Opinion: Scrutinizing the UFC’s ‘Free Speech’ Defense

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“The most stringent protection of free speech would not protect a man falsely shouting fire in a theatre and causing a panic … The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent.” — Opinion of Oliver Wendell Holmes Jr. in the United States Supreme Court case Schenck vs. United States in 1919
The oddsmakers were right to book Colby Covington as a 3-to-1 favorite over former welterweight champion Tyron Woodley, as “Chaos” manhandled his onetime American Top Team stablemate for 21-plus minutes before earning a fifth-round technical knockout in the UFC Fight Night 178 main event on Sept. 19 in Las Vegas.

While “The Chosen One” showed flashes of his old self by attempting to control the center of the cage in the early exchanges and landing the occasional power-punch counter, Covington’s offense and pressure only got more fluid and suffocating as the fight wore on. By the championship rounds, Woodley’s corner was pleading for him to chase a finish—just as it had done in his fights against Kamaru Usman and Gilbert Burns—and long before referee Dan Miragliotta intervened to stop the fight in the fifth, the outcome felt like a foregone conclusion.

Predictably, the aftermath of Covington’s victory has been about everything but his superlative performance inside the cage. In the post-fight interviews that followed the bout, the 32-year old deliberately sought to sow controversy by making a series of patently xenophobic and bigoted statements more suited to an alt-right rally than an ESPN studio. On the post-fight ESPN show, he mocked Nigerian born Usman by asking if he had gotten a message from his “tribe” via “smoke signals” and then doubled down at the press conference on pre-fight comments he had made accusing Woodley of being a domestic terrorist sympathizer by supporting the Black Lives Matter organization. In between, he labeled NBA great and part-time progressive activist LeBron James a “spineless coward,” accused Woodley of “hating America” and took a short phone call from President Donald Trump, who effusively expressed his support for Covington.

Covington’s fans—including those who loiter in the comments section, unironically demanding this site “stick to sports”—will try to argue that Covington has a right voice his political opinion and that those who would criticize him are anti-Trump, censor-happy liberals. Indeed, UFC President Dana White has leaned heavily on this sentiment when asked for comment on Covington’s extreme rhetoric.

“One of the things we’ve never done here at the UFC is stop people from expressing how they feel about certain things, inside or outside the Octagon, even if it’s me, if it’s about me,” White said at the post-fight press conference. “Who’s more about free speech than we are? We literally let our people do or say whatever it is they do. It’s normal.”

Five days later at the pre-fight press conference for UFC 253 in the United Arab Emirates, White did not change his tune.

“These guys all have their own causes, things, they’re own beliefs,” he said. “We don’t muzzle anybody here. We let everybody speak their mind.”

However, the UFC isn’t pro-free speech, and there’s a laundry list of case studies that attest to this. From the promotional guidelines which provide that fighters may face financial penalties for engaging in “inappropriate physical, verbal and online behavior” to the UFC’s sweeping liability waiver—it was rolled out earlier this year—that purported to prohibit fighters and other event attendees, including reporters, from criticizing its COVID-19 protocols under threat of financial sanctions, the promotion has always maintained and enforced its right to police what its athletes do and say outside the Octagon.

Furthermore, and in direct contrast to White’s suggestion that fighters who criticize him personally do not face reprisals, the UFC has in just the last few years taken extreme retaliatory action against fighters who have advocated for better pay and conditions. Among them were Project Spearhead organizers Leslie Smith—she was controversially released in 2018 on a two-fight winning streak—and Kajan Johnson, who was cut loose on a 4-2 run the same year.

Indeed, the UFC is quite comfortable policing athlete’s speech, and it is more than capable of telling Covington to tone it down. That it is choosing not to do this is likely a reflection of two things: an assessment that Covington’s rhetoric won’t endanger and may in fact enhance its commercial interests, and because he has framed his invective as a political promotion for Trump, an incumbent president White and, by extension, the UFC have thrown their full weight behind in the leadup to the 2020 election. It says everything that White feels the need to lie about that.

Jacob Debets is a lawyer and writer from Melbourne, Australia. He is currently writing a book analyzing the economics and politics of the MMA industry. You can view more of his writing at jacobdebets.com.