Is Mixed Martial Arts’ Violent Element Protected Expressed Under The First Amendment?

November 15th, 2011

U.F.C., which filed suit against New York’s ban on MMA thinks so:

 So on Tuesday, the U.F.C. adopted a new strategy: it sued the state in Manhattan federal court, saying that the prohibition is unconstitutional. The complaint accuses the state of enacting the ban because of the violent message it believes the sport conveys.

By doing so, the U.F.C. said, the state has violated its free speech rights protected by the First Amendment. The real intent of the ban, the organization alleged, is to “squelch its expressive element.”

The lawsuit added, “Live professional M.M.A. is clearly intended and understood as public entertainment and, as such, is expressive activity protected by the First Amendment.”

The 107-page document extolled the theatrical content of live M.M.A. events, the respect fighters have for one another and the rigorous training they undergo. It also rejected violence as the sport’s essential message.

“While there surely are spectators who watch solely because of their misconceived hopes of seeing ‘violence,’ ” it says, “countless fans watch M.M.A. because of the variety of positive messages conveyed.”

Barry Friedman is representing U.F.C.!

“The sport was a victim of its own early hype,” said Barry Friedman, a lawyer for the U.F.C. and a law professor at New York University. “But the U.F.C. now is not the U.F.C. then and M.M.A. now is not M.M.A. then.” The U.F.C. just began a seven-year, $700 million deal with Fox Sports.

The lawyers rely on Brown v. EMA. I’d think U.S. v. Stevens is also on point. Interesting.

Each cited a 7-to-2 decision in June by the Supreme Court that struck down on First Amendment grounds a California law that banned the sale of violent video games to children.

“The linchpin is convincing the court that the ban is aimed at the content of the entertainment as opposed to the safety of the fighters,” said Tom Kelley, a partner at Levine Sullivan Koch & Schulz. “Attempts to regulate entertainment based on its violent message have been largely unsuccessful.”

Bruce Johnson, a partner at Davis Wright Tremaine, added: “It sounds very straightforward: the government seems to be trying to regulate the message, which is very different from trying to regulate what’s healthy or unhealthy about the sport. Entertainment itself is protected by the First Amendment.”