Free Speech Arguments
Presented by the Institute for Free Speech
The Free Speech Arguments Podcast brings you oral arguments from important First Amendment free political speech cases across the country. Find us on Spotify and Apple Podcasts.
Episode 14: The Imperial Sovereign Court of the State of Montana v. Knudsen
The Imperial Sovereign Court of the State of Montana v. Knudsen, argued before Judges Johnnie B. Rawlinson, Danielle J. Forrest, and Jennifer Sung in the U.S. Court of Appeals for the Ninth Circuit on June 4, 2024. Argued by Michael Russell (on behalf of Knudsen, et al.) and Constance Van Klay (on behalf of the Imperial Sovereign Court of the State of Montana, et al.).
Description of the Case, from the Introduction to the Appellees’ Answering Brief:
It is clear what the Montana legislature meant to target through House Bill 359 (“HB 359”): drag. Legislators set their sights on drag because they believed—wrongly, and without evidence—that gender-nonconforming expression harms children. Obvious on the face of the law, their intent to stifle disfavored speech is proof enough that Plaintiffs likely will succeed on the merits of their First Amendment claim.
Far less clear—indeed, impossible to determine—is the law’s effect. Through HB 359, the legislature wildly overshot its mark, threatening draconian penalties against individuals, businesses, and organizations engaged in speech far beyond drag performances. As confusing as it is discriminatory, HB 359 is void for vagueness.
HB 359 can withstand constitutional review only by both creating a new exception to the First Amendment for drag and ignoring the void for vagueness doctrine. It discriminates on the basis of content and viewpoint, broadly chills protected speech, and opens the door to discriminatory enforcement.
Statement of the Issues, from the Appellant’s Opening Brief:
1. Whether the district court erred in finding that Plaintiffs have standing to seek injunctive relief against the State Defendants.
2. Whether the district court erred in finding Plaintiffs likely to succeed on the merits of their First/Fourteenth Amendment facial claim;
3. Whether the district court erred in finding Plaintiffs likely to succeed on the merits of their Fifth/Fourteenth Amendment facial claim;
4. Whether the district court erred in finding the remaining Winter factors weigh in favor of issuing a preliminary injunction; and
5. In the alternative, whether the district court erred in failing to properly narrow the scope of its preliminary injunction.
Resources:
Listen to the argument here:
