To me, boxing is like a ballet, except the there’s no music, no choreography, and the dancers hit each other.

Is punching a guy’s face an art? Is it a speech? Is it protected?

(The title is a Deep Thought™ by Jack Handey, in case you didn’t get the reference.)

Dahlia Lithwick has an interesting piece over at Slate about Ultimate Fighting, and whether or not it can be considered a form of Art — that’s art as in fine, not as in mixed-martial — for legal purposes, granting it protection under the first amendment. This isn’t an academic issue:  some MMA types are suing the state of New York, which currently bans the practice, for the right to hold tournaments.

So what makes something art?  Actually, hold that thought. Why is art protected under the first amendment, anyway? The relevant portion of the amendment’s text is quite simply “Congress shall make no law… abridging the freedom of speech.” Don’t get me wrong! I’m quite happy that art is constitutionally protected.  Nothing gets me riled up faster than censorship. But is art — all art — really speech?

Speech obviously doesn’t mean just what you say. Words don’t stop being protected when you write them down, for instance.  And if you make a painting, or a symphony, or a performance art piece that expresses the same idea, that should be protected too.  As I understand the logic, then (although surely there’s a specific legal precedent I should be referring to?), art needs to have an outer form that communicates some inner meaning in order to qualify for protection. There are people who would jump ugly with you over the idea that art expresses something beyond its surface form, but let’s run with that idea for now:  if a piece of art has a message, it is speech, and therefore protected.  But who gets to decide what has a message?  The creators?  The public? Can we just assert that something is art in order to make it legal?

Kind of, yeah. Take porn, for instance.  Prostitution is illegal, but pornography isn’t.  Which means that you can legally pay people to have sex with you, as long as you’re actually hiring them to be “actors” and “actresses” in an “independent film” starring “your genitals.”  If Lars von Trier hired a couple of ultimate fighters to improvise a scene in which their characters beat the crap out of each other, New York would have a hard time banning the result.  You could protest that the fighters don’t see their activity as a performance — but then, some porn stars would doubtless say the same thing.  And do the textile workers who make Christo & Jeanne-Claude’s giant swathes of cloth see their activity as artistic? Probably not.  Would banning that activity effectively criminalize a particular artistic statement?  Probably so.

Another example is ballet. For the most part, this is unproblematically art, and unproblematically speech. The dancers care very deeply about the expressive content of their work:  they are artists trying to communicate, so what they do is protected.  But as a thought experiment, let’s imagine that we’re dealing with a dancer that is NOT trying to communicate:  a ballet dancing robot, or a ballet dancing zombie, or just a normal ballet dancer who’s been very carefully lobotomized.  Our imaginary dancer can still dance, and does so perfectly, contracting the appropriate muscles at the appropriate time.  But they’re not trying to express anything anymore.  Is what they’re doing still “art”?

Whether the robo-dancer is making an artistic statement of their own or not, we could probably all agree that there’s an artistic content to the choreography if that was made by a third party. Ballet is a recreative art, like acting and music performance.  And, I would suggest, like sports.

As Lithwick notes, no sport is currently recognized as a form of speech under U.S. law.  And yet all sports are highly aestheticized.  The enjoyment that we take from sports is not easily separable from the kind of enjoyment that we take from theatrical performances and music, especially when you start getting into unscripted forms like long-form improv, and competitive ones like battle-rap.  And although individual athletes may or may not care about the entertainment value of what they do, it’s unquestionably the case that the governing bodies of every sport care about this deeply.  Changes to the rules are quite often intended to make the sport more exciting.  And why were the rules made up in the first place?  Sports aren’t just a contest, they’re a stylized contest.  And that stylization has an aesthetic value.

Let me explain. Even MMA, which made its reputation by selling itself as no-holds-barred isn’t really no-holds-barred.  As that one episode of Friends helpfully reminds us, MMA outlaws groin attacks, eye gouging, and fish-hooking (and since then, headbutts, biting, small joint manipulation, and a few other categories of low blow). But there’s more to it than that.  You know what else MMA outlaws?  Having two of your buddies jump in and grab the other guy’s arms.  Pepper Spray. Knives.  Threatening to have the other fighter arrested if he so much as lays a finger on you.  Kidnapping his children and threatening to have them killed if he doesn’t take a dive.  In a real fight, any of these might be effective strategies… and this means that MMA, in that it does not allow them, is not a pure bloodsport.  It’s a highly stylized contest that values certain attributes — speed, strength, extremely dense shinbones — over others, like having lots of friends, or a switchblade, or no moral compass.

Boxing is also a pretty violent sport. If you don’t protect yourself very carefully from blows to the head and neck, you can end up knocked out or worse. But it’s stylized in that it doesn’t allow grappling or kicks.  These are considered “not sporting.” If you want not to get punched, grappling your opponent is one of the smartest things you can possibly do — but boxing values blocking and dodging over grappling, and tailors its rules appropriately.

Stylization isn’t just about what you can’t do, either:  sometimes it’s about what you must do.  U.S. Kickboxing, unlike Savate and Muay Thai, doesn’t allow kicks to the leg. This creates a problem, which is that the fighters sometimes stop kicking at all.  If low kicks aren’t allowed, it turns out that a boxer will beat a kickboxer more than half the time.  As a result, it’s built into the ruleset that fighters must attempt a certain number of kicks per round.  This obviously values kicking over punching.

All martial arts exist on a continuum between violence and stylization.  The logical limit of violence is actual combat, with guns and everything.  Way over on the stylized end of the spectrum, you have breakdancing, which depends on a lot of the same skills as actual combat, and is a competition, but not one in which you are allowed to touch your opponent.  Somewhere in between you have combat sports.  Each of these, even MMA, makes some techniques illegal.

Fighters tailor their styles to take advantage of these rules. In boxing and American kickboxing, you don’t have to protect your legs at all, which frees up more time for protecting your head. An interesting corollary is that the best way to fight one of these guys, if you absolutely have to, is probably to kick their legs and grapple, because those are the techniques their fighting styles are least well-equipped to deal with.  Same with MMA. If you ever find yourself in a fistfight with Mirko Filipovic, your best way out of a VERY bad situation is probably to gouge his eyes, pummel his genitals, and then have two of your friends jump him from behind.  Scratch that — have them jump him first.  Or better yet, break out the pepper spray. (Maybe hold off on threatening his children, though. Wouldn’t want to make that guy angry.)

But the fact that fighters adapt to the rulesets is a consequence of the rules, not a justification for them.  The point of the rules is actually expressive.  By privileging certain techniques over others, martial arts rules make a statement about what kinds of fights are better — and although this can sometimes be parsed as a moral value (i.e. no threatening the opponent’s children), there are also cases, like the anti-punch bias in American kickboxing, where it’s hard to experience it as anything but an aesthetic choice.

These values are not necessarily very interesting.  But they’re there.  They are communicated by every bout, every “performance” of that particular ruleset.  (And this isn’t just a feature of combat sports, either.  Football privileges planning and discipline; Soccer, improvisation and adaptability.)  And it inevitably follows, to my mind, that preventing that communication is an abridgment of freedom of speech.  It might not be the fighters’ speech, exactly — they could be like zombie ballerinas, or cogs in a machine (although I’m guessing they usually aren’t). But someone is speaking.  Maybe Hélio Gracie is having a spirited debate with the Marquess of Queensberry.  Arguably the content of the speech is stupid and repetitive, but that’s no reason to go around banning it.

8 Comments on “To me, boxing is like a ballet, except the there’s no music, no choreography, and the dancers hit each other.”

  1. Ben #

    What follows is an simplification of existing First Amendment and Criminal Law. (Yes, I am a lawyer.)

    Interesting take. Even the First Amendment can be run around with what’s called a content neutral regulation. So, you ban people setting fires on their front lawn for safety reasons. If you try to burn a cross on your front lawn and avoid prosecution because it’s expressive, you’re going to lose. Because the regulation was to prevent fires, not to prevent speech, it’s constitutional.

    Many states criminalize battery even if it’s consented to, when the battering can or does create serious bodily harm. This is a content neutral regulation. So, even if MMA is allowed under the current law that bans it, the fighters could likely be prosecuted for assault and battery, even if they consent to the fight. This would essentially keep the NY ban in place. If fighters knew they’d be arrested after every fight (even if the charges are dropped, or juries refuse to convict) they’re unlikely to fight in NY.

    I think the fight as expression argument is interesting. I’m not buying that it’s a winner, though.


    • Stokes OTI Staff #

      Interesting! But if the regulation was really neutral, it would have to apply to boxing just as much as to MMA, right? Or is that not how it works?


      • Ben #

        Two things there: There’s either an exception baked in to the statutes that authorize boxing, or there is selective non-enforcement against boxing. If I get bored later I’ll do some more research.


  2. jjsaul #

    I had to do some deep research to advise my firm whether to take a plaintiff’s case arising from a serious brain injury that occurred in the ring during a kickboxing bout back in the mid-90’s. From a tort law standpoint, the critical question is whether the injury was caused by a violation of the rules, on the theory that the rules themselves were incorporated into assumption of the risk whether or not those rules were spelled out in the waiver.

    The controlling case law at the time was the US S.Ct.’s ruling on a neck injury during a Bengals game.


  3. sprugman #

    Even if we grant that MMA is art, that doesn’t mean it can’t be outlawed. There are numerous legitimate limits on the first amendment…


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