First Amendment Smackdown
What would the Founding Fathers have thought of mixed martial arts?
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.
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.
One hint may lie in the word “arts” in mixed martial arts. As Friedman has put it: “This is mixed martial arts, emphasis on the arts. The reason these athletes are suing is because they have been prevented from their self-expression on some of the biggest stages in the nation.”
The plaintiffs argue that even though the performances are unscripted, they are very much an art form, and one that needs to be seen live: "Live professional MMA is clearly intended and understood as public entertainment and, as such, is expressive activity protected by the First Amendment. As is true of ballet, music, or theater, for an audience, attending a live MMA event is an experience that cannot be replicated on a screen." The complaint goes on:
During a live performance, these professionals express themselves with their bodies and with their abilities, conveying messages of, among other things, skill, courage, self-discipline, self-confidence, the value of intense training, humility, strategic thinking, and respect for one's opponent. Their objective is to win, not to harm. MMA before a live audience is also expressive in a highly individualistic way. A woman fighter may use her performance to demonstrate to other women that they are capable of protecting themselves in any situation. A fighter who enters the arena draped in his home country's flag pays tribute to his countrymen. Fighters pay homage to religious faith, various disciplines of martial arts, and personal heroes. None of this expression is about “violence.”
UFC competitor Brian Stann, one of the plaintiffs in the suit, further explains:
Performing MMA live in front of a crowd is an unrivaled experience and allows me to speak to my fans. … I was attracted to MMA during my time in the Marine Corps, after I returned from my first deployment to Iraq in 2005 and was looking for a path that allowed me to stay motivated, and inspire others, particularly fellow veterans. MMA is a brotherhood that demands respect for your fellow fighters and rewards mental discipline and skill. It has given countless veterans a way to rehabilitate and connect with other military veterans and I am grateful every day for the ability to compete and inspire my fans.
Friedman’s other insight into the nature of the ban is a cultural one: Americans see MMA as violent and outrageous but Brazilians, for instance, find it perfectly normal and sporting. They would probably find hockey outrageously sadistic. We’ve roped out MMA as a “combative sport” because it’s more foreign than boxing and wrestling, not because it’s more violent.
No professional athlete has ever sued claiming a First Amendment right to participate in a sporting event, and no professional sport has yet been granted First Amendment protection (although naked dancing certainly has). Critics of the suit warn of the consequences of labeling professional athletic performance “expressive speech.” Writes one: “Should the litigation gain any real traction, it would open the floodgates for other athletes to file suit under the same grounds. The NBA's current lockout would represent a wide-open climate for similar suits, and the NHL's looming labor issues could also give rise to hockey players suing under the First Amendment in the near future.” Friedman told the Wall Street Journal that such concerns are misplaced because MMA is special. “It’s martial artistry,” he said. “The nature of martial arts is a lot like dancing.” (Moreover, it’s the government regulating ultimate fighting here, which raises First Amendment claims that don’t apply to hockey or football players.) Not everyone agrees with the characterization of MMA as art, including some athletes who don’t particularly care to think of their work as a “performance.” A performance suggests artistry and skill, but also an element of fakery and theater. MMA is not the WWE, they contend. The idea that a professional sport—even one requiring vast mastery and training, even one that communicates expressive ideas about gender bias and patriotism—is more like ballet than luge probably feels like a stretch to the folks who don’t enjoy watching it. But as this novel lawsuit works its way through the courts, it will raise important new questions about the distinction between sports and entertainment, the difference between live and video performances, and whether one man’s (or woman’s) arm bar is another man’s lyric ode.
Dahlia Lithwick writes about the courts and the law for Slate.