# Imperial Sovereign Court of the State of Montana v. Knudsen

> Court of Appeals for the Ninth Circuit · March 13, 2026

URL: https://www.frixlaw.com/law-library/cases/11275213

## Case

- **Court:** Court of Appeals for the Ninth Circuit
- **Decided:** March 13, 2026
- **Precedential status:** Published
- **Opinion:** Opinion
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

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- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/11275213

## How later opinions describe it (automated extraction)

- holding that a regulation was content neutral because it “require[d] an examination of speech only in service of drawing neutral, location-based lines”
- 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”

## Opinion text

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]

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/11275213. Public record. Not legal advice.