or commercial

entities. Its open-ended prohibitions embrace all nonprofit

entities and individuals posting indecent messages or

displaying them on their own computers in the presence of

minors.” Id. at 877. Like the CDA, H.B. 359’s scope is not

limited to commercial transactions, commercial speech, or

commercial entities; rather, the Section 3 restrictions apply

equally to nonprofit entities and individuals. See H.B. 359

§ 3.

Third, the Ginsberg statute “cabined its definition of

material that is harmful to minors with the requirement that

it be ‘utterly without redeeming social importance for

minors.’” Reno, 521 U.S. at 865 (citation omitted). In

contrast, the CDA failed “to provide . . . any definition of the

term ‘indecent’ as used in § 223(a)(1) and, importantly,

omit[ted] any requirement that the ‘patently offensive’

material covered by § 223(d) lack serious literary, artistic,

political, or scientific value.” Id. The CDA’s lack of an

exception for materials with serious literary, artistic,

political, or scientific value, a prong of the Miller obscenity

test, led the Court to conclude that its restrictions were not

narrowly tailored. See id. at 873–74 (observing that the

“societal value” requirement “allows appellate courts to

impose some limitations and regularity on the definition by

setting, as a matter of law, a national floor for socially

redeeming value,” and concluding that “the CDA lacks the

precision that the First Amendment requires when a statute

regulates the content of speech”). Like the CDA, H.B. 359

makes no exception for performances with serious literary,

artistic, political, or scientific value. See H.B. 359 § 1.

IMPERIAL SOVEREIGN COURT OF MT V. KNUDSEN 83

Fourth, the statute upheld in Ginsberg defined a minor as

a person under the age of 17, whereas the CDA defined a

minor as an individual under 18. Reno, 521 U.S. at 864–65.

See also id. at 865–66, 878 (explaining that, because the

Ginsberg statute defined “minor” as under age 17 instead of

18, it was narrower than the CDA in an “important respect”).

Like the CDA, H.B. 359 applies to all minors under the age

of 18. See H.B. 359 §§ 2(1), 3(3)(a).

Fifth, the FCC order upheld in Pacifica “was not

punitive,” Reno, 521 U.S. at 867, whereas “the CDA [was] a

criminal statute.” Id. at 872 (“In addition to the opprobrium

and stigma of a criminal conviction, the CDA threaten[ed]

violators with penalties including up to two years in prison

for each act of violation.”). The Court in Reno viewed the

availability of criminal sanctions under the CDA to be a

“significant” distinction, id. at 867: For example, the Court

repeatedly cited the CDA’s criminal penalties as a reason for

concluding that the CDA’s restrictions were not “narrowly

tailored,” id. at 870–72. See also id. at 867 (noting the Court

in Pacifica “expressly refused to decide . . . whether the

indecent broadcast would justify a criminal prosecution”

(citation and internal quotation marks omitted)); id. at 878

(noting that “[u]nder the CDA, a parent allowing her 17-

year-old to use the family computer to obtain information on

the Internet that she, in her parental judgment, deems

appropriate could face a lengthy prison term”); id. at 882

(rejecting defense of CDA in part because “the risk of

criminal sanctions ‘hovers over each content provider, like

the proverbial sword of Damocles’” (citation omitted)).

Much like the CDA, H.B. 359 imposes criminal sanctions

that, in addition to the “opprobrium” of a criminal

conviction, id. at 872, include imprisonment for up to 30

days plus a criminal fine of $5,000, for a first offense. See

84 IMPERIAL SOVEREIGN COURT OF MT V. KNUDSEN

H.B. 359 § 3; Mont. Code Ann. §§ 20-7-135, 20-1-207. H.B.

359 also imposes significant civil liabilities, including actual

damages, statutory damages of $5,000, and, when

applicable, loss of business and professional licenses. See

H.B. 359 §§ 2–4; Mont. Code Ann. §§ 45-8-118, 20-7-135,

27-1-521.

Sixth, the FCC’s order in Pacifica “applied to a

medium,” radio broadcasting, “which as a matter of history

had received the most limited First Amendment protection,

in large part because warnings could not adequately protect

the listener from unexpected program content,” whereas the

CDA applied to a medium, the internet, which “ha[d] no

comparable history.” Reno, 521 U.S. at 867 (citation and

internal quotation marks omitted). See also id. at 868 (noting

that the “invasive” nature of broadcast media provides a

“special justification[] for regulation” (quoting Sable, 492

U.S. at 128)). Like the CDA, H.B. 359 restricts speech in a

medium that is less invasive than broadcast radio. Indeed,

H.B. 359 restricts a medium that is even less invasive than

internet communications: H.B. 359 restricts performances

only in spaces outside the home: nightclubs, bars, and

theaters that serve alcohol; schools and libraries; any public

property where a minor is present; and in any location owned

by an entity that receives any form of state funding. See H.B.

§§ 1(9), 2(1), 3.

Seventh, the Court in Reno found that there were “many

ambiguities concerning the scope of [the CDA’s] coverage,”

and that “[t]his uncertainty undermine[d] the likelihood that

the CDA [had] been carefully tailored to the congressional

goal of protecting minors from potentially harmful

materials.” 521 U.S. at 870–71. The Court further explained

that “[t]he vagueness of the CDA [was] a matter of special

concern for two reasons.” Id. at 871. Because the CDA was

IMPERIAL SOVEREIGN COURT OF MT V. KNUDSEN 85

a “content-based regulation of speech,” it would have an

“obvious chilling effect on free speech.” Id. at 871–72. And,

because the CDA was a criminal statute, “[t]he severity of

criminal sanctions may well cause speakers to remain silent

rather than communicate even arguably unlawful words,

ideas, and images.” Id. at 872. Considering these features

together with “the vague contours of the coverage of the

statute,” the Court concluded that the CDA “unquestionably

silences some speakers whose messages would be entitled to

constitutional protection,” and that this “burden on protected

speech cannot be justified if it could be avoided by a more

carefully drafted statute.” Id. at 874. Like the CDA, H.B. 359

imposes criminal penalties and has an ambiguous scope of

coverage, as discussed further below.

Finally, the Court in Reno concluded that the CDA was

not narrowly tailored to the government’s interest in

“deny[ing] minors access to potentially harmful speech,”

because “the CDA effectively suppresse[d] a large amount

of speech that adults have a constitutional right to receive

and to address to one another.” 521 U.S. at 874–76. Like the

CDA, H.B. 359’s sexually-oriented-performance restrictions

are not narrowly tailored to the government’s interest in

denying minors access to potentially harmful speech because

they, too, effectively suppress a large amount of expression

that adults have a constitutional right to engage in and view.

Indeed, two of H.B. 359’s provisions prohibit sexually

oriented performances even if no minor is present. See H.B.

359 § 3(1), (3)(b).

Plaintiffs also argue that the “sexually oriented

performance” definition is vague and that this vagueness

contributes to the restrictions’ lack of narrow tailoring.

“Regardless of whether [a statute] is so vague that it violates

the Fifth Amendment,” we may consider ambiguities in its

86 IMPERIAL SOVEREIGN COURT OF MT V. KNUDSEN

scope when determining whether it is narrowly tailored

enough to survive strict scrutiny. Reno, 521 U.S. at 870.

Plaintiffs primarily argue that the sexually-oriented-

performance restrictions are ambiguous because the

relationship between H.B. 359’s definition of “sexually

oriented” and its definition of “sexually oriented

performance” is unclear. 30 H.B. 359 defines “sexually

oriented performance” as “a performance that, regardless of

whether performed for consideration, is intended to appeal

to a prurient interest in sex” and features the purposeful

exposure (complete or partial) of various body parts,

including certain “prosthetic” body parts; stripping; or

sexual conduct. See H.B. 359 § 1(10)(a)-(c). H.B. 359

defines “sexually oriented” as “any simulation” of an

overlapping but different list of activities, including

“salacious dancing.” H.B. 359 § 1(8). Because “sexually

oriented” is an adjective that modifies “performance,” but

H.B. 359 defines “sexually oriented” as a noun (any

simulation of various activities), it is difficult to reconcile

these definitions. Further, because “sexually oriented” does

not include any requirement of intent to appeal to a prurient

interest in sex, it is unclear whether a performance that

qualifies as “sexually oriented” under Section 1(8) also

qualifies as a “sexually oriented performance” under Section

1(10), regardless of whether it is intended to appeal to a

prurient interest in sex.

Defendants agree with Plaintiffs that the “sexually

oriented” definition affects the “sexually oriented

performance” definition, but Defendants provide no

30

Although Plaintiffs contend that H.B. 359’s restrictions are ambiguous

in multiple respects, because addressing all the asserted ambiguities is

unnecessary to our decision, we decline to do so at this preliminary stage.

IMPERIAL SOVEREIGN COURT OF MT V. KNUDSEN 87

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