30 November 2011

The MMA Ban and the First Amendment: The New York Legislature Embarrasses Itself

Stephen Kershnar
New York’s Ban on Mixed Martial Arts
Dunkirk-Fredonia Observer
November 27, 2011

In 1997, New York banned mixed martial arts (MMA). MMA involves combat that combines a range of more specific combat sports, dominant among them wrestling, boxing, Brazilian jujitsu, and karate. New York is in the minority here. Currently, 45 of 48 of states with athletic commissions permit and regulate MMA. The law was pushed by New York City Mayor Rudy Giuliani and signed into law by Government George Pataki.

Recently, Zuffa, LLC, the parent company of the Ultimate Fighting Championship (UFC) along with a number of professional fighters and fans sued the New York officers who enforce the ban, specifically, the State Attorney General and the New York City Attorney General. The plaintiffs assert that the ban violates the Constitution, including the First Amendment, Due Process Clause, Equal Protection Clause, and Commerce Clause. I’ll focus on the First Amendment.

The First Amendment argument runs as follows. As Slate’s Dahlia Lithwick points out, the ban allows amateurs to participate in MMA, but prohibits people from advancing or profiting from it. That is, the ban targets the public performance of MMA, not the fighting that comprises it. New York enacted a narrow ban because the legislature didn’t like MMA’s message. Specifically, it wanted to protect children by banning the sport’s glorification of violence. The bill’s sponsors, Senator Goodman and Assemblyman Kaufman, were clear that they sought to ban the public performance of MMA in part because of the message it sends to children.

On a side note, this ban is uncommonly silly. Children in New York children are awash in glorifications of violence. Consider first-person shooter games, violent movies and rap music, and professional wrestling. MMA is unlikely to add much to this atmosphere. However, uncommon silliness does not make a law unconstitutional.

The problem with the ban is that the Supreme Court has been crystal clear in holding that the Constitution prohibits governments from banning a specific message, whether directly or indirectly. There are exceptions to this general rule, but they focus on a few narrow categories. The Court held that governments may ban obscenity (graphic pornography without redeeming value), child pornography (graphic child pornography), fighting words (expressions that tend to immediately cause violence), clear-and-present danger (expressions that tend to cause immediately dangerous situations), and fraud. Glorification of violence does not fit into any of these categories.

In a recent case, Brown v. Entertainment Merchants Association (2011), the Supreme Court again made it clear that states may not create new categories of unprotected expression. It specifically held that they may not ban glorifications of violence (in videogames), even when done to protect children.

Worse, the ban is so poorly written that it likely covers expressive activity that is uncontroversially protected by the First Amendment. The ban makes it a crime for people to “materially aid” a combative sport activity. As the plaintiffs point out, the materially aid clause is so sloppily written that it might cover citizens to write to state officials asking them to repeal New York state’s MMA ban, a local artist who sells t-shirts with pro-MMA slogans, New York film distributers who produce videos of MMA bouts in other states, and video “parties” at Madison Square Garden where people pay to watch MMA fights on the big screen.

The plaintiff’s other argument (New York is shutting down its message) is less clear. Their claim is that professional MMA sends messages about discipline, challenge, and inspiration. This includes the following specific messages: skill and training can accomplish remarkable things, skill and training can defeat brawn and brutality, respect for one’s opponent is consistent with combat sports, and it is admirable to be courageous in the face of a challenge. Other MMA proponents (for example, legendary fighter Renzo Grace) see the message aesthetic terms, analogous to the strategic beauty of chess. The general test for a message for First Amendment protection is whether there is a statement that the agent tries to send and the audience is likely to receive. It is not obvious that professional MMA bouts contain such a message.

The problem is that parallel arguments could be made with regard to obscenity (graphic pornography). Its message is the pleasure can be achieved through excellent performances and a range of sexual practices. It also expresses how conventional limitations on sex (limiting it to married couples, twosomes, heterosexuality, or the vagina) are outdated and hinder both pleasure and artistic displays of the human body. Still, this inconsistency is irrelevant given that the Justices who foolishly allowed the obscenity-exception to be written into the Constitution (see William Brennan) are gone and the current ones have largely prevented further rewriting.

A bigger problem for the shutting-down-message argument is that, as Jonathan Snowden of MMA Nation points out, even the UFC’s attorney, Barry Friedman, concedes that courts are skeptical about the right to engage in sport for sake of sport. For example, Friedman mentions a case allowing a municipality to ban jogging without a shirt or numchuk possession. One can see the motivation here. First, the messages here often have minimal, trivial, or vague content. For example, what message does topless jogging send?

Second, the sport category appears to be irrelevant to the Constitution. A few years ago it was incorrectly reported that for a fee, a Nevada business was allowing men to hunt naked women (employees) with paintball guns. Whether this activity is protected by the Constitution does not depend on whether this is a sport. This can be seen in that the category sport is not mentioned in the Constitution, not part of the drafters or ratifiers’ intentions, not part of what justifies it, and so on.

Third, the sport exception might result in various unprotected activities being repackaged as sport so that they might receive First Amendment protection. For example, The World’s Biggest Gang Bang 3 is a film of a woman having sex with 600 men. Were courts to recognize sport-based protection, the film could be repackaged as a sport and thereby receive First Amendment protection. It could be staged as a live sporting event, perhaps even to minors.

Were New York State’s ban to cover all MMA and not merely the public performances of it, then the ban might withstand Constitutional scrutiny, although it would be obviously irrational. The ban specifically allows boxing, wrestling, and karate competitions (Brazilian jujitsu is independently permitted) even though they comprise the vast majority of MMA action. What’s more MMA is as safe, if not more so, than a number of permitted sporting events, including professional boxing, football, ice hockey, car racing, equestrian sports, and rodeos. One study found that it was one-twentieth as dangerous as football.

Overall, the First Amendment case for striking down New York’s ban is strong because it is overbroad and, perhaps, because it targets a group’s constitutionally protected message. The law is so sloppy that it should also fall due to Due Process defects, such as vagueness and gross irrationality.


The Objectivist said...

This legislation is typical of so much liberty-squashing processes. Without scientific study or a cost-benefit analysis, childish legislators (and dimwits Giuliani and Pataki) ban an activity.

They do so on the basis of testimony of doctors who have no idea of comparative risks and the usual "message for children" all-purpose justification.

Any legislator who talks about criminalizing victimless activities to control the message children receive can and should be scorned.

The Objectivist said...

Of special note here is the role of John McCain. McCain as usual held forth in pushing all 50 states to ban and regulate MMA on the basis of his unreflective emotional reaction.

Similar things were true of his declared wars on cigarette companites and private parties spending money on election messages.

Much like Ted Stevens, Dan Rostenkowski, John Murtha, and Barney Frank, this country should be ashamed of McCain.