Federal Appeals Court Upholds Injunction Preventing Enforcement of Law That Limits “Drag Story Hour” and Similar Events and more...

Federal Appeals Court Upholds Injunction Preventing Enforcement of Law That Limits “Drag Story Hour” and Similar Events

In 2023, the Montana state legislature passed a bill (Bill) prohibiting any school or library that receives state funding from allowing any “sexually oriented performance or drag story hour” on their property. The Bill includes significant criminal and civil penalties for both performers and institutions hosting these events. Just months after the Bill passed, a group of individuals, organizations, and businesses (plaintiffs) filed a lawsuit claiming the Bill violates the First Amendment by restricting protected speech based on content. The federal district court issued a preliminary injunction limiting the state's enforcement of the Bill during the lawsuit. The state appealed the court’s decision to the Ninth Circuit Court of Appeals in Imperial Sovereign Court of the State of Montana, et al. v. Knudsen, et al.

After determining that the plaintiffs had standing to challenge the Bill, the Ninth Circuit evaluated the constitutional claims raised in the case. In order to determine the proper framework to evaluate the First Amendment claims, the Ninth Circuit considered whether the Bill “regulates purely expressive activity or expressive conduct,” and whether the regulations are content-based or content-neutral.

To start, the Ninth Circuit noted that the Bill was not passed to regulate “obscenity,” which is a narrow category of speech not protected by the First Amendment. Instead, the Bill was purportedly enacted to limit children’s exposure to “indecent speech.” The Ninth Circuit noted that state legislative authority to regulate for the protection of minors must be considered against the long history of the First Amendment, which applies to protect “sexual expression that is indecent but not obscene.”

Drag Story Hour

The Ninth Circuit determined that the plaintiffs were likely to establish that the Bill’s restriction on drag storytelling events is subject to strict scrutiny, because the restriction impacts purely expressive activity and regulates based on content. First, the Court noted that these performances (involving reading out loud while performing a drag persona) constitute expressive activity, likening drag story hours to theatrical plays. Second, the Court asserted three reasons to support their determination that the restriction was content-based: the Bill’s restriction (1) applies only to people reading a particular type of content, (2) prohibits only certain speakers from reading the book out loud or conveying a message, and (3) draws a line between prohibited and permitted speakers based on the content of their expression. The Court determined that these elements of the Bill were a content-based restriction on speech subject to strict scrutiny under the First Amendment.

Using the strict scrutiny framework, the Court next determined that the restriction on drag story hour events was not narrowly tailored to address the State’s expressed interest in preventing the exposure of minors to “indecent speech.” The Court found that the plain language of the Bill would impact speech activity widely accepted as appropriate under historic and contemporary standards. The Court noted that the Bill’s definition of “drag queen” and “drag king,” which includes the adoption of a “flamboyant or parodic male and female personas” using costumes and makeup, could be applied to include popular, well-received characters from G-rated children’s movies. As a result, the Ninth Circuit found that the Bill was not tailored to limit children’s exposure to sexualized content and was overinclusive in the content it purports to regulate. The Court also determined that the provision was not narrowly tailored because it disregards minors’ own speech rights and completely overrides parental authority to determine appropriate content for their children. Thus, the Ninth Circuit upheld the preliminary injunction award, finding that plaintiffs were likely to succeed on their claim that the restriction on drag story hours violated the First Amendment.

Sexually Oriented Performances

In addressing the Bill’s prohibition on “sexually oriented performances” in schools and libraries, the Ninth Circuit again evaluated whether the restriction limits purely expressive activity based on content. The Court found that the performances are purely expressive and, when viewed as a whole, constitute protected speech. The Court noted that, in the case of the statutory restriction on “sexually oriented performances,” the legislature limited speech based on its effect on young viewers. The Court characterized this limitation as “the essence of a content-based speech restriction.”

After determining that the restriction on sexually oriented performances was content-based, the Ninth Circuit found that it was not narrowly tailored to meet the State’s interest in protecting minors. The Court noted that the legislature’s use of the phrase "sexually oriented” was vague and ambiguous, leaving schools and libraries to guess which performances and events would be subject to the Bill’s prohibitions. Additionally, the Court pointed out that the restriction on speech was not plausibly linked to its impact on children, given that several of the Bill’s restrictions would apply to limit performances in schools and libraries even when children are not present. Therefore, the Ninth Circuit upheld the preliminary injunction that limited state enforcement of the Bill while the case proceeded in court.

Post Authored by Natalie Cheung and Erin Monforti, Ancel Glink

Appellate Court Upholds Conviction of Disorderly Conduct Ordinance Violation

A parent was arrested for violation of a disorderly conduct ordinance, and was later convicted at trial. According to the court opinion, the arrest related to conduct of the parent towards a teacher at his child's school where he clenched his fists and cursed. He appealed his conviction on several grounds, including that his First Amendment rights were violated, that the city violated court discovery rules, and that the sentence was outside the city's authority.

The Appellate Court upheld his conviction in City of Naperville v. Penick. First, the Court rejected his First Amendment argument, finding that he engaged in more than speech during the incident. Second, the Court found his sentence (supervision and no contact/no entry order) to be within a home rule municipality's authority to set an appropriate penalty for violation of a disorderly conduct ordinance. Third, the Court rejected his argument that the city engaged in discovery violations, finding that a defendant is required to (but did not, in this case) obtain leave of court to engage in discovery in an ordinance violation proceeding. In short, the Court upheld his conviction.

Tree Trimming Incident Leads to Multiple Lawsuits

An Illinois Appellate Court ruled in favor of a county in a lawsuit involving the county's actions in regards to a tree trimming incident involving neighbors in Lugo v. Woodford County.

Two neighboring property owners had ongoing issues with each other which were serious enough to cause one neighbor to seek a no-stalking, no contact order from the other neighbor. While his petition for a protective order was pending, the petitioning neighbor hired a tree trimmer to trim branches of a tree on his neighbor's property that were overhanging onto his property. Because of the ongoing neighbor problems, the tree trimmer called the county sheriff to have a deputy present while the work was being done. The deputy informed the tree-owning neighbor that he could view and film the work from his own property, but could not trespass onto the petitioning neighbor's property or stage himself in front of the property while the work was proceeding.

The tree-owning neighbor filed a lawsuit in federal court claiming the deputy and county violated his civil rights in restricting his activities and location while the tree was being trimmed. The district court ruled in favor of the county, and the court of appeals upheld that ruling. The U.S. Supreme Court refused to take on his appeal.

After he lost his federal lawsuit, he filed a lawsuit in state court raising many of the same claims, as well as arguing that the county was continuing to violate constitutional rights based on race and ethnicity. The circuit court dismissed his case, finding that it was barred by "res judicata" which prohibits someone from filing a second lawsuit about issues that were already litigated in court. He appealed.

On appeal, the Illinois Appellate Court agreed that the tree-owning neighbor's state court case was barred because of the final ruling in the federal court. At the end of the opinion, the Appellate Court provides its opinion on the neighbor's multiple lawsuits and appeals regarding a tree-trimming incident, as follows:

During his address at the Virginia Bar Association’s Law Day celebration in 1962, then-attorney general Robert F. Kennedy said, “The glory of justice and the majesty of law are created not just by the Constitution—nor by the courts—nor by the officers of the law—nor by the lawyers—but by the men and women who constitute our society—who are the protectors of the law as they are themselves protected by the law.” A civil suit in federal district court, the Seventh Circuit Court of Appeals, and a petition for writ of certiorari to the United States Supreme Court. A civil suit in the state circuit court, this appeal to the Fourth District, and probably further. All because some tree branches needed trimming. It is doubtful this is what Kennedy had in mind.

Supreme Court Finds Qualified Immunity for Police Officer Sued for Excessive Force by Protester

The Supreme Court recently weighed in on the issue of qualified immunity for a police officer who was sued under the civil rights statute for allegedly using excessive force in removing a person from a protest. Zorn v. Linton.

Protestors staged a sit-in at the state capitol on the day of the Vermont Governor's inauguration. When the capitol closed for the day, police officers informed the protesters that they needed to leave or would be arrested for trespassing. When they refused to leave, officers removed them one-by-one. When one of the protesters refused to stand up, a police officer took her arm, put it behind her back, placed pressure on her wrist, and lifted her to her feet. The protester sued the police officer for using excessive force, claiming the use of a "rear wristlock" during the arrest injured her arm and caused psychological disorders. The district court held in favor of the officer, finding he had qualified immunity for his actions. The court of appeals reversed, finding that the "gratuitous" use of a rear wristlock on a protester who was passively resisting arrest constituted excessive force, so the police officer was not entitled to qualified immunity. The officer appealed to the U.S. Supreme Court

The Supreme Court disagreed with the court of appeals and held that the police officer did have qualified immunity. The Court noted that government officials have qualified immunity from suit under the civil rights statute (1983) unless their conduct violates clearly established law. Because the court of appeals failed to identify any case in the circuit where an officer taking similar action (rear wristlock) in a similar circumstance (removing a protester for trespass after repeated warnings), the Supreme Court held that the officer was entitled to qualified immunity for his actions.

Three Justices filed a dissenting opinion, finding that the officer should not be entitled to qualified immunity on the excessive force claim because prior case law had established that using a rear wristlock as a "pain compliance technique" against a nonviolent protester would violate the protester's constitutional rights.

Supreme Court Allows Civil Rights Challenge to City's Protest Ordinance to Move Forward

Recently, the U.S. Supreme Court issued an opinion relating to a challenge to a City ordinance that required individuals participating in protests to stay within a "designated protest area" in Olivier v. City of Brandon.

Olivier was a street preacher in Mississippi who often shared his religious views on City sidewalks. In 2019, the City adopted an ordinance requiring anyone participating in protests or demonstrations to stay within a designated protest area. Olivier was arrested for violating the ordinance and pled no contest and was fined, given one year of probation, and a suspended 10 day prison sentence that would be served only if he violated the ordinance during his probation period. Although he did not appeal the fine or sentence, he did file a section 1983 civil rights lawsuit against the City to challenge the constitutionality of the ordinance. Specifically, he argued that the ordinance violated the First Amendment's free speech clause because it confined speakers to a designated protest area, and he sought an injunction prohibiting the City from enforcing the ordinance against him in the future. The district court and court of appeals dismissed his case based on an earlier U.S. Supreme Court decision that prohibits the use of the section 1983 to challenge the validity of a prior conviction or sentence.

The Supreme Court disagreed with the lower courts, and reversed their decision, allowing Olivier's lawsuit to move forward. Specifically, the Supreme Court held that Olivier was not challenging the validity of his conviction or sentence. Instead, he was seeking relief from future prosecutions for violations of the ordinance, so its prior decision barring 1983 relief did not apply. The Court did not weigh in on the question of whether the ordinance was constitutional or not, remanding it back to the district court to make that determination.

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