Zuffa's Opposition To NY's Motion To Dismiss

Case 1:11-cv-08215-KMW Document 39
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UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK --------------------------------------------------------------- x : 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)
PLAINTIFFS OPPOSITION TO DEFENDANTS 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 jlevitt@mofo.com lramos@mofo.com jrothberg@mofo.com Attorneys for Plaintiffs Barry Friedman 40 Washington Square South Room 317 New York, New York 10014-1005 Phone: 212.998.6293 barry.friedman@nyu.edu
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TABLE OF CONTENTS Page PRELIMINARY STATEMENT ....................................................................................... 1 STATEMENT OF FACTS ................................................................................................ 2 A. B. C. The Ban on Mixed Martial Arts ................................................................. 2 Fifteen Years of Changing Interpretations and Standardless Enforcement 3 Plaintiffs Three Alleged Harms; the AGs Three Positions....................... 6 1. 2. 3. I. Professional MMA ......................................................................... 6 Amateur MMA............................................................................... 7 Advances or Profits From........................................................... 8
ARGUMENT ..................................................................................................................... 8 THE BAN VIOLATES THE FIRST AMENDMENT .......................................... 9 A. Entertainment Before a Live AudienceIncluding Sporting Eventsis Expressive Conduct Protected by the First Amendment ........................... 9 1. 2. New York Allows MMA Without Restriction Except When It is Presented for the Purpose of Entertaining a Live Audience .......... 9 Live Sports are Not Categorically Excluded From the First Amendment .................................................................................. 12 a. b. The AGs Categorical Rejection of Sports Ignores The Line Between Conduct and Performance in Sports ................. 14 Athletic Events Intended as Entertainment Are No Different from Other Forms of Entertainment Protected By First Amendment ............................................................. 15
3. B. II. A. B.
The States Asserted Interests in Suppressing the Live Performance of MMA Do Not Satisfy the Demands of the First Amendment . 18
The Ban is Substantially Overbroad ........................................................ 20 Courts Look to Actual Interpretation and Enforcement Facts to Evaluate a Laws Vagueness ..................................................................................... 23 The Ban is Unconstitutionally Vague as Applied .................................... 26 1. 2. 3. As applied to amateurs ................................................................. 28 As applied to professionals .......................................................... 29 As applied to advances or profits from .................................... 32
THE BAN IS UNCONSTITUTIONALLY VAGUE .......................................... 23
C.
The Ban is Unconstitutionally Vague on Its Face ................................... 32
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TABLE OF CONTENTS (continued) Page III. THE BAN AS CONSTRUED BY THE AG IS IRRATIONAL, VIOLATING PLAINTIFFS EQUAL PROTECTION AND SUBSTANTIVE DUE PROCESS RIGHTS ............................................................................................................... 33 A. B. IV. V. Law of the Case Does Not Apply to the Amended Rational Basis Claims .................................................................................................................. 35 Accepting the AGs Plain Meaning, the Ban is Now Entirely Irrational. 36
THE BAN IMPERMISSABLY AFFECTS INTERSTATE COMMERCE........ 38 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. Entmt Merchants Assn, __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 Dodgers Bar & Grill, Inc. v. Johnson Cnty. Bd. of Cnty. Commrs, 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. Dept of Educ., 504 F. Supp. 2d 88 (W.D. Va. 2007), affd, 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), affd, 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), affd, 308 Fed. Appx. 511 (2d. Cir. 2009) .........................................................................13, 14 Gen. Elec. Co. v. New York State Dept 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. Commn, 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 Assn 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. Natl Collegiate Athletic Assn, 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), affd, 554 F.3d 56 (2d Cir. 2009), vacd 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 v
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Miller v. Carter, 547 F.2d 1314 (7th Cir. 1977), affd, 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 Dept 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), affd, 451 Fed. Appx. 30 (2d. Cir. 2011) ................................................................................................................................40 n.17 Thornhill v. Alabama, 310 U.S. 88 (1940) .............................................................................................................20, 21 vi
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Top Rank, Inc. v. Fla. State Boxing Commn, 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. OBrien, 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.legalizatio n/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, andas currently interpreted by the Statelacks any conceivable rational basis. Since this case was filed, the landscape has changed entirely. New Yorks 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 AGs 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 Bans enforcement, there is little reason to believe the positions taken by the AG today will be those of the State tomorrow. The AGs 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 AGs positions undermine entirely the Legislatures 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 AGs 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, andaccording to the AGlawful. The AGs 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 Sponsors 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 sportseven MMAactually 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 Neglias 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 SACs 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 WKAexempt under the Ban as the World Karate Associationbegan 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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WKAs 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 AGs view that amateur combative sports were lawful and unregulated. (C. 15, 172-73.) The States 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 AGs position in the MMA media, he decided to try again. (C. 172, 282.) The WKA refused to sanction the event believingbased upon past SAC positionsthat 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 cant understand how they can say because youre an amateur, they (the SAC) dont 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, 19092.) 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 nobodynot State officials and not those subject to the Bans penaltieshave 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 AGin 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 Bans 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 Yorks ban of combative sport as not including amateur events . . . is what the statute says. (Mot. at 18-19.) Given the SACs ever-changing interpretation and enforcement of the Ban, the AGs position is cold comfort to Plaintiffs who wish to participate in amateur MMA.
The organizations exempt from the Ban under the term martial arts represent four martial arts disciplinesjudo, tae kwon do, karate, and kenpo. Ban 1. Neither kickboxing nor Muay Thai are specifically exempted in the Ban.
1
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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 8
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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, orif the Ban indeed means what the AG saysit is demonstrably irrational. Plaintiffs ask this Court to deny the AGs 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 AudienceIncluding Sporting Eventsis 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 9
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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 States 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 prohibitsthe performance of MMA for the purpose of entertaining a live audienceis 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 ones 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). Courtsespecially in this Circuitprotect 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 purposesi.e., done to engage or entertain an audienceis 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 Assn 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 lowgrade entertainment, in the form of a fraternitys 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
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).)
3
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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 promoters 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 AGs 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), affd, 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 AGs categorical assertion wrong. This Court should reject the AGs extreme and unfounded position that the First Amendment protects all forms of live entertainment, including jazz, circuses, and stripteasebut not sports. a. The AGs 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 nunchakua 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 individuals 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), affd, 554 F.3d 56 (2d Cir. 2009), vacd 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 Sands 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), affd, 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 AGs 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
In the rest of the AGs cases, the First Amendment claim was raised haphazardly subsequent to the complaint andunlike heredid 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. Dept 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), affd, 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 ny-1065331
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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 Commn, 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 stripteasebecause, 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 Commn, No. 00-1325 (Fla. Cir. Ct. June 7, 2000). The Attorney Generals 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 mans amusement, teaches anothers 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 Entmt 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 States 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 states 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 Legislatures repeatedly expressed aim was to suppress MMAs 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. OBrien, 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 Courts previous holding that the State had a rational basis for banning MMA. (Op. at 9-14.) The AGs reliance on OBrien 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 OBrien test applies only to the latter case. The law in 18
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OBrien 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 OBrien 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 OBrien, 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 nonexpressive purposes, like countless do in gyms, it is not illegal. Unlike the law in OBrien, 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 OBrien governed this caseand it does notthe Ban cannot satisfy the OBrien standard (which, in any event, is not rational basis, review). In OBrien 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 States 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 States 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 OBrien. In light of the fact that almost every other state now allows the live performance of MMAand that therefore a more narrowly drawn regulation (versus a ban) could have met New Yorks safety goalsit 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 AGs 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 Bans overbroad language prohibiting any conduct that materially aids combative sport cannot be saved by purported
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legislative intent.5 The Bans text is not limited, as the AG would have it, to combative sport events happening within the State of New Yorknor 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 AGs 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 Bans 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 governments 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 Governments 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.).
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 were trying to weed out of the process and its 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.) 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).
6
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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 Bans 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 Laws Vagueness
The AGs 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
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address the very different question of whether extrinsic evidence generally may be considered in statutory construction. 7 Contrary to the AGs 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 ordinances 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 AGs other cases) that appellate courts review vagueness determinations as a question of lawbut 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 courts 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
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); Dodgers Bar & Grill, Inc. v. Johnson Cnty. Bd. of Cnty. Commrs, 32 F.3d 1436, 1443 (10th Cir. 1994) (same).
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recognizes two independent grounds upon which a statutes 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 statutes plain language. See VIP of Berlin, LLC v. Town of Berlin, 593 F.3d 179, 187 (2d Cir. 2010). In the criminal context, howeverand the Ban is indisputably a criminal statutethe 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 Complaintwhich the AG would altogether ignorego 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 provisions validity] is only exacerbated by the inability of the Committees representatives to clarify the content of the rule. 672 F.3d at 170.
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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 MMAso 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 SACs 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
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).
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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 WKAexempt as the World Karate Associationto sanction kickboxing events, the SAC refused applications by leading kickboxing organizations to be added to the exempt list, claimingin clear defiance of the Bans statutory languagethat 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 SACs 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 andrelying on Websters Dictionary to give the Ban meaningsays that amateur MMA is plainly permissible; it is just what the statute says. (Mot. at 18-20.) But the AGs interpretation of the statute cannot be squared with the SACs onagain-off-again enforcement against amateur combative sports, which would lead any rational person to fear the consequences of violating the Bans criminal prohibitions. (See supra pp. 3-6.) Moreover, Websters 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
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AGs 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 SACs 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 bills 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
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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 SACs enforcement history yields the slightest clueit has consistently allowed WKA sanctioning without supervision or clearance.
The AGs 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)). 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 Dept 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.
10 9
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Based on the AGs 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 AGs 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 eventsinvolving combative sports that are legally indistinguishable from MMAfor 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 Committees 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 12
Exhibit A, Oct. 26, 2012 letter from Jamie Levitt to Eric Schneiderman. Exhibit B, Nov. 21, 2012 letter from John Schwartz to Jamie Levitt.
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Either the Ban (1) permits WKA sanctioning of combative sports consistent with longstanding practice and the AGs 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 Citys inability at oral argument to delineate challenged provisions 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 Bans 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 AGs 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
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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 Bana criminal statuteis 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 prohibitsa provision [that] simply has no coreis 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 AGs interpretation of the Ban were intelligible and
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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 AGs 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 States 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 AGs 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.
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scrutiny not rational basis.14 (C. 374, 397.) These new allegationsparticularly those regarding the proliferation of combat sports in response to the AGs 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 Courts 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,
See Police Dept 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. The cases the AG cites have no bearing on the doctrines 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 AGs 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).
15 14
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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 AGs 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 States 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 societys 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 AGs 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 childrens 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 36
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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 States 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, 13435, 148-49.) The premise of this Courts initial ruling, before the AGs 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 laws 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
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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), affd, 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 activitylive professional MMAthat 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 Yorks borders. (C. 428-430.) New York is entitledwithin constitutional limitsto 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. Commn, 432 U.S. 333, 352 (1977). Given the States 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 UFCwhich because of the
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Ban all are located outside of New Yorkare 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 becauseas described at length in the Complaint and in this briefthe State gains little or no benefit from the Ban. Regulating instead of banning professional MMA would meet the States 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 becauseby its plain termsit 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 States power.) The AGs 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-ofstate 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 cant 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.
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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 officers enforcement duties be noted in the act as long as they exist).17 CONCLUSION For the foregoing reasons, the Court should deny Defendants 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 jlevitt@mofo.com lramos@mofo.com jrothberg@mofo.com
Barry Friedman 40 Washington Square South Room 317 New York, New York 10014-1005 Phone: 212.998.6293 Fax: 212.995.4030 barry.friedman@nyu.edu
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), affd, 451 Fed. Appx. 30 (2d. Cir. 2011).
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EXHIBIT A
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Zuffa's Opposition To NY's Motion To Dismiss

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Zuffa's Opposition To NY's Motion To Dismiss

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

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

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

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Advances or Profits From

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