The sport of mixed-martial arts (“MMA”) continues to grow wildly in popularity. It boasts an avid and involved fan base and is widely available and watched on television. Yet, professional MMA events are banned in New York State. New York State is one of the last remaining bastions in MMA’s quest for legitimacy, regulation, and inclusion in mainstream culture. In each of the last several years, the New York State Senate has passed a bill that would legalize MMA in New York, but each time, the bill is blocked from reaching the floor of the State Assembly. The reasons for the continuing ban on live professional events in New York can be distilled down to: the risk of participant injury, a potentially dangerous or wrong message delivered to “our youth” and the “effect upon youth”, as well as the “civilization” and the “disgust” factor (see Jones v. Schneiderman, 888 F Supp (2d) 421 (NY Dist Ct 2013), at 7-8).

MMA continues to attract participants and viewers through what fans often see as a compelling display of a realistic street-fighting strategy that deploys a variety of different fighting techniques. There is a sense that anyone could potentially become a fighter, which is also the message communicated in the narratives of fighters such as Georges St. Pierre (GSP) in his autobiography The Way of the Fight. This accessibility is not only buttressed by reality TV shows, such as The Ultimate Fighter, that reveal the humanity and everyday interactions of aspiring fighters, but also through participatory outlets like UFC Fight Pass that allow fans to access and become immersed in the world of MMA. It is a sport accessible in ways many other brands of entertainment are not, and one that has developed a deep sense of community among those involved.

claim and that, if the plaintiffs manage to avoid another motion to dismiss, a trial will likely take place in 2014.

Due to the interesting nature of the strategic and public interest litigation strategy chosen, a closer look is merited into the arguments forwarded regarding the New York MMA ban’s violation of the First Amendment right of expression (even though ultimately dismissed in this case, it provides a view into the culture of MMA as a community looking for legitimacy) as well as the unconstitutional vagueness claim.

The fuel for the freedom of expression argument is provided via narratives of the plaintiffs and MMA community members. The narratives used can be divided into three messages: artistic, technical, and personal. The reasons of the decision identify each plaintiff, their ring name if applicable, along with their connection to the MMA community. This allows for a more personalized portrayal of the plaintiffs and their interests in advancing their claims.

In terms of the artistic message conveyed and the narrative used, Jon “Bones” Jones, UFC Light Heavyweight Champion and the youngest to hold a title in the history of the UFC, for example, describes the artistic aspect embodied in the “walkout” as the fighter enters the arena and proceeds to the octagon. The fighter chooses particular entrance music and battle clothing to convey a message to the viewers—a message that is continuously conveyed via the fighter’s conduct while in the octagon. Fighters often see themselves as having performative value in addition to athletic value, and to be exhibiting an art form, not just an athletic skill. After all, it is called “martial arts” in the end, not “martial sports”.

In addition to the artistic message, it is argued that a message is communicated through the technical elements of the live MMA event. Each fighter deploys a hybridized and unique fighting technique that is strategically constructed to answer to their strengths and the perceived weaknesses of the opponent. The narratives of the plaintiffs reveal that the particular techniques deployed not only send a message about the superiority of a particular fighter, but also inform the viewer as to which fighting techniques are dominant. While some in the past have called MMA “human cockfighting”, there are others that call it “human chess”, something with a very different and perhaps even noble connotation.

Finally, the narrative of fighters, such as Gina “Conviction” Carano, display a personal message conveyed including, in her case, the strength and determination of women to succeed. Another example of this is Matt “The Hammer” Hamill, another listed plaintiff, who is congenitally deaf. Judge Wood notes Hamill’s hopes—that in performing he sends the message that a disability should not keep someone from following their dreams.

Unfortunately, the result of the First Amendment argumentation is not successful on face value—which isn’t to diminish the awareness-raising value of the arguments presented through the narratives of MMA community members. Judge Wood ultimately found that the plaintiffs have not demonstrated that MMA is “sufficiently imbued with the elements of communication” to qualify for First Amendment protection. While Judge Wood did find that the plaintiffs subjectively demonstrate an intent to communicate a particularized artistic, technical, or personal message, they do not succeed in establishing that objectively there is a “great likelihood” that viewers will comprehend the particular message conveyed (see the Decision at 21-23). Judge Wood further found that while MMA may be at best nearing the periphery of protected speech, peripheral protection does not apply as not all live entertainment qualifies for First Amendment protection.

In addition, Judge Wood found that the technical message conveyed regarding the dominant technique exhibited is typical of organized sporting competitions and that protecting this “message” would blur the line between conduct and speech (see the Decision at 28). In addressing the performative and spectacle-based elements of MMA events, Judge Wood found them to be the “surrounding fanfare” rather than primarily intended to express a message to the viewer (Decision at 29-30).

In maintaining the plaintiff’s void for vagueness claim, the plaintiffs again used their narratives to advance their cause, although the primary reason for Judge Wood’s agreement with this claim is based on the inconsistency, back-peddling, and contradictions that ultimately characterize the defendant’s arguments on the matter. The inconsistent history of the application of New York’s ban on live professional MMA events is a glaring flaw in the defendant’s argumentation and is determinative in Judge Wood’s decision.

Moving Forward

While the use of public interest litigation to advance the cause of the MMA community in New York may be seen as an innovative strategy, whether or not the outcome is successful, the reality is that this is a last-resort strategy. Political lobbying is certainly a more straightforward and likely less costly approach. But, where MMA faces the same false hope year after year, seeking the availability of any other option becomes an inevitable reality. As Barry Friedman, NYU professor, expert in popular constitutionalism, and lawyer for the plaintiffs, notes: after five years of lobbying, recourse to the courts and to this type of litigation strategy were the last remaining options (see, for example, Daniel Berger’s article “Constitutional Combat: Is Fighting a Form of Free Speech? The Ultimate Fighting Championship and its Struggle Against the State of New York Over the Message of Mixed Martial Arts” (2013) 20 Jeffrey S Moorad Sports Law Journal 381 at 382, footnote 5).

Nonetheless, individuals and communities engaging in awareness-raising dialogue with the courts and the formal legal system will ideally sow the seeds for a rethinking and possible deconstruction of preconceived notions that continue to exist as barriers to the removal of New York’s ban on professional MMA events. The use of the court system is not only the contact zone where the substance of constitutional law is negotiated, but the awareness-raising dialogue created through litigation and the use of narratives as evidence allow judges to observe social movements at close range and how these social movements interact with society, which in turn could allow for a shift in judicial view as to Constitutional meaning. It also keeps the fight for legalizing MMA in New York in the public eye while the New York State Assembly continues to block efforts to deal with the issue legislatively.

Author Bio:

Sara Ross is an incoming PhD student at Osgoode Hall Law School in Toronto and a member of the Bar of Ontario. She is a former Editor-in-Chief of the McGill Law Journal, and is graduating from the LLM program at the University of Ottawa this summer. She holds an LLB and BCL with a major in Commercial Negotiation and Dispute Resolution from McGill, and two BAs in culturally related fields.