UFC's First Amendment path to legalization?

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Jon Jon "Bones" Jones destroyed Matt Hamill at The Ultimate Finale on Dec. 5, 2009, but referee Steve Mazzagatti disqualified him for an illegal 12-6 elbow. Photo Credit: UFC Photo

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Mark La Monica Mark La Monica

Mark La Monica is the deputy sports editor for cross media at Newsday and writes about mixed martial

The fight for the right to fight in New York State took a fascinating turn Tuesday when the argument over legalizing mixed martial arts events moved from the legislative to the judicial branch of government.

Zuffa LLC, parent company of the premier MMA company Ultimate Fighting Championship, filed suit in U.S. District Court in Manhattan, claiming that the state's ban on the sport violates the First Amendment, equal protection and due process and is unconstitutional. In basic terms, it contends that an MMA fight is a performance, an expression of "art'' and, as such, is a form of free speech.

This lawsuit presents a juicy and new way to debate the topic. Can it be that an Anderson Silva front leg kick or a Georges St-Pierre takedown is performance art same as ballet or theater? A Jon Jones spinning back fist may be poetry in motion to some, but is it a form of expression?

"I think invoking the First Amendment is a plausible argument," said Susan Low Bloch, a constitutional law professor at Georgetown who is not affiliated with the suit. "Now that doesn't mean you win the case, it just gets you in the door. But it's not a crazy argument. It's a sensible move. It's not laughable on its face at all."

Zuffa has taken the legislative approach to attempting to get MMA legalized in New York the past three years. Each year, they make progress. Each year, they can't get a full vote on the Assembly floor. The bill passed through the State Senate by a vote of 42-18 in May, then went through both the Tourism and Codes committees in the Assembly. It then stalled in the Ways and Means Committee. The New York legislature opens its next session in January.

"When New York banned MMA [in 1997], they banned it because of the message. The legislature thought it sent a message of violence and brutality," said Barry Friedman, co-counsel for the UFC's lawsuit and a constitutional law professor at NYU. "People who are involved in the MMA community don't think that's the message at all. It's a very different message, a much more inspirational message, and a much more positive message. But, even if it was that negative message, they can't ban it for that reason."

Spokespersons for state attorney general Eric Schneiderman and Manhattan district attorney Cyrus Vance Jr., named defendants in the federal case, declined to comment. Jones, a UFC light- heavyweight champion from Endicott, N.Y., and lightweight champion Frankie Edgar from Toms River, N.J., are among the named plaintiffs.

Leon Friedman, a professor of constitutional law at Hofstra, said Zuffa must prove that its safety regulations are top-notch.

"They would have to show that it really isn't dangerous at all, that it doesn't affect the physical well-being of the participants, that somehow it's no more dangerous than boxing, for example," Leon Friedman said.

Of the 48 states with athletic commissions, New York is the only state that has a ban on the sport. Those numbers are "highly relevant," Low Bloch said, and can be used to support the plaintiffs' case.

"The ban in vulnerable," Low Bloch added. "New York better be well-prepared to defend it."

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