Caged Law: The Strict Scrutiny of New York’s MMA Ban, Part II The MMA Corner Staff January 25, 2012 News Last week, we discussed how the UFC has brought suit against the state of New York to overturn a ban the state enacted in 1997 that prohibits the conducting of live professional mixed martial arts events within the state. The law does not ban the presence of MMA gyms, seminars, trainers, fighters, etc. Rather, the ban squarely prohibits promotion companies such as the UFC from holding MMA events. This is a highly controversial position taken by the state of New York, especially considering MMA has been largely accepted in the mainstream and compounded by the fact that New York is perhaps second, only to Las Vegas (the fight capital of the world), in desirable places for an entertainment spectacle such as the UFC to hold an event. Currently, the UFC is awaiting a reply from the state of New York in response to the UFC’s complaint. The complaint has asserted many grounds for the law to be overturned, but perhaps the most dramatic is based on the constitutional grounds of the First Amendment. Since the UFC has alleged First Amendment violations, they are essentially contending that New York has infringed on fundamental rights. When fundamental rights are infringed, the supposed infringing party – here, New York – must overcome a strict scrutiny test. The state of New York must show that the law banning live professional MMA events is narrowly tailored to serve a compelling government interest and the law is the least restrictive means of achieving the government’s interest. In 1997, UFC 12 was scheduled to take place in Niagara Falls, N.Y. However, merely a few days before the event, New York passed the 1997 ban. Presumably, New York’s compelling interest was to protect the health and safety of the participants of the event and perhaps also to protect the potential viewers from the barbaric nature of the sport, as it was perceived as such at the time. Granted, in 1997 the sport of MMA was in a rapid state of evolution, as rules and regulations were constantly changing to create a fair, balanced and healthy sport. Thus, New York’s compelling interest in banning the sport was arguably valid. Moreover, the law specifically targeted live professional MMA events. Meaning, the law was in fact “narrowly tailored” to serve the government’s interest (not projecting the violent message of MMA). The law was not overly broad, in banning tae kwon do studios geared towards families or self-defense, or broad in the sense that it targeted the long and well-accepted sport of boxing. Arguably, when first enacted, the 1997 ban would have overcome a strict scrutiny challenge; given the state of the sport, uncertainty, lack of evolution and absent regulation. However, much has changed since New York originally took their position over a decade ago. Today, does New York’s staunch position against MMA still withstand a strict scrutiny test? In short, probably not. As previously mentioned since the original ban, MMA has been widely accepted in the mainstream, the rules of MMA have been mostly unified among all promotions, nearly every state regulates the sport under some form of government oversight, and the MMA industry itself has created a course of standard practices, which for the most part protect all parties involved. Many legislative opponents against the legalizing of MMA in New York make statements similar to that of Assemblyman Bob Reilly in stating, “[I]t seems, to me, beyond logic that we in the state legislature would consistently pass laws against physical abuse and physical intimidation, everything from domestic abuse to bullying in schools, and then allow this stuff. We should not be encouraging the glorification of this kind of violence.” Other opponents are just flatly uninformed and are following the lead of the misinformed Reilly. Assemblywoman Francine DelMonte stated, “I’ll express ignorance of this sport, but after [Reilly] described what a vicious sport it was, it was voted down by everybody on the committee.” The problem with New York’s position is lawmakers are expressing a blatant ignorance to the development of the sport over the last 14 years, and such ignorance has upheld a law that can no longer withstand a strict scrutiny challenge, if applicable. No longer will New York simply be able to explain away the UFC because of its brutality. The proponents of MMA have attempted to overturn the ban by appealing to the political process. However, each time a bill intended to legalize MMA has been introduced in the New York state legislature, the bill has died somewhere along the marathon process. Proponents have continually held MMA in comparison to pro football, hockey and boxing, for example, to illustrate that brutality is present and tolerated in many sports. The closest comparison is MMA’s cousin boxing, where the violence and health risks associated with boxing are not to be found in MMA. In effect, when proponents can reference other sports that contain brutality, the proponents are indirectly showing that New York’s ban on MMA is too narrowly tailored and, in fact, over-inclusive. The law cites the violent nature of MMA and relies on such a contention to outlaw the sport, but the law does not account for other elements of violence in sports. Therefore, if the government’s compelling interest is to ban violent sports, then such a ban should also apply to other sports. In conclusion, the UFC has made a bold allegation that New York’s ban on MMA is a violation of the First Amendment of the United States Constitution. The UFC has a seemingly difficult obstacle in making this cause of action stick. However, if successful, the burden would shift to the state of New York to demonstrate, under a strict scrutiny analysis, that their law should be upheld, which alternatively seems like a even bigger burden to overcome. In the end, this fight will not take place in an Octagon, but rather in a court room before the bench. Each team has been preparing for this fight for some time and, as interested parties, we should expect nothing less than a well-fought battle. In the end, look for the UFC to prevail as New York’s law is outdated, the legislators are misinformed, it is unlikely they can overcome a strict scrutiny challenge and lastly, but certainly not least, there is an independent factor. Courts like business. Our country is founded on capitalist principles. Time and time again, courts have found in favor of the development of business and the UFC holding an event in the grand-daddy of them all – Madison Square Garden – would bring UFC a even greater level of prosperity with many parties, including the state of New York, reaping the benefits. Photo: New York skyline (Andre Gunther/Andre Gunther Photography) This piece was authored by Chase Buzzell. You can find Chase via his LinkedIn Profile.