State Law to Disqualify Mixed Martial Arts Fighters for “Crimes Involving … Hate Speech”?

AB 2100, which passed an Assembly subcommittee last month by a 5-3 party-line vote, provides,

To ensure that individuals and entities licensed under this act observe common standards of decency, the commission shall, in consultation with the Association of Boxing Commissioners, establish a professional code of ethical conduct for mixed martial arts promoters and fighters. Notwithstanding any other provision of this code, upon receiving a complaint, the commission shall enforce the code of ethical conduct and may suspend, revoke, or refuse to issue or renew the license of any mixed martial arts promoter or fighter that it finds has violated this code of conduct. Violations of this code shall include, but not be limited to, the following:

(a) Engaging in actions or activities such as acts resulting in felony convictions or convictions for crimes involving moral turpitude, sexual assault, ethnic or religious slurs, hate speech, or obscene language, failing to respond to a subpoena, or incurring sanctions imposed by a judge or court of law.

I don’t think mixed martial arts fighters should be denied the right to compete — and denied it by law, not just by a private organization’s decision — simply because they have a criminal record. That’s especially so when the criminal record can involve relatively less significant offenses, such as contempt of court, or “crimes involving” “obscene language.”

But it seems to me especially wrong, and unconstitutional, to strip people of their livelihood based on viewpoint-based criteria such as whether their crimes involved “ethnic or religious slurs” or “hate speech.” To be sure, such conduct has to be independently a crime (e.g., disturbing the peace through trying to provoke a fight, or making loud noise, or what have you); ethnic slurs, religious slurs, and “hate speech” — whatever that vague term might mean — aren’t themselves crimes. But as R.A.V. v. City of St. Paul (1992) held, even if the government may outlaw certain kinds of speech (such as “fighting words”), it may not outlaw in ways that are viewpoint-based (or otherwise impermissibly content-based). Just as R.A.V. barred the imposition of greater penalties on bigoted fighting words than other fighting words, so it bars the loss of a license for crimes that involve “ethnic or religious slurs” or “hate speech” but not for comparable crimes that don’t involve such speech.

I recognize that hate crimes laws that increase the penalty for crimes based on the defendant’s discriminatory selection of a victim are constitutional, see the unanimous Wisconsin v. Mitchell (1993), and I think that decision is correct: The law has long allowed punishments to turn partly on the defendant’s motivation, and the selection of a victim based on particular criteria may indeed be a permissible basis for such distinctions (just as employment law may permissibly distinguish firing someone based on that person’s race or sex from firing the person based on something else). But R.A.V. makes clear that the law may not make the viewpoint of a person’s speech — as opposed to his victim selection decision — a basis for enhanced punishment.

And the same, I think, would apply to disqualification from the occupation of mixed martial arts fighting. Assemblyman Luis Alejo, the sponsor of the bill, and Assembly members Nora Campos, Betsy Butler, Mike Gatto, Tony Mendoza, and Bill Monning ought to know better, or at least seek out better counsel.