Montana Urges Federal Judge to Salvage Restricted Performance Law by Narrowing Bans

Montana state officials asked a federal court on Thursday to narrow and save key parts of a 2023 law that restricted drag performances and access to adult-oriented shows. The state told U.S. District Judge Brian Morris that it will not defend every word of House Bill 359 as written, asking instead to sever invalid sections while keeping restrictions that apply to content deemed obscene for minors.

The lawsuit pits state lawyers against a coalition of local businesses, nonprofit organizations, and performers. Late in 2023, Judge Morris placed a temporary hold on the law, finding it likely violated free speech guarantees under the First Amendment. The Ninth Circuit Court of Appeals upheld that temporary injunction in March, agreeing that the legislation placed content-based limits on purely expressive conduct. Both sides have now filed competing motions for summary judgment to decide the final outcome.

The Battle Over Rewriting State Legislation

Signed by Governor Greg Gianforte in 2023, House Bill 359 specifically targeted drag story hours by prohibiting drag performers from reading books to children. It also prohibited minors from attending what the statute categorized as sexually oriented shows. Under the original text, business owners and employees faced steep civil penalties, while educators faced severe professional consequences.

State representative Michael Noonan, speaking for the Montana Department of Justice, argued that the judge should remove unconstitutional clauses rather than strike down the entire statute. He asked the court to apply an obscenity standard focused strictly on protecting minors. “To answer a question likely to arise: yes, we do not defend every word as written,” Noonan said during the hearing.

Attorneys for the plaintiffs pushed back, arguing that federal judges do not have the power to rewrite state legislation to fix illegal language. Attorney Constance Van Kley, representing the opponents, stressed that after more than three years of debate, the law remains dangerously unclear. She argued that if legal experts cannot agree on what the statute covers, ordinary citizens and law enforcement officers cannot possibly understand its limits.

Commercial Venues and Severe Statutory Penalties

The state also contended that plaintiffs lack standing to challenge sections applying to sexually oriented businesses, defined in the law as bars, nightclubs, or commercial enterprises serving alcohol and hosting shows. State officials argued that alcohol must be a business’s primary income source to qualify. However, plaintiffs noted that venues like Missoula’s Roxy Theater fall into a grey area because they serve food and alcohol while providing live entertainment.

The stakes surrounding HB 359 are high for local workers and business owners. The statute sets penalties for business owners and managers ranging from $1,000 to $10,000 per violation, with a third offense resulting in mandatory business license revocation. Teachers and school librarians face permanent loss of their credentials upon a second violation. Additionally, the law gives parents a 10-year window to file private lawsuits against alleged violators.

What This Case Means for Montana Communities

For Montana residents, educators, venue owners, and performers, the law remains blocked for now, meaning original restrictions cannot be enforced while the court deliberates. If the federal judge eventually accepts the state’s request to narrow the law, businesses and performers would only face legal scrutiny if acts meet strict obscenity definitions regarding minors. However, if the court strikes down the law as unconstitutionally vague, the current bans will be permanently voided.

Performers, venue operators, and school staff should closely track the court’s upcoming decision. Because the statute creates long-term civil liability for parents to sue up to 10 years later, local businesses and public employees face significant potential exposure if any version of the law is reinstated.

When state laws create complex constitutional questions or threaten business licenses and professional certificates, speaking with a qualified civil rights or business attorney can help individuals and organizations understand their legal protections.

This article is general information based on Courthouse News Service and court or agency records available at publication time. It is not legal advice; laws and deadlines differ by state and by case. Published November 6, 2026.