The Florida drag law, formally Section 827.11 of the Florida Statutes, makes it a crime to knowingly admit anyone under 18 to a live performance that meets the statute’s definition of sexually explicit content inappropriate for minors. It was signed in May 2023 but has never been enforced. A federal court blocked it almost immediately, and as of early 2026 the full Eleventh Circuit Court of Appeals is rehearing the case after vacating an earlier panel decision that found the law likely unconstitutional. The injunction remains in place while that rehearing proceeds.
What the Law Actually Prohibits
Senate Bill 1438, enacted as Chapter 2023-94, created Florida Statute 827.11 under the title “Exposing children to an adult live performance.”1Florida Senate. Florida Code 827.11 – Exposing Children to an Adult Live Performance The rule itself is simple: no one may knowingly allow a child into a performance that qualifies as an “adult live performance” under the statute’s definition.
The word “drag” appears nowhere in the text. The law applies to any live show, in any format, whose content meets the statutory test. The political context around the bill’s passage made the intended target clear, but on paper the statute is content-based and format-neutral.
The bill also amended two other Florida statutes to give regulators a way to punish businesses, not just individuals. It added enforcement hooks to Section 509.261, which governs food and lodging licenses, and to Section 561.29, which covers liquor license discipline.2Florida Senate. Florida Senate Bill 1438 – Protection of Children A separate new section, 255.70, bars any government entity from issuing a permit for a performance that would violate the statute.
How a Performance Qualifies as “Adult”
Whether the law reaches a given show depends on a three-part test modeled after the U.S. Supreme Court’s obscenity framework from Miller v. California, adjusted for the age of the child present.3Justia. Miller v. California Courts call this concept “variable obscenity”: the material doesn’t have to be obscene for adults, only inappropriate for the minor in the audience.
A show counts as an “adult live performance” if it depicts or simulates nudity, sexual conduct, sexual excitement, or similar content (including through prosthetic or imitation body parts) and satisfies all three of the following:
- It predominantly appeals to a prurient, shameful, or morbid interest.
- It is patently offensive by adult community standards in Florida with respect to what is suitable for the age of the child present.
- Taken as a whole, it has no serious literary, artistic, political, or scientific value for the age of the child present.
All three prongs must be met.1Florida Senate. Florida Code 827.11 – Exposing Children to an Adult Live Performance
The “Knowingly” Standard Is Broader Than It Sounds
You don’t have to intend for a child to see explicit content. The statute treats you as acting “knowingly” if you have general knowledge of, reason to know, or even grounds for believing that warrant further investigation about both the show’s content and a patron’s age.1Florida Senate. Florida Code 827.11 – Exposing Children to an Adult Live Performance A venue operator who suspects a show might cross the line and fails to look into it can still be prosecuted.
What You Can’t Argue in Defense
The law strips out several defenses that might otherwise seem reasonable. A defendant cannot claim they didn’t know the child’s age, that the child lied about being 18, or that the child consented. There is also no exception for parental consent. A parent who brings their own child to a covered performance does not shield the venue from liability.1Florida Senate. Florida Code 827.11 – Exposing Children to an Adult Live Performance
Penalties If Enforcement Resumes
The statute stacks criminal penalties on the person who admits the child with civil and licensing penalties on the business.
Criminal
Knowingly admitting a child to an adult live performance is a first-degree misdemeanor. That carries up to one year in jail and a fine of up to $1,000.4Justia Law. Florida Code 775.082 – Penalties, Applicability of Sentencing Structures,டண Minimum Mandatory Sentences5The Florida Legislature. Florida Code 775.083 – Fines The same penalty applies to a permit holder who allows a violation at their permitted event.2Florida Senate. Florida Senate Bill 1438 – Protection of Children
Business Fines and License Discipline
Restaurants, hotels, and other establishments regulated by the Division of Hotels and Restaurants face a $5,000 fine for a first violation and $10,000 for any subsequent one. The division can also suspend or revoke the operating license outright.6Florida Senate. Florida Code 509.261 – Revocation or Suspension of Licenses, Fines, Procedure
Venues with liquor licenses face parallel penalties under Section 561.29: the same $5,000 and $10,000 fines, plus revocation or suspension by the Division of Alcoholic Beverages and Tobacco.7The Florida Legislature. Florida Code 561.29 – Revocation and Suspension of License, Power to Subpoena Both statutes classify a violation as an “immediate serious danger to the public health, safety, or welfare,” letting regulators act through emergency procedures rather than a standard hearing.
Why Courts Blocked It
The constitutional challenge turned on two First Amendment doctrines: vagueness and overbreadth. The Eleventh Circuit panel addressed both before concluding the law was likely unconstitutional on its face.8United States Court of Appeals for the Eleventh Circuit. 11th Cir. No. 23-12160 – HM Florida-ORL, LLC v. Secretary of the Florida Department of Business and Professional Regulation
On vagueness, the court found that ordinary people could not tell in advance what conduct the law prohibits, and that enforcers had too much discretion in deciding when it applied. Live performances are spontaneous and unrepeatable, so a venue operator has no reliable way to know before the show starts whether it will cross the statutory line the way one could with a book or a film. The panel wrote that the law “wields a shotgun when the First Amendment allows a scalpel at most.”8United States Court of Appeals for the Eleventh Circuit. 11th Cir. No. 23-12160 – HM Florida-ORL, LLC v. Secretary of the Florida Department of Business and Professional Regulation
On overbreadth, the concern was that even if some performances the law targets are unprotected, the vague terms sweep in a substantial amount of protected expression. Performers and venues would censor themselves out of fear of prosecution, a chilling effect the overbreadth doctrine exists to prevent.
Where the Case Stands in 2026
The Orlando restaurant operator behind Hamburger Mary’s sued within days of the bill’s signing. A federal district judge blocked the law with a preliminary injunction, which was later expanded to apply statewide. Florida appealed and also asked the U.S. Supreme Court to lift the injunction; in November 2023 the Court declined, with Justices Thomas, Alito, and Gorsuch noting they would have granted the state’s request.
In May 2025, a three-judge Eleventh Circuit panel affirmed the injunction and held the statute likely unconstitutional on its face. In December 2025, the full Eleventh Circuit ordered an en banc rehearing and vacated the panel opinion, wiping it out as binding precedent. The underlying district court injunction still blocks enforcement while the en banc proceedings continue. No trial on the merits has occurred, and there is no final judgment in the case.
For anyone operating a venue in Florida, the practical picture is this: the statute is on the books but cannot be enforced right now. If the en banc court reverses and lifts the injunction, every penalty the law contains, from misdemeanor charges to license revocation, becomes enforceable immediately. That makes this case worth tracking rather than treating the current freeze as settled.