Alec Greven: A moral panic in Montana comes for free speech

June 12, 2023   •  By Alec Greven   •    •  

This piece originally appeared in the Helena Independent Record on June 12, 2023.


A moral panic has descended upon Montana. Lawmakers here have rammed through overly broad laws in response to vague and unsubstantiated threats.

On the chopping block? Your First Amendment rights.

First, legislators banned the popular social media platform TikTok starting in 2024. The governor said he signed the bill into law to stop the Chinese government from accessing data. While state government officials failed to offer compelling evidence, we know for sure the ban will censor vast amounts of constitutionally protected speech.

What Montana lawmakers are doing is akin to banning all speech in public parks — without solid evidence — because Chinese spies might secretly be recording these conversations. Rather than addressing the alleged problem directly, the legislators took the draconian step of banning TikTok.

Even if the claim is true, there are less drastic options available. For instance, the government could first require TikTok to meet certain data safety practices. But they decided to take a sledgehammer to the First Amendment instead.

Another issue is the ban attacks one company, rather than any company that engages in certain practices. Article I, Section 10 of the U.S. Constitution says that “No State shall …pass any Bill of Attainder,” which the Supreme Court has ruled is “legislative punishment, of any form or severity, of specifically designated persons or groups.”

The Legislature’s panic didn’t stop with TikTok. It also passed a law banning state-funded schools and libraries from hosting “drag story hours” where a “drag queen” reads stories to children. What is defined as a “drag queen” is “a male or female performer who adopts a flamboyant or parodic feminine persona with glamorous or exaggerated costumes and makeup.”

Much of the law contains reasonable limits on sexual performances on public property. But some elements of this law are incomprehensible and unreasonable. What is a woman who adopts a “flamboyantly” feminine personality? How about a woman who dresses up as Barbie and reads to girls? It seems like this would be illegal under the definition. The same could be said about a woman dressed as a princess reading “Cinderella.”

The so-called drag story hour bill is particularly suspect because it leaves speakers guessing what is too “feminine” or “masculine,” placing these speakers at the mercy of state officials interpreting the law. No doubt government officials will use these powers to target stories they don’t want to be told.

This is a terrible form of speaker identity discrimination because “drag queens” are singled out as speakers who are subject to onerous restrictions, but not other speakers who read the same stories to children.

The Supreme Court spoke clearly on this issue in the Citizens United case, ruling that the First Amendment prohibits “restrictions distinguishing among different speakers, allowing speech by some but not others.”

The result will be a vast chilling effect on people reading to children in public settings. Rather than address real harm, the law will just tend to harm childhood literacy.

Montana’s actions are reminiscent of other speech-crushing moral panics that have befallen the United States. We had the comic books panic where people tried to suppress violent comic books because of potential psychological damage. Concerned parents thought that children playing Dungeons & Dragons would help foment violent children who worshipped demons.

More recently, the Harry Potter books initially set off a hysteria that the series was promoting satanism and witchcraft.

These panics look silly in retrospect because there is no strong proof that the targeted expression damage child welfare. We attacked a lot of speech for nothing.

There isn’t good evidence that a child’s attendance at a “drag show story hour” with age-appropriate readings leads to psychological or physical harm, and the lack of demonstrated harm critically undermines Montana’s rationale for limiting speech.

Even if there’s a problem with such speakers, this is an issue for parents to decide, not the government. No reasonable person is arguing children have to attend drag story hours against the express wishes of their parents. However, Montana strips away parental choice by imposing bans on expression.

Without compelling evidence, legislators have stripped many people of their right to free expression.

Let’s hope the courts act quickly to restore First Amendment freedoms in Montana.

Alec Greven

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