Zuffa's opposition to NY's motion to dismiss

ny-1065331

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK ---------------------------------------------------------------

Jon Jones, Gina Carano, Frankie Edgar, Matt Hamill, Brian Stann, Zuffa, LLC d/b/a Ultimate Fighting Championship, Don Lilly, Shannon Miller, Danielle Hobeika, Beth Hurrle, Donna Hurrle, Steve Kardian, Joseph Lozito, Erik Owings, Chris Reitz, and Jennifer Santiago,

Plaintiffs,

-against-

Eric T. Schneiderman, in his official capacity as Attorney General of the State of New York,

Defendant.

x : : : : : : : : : : : : : : : :

No. 11 Civ. 8215 (KMW)(GWG)

---------------------------------------------------------------- x

PLAINTIFFS’ OPPOSITION TO DEFENDANT’S MOTION TO DISMISS THE AMENDED COMPLAINT

MORRISON & FOERSTER LLP Jamie A. Levitt Leah Andrea Ramos Jonathan C. Rothberg 1290 Avenue of the Americas New York, New York 10104-0050 Phone: 212.468.8000 [email protected] [email protected] [email protected] Attorneys for Plaintiffs

Barry Friedman 40 Washington Square South Room 317 New York, New York 10014-1005 Phone: 212.998.6293 [email protected]

Case 1:11-cv-08215-KMW Document 39 Filed 11/30/12 Page 1 of 55

TABLE OF CONTENTS

Page

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PRELIMINARY STATEMENT ....................................................................................... 1

STATEMENT OF FACTS ................................................................................................ 2

A. The Ban on Mixed Martial Arts ................................................................. 2

B. Fifteen Years of Changing Interpretations and Standardless Enforcement 3

C. Plaintiffs’ Three Alleged Harms; the AGs Three Positions ....................... 6

1. Professional MMA ......................................................................... 6

2. Amateur MMA............................................................................... 7

3. “Advances or Profits From” ........................................................... 8

ARGUMENT ..................................................................................................................... 8

I. THE BAN VIOLATES THE FIRST AMENDMENT .......................................... 9

A. Entertainment Before a Live Audience—Including Sporting Events—is Expressive Conduct Protected by the First Amendment ........................... 9

1. New York Allows MMA Without Restriction Except When It is Presented for the Purpose of Entertaining a Live Audience .......... 9

2. Live Sports are Not Categorically Excluded From the First Amendment .................................................................................. 12

a. The AG’s Categorical Rejection of Sports Ignores The Line Between Conduct and Performance in Sports ................. 14

b. Athletic Events Intended as Entertainment Are No Different from Other Forms of Entertainment Protected By First Amendment ............................................................. 15

3. The State’s Asserted Interests in Suppressing the Live Performance of MMA Do Not Satisfy the Demands of the First Amendment . 18

B. The Ban is Substantially Overbroad ........................................................ 20

II. THE BAN IS UNCONSTITUTIONALLY VAGUE .......................................... 23

A. Courts Look to Actual Interpretation and Enforcement Facts to Evaluate a Law’s Vagueness ..................................................................................... 23

B. The Ban is Unconstitutionally Vague as Applied .................................... 26

1. As applied to amateurs ................................................................. 28

2. As applied to professionals .......................................................... 29

3. As applied to “advances or profits from” .................................... 32

C. The Ban is Unconstitutionally Vague on Its Face ................................... 32


TABLE OF CONTENTS (continued)

Page

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III. THE BAN AS CONSTRUED BY THE AG IS IRRATIONAL, VIOLATING PLAINTIFFS’ EQUAL PROTECTION AND SUBSTANTIVE DUE PROCESS RIGHTS ............................................................................................................... 33

A. “Law of the Case” Does Not Apply to the Amended Rational Basis Claims.................................................................................................................. 35

B. Accepting the AG’s Plain Meaning, the Ban is Now Entirely Irrational . 36

IV. THE BAN IMPERMISSABLY AFFECTS INTERSTATE COMMERCE ........ 38

V. THE AG IS A PROPER DEFENDANT IN PLAINTIFFS’ LIMITED CHALLENGE TO THE LIQUOR LAW ............................................................ 40

CONCLUSION ................................................................................................................ 40


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TABLE OF AUTHORITIES

Page(s) CASES

Allaire Corp. v. Okumus, 433 F.3d 248 (2d Cir. 2006).......................................................................................................2

Barnes v. Glen Theatre, Inc., 501 U.S. 560 (1991) (Souter, J., concurring) ...........................................................................10

Berger v. City of Seattle, 569 F.3d 1029 (9th Cir. 2009) .................................................................................................17

Branch v. Smith, 538 U.S. 254 (2003) ...........................................................................................................30 n.9

Braxton v. Bd. of Public Instruction of Duval Cnty., Fla., 303 F. Supp. 958 (M.D. Fla. 1969) ....................................................................................11 n.2

Bray v. City of New York, 346 F. Supp. 2d 480 (S.D.N.Y. 2004) ......................................................................................15

Brown v. Entm’t Merchants Ass’n, __U.S.__, 131 S. Ct. 2729 (2011) ............................................................................................17

Chatin v. Coombe, 186 F.3d 82 (2d Cir. 1999).......................................................................................................24

Church of Am. Knights of the Ku Klux Klan v. Kerik, 356 F.3d 197 (2d Cir. 2004).....................................................................................................11

City of Ladue v. Gilleo, 512 U.S. 43 (1994) ...................................................................................................................18

Clark v. Cmty. for Creative Non-Violence, 468 U.S. 288 (1984) .................................................................................................................11

Cockrel v. Shelby Cnty. Sch. Dist., 270 F.3d 1036 (6th Cir. 2001) .................................................................................................12

Cunney v. Bd. of Trustees of Grand View, 660 F.3d 612 (2d Cir. 2011)...................................................................................23, 24, 25, 27

Denney v. DEA, 508 F. Supp. 2d 815 (E.D. Cal. 2007)..............................................................................35 n.14


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Derby v. Town of Hartford, 599 F. Supp. 130 (D. Vt. 1984)..........................................................................................27, 28

Dodger’s Bar & Grill, Inc. v. Johnson Cnty. Bd. of Cnty. Comm’rs, 32 F.3d 1436 (10th Cir. 1994) ...........................................................................................24 n.7

Doninger v. Niehoff, 642 F.3d 334 (2d Cir. 2011), cert. denied, __U.S.__, 132 S. Ct. 499 (2011) ....................11 n.2

Edgar v. MITE Corp., 457 U.S. 624 (1982) .................................................................................................................39

Equity in Athletics, Inc. v. Dep’t of Educ., 504 F. Supp. 2d 88 (W.D. Va. 2007), aff’d, 291 Fed. Appx. 517 (4th Cir. 2008) ..................................................................................................................................15 n.4

Fezzani v. Bear, Stearns & Co., No. 99CIV793RCC, 2005 WL 500377 (S.D.N.Y. Mar. 2, 2005) ...........................................35

Fighting Finest, Inc. v. Bratton, 898 F. Supp. 192 (S.D.N.Y. 1995), aff’d, 95 F.3d 224 (2d Cir. 1996) .............................................................................................14

Fighting Finest, Inc. v. Bratton, 95 F.3d 224 (2d Cir. 1996)............................................................................................ 15 & n.4

Five Borough Bicycle Club v. City of New York, 483 F. Supp. 2d 351 (S.D.N.Y. 2007), aff’d, 308 Fed. Appx. 511 (2d. Cir. 2009) .........................................................................13, 14

Gen. Elec. Co. v. New York State Dep’t of Labor, 936 F.2d 1448 (2d Cir. 1991)...........................................................................................30 n.10

Grayned v. City of Rockford, 408 U.S. 104 (1972) .................................................................................................................29

Grossi v. City of New York, No. 08 Civ. 1083, 2009 WL 4456307 (E.D.N.Y. Nov. 30, 2009) .....................................11 n.2

Grzywna ex rel. Doe v. Schenectady Cent. Sch. Dist., 489 F. Supp. 2d 139 (N.D.N.Y. 2006) ...............................................................................11 n.2

Hayes v. New York Attorney Grievance Comm., 672 F.3d 158 (2d Cir. 2012).........................................................................................25, 31, 33

Hill v. Colorado, 530 U.S. 703 (2010) .................................................................................................................23


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Hobbs v. Cnty. of Westchester, 397 F.3d 133 (2d Cir. 2005)...............................................................................................12, 18

Holder v. Humanitarian Law Project, __U.S. __, 130 S. Ct. 2705 (2010) ...........................................................................................33

Hunt v. Washington State Apple Adver. Comm’n, 432 U.S. 333 (1977) .................................................................................................................38

Hurley v. Irish-American Gay, Lesbian & Bisexual Group of Boston, 515 U.S. 557 (1995) .....................................................................................................10, 12, 16

In re Dairy Mart Convenience Stores, 411 F.3d 367 (2d Cir. 2005).....................................................................................................40

Interactive Digital Software Ass’n v. St. Louis Cnty., Mo., 329 F.3d 954 (8th Cir. 2003) .............................................................................................11 n.2

Iota Xi Chapter of Sigma Chi Fraternity v. George Mason Univ., 993 F.2d 386 (4th Cir. 1993) ...................................................................................................12

Johnson v. Askin Capital Mgmt., L.P., 202 F.R.D. 112 (S.D.N.Y. 2001) .....................................................................................35 n.15

Justice v. Nat’l Collegiate Athletic Ass’n, 577 F. Supp. 356 (D. Ariz. 1983) ......................................................................................15, 16

Kittay v. Korff, No. 08 Civ. 7421 (RPP), 2011 U.S. Dist. LEXIS 11681 ...................................................26 n.8

Kolender v. Lawson, 461 U.S. 352 (1983) .................................................................................................................25

Kregler v. City of New York, 821 F. Supp. 2d 651 (S.D.N.Y. 2011) ......................................................................................35

Lanzetta v. N.J., 306 U.S. 451 (1939) .................................................................................................................29

Maloney v. Cuomo, 470 F. Supp. 2d 205 (E.D.N.Y. 2007), aff’d, 554 F.3d 56 (2d Cir. 2009), vac’d and remanded on other grounds, 390 Fed. Appx. 29 (2d. Cir. 2010) ...............14, 15 n.4

McClure v. Ashcroft, 335 F.3d 404 (5th Cir. 2003) .............................................................................................11 n.2

Merrifield v. Lockyer, 547 F.3d 978 (9th Cir. 2007) .............................................................................................37, 38


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Miller v. Carter, 547 F.2d 1314 (7th Cir. 1977), aff’d, 434 U.S. 356 (1978) .....................................................38

Miller v. South Bend, 904 F.2d 1081 (7th Cir. 1990) .................................................................................9, 10, 11, 17

Morin v. Trupin, 809 F. Supp. 1081 (S.D.N.Y. 1993) .................................................................................35 n.15

Pike v. Bruce Church, Inc., 397 U.S. 137 (1970) .................................................................................................................39

Piscottano v. Murphy, 511 F.3d 247 (2d Cir. 2007)...............................................................................................11 n.2

Pleasureland Museum, Inc. v. Beutter, 288 F.3d 988 (7th Cir. 2002) ...................................................................................................32

Police Dep’t of Chicago v. Mosley, 408 U.S. 92 (1972) ...........................................................................................................35 n.14

Post Newsweek Stations-Connecticut, Inc. v. Travelers Ins. Co., 510 F. Supp. 81 (D. Conn. 1981) .......................................................................................13, 14

San Filippo v. Bongiovanni, 961 F.2d 1125 (3d Cir. 1992)...................................................................................................24

Schad v. Mt. Ephraim, 452 U.S. 61 (U.S. 1981) ...........................................................................................................11

SEG v. Patterson, No. 97 Civ. 712 (MGC), 1998 WL 230993 (S.D.N.Y. May 5, 1998) ...............................16 n.4

Smith v. Goguen, 415 U.S. 566, 578 (1974) .........................................................................................................33

Spence v. Washington, 418 U.S. 405 (1974) .................................................................................................................11

Steinfield v. Marks, No. 96 CIV. 0552 (PKL), 1997 WL 563340 (S.D.N.Y. Sept. 8, 1997) .............................35, 36

Tessler v. Paterson, 768 F. Supp. 2d 661 (S.D.N.Y. 2011), aff’d, 451 Fed. Appx. 30 (2d. Cir. 2011) ................................................................................................................................40 n.17

Thornhill v. Alabama, 310 U.S. 88 (1940) .............................................................................................................20, 21


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Top Rank, Inc. v. Fla. State Boxing Comm’n, 837 So. 2d 496 (Fla. Ct. App. 2003) ........................................................................................16

Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622 (1994) .................................................................................................................18

U.S. Baseball v. City of New York, 509 F. Supp. 2d 285 (S.D.N.Y. 2007) ..............................................................................30 n.10

U.S. Satellite Broad. Co. v. Lynch, 41 F. Supp. 2d 1113 (E.D. Cal. 1999)......................................................................................13

U.S. v. Jones, 689 F.3d 696 (7th Cir. 2012) ...................................................................................................33

U.S. v. Quinteri, 306 F.3d 1217 (2d Cir. 2002)...........................................................................................35 n.15

U.S. v. Stevens, __U.S. __, 130 S. Ct. 1577 (2010) .......................................................................... 21, 22 & n.6

U.S. v. Williams, 553 U.S. 285 (2008) .................................................................................................................31

U.S. v. O’Brien, 391 U.S. 367 (1968) .....................................................................................................18, 19, 20

Universal City Studios, Inc. v. Corley, 273 F.3d 429 (2d Cir. 2001)...............................................................................................11 n.2

Vill. of Hoffman Estates v. Flipside, Hoffman Estates, 455 U.S. 489 (1982) ...........................................................................................................23, 24

Vincenty v. Bloomberg, 476 F.3d 74 (2d Cir. 2007).................................................................................................11 n.2

VIP of Berlin, LLC v. Town of Berlin, 593 F.3d 179 (2d Cir. 2010).....................................................................................................25

Wallace v. Conroy, 945 F. Supp. 628 (S.D.N.Y. 1996)...........................................................................................34

Ward v. Rock Against Racism, 491 U.S.781 (1989) ..................................................................................................................13

Wilson v. State Bar of Ga., 132 F.3d 1422 (11th Cir. 1998) .........................................................................................24 n.7


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Winters v. New York, 333 U.S. 507 (1948) .................................................................................................................17

STATUTES, RULES & REGULATIONS

New York Unconsolidated Laws § 8905-a ........................................................................................................................... passim

Fed. R. Civ. P. 60......................................................................................................................................35 n.15

OTHER AUTHORITIES

A. Bartlett Giamatti, Take Time for Paradise: Americans and Their Games (1989) ................................................13

Ben Fowlkes, A Losing Fight in New York, Inside MMA, SI.com, Mar. 13, 2009, available at http://sportsillustrated.cnn.com/2009/writers/ben_fowlkes/03/13/ny.legalization/index.html. ...................................................................................................................39 n.16

Kathryn Jay, More Than Just a Game: Sports in American Life Since 1945 (2004) ....................................13


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PRELIMINARY STATEMENT

This case challenges the constitutionality of New York Unconsolidated Laws § 8905-a,

the ban on “combative sport” (the “Ban”). The Ban is a poorly drafted statute put into place by a

Legislature that that did not like the perceived “message” of mixed martial arts and decided to

ban its live performance entirely. The Ban suppresses First Amendment protected expressive

conduct, is so unclear that the State either does not know what it means or cannot consistently

enforce it, is drafted so broadly that it impinges on constitutionally protected conduct and

interferes with interstate commerce, and—as currently interpreted by the State—lacks any

conceivable rational basis.

Since this case was filed, the landscape has changed entirely. New York’s Attorney

General (“AG”) now takes positions that appear to permit Plaintiffs to do everything they wish to

do. The AG says these are not his “positions,” but merely what the Ban plainly states. But his

interpretations are flatly inconsistent with numerous previous interpretations of the statute by

other state officials, particularly the State Athletic Commission (“SAC”). The AG’s

interpretations also are contrary to the understandings of countless legislators and citizens who

have long fought (on both sides) over the merits of repealing the Ban. Given the history of the

Ban’s enforcement, there is little reason to believe the positions taken by the AG today will be

those of the State tomorrow.

The AG’s pronouncements confuse still further the meaning of the Ban, rendering it more

constitutionally vague than it was when this suit commenced. In addition, with regard to the

Equal Protection and Due Process issues, the AG’s positions undermine entirely the

Legislature’s stated rationales for the Ban. The Ban was adopted, as all acknowledge, because

the Legislature believed certain combative sports were too dangerous to regulate and the

performance of combative sports sent the wrong message, particularly to children. Yet, in


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response to the AG’s positions, amateur combative sporting events now regularly occur before

crowds of thousands. So do professional combative sports, including at Madison Square Garden.

None of this is regulated by the State in any way. The State can no longer credibly maintain that

the Ban is justified by its interest in protecting the safety of participants and avoiding the

communication of negative messages, given that live combative sports long thought to violate

the Ban are now widespread, unregulated, and—according to the AG—lawful.

The AG’s motion to dismiss should be denied. If the AG is correct in his interpretation

of the Ban and Plaintiffs are free to do as they wish, then the AG should say so definitively.

Absent such a statement by the AG, or a declaration to that effect by this Court, Plaintiffs should

be permitted to proceed to the limited discovery they require to prove their constitutional claims.

STATEMENT OF FACTS

On this Motion to Dismiss (“Mot.”), well-pled facts in the Amended Complaint

(“Complaint” or “C.”) must be taken as true. Allaire Corp. v. Okumus, 433 F.3d 248, 249-50 (2d

Cir. 2006). Plaintiffs stress this point because, although the AG complains about the length of

the Complaint, he takes account of few of the facts alleged in it.

A. The Ban on Mixed Martial Arts

Mixed martial arts (“MMA”) is one of the fastest growing sports in the United States. (C.

¶ 1.) Enthusiastic audiences watch it widely both live and on television. (C. ¶¶ 1, 59.) In its

infancy, MMA advertised itself as “no holds barred” fighting, a claim that was hyperbolic even

then. Today, however, MMA occurs under a set of clear and well-established Unified Rules. (C.

¶¶ 2, 30.) In virtually every state of the Union, MMA is legal and safe; in most of them a state

commission regulates it under the Unified Rules. (C. ¶ 52.) In a prior ruling, this Court

accepted as true that “when it comes to serious injuries, MMA is as safe as or safer than, among

other things, professional boxing, football, ice hockey, car racing, professional wrestling,


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equestrian sports, X-game, Alpine ski racing, motorcycle racing, and rodeos.” (Opinion & Order

at 15 (Aug. 16, 2012), ECF No. 31 (“Op.”) (quoting Initial Complaint at 91).)

The New York Legislature enacted the Ban in 1997. (C. ¶ 5.) It initially had the SAC

regulate the developing sport, but then did an abrupt about face and decided on a “complete” Ban

on live professional MMA matches. (C. ¶¶ 33-44.) See Sponsor’s Mem., 1997 S. 1663, Ch. 14,

at 2 (Senator Roy Goodman, Senate sponsor: “[e]vents like combative sporting matches . . . .

must therefore be prevented from ever occurring in our State again”); NY Bill Jacket, 1997 A.B.

2718, Ch. 14, at 000012 (State Department: (“[t]he Legislature has now determined that it is in

the best interests of the people of the State . . . to ban combative sports entirely.”).

The Ban does not mention MMA explicitly, but makes illegal the performance of

“combative sport,” defined as any “professional match or exhibition” in which participants

deliver “kicks, punches, or blows of any kind to the body of an opponent or opponents.” Ban § 1.

The Ban then exempts from the definition of “combative sport:” “boxing, sparring, wrestling or

martial arts.” Id. The Ban does not define “martial arts” with reference to any specific activity.

(C. ¶¶ 13, 179.) Rather, martial arts “shall include” matches or exhibitions sponsored by one of

the listed organizations, such as the World Karate Association (“exempt organizations”). Ban §

1. The Ban also has a broad prohibition on “knowingly advanc[ing] or profit[ing] from a

combative sport” (the “advance or profit from” provision). Id. § 3.

Public officials offered two rationales for the Ban. First, such combative sports were

believed to send an inappropriate message of violence, especially to children. (C. ¶¶ 9, 32, 35-44,

208, 357, 429.) Second, combative sports were too unsafe to regulate. (C. ¶¶ 43, 429.)

B. Fifteen Years of Changing Interpretations and Standardless Enforcement

Despite the “complete” nature of the Ban on live professional MMA, in the five years

following its enactment, combative sports—even MMA—actually flourished in New York, all


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under the watch of the SAC. (C. ¶¶ 163, 185.) Amateur and professional MMA events were

common, such as Lou Neglia’s mixed cards at Vengeance at the Vanderbilt, sanctioned by the

United States Kick Boxing Association, which has never been an exempt organization under the

Ban. (C. ¶ 163.) SAC members attended these MMA events. (C. ¶ 163.) Other combative

sports events sanctioned by non-exempt organizations occurred as well, notably professional and

amateur kickboxing. (C. ¶ 185.) The only thing the SAC seemed to prohibit was UFC-promoted

MMA. (C. ¶ 163.)

Then, around 2002, something changed and the SAC reversed course. It started to shut

down both professional and amateur combative sport events of all kinds. (C. ¶¶ 166, 186.) On

kickboxing forums, commentators alluded to “[r]ecent changes in New York State Law” and the

SAC’s “sudden” change. (C. ¶ 186.) The SAC sent “cease and desist letters” and the New York

State Liquor Authority (“NYSLA”) moved against venues that served alcohol if combative

sports were present. (C. ¶ 166.) Most amateur MMA and all professional MMA disappeared

from New York. (C. ¶¶ 166-67.) The State Department told the Wall Street Journal in 2011:

“Paid or unpaid, and regardless of whether alcohol is served, mixed martial arts exhibitions and

matches are illegal in the state of New York.” (C. ¶ 169.) What remained went “underground,”

such as the Underground Combat League (“UCL”). (C. ¶ 167.) Even though the UCL is, and

always has been, amateur, during this period SAC members and staff repeatedly insisted they

would shut it down. (See, e.g., C. ¶ 168 (SAC quoted in New York Times saying it would “track

down and close [a UCL] show if it knew about it in advance”).

During this same period, however, something else changed. The World Kickboxing

Association or WKA—exempt under the Ban as the “World Karate Association”—began to

sanction professional combative sport events, such as kickboxing. (C. ¶ 190.) How, when, or

why this happened awaits discovery, but the SAC apparently knew about and signed off on the


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WKA’s activities. (C. ¶ 191.) At the very same time, however, the SAC was rejecting

applications from kickboxing organizations to be added to the “exempt organizations” list,

claiming that it lacked authority to add any organization to the list (C. ¶¶ 186, 196), even though

the Ban authorizes the SAC “to promulgate regulations which would establish a process to allow

for the inclusion or removal of martial arts organizations from the above list.” Ban § 1.

Thus, curiously, after 2002, amateur events were barred, but professional combative

sports events were permitted (if sanctioned by the WKA). (C. ¶¶ 168, 187.) The WKA is

apparently the only exempt organization that is allowed to or does sanction events in New York

that otherwise would be unlawful “combative sport” competitions under the Ban. (C. ¶¶ 18,

196.) The WKA has morphed from being the World Karate Association at the time the Ban was

adopted, to the World Kickboxing and Karate Association, to today being the World Kickboxing

Association, or simply WKA. (C. ¶¶ 17, 190, 378.) The WKA is a foreign corporation with a

United States Representative in Richmond, Virginia.

Then came this litigation. Here, the AG took the position that amateur MMA was

completely outside the scope of the Ban. (C. ¶ 420.) Accordingly, the SAC reversed course

once again, adopting the AG’s view that amateur combative sports were lawful and unregulated.

(C. ¶¶ 15, 172-73.) The State’s change of position was noted in the combative sport media. (C.

¶¶ 15, 171.) The SAC had previously told Plaintiff Don Lilly that he could not hold an amateur

MMA event, but after learning about the AG’s position in the MMA media, he decided to try

again. (C. ¶¶ 172, 282.) The WKA refused to sanction the event believing—based upon past

SAC positions—that it would be illegal. (C. ¶¶ 283.) But the SAC now said Lilly could

proceed; his event drew over 1,000 spectators. (C. ¶¶ 172, 285.) Cage Wars XIII, in August

2012, was another large amateur event. (C. ¶¶ 173, 293-94.) SAC Chair Melvina Lathan

certified in writing that the Cage Wars promoters were doing nothing illegal. (C. ¶¶ 173, 295.)


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Yet, former SAC Chair Jack Prenderville told the media “I can’t understand how they can say

because you’re an amateur, they (the SAC) don’t have any responsibility . . . (They have) a

responsibility amateur or pro.” (C. ¶ 173.)

Today, professional combative sports matches sanctioned by the WKA occur regularly in

New York in venues including Madison Square Garden and the Beacon Theater. (C. ¶¶ 17, 190-

92.) Unsanctioned professional MMA exhibitions seem to be acceptable also; they have

occurred, for example, outside of Madison Square Garden and at the annual MMA exposition at

the Javits Center. (C. ¶¶ 200, 205, 428).

The only thing that has been consistent in the enforcement of the Ban over the past 15

years is that nobody—not State officials and not those subject to the Ban’s penalties—have any

idea what the Ban means and how it will be enforced at any given time and in any given situation.

C. Plaintiffs’ Three Alleged Harms; the AGs Three Positions

Plaintiffs identify three sorts of activities they believe are subject of the Ban. First, some

Plaintiffs seek to participate in professional MMA contests. (C. ¶¶ 257-80.) Second, some

Plaintiffs seek to participate in amateur MMA contests. (C. ¶¶ 281-305, 336-41.) Third, some

Plaintiffs wish to engage in conduct they believe is made unlawful under the plain language of

the “advance or profit” provision. (C. ¶¶ 306-22, 331-35.) As set forth above, the SAC has

engaged in a pattern of shifting interpretation and inconsistent enforcement of these provisions.

The AG compounds the problem with his own interpretation of what the Ban means.

1. Professional MMA

According to the AG, the Ban “effectively bans” live professional “combative sport.”

(Mot. at 1.) Subsequent to the filing of the Initial Complaint, however, “Muay Thai at the Mecca”

took place at Madison Square Garden. (C. ¶¶ 17, 78.) When Plaintiffs questioned the legality of

the Muay Thai event, the AG—in his Reply to the First Motion to Dismiss (“Reply”)—explained


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that a live professional combative sporting match can take place in New York if it is sanctioned

by one of the exempt private organizations. (Reply at 6.) Indeed, the AG criticized Plaintiff

UFC for “apparently decid[ing] not to even explore this path, preferring an all-out attack on the

statute.” (Id.) Muay Thai at the Mecca was sanctioned by the WKA. (C. ¶¶ 78, 192.)

Apparently WKA-sanctioned combative sport events have been happening regularly and

lawfully in New York without SAC supervision. (C. ¶¶ 17, 78, 82, 190-92, 279, 406.)

In the present motion, the AG reaffirms this position, although with less clarity. He says

the Ban “leaves open the possibility that MMA fights could at least under some circumstances

be made legal if sanctioned by a listed organization.” (Mot. at 30 (emphasis added).) What this

means is unclear. Kickboxing and Muay Thai are both “combative sport[s]” fitting squarely

within the Ban’s definition, and both combine martial arts styles. (C. ¶¶ 183, 378.) There is

nothing in the statute or any other legal source that provides a basis for distinguishing MMA

from Muay Thai.1 Yet those sports are regularly sanctioned by the WKA with no SAC

supervision. (C. ¶¶ 17, 78, 190-92, 279.) The WKA should thus be able to sanction an MMA

event in New York. (C. ¶ 279.)

2. Amateur MMA

The AG insists that amateur MMA is not and never was unlawful: “plaintiffs’ professed

confusion as to whether the ban . . . extends to amateur MMA matches or exhibitions is

completely misplaced. . . . [T]he reading of New York’s ban of combative sport as not including

amateur events . . . is what the statute says.” (Mot. at 18-19.) Given the SAC’s ever-changing

interpretation and enforcement of the Ban, the AG’s position is cold comfort to Plaintiffs who

wish to participate in amateur MMA.

1 The organizations exempt from the Ban under the term “martial arts” represent four martial arts disciplines—judo, tae kwon do, karate, and kenpo. Ban § 1. Neither kickboxing nor Muay Thai are specifically exempted in the Ban.


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3. “Advances or Profits From”

The language of the advances or profits provision is sweeping, and the Complaint points

to a great deal of conduct in which Plaintiffs wish to engage, all of which falls under the plain

language of this criminal provision. (See, e.g., C. ¶ 383.) According to the AG, however, the

provision, despite its facial breadth, is exceedingly narrow. Reverting to legislative history to

justify a narrowing construction, the AG says it reaches only “physical or financial conduct

promoting banned events.” (Mot. at 25.) If, as the AG now contends, all amateur events are

lawful and professional events are lawful if sanctioned by an “exempt” organization, then the

“advances or profits from provision” must apply only to “physical or financial conduct

promoting” a professional exhibition not sanctioned by an exempt organization. Yet, the SAC

has issued a cease and desist letter to a journalist for merely possessing a list of people interested

in attending an amateur (and thus ostensibly unregulated) UCL event. (C. ¶¶ 168, 203.)

Plaintiffs remain at risk of criminal penalties if this interpretation changes yet again.

* * *

In one sense, this lawsuit would appear to be a tempest in a teapot. Plaintiffs can,

according to the AG, do all that they ask to do; with the only caveat that “professional” MMA

must be sanctioned by an “exempt” organization. Due to the constantly changing enforcement

and interpretation of the Ban, though, Plaintiffs remain justifiably concerned about the changing

whims of the State under a criminal statute that cannot consistently be construed or enforced.

ARGUMENT

The AG asks the Court to dismiss this lawsuit at the pleadings stage. To accomplish this,

the AG would have this Court (1) rule that sports are categorically excluded from the scope of

the First Amendment, (2) interpret the Ban in a way that no one ever has, (3) deem that novel

interpretation sufficiently clear as to eliminate any vagueness challenge; and then (4) conclude


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that the Ban on professional MMA survives rational basis scrutiny despite permitting widespread

unregulated combative sports activity. Plaintiffs’ claims cannot be disposed of as a matter of law.

More important, one of two things is now true: either the Ban is demonstrably vague, as is

evident in the standardless, shifting, and inexplicable enforcement by the SAC, or—if the Ban

indeed means what the AG says—it is demonstrably irrational. Plaintiffs ask this Court to deny

the AG’s Motion to Dismiss, and allow discovery on their well-pled claims.

I. THE BAN VIOLATES THE FIRST AMENDMENT

The Ban violates the First Amendment both because it restricts the expressive conduct of

live professional MMA and because it is substantially overbroad. Plaintiffs have alleged more

than sufficient facts in this regard.

A. Entertainment Before a Live Audience—Including Sporting Events—is Expressive Conduct Protected by the First Amendment

In Count One of the Amended Complaint, Plaintiffs allege that the performance of mixed

martial arts before a live audience is expressive conduct clearly intended as entertainment, and,

as such, is within the protection of the First Amendment. This does not mean the State cannot

regulate live MMA. It simply must do so consistent with the demands of the First Amendment.

See Miller v. South Bend, 904 F.2d 1081, 1097, 1099 (7th Cir. 1990) (Posner, J., concurring).

The Amended Complaint contains extensive allegations regarding the expression inherent

in live MMA. (C. ¶¶ 211-51.) Hopscotching these allegations, the AG asks this Court to reach

the extreme conclusion that sports, alone among forms of entertainment, are categorically

excluded from First Amendment protection. (Mot. at 7.) This is simply wrong.

1. New York Allows MMA Without Restriction Except When It is Presented for the Purpose of Entertaining a Live Audience

The AG argues that Plaintiffs’ First Amendment claim ignores the critical distinction

between conduct and speech. (Mot. at 9.) He correctly explains that the depiction of MMA on


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television or in a movie is protected by the First Amendment, but the mere doing of MMA is not.

As he notes, “The Texas Chain Saw Massacre” [is] protected by the First Amendment; real

murder is not.” (Id. at 10.)

But it is the AG who misses the critical distinction. For First Amendment purposes, there

is an essential difference between banning conduct in all circumstances and banning that conduct

(as is done here) only when it is done for the purpose of entertaining a live audience. Murder is

illegal in New York, whether it is done by amateurs or by professionals, whether it is done in

public or in private, and whether an exempt organization sanctions it or not. The State’s

approach to MMA is entirely different because it allows the conduct generally, and only

prohibits that conduct when it is performed with the intent to entertain an audience. Countless

people lawfully do MMA every day in gyms across the State; they watch it on pay-per-view and

even on the big screen at Madison Square Garden. (C. ¶¶ 7, 59, 65-66, 202.) The State makes

MMA a crime only when it is performed for the purpose of entertaining a live audience.

The one thing the State prohibits—the performance of MMA for the purpose of

entertaining a live audience—is precisely what the First Amendment protects. Although conduct

alone is not protected by the First Amendment, conduct undertaken for the express purpose of

entertaining, amusing, frightening, exciting, inspiring, or motivating others is protected by the

First Amendment. It is the audience that is critical. As Justice Souter explained, nude dancing

in a bar for the purpose of entertaining an audience is protected by the First Amendment, even

though ballroom dancing and “dancing as aerobic exercise” are not. Barnes v. Glen Theatre, Inc.,

501 U.S. 560, 581 (1991) (Souter, J., concurring); accord Hurley v. Irish-American Gay, Lesbian

& Bisexual Group of Boston, 515 U.S. 557, 568 (1995) (distinguishing walking down the street

to get from one place to another from walking down the street in a parade, which is conduct

intended to communicate “to bystanders along the way”); Miller, 904 F.2d at 1092 (Posner, J.,


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concurring) (striptease performance is protected by the First Amendment, unlike “kicking one’s

wastebasket in anger” in private, because the striptease is intended to communicate “a thought,

sensation, or emotion to another person”); see Schad v. Mt. Ephraim, 452 U.S. 61, 65 (U.S.

1981) (“[e]ntertainment, as well as political and ideological speech, is protected . . . live

entertainment, such as musical and dramatic works, fall[s] within the First Amendment

guarantee”).

Courts—especially in this Circuit—protect a remarkably wide range of activity as

expressive conduct. See, e.g., Clark v. Cmty. for Creative Non-Violence, 468 U.S. 288, 294-95

(1984) (sleeping in a public park is expressive conduct in the meaning of the First Amendment if

its purpose is to communicate).2 The key factor is that the purpose of the conduct is to convey

ideas, trigger reactions, stimulate emotions, or otherwise engage or entertain an audience. To

avoid people claiming pretextually that all conduct is expressive, the Supreme Court has held

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.”

Spence v. Washington, 418 U.S. 405, 411 (1974); accord Church of Am. Knights of the Ku Klux

Klan v. Kerik, 356 F.3d 197, 205 (2d Cir. 2004).

Importantly, conduct unambiguously undertaken for expressive purposes—i.e., done to

engage or entertain an audience—is deemed to be inherently expressive. In such circumstances,

the expressive nature of the conduct is evident from the very fact that the conduct (singing,

2 See generally Doninger v. Niehoff, 642 F.3d 334, 353-54 (2d Cir. 2011) (wearing a message t-shirt), cert. denied, __U.S.__, 132 S. Ct. 499 (2011); Piscottano v. Murphy, 511 F.3d 247, 274-75 (2d Cir. 2007) (wearing motorcycle gang colors); Vincenty v. Bloomberg, 476 F.3d 74, 83-84 (2d Cir. 2007) (selling spray paint and markers); Universal City Studios, Inc. v. Corley, 273 F.3d 429, 456 (2d Cir. 2001) (linking to websites); Grossi v. City of New York, No. 08 Civ. 1083, 2009 WL 4456307, at *7 (E.D.N.Y. Nov. 30, 2009) (painting a home); Grzywna ex rel. Doe v. Schenectady Cent. Sch. Dist., 489 F. Supp. 2d 139, 146 (N.D.N.Y. 2006) (wearing a patriotic tie). See also Interactive Digital Software Ass’n v. St. Louis Cnty., Mo., 329 F.3d 954, 957-58 (8th Cir. 2003) (playing video games); McClure v. Ashcroft, 335 F.3d 404, 409 (5th Cir. 2003) (wearing “rave” items, like glowsticks); Braxton v. Bd. of Public Instruction of Duval Cnty., Fla., 303 F. Supp. 958, 959 (M.D. Fla. 1969) (sporting a goatee).


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dancing, juggling, wrestling, clowning) was done to communicate with an audience. See

Cockrel v. Shelby Cnty. Sch. Dist., 270 F.3d 1036, 1049 (6th Cir. 2001) (“live entertainment” is

“inherently expressive” and no showing of a particularized message is necessary); Iota Xi Ch. of

Sigma Chi Fraternity v. George Mason Univ., 993 F.2d 386, 389-91 (4th Cir. 1993) (even “low-

grade entertainment,” in the form of a fraternity’s “ugly woman” “skit,” is “inherently expressive”

and thus “entitled to First Amendment protection”); accord Hurley, 515 U.S. at 568 (referring to

the “inherent expressiveness” of marching in a parade). The Second Circuit endorsed this

principle when it held that “busking,” i.e., street performing in a clown act, is protected

expressive conduct. Hobbs v. Cnty. of Westchester, 397 F.3d 133, 135-36 (2d Cir. 2005).

Thus, Plaintiffs agree that the mere act of doing MMA is not itself expressive conduct.

But the live performance of MMA for the purpose of entertaining an audience is clearly

expressive conduct protected by the First Amendment.

2. Live Sports are Not Categorically Excluded From the First Amendment

In order to sidestep Plaintiffs’ allegations of expressive conduct, and the fact that live

professional MMA is entertainment and protected as such, the AG asks this Court to hold that

live sports cannot claim the protection of the First Amendment, ever.3 This position is wrong on

several levels. First, as the Complaint makes clear, live professional MMA is intended and

understood as spectacle and entertainment. (C. ¶¶ 221-51.) The whole point is to excite, inspire,

and move the audience. Second, athletes who participate in a sport before a live audience very

consciously convey all sorts of messages to the audience, which is in part what draws audiences

3 The AG suggests that the Court must deem all sports expressive to sustain Plaintiffs’ First Amendment claim, arguing that the messages conveyed through live MMA “do[] not distinguish it from any other sport.” (Mot. at 8.) Plaintiffs have not asked the Court to rule thus. Plaintiffs are only asking this Court to let them prove that live MMA is expressive. The Complaint contains numerous allegations about the unique expressiveness of mixed martial arts. (See, e.g., id. ¶ 212 (“It is not a coincidence that the sport is called mixed martial arts. In fact, nearly every phase of a live Professional MMA event is expressive conduct”).)


13 ny-1065331

to the arena. (C. ¶¶ 211-18, 229-33, 235-36, 358.) As the Complaint alleges, these messages

include “good sportsmanship,” “courage, determination and victory against all odds,” among

others. (C. ¶¶ 211-19, 227, 235, 242, 259-60, 264, 267, 271, 276-77). The Complaint alleges

with factual support that fans receive these messages. (C. ¶¶ 239-51.) Third, wholly apart from

the athletes, the promoters of live sporting events are themselves engaging in protected First

Amendment activity when they present to a live audience in the same way that the promoters of

music festivals, dance performances, and circuses do. See Ward v. Rock Against Racism, 491

U.S.781, 790 (1989) (protecting concert promoter’s First Amendment rights).

Sports are central to American culture; millions of people watch them every day and

spend money on expensive tickets for the inspiration, excitement, and entertainment they provide.

Sports historian Kathyrn Jay deems sports “a central lens through which we see the world,”

quoting former President Bill Clinton who noted that “America, rightly or wrongly, is a sports

crazy country . . . and we often see games as a metaphor or a symbol of what we are as a people.”

Kathryn Jay, More Than Just a Game: Sports in American Life Since 1945 2 (2004). A. Bartlett

Giamatti, former President of Yale University and Commissioner of Major League Baseball, said

that for fans, watching sports provides “a happiness or absence of care so intense, so rare, and so

fleeting that we associate their experience with experience otherwise described as religious.” A.

Bartlett Giamatti, Take Time for Paradise: Americans and Their Games 2 (1989).

Given the role of sport in American culture, it is not surprising that courts, contra the

AG’s sweeping generalization, have found them protected by the First Amendment. See, e.g.,

Five Borough Bicycle Club v. City of New York, 483 F. Supp. 2d 351, 368 (S.D.N.Y. 2007)

(group bicycle riding), aff’d, 308 Fed. Appx. 511 (2d. Cir. 2009); U.S. Satellite Broad. Co. v.

Lynch, 41 F. Supp. 2d 1113, 1120 (E.D. Cal. 1999) (live boxing match); Post Newsweek

Stations-Connecticut, Inc. v. Travelers Ins. Co., 510 F. Supp. 81, 86 (D. Conn. 1981) (figure


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skating). These cases instantly prove the AG’s categorical assertion wrong. This Court should

reject the AG’s extreme and unfounded position that the First Amendment protects all forms of

live entertainment, including jazz, circuses, and striptease—but not sports.

a. The AG’s Categorical Rejection of Sports From First Amendment Protection Ignores The Line Between Conduct and Performance

Courts have drawn precisely the line Plaintiffs urge: that sport undertaken solely as an

activity is not protected by the First Amendment, but sport as performance before a live audience

is. See, e.g., Five Borough, 483 F. Supp. 2d at 368. The AG relies on Maloney v. Cuomo, but

Maloney supports Plaintiffs’ argument. In Maloney, the Court upheld a criminal ban on

possessing nunchaku—a martial arts weapon:

The Court recognizes and accepts that the martial arts generally, and perhaps [the] use of nunchaku in particular have a rich history and are culturally significant to many people in many parts of the world. Under some circumstances an individual’s participation in martial arts . . . might warrant some degree of First Amendment protection. But there is nothing . . . to suggest that should be the case here. The plaintiff alleges that he uses the nunchaku for physical training and for self-defense.

470 F. Supp. 2d 205, 213 (E.D.N.Y. 2007) (emphasis added), aff’d, 554 F.3d 56 (2d Cir. 2009),

vac’d and remanded on other grounds, 390 Fed. Appx. 29 (2d. Cir. 2010); accord Lynch, 41 F.

Supp. 2d at 1120 (“[D]efendants have not convinced the court that First Amendment protection

does not attach to a live boxing match organized, held, and televised for the purpose of

entertaining live and remote viewers.”).

In arguing that sports cannot constitute expressive conduct, the AG quotes Judge Sand’s

dictum in Fighting Finest, Inc. v. Bratton: “[W]e are not convinced that a boxing match, in

which police officers participate, inexorably conveys any message other than that police officers

can be pugilists.” 898 F. Supp. 192 (1995), aff’d, 95 F.3d 224 (2d Cir. 1996). But the Judge

Sand did not distinguish in this dictum between boxing that is solely for the purpose of exercise


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or competition and boxing that is also for the purpose of entertaining an audience. Plaintiffs in

Fighting Finest did not even raise the issue of expressive speech in their complaint, making the

argument only in response to a motion to dismiss, and the Second Circuit sidestepped the issue

entirely, finding it unnecessary to the decision of the case. 95 F.3d at 229 n.2.

On the other hand, the AG inexplicably ignores the Five Boroughs case, in which Judge

Kaplan not only found group bicycle riding to be expressive conduct within the meaning of the

First Amendment, but did so drawing precisely the line Plaintiffs draw between sport for the

purpose of exercise and sports for the purpose of engaging an audience:

In many circumstances, the act of riding a bicycle is unrelated to expression. People ride their bicycles simply because they find that to be an enjoyable, convenient, or cost effective means of traveling, not because they wish to convey an idea. In those cases, bicycle riding is pure conduct. But bicycle riding can combine speech and non-speech elements. Critical mass participants, for example, ride bicycles to express the idea that there are viable and environmentally friendly alternatives to cars. Accordingly it cannot be said that group bicycle riding is always pure conduct that may be regulated without reference to First Amendment concerns.

483 F. Supp. 2d at 368 (emphasis added); accord Bray v. City of New York, 346 F. Supp. 2d 480,

488 (S.D.N.Y. 2004).

b. Athletic Events Intended as Entertainment Are No Different from Other Forms of Entertainment Protected By the First Amendment

The AG’s argument requires that this Court to find that sports entertainment is different

from all other forms of entertainment that are protected by the First Amendment. He cites only

two cases that even hint at so broad a claim.4 In Justice v. National Collegiate Athletic

4 In the rest of the AG’s cases, the First Amendment claim was raised haphazardly subsequent to the complaint and—unlike here—did not contain allegations of an expressive message that audience members received. See Maloney, 470 F. Supp. 2d at 212 (plaintiff had not alleged “that the use of the nunchaku are integral to anything resembling either actual or symbolic speech”); Equity in Athletics, Inc. v. Dep’t of Educ., 504 F. Supp. 2d 88, 110-11 (W.D. Va. 2007) (First Amendment claim raised only in post-hearing brief lacking any case support), aff’d, 291 Fed. Appx. 517 (4th Cir. 2008); Fighting Finest, Inc. 95 F.3d at 229 n.2. Even Top Rank, in which the plaintiffs did allege a First Amendment violation, included no allegations of expressiveness or any other allegations supporting


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Association, 577 F. Supp. 356 (D. Ariz. 1983), the court held that a prohibition on college

football players participating in post-season games did not violate the First Amendment. It

asserted “Intercollegiate football, like other sports, is primarily a conduct-oriented activity; as

such, it is not entitled to the same First Amendment protection that other more ‘communicative’

forms of entertainment have been afforded.” Id. at 374 (emphasis added); see also Top Rank, Inc.

v. Fla. State Boxing Comm’n, 837 So. 2d 496, 502 (Fla. Ct. App. 2003) (“we recognize that

athletic events provide people with a great deal of entertainment” but “most athletic events do

not convey any message, symbolic or otherwise.”).

This distinction between sports (conduct) and other entertainment (communication) is

without foundation or support. Much entertainment involves conduct. It is true that some forms

of entertainment, for example a play, may explicitly communicate a clear and discernible

message. But the First Amendment is not limited only to those forms of expression that

explicitly communicate such a message. It also applies to jazz performances, modern dance

performances, art exhibitions, parades, and striptease—because, as noted above, such conduct is

intended to engage and entertain an audience. As the Supreme Court made clear in Hurley:

[A] narrow, succinctly articulable message is not a condition of constitutional protection, which if confined to expressions conveying a ‘particularized message,’ would never reach the unquestionably shielded painting of Jackson Pollack, music of Arnold Schoenberg, or Jabberwocky verse of Lewis Carroll.

515 U.S. at 569. A jazz musician on stage, a clown throwing a pie at a fellow clown at the circus,

an acrobat performing in Cirque du Soleil, and a participant in an MMA contest before thousands

of fans all are engaged in First Amendment protected activity, even if they are not

that claim. Complaint, Top Rank v. Fla. State Boxing Comm’n, No. 00-1325 (Fla. Cir. Ct. June 7, 2000). The Attorney General’s citation to SEG v. Patterson, No. 97 Civ. 712 (MGC), 1998 WL 230993 (S.D.N.Y. May 5, 1998), is wholly inapposite. In that case the prior owners of the UFC sued for money damages when officials shut down an MMA event. The issue in the case was qualified immunity, and, as the Court noted, the plaintiffs made no attempt to prove that they had a clearly-established First Amendment right, as circumventing immunity requires. Id.


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communicating a specific message, because their purpose is more generally to communicate

thoughts and feelings about, among other things, beauty, creativity, courage, skill, humor, speed,

power, excellence, and grace to their audience. As Justice Reed observed in Winters v. New York,

333 U.S. 507, 510 (1948), “[w]hat is one man’s amusement, teaches another’s doctrine.” Accord

Miller, 904 F.2d at 1090 (Posner, J., concurring) (internal citation omitted) (“whether one has a

taste or distaste for erotic dance . . . to say . . . that a striptease dance is not ‘expressive activity’

but ‘mere conduct’ is indefensible and a threat to artistic freedom.”).

The AG simply cannot credibly distinguish sports from many other forms of primarily

non-verbal entertainment, all of which merit First Amendment protection if they are clearly

intended for an audience. It goes without saying that sports in general and MMA in particular

cannot be treated differently simply because the State disapproves of this particular form of

entertainment. As Justice Scalia wrote in Brown v. Entertainment Merchants Association,

“esthetic and moral judgments about art and literature . . . are for the individual to make, not for

the Government to decree . . . .” 131 S. Ct. 2729, 2733 (2011) (quoting U.S. v. Playboy Entm’t

Group, Inc., 529 U.S. 803, 818 (2000)). Nor can it be that sports intended to entertain and

enthrall an audience fall outside the protection of the First Amendment simply because they are

competitive and unscripted. Much entertainment is competitive and/or unscripted, including

poetry slams, “Dancing with the Stars,” “American Idol,” political debates, improvisational jazz,

and comedy improvisation. All of these forms of conduct are clearly protected by the First

Amendment when they are done for an audience, without regard to whether they are unscripted

or competitive in nature. See Berger v. City of Seattle, 569 F.3d 1029, 1037 n.4 (9th Cir. 2009).


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3. The State’s Asserted Interests in Suppressing the Live Performance of MMA Do Not Satisfy the Demands of the First Amendment

When the government specifically bans expressive conduct, as the Ban does here, one of

two tests applies. First, if the law restricts a particular message, the law is deemed content-based,

and the strictest form of scrutiny applies. Such laws are virtually never constitutional. Hobbs,

397 F.3d at 148-49. Second, if the law specifically regulates speech (including expressive

conduct, such as parades, leafleting, billboards, or loud music) but is neutral as to the content of

the speech, then the law is constitutional only if the state’s interest in banning the speech or

expressive conduct is sufficiently weighty, and the law is narrowly-tailored to restrict as little

speech as possible. Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622, 657 (1994); City of Ladue v.

Gilleo, 512 U.S. 43, 50-51 (1994). As described above, the live performance of MMA is clearly

expressive conduct within the meaning of the First Amendment. Moreover, the Legislature’s

repeatedly expressed aim was to suppress MMA’s supposedly “violent” message. (C. ¶¶ 32-44,

208-51, 357-60.) But even if the Ban is considered neutral as to content, it cannot survive

content-neutral balancing because the State could have and should have regulated MMA to

ensure its safety, without completely prohibiting it, as nearly every other state has done. (C. ¶¶

35, 37, 43, 44, 133, 147, 256, 361.)

Citing United States v. O’Brien, 391 U.S. 367 (1968), the AG asserts that even if the

public performance of MMA is protected speech, the State has sufficiently important interests to

justify banning it. The AG then relies on this Court’s previous holding that the State had a

“rational basis” for banning MMA. (Op. at 9-14.)

The AG’s reliance on O’Brien reflects a serious misunderstanding of the distinction

between laws that directly restrict expressive activity, and laws that have only an incidental

effect on expressive activity. The O’Brien test applies only to the latter case. The law in


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O’Brien prohibited knowing destruction of a draft card. The purpose was to ensure the effective

workings of the Selective Service system. It was irrelevant under the law whether an individual

destroyed a draft card to light a fireplace or to protest the draft. In either case, the knowing

destruction of the draft card was illegal. The defendant, who burned his card at a public rally to

protest the Vietnam War, maintained that because his conduct was expressive he was entitled to

a First Amendment exemption from the otherwise constitutional law. The Court agreed that

O’Brien was engaged in expressive conduct, but held the law was constitutional as applied to

him, because it was narrowly tailored, not directed at expression, and had only an incidental

effect on speech. 391 U.S. at 376-77.

Here, unlike O’Brien, the Ban is specifically designed to restrict expressive conduct.

This is not an incidental effect case. The Ban regulates MMA only when it is engaged in for the

purpose of entertaining an audience. If someone engages in MMA in New York for non-

expressive purposes, like countless do in gyms, it is not illegal. Unlike the law in O’Brien, then,

the Ban does not have only an incidental effect on expressive conduct; it is expressly designed to

prohibit MMA only when it is expressive. As the Supreme Court has long recognized, that is a

far more serious incursion on First Amendment rights.

Moreover, even if O’Brien governed this case—and it does not—the Ban cannot satisfy

the O’Brien standard (which, in any event, is not rational basis, review). In O’Brien the Court

held that even if the effect on speech is merely incidental, to withstand First Amendment scrutiny

the law must further “an important or substantial governmental interest . . . unrelated to the

suppression of free expression” and that “the incidental restriction” on First Amendment activity

must be “no greater than is essential to the furtherance of that interest.” Id. at 377 (emphasis

added). The allegations in the Complaint make clear that the Ban is not “unrelated to the

suppression of free expression.” It also does not further “an important or substantial


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governmental interest” because, the State’s purported interests in promoting safety and

suppressing a disfavored message, MMA contests before live audiences are now commonplace

throughout New York without any state regulation. And, a “complete” ban is far “greater than

is essential” to further the State’s alleged interest since MMA can be safely regulated, as is done

in nearly every other state. (C. ¶¶ 7, 14-17, 76-78, 82, 134, 148, 172-73, 190-92.) Plaintiffs are

entitled to prove these allegations.

But more fundamentally, as explained above, because the Ban is directed specifically at

MMA only when it is performed for an audience, and is therefore directed specifically at

expressive conduct, the government must satisfy the test that is appreciably more stringent than

the standard set out in O’Brien. In light of the fact that almost every other state now allows the

live performance of MMA—and that therefore a more narrowly drawn regulation (versus a ban)

could have met New York’s safety goals—it is inconceivable that the State could meet that more

demanding standard of review.

B. The Ban is Substantially Overbroad

The Ban is also substantially overbroad, sweeping First Amendment protected activity

into its fold. The Ban subjects anyone who “knowingly advances or profits from a combative

sport activity” to criminal penalties. Ban §3(a). “Knowingly advances or profits from” is

defined as “engag[ing] in conduct that materially aids any combative sport.” Id. § 3(b). Even

though the Ban is clear that all conduct that “advances” MMA is a criminal offense, the AG

asserts that the Ban is “directed [only] at the physical or financial conduct promoting banned

events.” (Mot. at 25.) He purports to draw this conclusion from both the legislative history and

the fact that no one has been prosecuted under the Ban. There is simply no support for this

interpretation. See Thornhill v. Alabama, 310 U.S. 88, 96 (1940) (“[T]here is no occasion to go

behind the face of the statute or of the complaint for the purpose of determining whether the


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evidence, together with the permissible inferences to be drawn from it, could ever support a

conviction founded upon different and more precise charges”). Plaintiffs have pled more than

sufficient facts to defeat the AG’s motion.

First, the express language of the Ban makes clear it covers First Amendment speech.

The “materially aids” provision includes a list of what is covered (the AG makes matters worse

by deeming this a “starting point,” Mot. at 20-22). On the list is “[i]nducement of persons to

attend or participate” in a combative sport activity. “Inducement” plainly includes, among many

other things, promoting the MMA World Expo held yearly at the Javits Center (which features

“combative sport” “exhibition”), advertising for a sparring match between two professional

fighters in the middle of Herald Square, the Association of Boxing Commissioners, conducting

an educational course to train individuals to officiate professional MMA bouts, or holding a

press conference at Radio City Music Hall promoting a UFC fight that night in New Jersey. (C.

¶¶ 70, 200, 205). All this is protected speech criminalized under the plain language of the Ban.

Second, legislative history cannot save an overbroad statute. In United States v. Stevens,

a law outlawed videos depicting “animal cruelty,” which was defined as “any . . . depiction in

which a living animal is intentionally maimed, mutilated, tortured, wounded, or killed.” U.S. v.

Stevens, __U.S. __, 130 S. Ct. 1577, 1588 (2010) (internal citation omitted). The legislative

history showed that the legislature was focused on “crush videos,” which “feature the intentional

torture and killing of helpless animals . . . .” Id. at 1583. But the Supreme Court held that

legislative intent could not override the plain text of the statute, which swept in protected

conduct such as hunting videos. Id. at 1590. Likewise, the Ban’s overbroad language

prohibiting any conduct that “materially aids” combative sport cannot be saved by purported


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legislative intent.5 The Ban’s text is not limited, as the AG would have it, to combative sport

events happening within the State of New York—nor is it limited to “’physical or financial

conduct promoting banned events, rather than abstract advocacy’” (Mot. at 25)—it is an

overbroad statute that sweeps within it a broad swath of protected conduct.

The AG’s claim that there has been no prosecution or chilling of protected conduct

ignores the extensive factual allegations in the Complaint to the contrary. (See, e.g., C. ¶¶ 371,

305, 308 (alleging plaintiffs have been chilled from protected conduct for fear that they could be

prosecuted because of the Ban’s breadth); 168 (alleging SAC issued a cease and desist letter to a

journalist for possessing a list of fans interested in “underground” events).) Every Plaintiff has

alleged direct harm from the Ban with sufficient facts to show they have been chilled from

engaging in protected speech and conduct.6 (See, e.g., C. ¶¶ 260, 264, 268, 272, 277, 279, 287,

297, 305, 312.) In any event, the Supreme Court is clear that the government’s assertion that it

has not prosecuted and would not prosecute beyond its own narrow reading of a law cannot save

a statute. Stevens, 130 S. Ct. at 1591 (“We would not uphold an unconstitutional statute merely

because the Government promised to use it responsibly. . . . the Government’s assurance that it

will apply [the statute] more restrictively than its language provides is pertinent only as an

implicit acknowledgement of the potential constitutional problems with a more natural

reading.”).

5 If anything, legislative history supports Plaintiffs’ reading of the Ban. Several legislators who voted in favor of the Ban had serious concerns about its facial breadth: “‘[The] bill could use a little further drafting to better define exactly what we’re trying to weed out of the process’” and “‘it’s not a carefully drafted bill because certainly your reading of this bill would seem to imply that any activity in this state related to ultimate fighting, wherever, in Alabama, New Jersey, and so on, could be a criminal act.’” (C. ¶ 199.) 6 Furthermore, there is no requirement that Plaintiffs themselves have been chilled or prosecuted by overbroad applications of the statute. The entire premise of such claims is that they are brought on behalf of third parties. See Stevens, 130 S. Ct. at 1593 (Alito, J., dissenting) (“[T]he overbreadth doctrine allows a party to whom the law may constitutionally be applied to challenge the statute on the ground that it violates the First Amendment rights of other”).


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II. THE BAN IS UNCONSTITUTIONALLY VAGUE

Plaintiffs challenge the Ban as unconstitutionally vague, both as applied to the conduct in

which they wish to engage, and on its face. Given the poor drafting of the Ban and its muddled

enforcement history, Plaintiffs cannot possibly know if the conduct in which they wish to engage

is lawful. The only thing that is certain is that what the Ban does or does not prohibit, and who

might or might not be prosecuted under it, depends on whom you ask, and when. Plaintiffs

cannot be required to guess now and find out later if they have violated the law.

Under long-settled precedent, the Ban is void for vagueness because either it (1) “fails to

provide people of ordinary intelligence a reasonable opportunity to understand what conduct it

prohibits,” Cunney v. Bd. of Trustees of Grand View, 660 F.3d 612, 621 (2d Cir. 2011)—in other

words, it fails to provide adequate “notice”; or because it (2) is so lacking in clear standards that

“it authorizes or even encourages arbitrary and discriminatory enforcement.” Hill v. Colorado,

530 U.S. 703, 732 (2010) (internal citation omitted). The Ban’s vagueness is particularly

offensive because it is a criminal statute, and First Amendment-protected activity is at stake. See

Vill. of Hoffman Estates v. Flipside, Hoffman Estates, 455 U.S. 489, 498-99 (1982).

A. Courts Look to Actual Interpretation and Enforcement Facts to Evaluate a Law’s Vagueness

The AG’s response to Plaintiffs’ vagueness challenge is a unique one: he claims that in

resolving the claim this Court must ignore altogether the inconsistent enforcement history under

the Ban, and proceed solely as a matter of statutory interpretation to resolve the meaning of the

Ban as “purely a question of law” (Mot. at 17 (citing San Filippo v. Bongiovanni, 961 F.2d 1125,

1133 (3d Cir. 1992)). Most of the cases he cites have nothing to do with vagueness at all, but


24 ny-1065331

address the very different question of whether extrinsic evidence generally may be considered in

statutory construction. 7

Contrary to the AG’s position, courts regularly take account of specific interpretive and

enforcement decisions of government officials in resolving vagueness claims. See Hoffman

Estates, 455 U.S. at 503 (considering conflicting testimony of enforcement officials as to their

understanding of ordinance’s scope in noting “that the risk of discriminatory enforcement is [not]

insignificant”); Cunney, 660 F.3d at 623 (finding based on enforcement record that challenged

measure “could encourage potentially arbitrary or ad hoc enforcement.”); Chatin v. Coombe, 186

F.3d 82, 89 (2d Cir. 1999) (relying on evidence of inconsistent enforcement to reach

“inescapable conclusion . . . that [enforcement officials] have unfettered discretion in interpreting

what conduct is prohibited.”). Indeed, the very case the AG cites for the proposition that

vagueness challenges must be resolved “purely as a question of law,” actually supports Plaintiffs.

It simply says (as do the AG’s other cases) that appellate courts review vagueness

determinations as a question of law—but the case makes clear that trial courts resolving

vagueness challenges do look to record evidence. See San Filippo, 961 F.2d at 1133

(emphasizing that the court must “look first to the record to determine whether [petitioner] has

produced evidence that would sustain his claim that [the challenged provisions] were void for

vagueness,” but that “[t]he district court’s application of the void for vagueness doctrine . . . is

purely an issue of law subject to our plenary review”) (emphasis added).

The AG gets this wrong because he focuses entirely on the “notice” prong of the

vagueness doctrine, ignoring altogether the “enforcement” prong. “Supreme Court precedent

7 See, e.g., Wilson v. State Bar of Ga., 132 F.3d 1422, 1427 (11th Cir. 1998) (“Whether a statute, regulation, or local ordinance is unconstitutionally vague is a question of law that we review de novo”) (citations omitted); Dodger’s Bar & Grill, Inc. v. Johnson Cnty. Bd. of Cnty. Comm’rs, 32 F.3d 1436, 1443 (10th Cir. 1994) (same).


25 ny-1065331

recognizes two independent grounds upon which a statute’s language may be so vague as to deny

due process of law.” Cunney, 660 F.3d at 620 (emphasis added). A law is constitutionally vague

if it fails to provide adequate notice of what is prohibited, or if it fails to provide adequate

standards to prevent arbitrary enforcement. Id. at 621. While noting this in passing (Mot. at 13),

the AG nevertheless restricts his analysis entirely to the first prong, the question of adequate

“notice.” The notice question may be evaluated from a statute’s plain language. See VIP of

Berlin, LLC v. Town of Berlin, 593 F.3d 179, 187 (2d Cir. 2010).

In the criminal context, however—and the Ban is indisputably a criminal statute—”the

more important aspect of the vagueness doctrine is not actual notice, but . . . the requirement that

a legislature establish minimal guidelines to govern law enforcement.” Kolender v. Lawson, 461

U.S. 352, 358 (1983) (internal citation omitted). While Plaintiffs challenge the Ban on both

grounds, the detailed facts in the Complaint—which the AG would altogether ignore—go to

establishing that the Ban fails to provide adequate standards to prevent arbitrary enforcement.

While the two prongs are independent, they have a critical relationship that goes to the

crux of Plaintiffs’ vagueness challenge. Confusion by those charged with enforcing a statute

sheds light on its supposed clarity under the notice prong. Hayes v. New York Attorney

Grievance Comm., 672 F.3d 158, 169 (2d Cir. 2012) (“[I]f administrators cannot determine the

meaning of a prohibition, those subject to it ‘can hardly [be] expect[ed] . . . to do so.’”). Thus, in

Cunney, the Second Circuit found that “Defendants’ various interpretations of [the challenged

provision] serve only to reinforce our view” that the ordinance was so vague as to “authorize[]

arbitrary enforcement.” 660 F.3d at 622. In Hayes, the court stressed that its “concern [as to the

provision’s validity] is only exacerbated by the inability of the Committee’s representatives to

clarify the content of the rule.” 672 F.3d at 170.


26 ny-1065331

Here, Plaintiffs have alleged detailed facts concerning utter confusion among State

officials about the meaning of the Ban, and a long pattern of standardless enforcement. These

allegations plainly state a cause of action and cannot, as the AG suggests, be ignored on this

motion to dismiss. (C. ¶¶ 159-74, 176-77, 185-91, 195-97.)8

B. The Ban is Unconstitutionally Vague as Applied

It is understating matters considerably to call the history of enforcement under the Ban

“erratic.” In 1997, having abandoned a regulatory approach, the Legislature enacted a ban on

“combative sport.” (C. ¶¶ 33-34.) The Ban on live professional matches was “complete” and

did not distinguish in any way between MMA and other “combative sport.” (C. ¶¶ 33-34, 156.)

Despite this, for the first five years under the “complete” Ban, the SAC permitted almost all

combative sport, professional and amateur, including MMA—so long, apparently, as the

promoter was not the UFC. (C. ¶¶ 163.) Then, around 2002, the SAC did an about face and all

amateur combative sport, including MMA, was banned. (C. ¶¶ 166, 168.) The SAC pivoted yet

again, allowing all amateur combative sport, after the AG took the position that amateur

combative sport, including MMA, was outside the Ban. (C. ¶¶ 167, 171, 173; Reply at 5.)

Yet, just when it banned all amateur MMA, the SAC decided to allow professional

combative sport so long as those events were sanctioned by the WKA, a foreign corporation with

a U.S. Representative in Virginia. (C. ¶¶ 78, 406, 420; supra at 5.) The AG signed off on the

SAC’s policy: “a sport claiming to be a ‘martial art’ or to have similar characteristics can enter

the New York market under the sponsorship of a listed organization.” (Reply at 6.) Six months

later, however, the AG either cannot or will not say whether professional MMA sanctioned by

8 The AG dismisses some of the factual allegations as hearsay, but hearsay is not inappropriate in a complaint. See, e.g., Kittay v. Korff, No. 08 Civ. 7421 (RPP), 2011 U.S. Dist. LEXIS 11681, at **15-16 (S.D.N.Y. Feb. 7, 2011).


27 ny-1065331

the WKA is lawful. Instead he now says that it is possibly lawful “under some circumstances,”

which he cannot or will not enumerate. (Mot. at 30.)

Even this brief description of the changing positions of the SAC suggests a degree of

clarity brighter than is warranted. Amidst its broad flip-flopping over the interpretation of the

Ban, the SAC regularly made unexplained exceptions, the full extent of which awaits discovery.

For example, during the time before 2002 when both professional and amateur MMA and other

combative sports were occurring regularly with full knowledge of the SAC, the commissioners

apparently picked and chose to whom this permissiveness would apply. In 2000 the SAC shut

down a planned amateur Combat Zone event in Rochester, threatening criminal prosecution. (C.

¶ 164.) The SAC spokesperson said “combative sports, either on a professional or amateur basis,

are prohibited in New York,” a fact that was demonstrably untrue given that SAC commissioners

were attending them. (C. ¶ 164.) Then, while allowing the WKA—exempt as the World Karate

Association—to sanction kickboxing events, the SAC refused applications by leading

kickboxing organizations to be added to the exempt list, claiming—in clear defiance of the Ban’s

statutory language—that it lacked authority to add anyone to the list. (C. ¶¶ 186, 196.)

As applied to the conduct in which each of the Plaintiffs have alleged they wish to engage,

the Ban is unconstitutionally vague. As detailed below, Plaintiffs have no notice of what the Ban

permits or forbids as applied to them, and the SAC’s shifting and inexplicable pattern of

enforcement demonstrates that the Ban grants standardless enforcement discretion. See, e.g.,

Cunney, 660 F.3d at 625 (holding that “because [the ordinance] provided the Village

enforcement officers with unfettered latitude in making compliance determinations . . . [the

ordinance] as applied here, is unconstitutionally vague”); Derby v. Town of Hartford, 599 F.

Supp. 130, 136 (D. Vt. 1984) (citing enforcement officials’ deposition testimony to find that

“[t]he confusion and wide divergence of opinion as to definitions of key terms in the


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[challenged] ordinance by the enforcing officers make it abundantly clear that the ordinance fails

to give adequate notice of proscribed conduct”).

1. As applied to amateurs

The Ban plainly is unconstitutionally vague as applied to Plaintiffs, who have alleged

they wish to participate in or promote amateur MMA but fear prosecution if they do. The AG

says their confusion is “completely misplaced” and—relying on Webster’s Dictionary to give the

Ban meaning—says that amateur MMA is plainly permissible; it is just “what the statute says.”

(Mot. at 18-20.) But the AG’s interpretation of the statute cannot be squared with the SAC’s on-

again-off-again enforcement against amateur combative sports, which would lead any rational

person to fear the consequences of violating the Ban’s criminal prohibitions. (See supra pp. 3-6.)

Moreover, Webster’s Dictionary notwithstanding, the SAC cannot even maintain a consistent

position as to what distinguishes a “professional” from an “amateur. At various times it has

interpreted “professional” to mean: (1) any event where the competitors are paid; or (2) any

event involving a competitor who earns a living from a martial art or combative discipline, such

as martial arts teachers and school owners; or (3) any event where tickets are sold, regardless of

whether the competitors are compensated. (Id. ¶ 174.) An SAC official even told Plaintiff

Miller his event could not go forward because of the “professional” appearance of the posters

advertising the event. (Id. ¶ 292.)

The AG offers a clear meaning of the Ban as it applies to amateurs only by ignoring all

these facts alleged in the Complaint. The AG says “it is not ‘unfair to require that one who

deliberately goes perilously close to an area of proscribed conduct shall take the risk that he may

cross the line’.” (Mot. at 13-14 (citing Boyce Motor Lines, Inc. v. U.S., 342 U.S. 337, 340

(1952).) But Plaintiffs, who have abstained from acting out of respect for the law, should not be

required to risk criminal prosecution to challenge the vagueness of the Ban, especially when the


29 ny-1065331

AG’s interpretation ignores actual SAC enforcement actions. See Grayned v. City of Rockford,

408 U.S. 104, 108 (1972) (“[B]ecause we assume that man is free to steer between lawful and

unlawful conduct, we insist that laws give the person of ordinary intelligence a reasonable

opportunity to know what is prohibited”); Lanzetta v. N.J., 306 U.S. 451, 453 (1939) (“No one

may be required at peril of life, liberty or property to speculate as to the meaning of penal

statutes. All are entitled to be informed as to what the State commands or forbids.”).

2. As applied to professionals

The Ban is even less clear in its application to professional combative sports. At various

times the SAC has, with no consistency or explanation: (1) allowed professional combative sport

even if sanctioned by a non-exempt organization not on the exempt list; (2) banned all

professional combative sport; and (3) allowed professional combative sport only if sanctioned by

an exempt organization. (C. ¶¶ 159, 163-65, 185-87, 189-92.)

The SAC’s confusion and uncertainty about the application of the Ban to professional

combative sports like MMA arises because the statutory definition of “martial arts” is open to

two conflicting interpretations. The relevant text provides that “the term ‘martial arts’ shall

include any professional match or exhibition sanctioned by” an exempt organization. Ban § 1.

The AG argues “shall include” means “only” events sanctioned by a listed organization, because

elsewhere the Ban uses “includes but is not limited to” language. (Mot. at 20-22.) But the

legislative history of the Ban and enforcement by the SAC indicate otherwise. Indeed, the bill’s

sponsor expressly said that “‘shall include . . . . does not say that it shall not include other forms

of martial arts.’” (C. ¶ 182.) And Mayor Giuliani, a Ban supporter, said “legitimate” martial arts

like kickboxing were permitted, even if not sanctioned by an exempt organization. (C.¶ 183.)

Related legislation also suggests that “shall include” does not mean “only.” The Legislature in

2001 must have understood a “martial art” to include something other than an event sanctioned


30 ny-1065331

by an exempt organization because when it adopted the Liquor Law, it excluded “any

professional match or exhibition consisting of boxing, sparring, wrestling or martial arts and

which is exempted from the definition of the ‘combative sport’” in the Ban. (C. ¶ 184) (internal

citation omitted).9

Most important, for the first several years under the Ban, the SAC clearly took a position

opposite to the one the AG takes now: that “martial arts” included professional events beyond

those sanctioned by exempt organizations. (C. ¶ 185.) That is the only way to explain the

frequent combative sport professional matches that occurred in New York between 1997 and

2002, many of which were not sanctioned by an exempt organization. (C. ¶¶ 163, 185.)

Worse yet, the AG is now muddying waters he argued were clear. In his Reply Brief, the

AG indicated without qualification, and consistent with what the SAC had been doing since 2002,

that “a sport claiming to be a ‘martial art’ or to have similar characteristics can enter the New

York market under the sponsorship of a listed organization.” (Reply at 6.)10 Now, however, he

equivocates, saying: the Ban “leaves open the possibility that MMA fights could at least under

some circumstances be made legal if sanctioned by a listed organization.” (Mot. at 30 (emphasis

added)). Nowhere does he explain those circumstances, or why it is only a possibility. And

nothing in the SAC’s enforcement history yields the slightest clue—it has consistently allowed

WKA sanctioning without supervision or clearance.

9 The AG’s “in pari materia” rule applies not only within a statute but across statutes on the same subject; it thus cuts both ways. See Branch v. Smith, 538 U.S. 254, 281 (2003) (when two statutes address similar subjects, “‘it can be gathered from a subsequent statute in pari materia, what meaning the legislature attached to the words of a former statute’”) (quoting U.S. v. Freeman, 3 How. 556, 564-65 (1845)). 10 The Due Process Clause is violated if the Legislature has effectively delegated standardless discretion in the realm of a criminal statute to private organizations that are themselves exempt from SAC control. See Gen. Elec. Co. v. New York State Dep’t of Labor, 936 F.2d 1448, 1455 (2d Cir. 1991) (“[A] legislative body may not constitutionally delegate to private parties the power to determine the nature of rights . . . without supplying standards to guide the private parties’ discretion.”); U.S. Baseball v. City of New York, 509 F. Supp. 2d 285, 299 (S.D.N.Y. 2007) (“The federal Due Process Clause limits the manner and extent to which a state legislature may delegate legislative authority to a private party.”). Discovery will clarify if this is the case.


31 ny-1065331

Based on the AG’s position that WKA-sanctioned professional combative sports are

lawful, Plaintiff UFC wrote to the AG expressing an intention to hold such an event.11 The AG

responded that he could not give an “advisory opinion”: “Whether or not the event you are

planning will involve violations of any laws, and if so which laws, will depend on the facts at the

time, as will the determinations of this office or of any other prosecutorial or regulatory agency

as to what action may be appropriate.”12 But Plaintiffs were not asking an abstract question

about hypothetical conduct under a multitude of laws. They merely wanted to confirm that,

consistent with the AG’s prior reading of the Ban in his Reply Brief to the First Motion to

Dismiss, a WKA-sanctioned professional MMA event would be lawful under the Ban, given that

the SAC has allowed such events—involving combative sports that are legally indistinguishable

from MMA—for ten years, without any qualification, supervision, or clearance.

In Hayes v. New York Attorney Grievance Committee, 672 F.3d 158 (2d Cir. 2012), a

case strikingly similar to this one, the Second Circuit held that a ban on attorney advertising was

vague as applied to the plaintiff given that the Grievance Committee could not say what the

regulation in question meant, nor whether his interpretation would bind a successor: “Our

concern is only exacerbated by the inability of the Committee’s representative to clarify the

content of the rule.” Id. at 170. The AG says he cannot say whether something is lawful until he

knows the facts. But the constitutional problem here is not that the facts are unknown; it is that

no one can say what facts are relevant to a determination of legality or illegality. See U.S. v.

Williams, 553 U.S. 285, 306 (2008) (“What renders a statute vague is not the possibility that it

will sometimes be difficult to determine whether the incriminating fact it establishes has been

proved; but that the indeterminacy of precisely what that fact is.”) (emphasis added).

11 Exhibit A, Oct. 26, 2012 letter from Jamie Levitt to Eric Schneiderman. 12 Exhibit B, Nov. 21, 2012 letter from John Schwartz to Jamie Levitt.


32 ny-1065331

Either the Ban (1) permits WKA sanctioning of combative sports consistent with

longstanding practice and the AG’s interpretation in his Reply Brief; or (2) the Ban is

unconstitutionally vague because no one can explain what is criminal and what is not. Discovery

is plainly warranted here. See Pleasureland Museum, Inc. v. Beutter, 288 F.3d 988, 997 (7th Cir.

2002) (finding risk of arbitrary enforcement based on City’s inability at oral argument to

delineate challenged provision’s scope, and instructing court to develop factual record as to

vagueness claims).

3. As applied to “advances or profits from”

Finally, Plaintiffs challenge as unconstitutionally vague the Ban’s sweeping prohibition

on any activity that “advances” combative sports or allows one to “profit from” them. Here, the

AG argues the legislative history is “clear that it [the advances or profits provision] is directed

only at physical or financial conduct promoting banned events” and essentially asks Plaintiffs to

trust the government about future enforcement. (Mot. at 25.) Yet, the AG’s new formulation is

itself unclear, and if the long history of the Ban proves anything, it is that what was true

yesterday about enforcement will not be true tomorrow.

C. The Ban is Unconstitutionally Vague on Its Face

The Ban is vague as applied, but it is also vague on its face: it lacks any clear core, and

as a result, no one charged with enforcing it knows what is permitted and what is prohibited. In

addition to what is set out above, the SAC has apparently interpreted the Ban on “combative

sport” to prohibit amateur pillow fighting, but permit professional jousting. (C. ¶ 78.) The AG

maintains that Plaintiffs cannot invoke these interpretations of the Ban, inconsistent and

unpredictable though they might be, because they do not plan to pillow fight or joust. (Mot. at

19.) But Plaintiffs’ point is that ban on “combative sports” that permits boxing, sparring,

wrestling, martial arts and jousting, but not pillow fighting, is unintelligible. So too is a statute


33 ny-1065331

that bans various “combative sport[s],” even with SAC sanctioning and supervision, but then

defines the very same activities “possibly” “at least under some circumstances” as permissible

“martial arts” if a private organization incorporated in another country decides to sanctions them.

The Ban—a criminal statute—is unenforceable for want of the clarity. The Legislature may

have wide discretion, but it must at a minimum make clear what is criminal and what is not.

The AG argues that under Holder v. Humanitarian Law Project, __U.S. __, 130 S. Ct.

2705 (2010), “facial [vagueness] challenges” are not permitted. (Mot. at 14.) But Holder did not

even involve a facial challenge, so it could hardly have disallowed them. 130 S. Ct. at 2719

(noting that the Court “was not addressing a ‘facial vagueness challenge’”). Since Holder,

Circuit courts, including the Second Circuit, have continued to entertain facial vagueness

challenges. See, e.g., Hayes, 672 F.3d at 163 (permitting petitioner to challenge as facially

vague); see also U.S. v. Jones, 689 F.3d 696, 703 (7th Cir. 2012) (the Supreme Court has long

permitted petitioners to challenge vague criminal laws as facially vague).

The AG insists that despite any apparent ambiguity, Plaintiffs cannot prevail if “the

statutory terms are clear in their application to plaintiffs’ proposed conduct.” Holder, 130 S. Ct.

at 2720. There are fifteen plaintiffs here, seeking to engage in a wide variety of conduct, all of it

neither clearly permitted nor definitively proscribed. As the Supreme Court aptly explained in

Smith v. Goguen, a statute that fails to specify the conduct it prohibits—a “provision [that]

simply has no core”—is void for vagueness. 415 U.S. 566, 578 (1974),

III. THE BAN AS CONSTRUED BY THE AG IS IRRATIONAL, VIOLATING PLAINTIFFS’ EQUAL PROTECTION AND SUBSTANTIVE DUE PROCESS RIGHTS

The Ban is unconstitutionally vague; its enforcement represents the epitome of

standardless discretion. But even if the AG’s interpretation of the Ban were intelligible and


34 ny-1065331

correct, that presents a two-edged sword, for under that interpretation, the asserted rational bases

for the Ban crumble.

This Court previously ruled in connection with the Initial Complaint that whether

considered at the time of enactment or at present, it was not irrational for the government to ban

live professional MMA. The Court reasoned that because the Legislature could address safety

issues “step-by-step,” it could constitutionally ban MMA while permitting other combat sports,

such as amateur MMA and boxing. The Court also held that the government could rationally

ban live professional MMA in order to protect the public morals. (Op. at 11-12, 13-15.)

Plaintiffs were entitled to amend their complaint after this Order, and did. (Stipulation &

Order (Feb. 2, 2012), ECF No. 21 (giving Plaintiffs time to amend as of right until after a ruling

on the second motion to dismiss).) See Wallace v. Conroy, 945 F. Supp. 628, 639 (S.D.N.Y.

1996) (citing, inter alia, Foman v. Davis, 371 U.S. 178, 182 (1962)) (“In general, where a

complaint is dismissed for legal insufficiency, plaintiff should be offered at least one opportunity

to replead in order to correct the defects in the original complaint.”)).

Plaintiffs’ Amended Complaint contains numerous new factual allegations. The

additional facts alleged in the Complaint include, inter alia, (1) new allegations showing that

rather than solving a problem step-by-step, the State of New York glorifies activities like boxing

(C. ¶¶ 5, 127-130); (2) numerous new allegations addressing the AG’s interpretation of the Ban

(C. ¶¶ 15-17, 76, 78, 134, 173, 193-194); and (3) detailed allegations about the proliferation of

combative sport activities in New York, and the State’s response to it.13 (C. ¶¶ 134, 148-153,

171, 428.) The Complaint also amends the Equal Protection and Due Process claims to make

clear that to the extent First Amendment protected activity is at issue, the standard is strict

13 The AG’s contention that the amateur allegations are not new is incorrect. The Initial Complaint did discuss amateur MMA, but these allegations could not have been in the Initial Complaint as the events had not happened yet.


35 ny-1065331

scrutiny not rational basis.14 (C. ¶¶ 374, 397.) These new allegations—particularly those

regarding the proliferation of combat sports in response to the AG’s interpretation of the Ban—

make clear that if the Ban ever had a rational basis, it has one no more.

A. “Law of the Case” Does Not Apply to the Amended Rational Basis Claims

The AG declines to address the merits of Plaintiffs’ Equal Protection and Due Process

claims, which are restated in light of the new allegations, insisting that this Court’s prior ruling

on rational basis in connection with the motion to dismiss the Initial Complaint is “law of the

case.” (See Mot. at 26.) This argument is baseless, and the cases cited in support of it are

inapt.15 As numerous cases directly on point demonstrate, the law of the case doctrine simply

has no application when a court is asked to rule on the sufficiency of new factual allegations in

an amended complaint. See, e.g., Kregler v. City of New York, 821 F. Supp. 2d 651, 658

(S.D.N.Y. 2011) (“‘law of the case’ doctrine does not control here because the Second Amended

Complaint alleges materially different and more detailed claims”); Fezzani v. Bear, Stearns &

Co., No. 99CIV793RCC, 2005 WL 500377, at *2 (S.D.N.Y. Mar. 2, 2005) (“[law of the case]

doctrine applies merely to the resolution of legal issues; the proposed [amended complaint],

however, [relies] on new factual allegations, the sufficiency of which have not been ruled

upon.”); Steinfield v. Marks, No. 96 CIV. 0552 (PKL), 1997 WL 563340, at *3 (S.D.N.Y. Sept. 8,

14 See Police Dep’t of Chicago v. Mosley, 408 U.S. 92, 101 (1972) (“The Equal Protection Clause requires that statutes affecting First Amendment interests be narrowly tailored to their legitimate objectives”); Denney v. DEA, 508 F. Supp. 2d 815, 836 (E.D. Cal. 2007) (“Since the First Amendment right to free speech is a fundamental right, the court applies strict scrutiny to laws impacting First Amendment rights and discriminating based on any classification. . . . Government actions subject to strict scrutiny “will be sustained only if they are suitably tailored to serve a compelling state interest.”) The AG did not respond to this amendment at all. 15 The cases the AG cites have no bearing on the doctrine’s applicability to a ruling on the factual sufficiency of the amended complaint. See, e.g., U.S. v. Quinteri, 306 F.3d 1217, 1225 (2d Cir. 2002) (application of law of the case doctrine to issue decided on appeal). The AG’s reliance on the standards in Rule 60 of the Federal Rules of Civil Procedure is even further afield. While courts have, on occasion, applied Rule 60 standards under law of the case to orders on legal questions preceding a final judgment, none of the cases on which the AG relies include a first amended complaint filed as a matter of right. See, e.g., Johnson v. Askin Capital Mgmt., L.P., 202 F.R.D. 112, 115 (S.D.N.Y. 2001) (refusing to reconsider grant of summary judgment); Morin v. Trupin, 809 F. Supp. 1081, 1100 (S.D.N.Y. 1993) (denying leave to file third amended complaint).


36 ny-1065331

1997) (law of the case did not bar amended complaint with new factual allegations after motion

to dismiss granted because “the Court has not already decided whether these new allegations are

sufficient to state a claim”).

B. Accepting the AG’s Plain Meaning, the Ban is Now Entirely Irrational

If the AG is right about what the Ban means, there is nothing left to the supposed rational

basis for it. The State’s asserted interests in the Ban were that (1) MMA is too unsafe to regulate

and must be banned outright; and (2) exposure to MMA corrupts society’s morals, especially

those of children. (See Reply at 7-8.) But as the AG now has it:

Amateur MMA is entirely permissible and completely unregulated.

Live professional MMA may also lawfully take place under the Ban with no State regulation, so long as it is sanctioned by an exempt organization.

The advance or profit from provision covers only the promotion of a live professional MMA event that is not sanctioned by an exempt organization; anything else done to promote MMA is permissible, including MMA exhibitions outside of Madison Square Garden, broadcasting MMA on television, and selling MMA toys to children. Consistent with the AG’s interpretation, events are now proliferating throughout the State.

(C. ¶¶ 134, 148-53, 171.) Crowds of thousands flock to watch professional and amateur

combative sports, including MMA, and these events are not regulated by the State. (C. ¶¶ 17, 19,

78, 134-39, 149-51, 285, 296.)

The State has clearly decided to set aside whatever interest it had in protecting the morals

of society from the message of MMA. MMA is everywhere in New York, for young and old

alike. (C. ¶¶ 65, 66, 76, 78.) It is widely viewed on TV and pay-per view; it is practiced in

countless gyms; amateur MMA events are attended by thousands; promotional exhibitions take

place at the Javits Center and in the middle of Herald Square; promoters sell children’s action

figures and toys; and live, professional combative sports events sanctioned by exempt

organizations now take place at Madison Square Garden and the Beacon Theater, to the delight


37 ny-1065331

of huge audiences. (C. ¶¶ 17, 78, 200-02, 205, 370, 428.) It is unclear what message the State

believes it is any longer suppressing, particularly by outlawing only professional combative sport

events not sanctioned by the WKA. The “message” of a live professional MMA event is

undoubtedly the same whether or not it is sanctioned by an exempt organization. Given the

proliferation of MMA, the continued application of the Ban to live MMA, or live MMA not

sponsored by a private exempt organization, is irrational.

Likewise, the State’s interest in participant safety also can no longer rationally justify the

Ban. The State has disclaimed any interest or authority in protecting amateur MMA fighter

safety. (C. ¶¶ 15, 76-77, 82, 149, 173.) Amateur promoters who seek guidance from the SAC

are turned away, and regulators in other states now complain about the absence of safety

standards in New York. (C. ¶¶ 77, 114, 141, 149, 173.) As the Complaint alleges, the SAC is

aware of these safety concerns, but it does nothing to address them. (C. ¶¶ 17, 19, 113-14, 134-

35, 148-49.) The premise of this Court’s initial ruling, before the AG’s new interpretation, was

that no professional MMA was legal. But now, according to the AG, professional MMA is

perfectly legal if it is approved by the WKA, even though the State does not require the WKA to

have any safety standards. Professional WKA-sanctioned combative sport events are

proliferating in the state. (Id. ¶¶ 17, 78, 82, 190-92, 279, 406.) If the State allows widespread

professional combative sport, and does nothing to regulate it for safety, it is difficult to see where

the safety interest lies.

Although rationality review is deferential, there are limits. When a law’s enforcement

and/or exceptions undercut whatever rationale might have supported its enactment, it cannot

survive even rational basis scrutiny. See, e.g., Merrifield v. Lockyer, 547 F.3d 978, 992 (9th Cir.

2007) (striking down a pest control regulation, court held that by exempting those individuals

most likely to come in contact with dangerous pesticides, “the government has undercut its own


38 ny-1065331

rational basis for the licensing scheme”); Miller v. Carter, 547 F.2d 1314, 1316 (7th Cir. 1977)

(striking down a Chicago ordinance barring certain felons from obtaining a chauffeur license,

and noting that “allowing existing licensees who commit felonies to continue to be eligible for

licensing undercuts the reasonableness of the basis for the classification”), aff’d, 434 U.S. 356

(1978).

With the facts pled in the Complaint, Plaintiffs have stated a claim challenging the

existence of any rational basis for the Ban.

IV. THE BAN IMPERMISSABLY AFFECTS INTERSTATE COMMERCE

Plaintiffs have alleged more than adequate facts to state a claim that the Ban violates the

dormant commerce clause, and they are entitled to proceed with discovery. New York has

chosen to ban an activity—live professional MMA—that is permitted and practiced in 48 other

states and is a multi-billion dollar interstate economic engine. (C. ¶¶ 3, 54-64.) The Ban

discriminates against out-of-state businesses in favor of in-state businesses, unduly burdens

commerce, and proscribes activity beyond New York’s borders. (C. ¶¶ 428-430.) New York is

entitled—within constitutional limits—to ban whatever activity it wishes, but as explained supra,

New York has not banned MMA. It has only banned live professional MMA, and the primary

promoters of live professional MMA are out-of-state entities.

Although the Ban is not facially discriminatory, it nonetheless favors New York

businesses over out-of-state businesses (such as Plaintiff UFC), and therefore discriminates in

effect. See Hunt v. Washington State Apple Adver. Comm’n, 432 U.S. 333, 352 (1977). Given

the State’s interpretation and enforcement of the Ban, in-state businesses such as local MMA

gyms, underground MMA leagues, and local amateur MMA leagues can, and do, proliferate in

New York. (C. ¶¶ 428.) Professional MMA promotions such as the UFC—which because of the


39 ny-1065331

Ban all are located outside of New York—are discriminated against.16 The Ban, therefore, is

subject to strict scrutiny, and the burden falls on the state to justify the benefits the state achieves

and the unavailability of nondiscriminatory alternatives. (C. ¶¶ 428.) The State has not done,

and cannot, do either because—as described at length in the Complaint and in this brief—the

State gains little or no benefit from the Ban. Regulating instead of banning professional MMA

would meet the State’s purported goals while being less offensive to the dormant commerce

clause. (See C. ¶¶ 37, 44, 84, 88, 133, 404, 429.) Moreover, even if the Ban were deemed not

discriminatory, Plaintiffs are entitled to show that its burdens outweigh its benefits. See, e.g.,

Pike v. Bruce Church, Inc., 397 U.S. 137, 146 (1970). Plaintiffs have clearly pled sufficient facts

to satisfy this fact-based test. (See C. ¶¶ 3, 54-64, 428-430.)

In addition, the Ban violates the commerce clause because—by its plain terms—it can be

applied to conduct outside of the state. Edgar v. MITE Corp., 457 U.S. 624, 643 (1982)

(plurality opinion) (“‘[A]ny attempt ‘directly’ to assert extraterritorial jurisdiction over persons

or property would offend sister States and exceed the inherent limits of the State’s power.’”)

The AG’s only response is that the legislative history narrows the construction of the statute to

only intrastate activity. But the legislative history makes clear that the Legislature was in fact

concerned about, but did nothing to resolve, its territorial scope. (C. ¶ 199.) The Ban prohibits

all conduct that “advances” or “profits from” MMA, which on its face includes myriad out-of-

state commerce, including advertisers and merchandisers who may limit their exposure to the

New York market because of the facial scope of the Ban. (C. ¶ 430.)

16 There is even evidence this discrimination against out-of-state entities is purposeful. Assemblyman Bob Reilly stated, “The [UFC] says the tax revenue would add about half a million to the local economy. And I say, yes, but at the same time $3.5 million would head back to Vegas. You can’t take three-and-a-half million bucks out of the economy and expect it to work.” Ben Fowlkes, A Losing Fight in New York, Inside MMA, SI.com, Mar. 13, 2009, available at http://sportsillustrated.cnn.com/2009/writers/ben_fowlkes/03/13/ny.legalization/index.html.


40 ny-1065331

V. THE AG IS A PROPER DEFENDANT IN PLAINTIFFS’ LIMITED CHALLENGE TO THE LIQUOR LAW

Plaintiffs challenge the Liquor Law only to the same extent that they challenge the Ban.

They do not challenge it as applied to fights between intoxicated amateur combatants, as the

legislative history indicates it was intended to cover. (C. ¶ 435.) This claim is included to

ensure that venues like Madison Square Garden may host events permitted by the Ban (or host

events if the Ban is struck down in this lawsuit). The AG, as an enforcer of the Ban, is a proper

defendant. See In re Dairy Mart Convenience Stores, 411 F.3d 367, 373 (2d Cir. 2005) (“it is

not necessary that the officer’s enforcement duties be noted in the act” as long as they exist”).17

CONCLUSION

For the foregoing reasons, the Court should deny Defendant’s Motion to Dismiss the

Amended Complaint.

Dated: New York, New York November 30, 2012

MORRISON & FOERSTER LLP By: /s/ Jamie A. Levitt

Jamie A. Levitt Leah Andrea Ramos Jonathan C. Rothberg 1290 Avenue of the Americas New York, New York 10104-0050 Phone: 212.468.8000 Fax: 212.468.7900 [email protected] [email protected] [email protected]

Barry Friedman 40 Washington Square South Room 317 New York, New York 10014-1005 Phone: 212.998.6293 Fax: 212.995.4030 [email protected]

17 If the Court deems the AG an improper defendant on this claim, Plaintiffs request leave to add the NYSLA (or its officers) as a defendant for the limited purposes of achieving the relief Plaintiffs seek. Adding the NYSLA would not disrupt the case in any meaningful way, as it is typically the AG that defends the NYSLA in such cases. See, e.g., Tessler v. Paterson, 768 F. Supp. 2d 661 (S.D.N.Y. 2011) (AG as counsel to all defendants, including the Liquor Authority and its individually named officers), aff’d, 451 Fed. Appx. 30 (2d. Cir. 2011).


EXHIBIT A




EXHIBIT B




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Zuffa's opposition to NY's motion to dismiss