Within the past two decades, the sport of mixed martial arts (“MMA”) has seen a drastic increase in public acceptance and interest.  Today there are forty-six states that sanction and regulate MMA competitions.  MMA events promoted by the Ultimate Fighting Championship, the world’s premiere MMA promoter, consistently sell out the world’s largest arenas.  Broadcasts of MMA events on network television regularly draw millions of viewers, and buy rates of MMA events on pay-per-view television now rival, and perhaps exceed, that of other popular combat sports such as professional boxing.

Despite the sport’s dramatic rise in popularity, MMA matches are still currently illegal in one of our nation’s most populous states.  In 1997, the New York State Legislature passed the Professional Combative Sport Ban, which effectively prohibits the performance of professional MMA in the State of New York for the purpose of entertaining a live audience. This prohibition is currently being challenged in the U.S. District Court for the Southern District of New York by Zuffa, LLC, the UFC’s parent company. Zuffa’s most novel claim among many is that the ban violates the First Amendment of the Constitution of the United States.

The First Amendment provides, in part, that “Congress shall make no law . . . abridging the freedom of speech.”  This provision protects actual speech as well as “expressive” and “symbolic” conduct.  Therefore, one key element of Zuffa’s case turns on whether the performance of MMA before a live audience is expressive conduct.  Zuffa argues that conduct clearly undertaken for expressive purposes, such as to engage or entertain an audience, is deemed to be inherently expressive. (Plaintiffs’ Opposition to Defendant’s Motion to Dismiss the Amended Complaint at 11–12, Jones v. Schneiderman, No. 11-CV-8215 (S.D.N.Y. Nov. 30, 2012.))  Thus, expression is undeniably inherent in live MMA because “[p]rofessional MMA fighters participate in live events for the same reason that an actor plays a crowded hall . . . they want to demonstrate their skills before a live and appreciative audience and interact with that audience during the event.” (First Amended Complaint at 84, Jones v. Schneiderman, No. 11-CV-8215 (S.D.N.Y. Sept. 24, 2012.))

On the other hand, the State of New York downplays the importance of whether conduct is undertaken for expressive purposes and instead stresses the Supreme Court’s holding that to be deemed expressive, conduct must have “an intent to convey a particularized message” and a reasonable “likelihood…that the message would be understood by those who viewed it.” (Defendant Schneiderman’s Reply Memorandum of Law in Support of His Motion to Dismiss the First Amended Complaint at 2, Jones v. Schneiderman, No. 11-CV-8215 (S.D.N.Y. Dec. 14, 2012.)) Along those lines, the State points out that competitive sports in general have failed the particularity and comprehensibility test and are usually not considered expressive conduct protected by the First Amendment.

Assuming that, despite the State of New York’s arguments, live MMA is indeed expressive conduct protected by the First Amendment, Zuffa still has an additional hurdle to overcome.  When the government bans expressive conduct, one of two tests might apply.  If the ban is on specific content, such as a violent message, strict scrutiny applies and the law would likely be unconstitutional.  Alternatively, if the ban is content-neutral, the focus then shifts towards whether the ban furthers a sufficiently important governmental interest and whether the ban is narrowly tailored in furthering that interest.  Ultimately, this question may be resolved not by a court but by a legislature.  The New York State Senate recently approved a bill legalizing MMA in New York and the State Assembly will consider the issue later this year.  In this context, it’s important to remember that just because a law doesn’t violate the First Amendment doesn’t mean it’s a law worth keeping around.

Albert Zhu is a 2L at Harvard Law School.