The UFC's parent company Zuffa, alongside several New Yorkers and a handful of major MMA stars like UFC champions Jon Jones and Frankie Edgar, have filed suit in federal court against New York Attorney General Eric Schneiderman and Manhattan District Attorney Cyrus Vance Jr.. The suit alleges that New York's ban on professional mixed martial arts is a "blatant violation of the First Amendment of the Constitution."
The sport has been banned in New York since February, 1997. Spurred on by New York City Mayor Rudy Giuliani, the legislature passed a bill, signed into law by Governor George Pataki that prohibited professional mixed martial arts. Ten years later, Zuffa began pumping millions of dollars into a push to legalize the sport in the state.
Every year it seems like a bill that would allow the UFC to make a triumphant return to the Empire State is just around the corner. Every year the labyrinth legislative process in New York stops the sport cold.
Yesterday the UFC took action, moving the argument over MMA's future in New York into the court system. It's a move that's been in the planning stages for some time.
"They've had difficulty with the legislative process," UFC attorney and New York University Law Professor Barry Friedman said. "It's not that they're losing in the legislative process - they can't even get the thing up to a vote in the Assembly. It's not uncommon, if you can't get the legislative process to work, to go to court. And that's what we did. We've been talking about it since February, but the UFC really wanted to give it all that they could through another legislative round. And they did, with the same outcome they've had in the past. And so we moved forward with the lawsuit."
Friedman, a Constitutional Law professor who lives and breathes Supreme Court jurisprudence, admits that this case, making the claim that mixed martial arts is an artistic expression protected by the first amendment, is a little bit unusual.
"I think this is exciting because it's the first reported case of a professional athlete claiming a free expression right to go before a live audience. There are precedents about sports and the first amendment. There aren't a lot of them," Friedman said, admitting courts are skeptical about the right to engage in sport for the sake of sport. For example, he cites a case allowing a municipality to ban jogging without a shirt or the possession of numchuks. Neither was protected as first amendment free expression.
"In cases like that, courts have said 'No you don't. Who are you expressing it to?'"
Not all MMA would be considered protected speech according to Friedman and the UFC. For example, training at a gym carries no first amendment protections. It's only when the sport merges with entertainment in front of a live crowd that athletic performance becomes a constitutional issue. The suit compares a UFC event to ballet or the theater, pointing out the whirling and often poetic motion and traditional techniques and movements.
"There are countless people training at gyms around New York at the moment," Friedman said. "And that's not protected. It's live performance that's protected and expressive."
The UFC and the other plaintiffs in the case contend the legislative history shows that New York lawmakers believed there was indeed an element of free expression inside the cage. UFC opponents at the time commented that the sport was sending the wrong signal to children, an indication that the fight game provides more than mere violence - it has a message attached.
"If you look at the legislative history, a lot of the law was written because they didn't like the message," Friedman said. "At some level our case is an easy one. If they say 'it's expressing a bad message' then why did you ban it? You banned it because you didn't like the message, so obviously there is a message. We think they had the wrong message. They thought it was a message of brutality and violence. That is not what MMA is about. But assuming that was why they banned it, for the message, that is illegitimate. The Supreme Court, in a case just last year, said you can't ban violence as a message...We don't have a tradition in this country of banning violent messages. There's violence all around."
In that case, Brown vs. Entertainment Merchants Association, involving a California law seeking to limit the sale of violent video games to children, the Supreme Court refused to add violence to a list of prohibited speech that includes a handful of exceptions to first amendment protections, including child pornography and public obscenity.
"This country has no tradition of specially restricting children's access to depictions of violence. And California's claim that "interactive" video games present special problems, in that the player participates in the violent action on screen and determines its outcome, is unpersuasive," Justice Antonin Scalia wrote in his majority opinion in the case. "Because the Act imposes a restriction on the content of protected speech, it is invalid unless California can demonstrate that it passes strict scrutiny, i.e., it is justified by a compelling government interest and is narrowly drawn to serve that interest."
The First Amendment claim is just one of several reasons Zuffa contends the law is unconstitutional. The case also includes a vagueness claim ("You have to be able to understand a criminal law in order to enforce it," Friedman said. "There's a lot of things about this law that the Athletic Commission can't even agree on.") and a rare irrationality claim. In these cases, the Court must find that a law is so irrational that it is effectively arbitrary. It's not a common reason to invalidate a law - but Friedman believes this is a case where the shoe fits.
"I've litigated constitutional cases for 30 years and you don't often win on that ground," Friedman admits. "But this is the strongest case for it I've ever seen. They banned the sport in part because it's not safe. The data shows, and we've consulted with leading experts, that MMA is as safe or safer than lots of other sports. Including, and especially, boxing - but also football and ice hockey. It turns out the most dangerous thing you can do is be a flier in cheerleading. On safety grounds it really makes no sense. Besides, if safety is the issue, why are amateur matches completely legal? The only people not allowed to do it on safety grounds are professionals in front of a large audience."
MMA's future in New York is now in the hands of the court, but Friedman admits that the case will take months to litigate in even the rosiest of scenarios. It's possible that the issue could, in the meantime, be addressed by the New York legislature when they meet next. That's an outcome Zuffa and the other plaintiffs aren't opposed to.