Is there a First Amendment right to beat your MMA opponent senseless?

What Would the Founding Fathers Have Thought of mixed martial arts?

What Would the Founding Fathers Have Thought of mixed martial arts?

The law, lawyers, and the court.
Nov. 23 2011 2:54 PM

First Amendment Smackdown

What would the Founding Fathers have thought of mixed martial arts?

UFC World Heavyweight Champion Junior dos Santos is seen at UFC on Fox: Live Heavyweight Championship at the Honda Center on November 12, 2011 in Anaheim, California.
Is Ultimate Fighting a question of free speech?

Photograph by Jason Merritt/Getty Images.

First, a confession: Absolutely everything I know about Ultimate Fighting, aka mixed martial arts, aka MMA, I learned from my boss, David Plotz. He wrote about it a dozen years ago, and I remember thinking at the time that it seemed a little crazy and violent and testosteroney. That was before I realized that it raised profound questions about punching, kicking, head-butting, and the First Amendment right to free expression.

Dahlia Lithwick Dahlia Lithwick

Dahlia Lithwick writes about the courts and the law for Slate, and hosts the podcast Amicus.

MMA is a combat sport that includes boxing, wrestling, Brazilian jiu-jitsu, karate, judo Greco-Roman wrestling and other styles of fighting. It’s held in an octagonal chain-link cage. There’s blood. (In 1996 John McCain described the sport as “human cockfighting” but has since recanted.) Events and matches were banned in the state of New York in 1997, before the sport was properly regulated, or even regulated at all. The law provided that, “No combative sport shall be conducted, held or given within the state of New York, and no licenses may be approved by the commission for such matches or exhibition.”  The law then defines MMA as a “combative sport” but excludes boxing, wrestling or karate competitions. New York is one of very few states with such bans (oddly enough, though MMA is illegal, it combines several genres—boxing, wrestling, karate—that are permitted individually). Attempts to overturn the New York ban legislatively have not been successful, and so the sport’s biggest promoter filed a lawsuit in federal court last week asking to overturn the ban. (Disclosure: My friend Barry Friedman, a constitutional law professor at New York University Law School represents the fighters, promoters, and fans challenging the ban.)

So where does the First Amendment come in? The New York law states: “A person who knowingly advances or profits from a combative sport activity shall be guilty of a class A misdemeanor.” Both the ban on the fighting itself, plus this provision—allowing amateurs to participate in MMA, but just not to “advance or profit” from it—lie at the core of the athletes’ claim that this is not an effort to suppress fighting, but merely the public performance of it. In other words, argue the plaintiffs, and the legislative history seems to bear this out, what was being targeted here was the violent message. In their complaint against the state attorney general and the Manhattan district attorney, tasked with enforcing the ban, the MMA fighters and promoters contend that by prohibiting public exhibitions of activity anybody is free to perform in a gym, or watch together on a screen at Madison Square Garden, the New York law quite clearly targeted only the violent message of the sport. Under the First Amendment, they argue, such a ban is impermissible.


Here they cite last year’s violent video games case at the U.S. Supreme Court, Brown v. Entertainment Merchants Association, in which the court struck down a California law banning violent video games for minors. The complaint contends that “it is unfathomable that in a world drenched in violence—from first-person shooter video games, to violent movies, to violent lyrics in pop music, to graphic network news—the New York legislature singled out live professional MMA as the one thing it believes sends an impermissible message.”

Every once in a while I am capable of being consistent in my absurdity, and free speech is one of those issues that allows me to be ridiculously principled. I hate the Phelps family, but I believe they have a right to protest. I loathe videos of women in high heels crushing baby chicks, but I believe they are free speech. And I probably hate violent video games even more than if the entire Phelps family put on high heels and crushed baby chicks. But I believe they are free speech, too. So I find that I’m struggling with the question of whether people pounding on one another in chain-link cages is expressive activity.