Florida Gov. DeSantis signed SB 1438 restricting minors' access to drag and 'adult live' performances

On May 17, 2023, Florida Gov. Ron DeSantis signed SB 1438, the "Protection of Children" act (Chapter 2023-94), at a bill-signing event held at Cambridge Christian School in Tampa. The measure took effect the same day. It was sponsored in the Senate by Sen. Clay Yarborough, with Sen. Keith Perry as co-introducer, and passed by the Florida Legislature during the 2023 regular session.

The law creates a criminal offense and a licensing-revocation scheme built around the term "adult live performance" — defined as any show before a live audience that depicts or simulates nudity, sexual conduct, or "lewd" exposure and lacks serious value for the age of a child present. It bars governmental entities from issuing permits authorizing such performances where minors may attend, makes knowingly admitting a child a first-degree misdemeanor, and empowers the Department of Business and Professional Regulation to fine, suspend, or revoke the licenses of restaurants, bars, hotels, and similar venues that admit minors to a covered performance.

Although the statute never uses the word "drag," it was promoted and widely understood as a restriction on drag performances and LGBTQ+ expression, codifying enforcement steps the DeSantis administration had begun the prior year. Civil-liberties groups including the ACLU of Florida described the "adult live performance" language as vague enough to reach constitutionally protected speech, and the Orlando restaurant Hamburger Mary's, which hosts drag brunches, sued DeSantis in federal court within days, arguing the law violated the First Amendment.

Updates

2023-06-24 — Federal judge issued statewide preliminary injunction [6]

U.S. District Judge Gregory Presnell granted a statewide preliminary injunction barring enforcement of SB 1438, finding the law was "specifically designed to suppress the speech of drag queen performers." DeSantis's office called the ruling "dead wrong" and said it would appeal.

2023-11-16 — Supreme Court declined to lift the injunction [7]

After the 11th U.S. Circuit Court of Appeals declined Florida's emergency request to stay the injunction, the U.S. Supreme Court declined the state's application to narrow it, leaving SB 1438's enforcement blocked statewide. Justices Thomas, Alito, and Gorsuch indicated they would have allowed the law to take effect.

2025-05-13 — 11th Circuit panel affirmed injunction, called SB 1438 likely unconstitutional [8]

A three-judge Eleventh Circuit panel voted 2-1 to affirm the district court's preliminary injunction, ruling that SB 1438's "adult live performance" standard was unconstitutionally vague and overbroad and "likely unconstitutional" under the First Amendment.

2025-12-02 — Full 11th Circuit voted to rehear the case en banc, vacating the panel ruling [9]

The full Eleventh Circuit granted Florida's petition for rehearing en banc, vacating the May 2025 panel decision. The en banc court heard oral argument on June 2, 2026, and had not issued a ruling as of this writing.