Full opinion text
Opinion & Order KIMBA M. WOOD, District Judge. Plaintiffs in this case, the leading promoter of professional mixed martial arts (“MMA”) and a group of professional and amateur MMA athletes, trainers, and fans (collectively, “Plaintiffs”), challenge the constitutionality of a 1997 New York state law prohibiting the live performance of professional MMA in New York (the “Combative Sport Ban” or the “Ban”). Defendants in this action are the New York State Attorney General (“NYAG”) and the New York County District Attorney (collectively, “Defendants”). The Court previously granted Defendants’ motion to dismiss certain counts asserted in Plaintiffs’ original complaint. See Jones v. Schneiderman, 888 F.Supp.2d 421 (S.D.N.Y.2012) (Wood, J.). Since then, Plaintiffs have filed a First Amended Complaint (“FAC”). [Dkt. No. 34]. In the FAC, Plaintiffs argue that the Ban is invalid because the law: (1) violates Plaintiffs’ First Amendment rights of expression; (2) is overbroad on its face, in violation of the First Amendment; (8) is unconstitutionally vague, in violation of the Due Process Clause; (4) violates the Equal Protection Clause; (5) lacks a rational basis, in violation of the Due Process Clause; and (6) violates the Commerce Clause. Plaintiffs also contend that a separate 2001 liquor law violates their First Amendment rights of expression. Presently before the Court is Defendants’ motion to dismiss the FAC. [Dkt. No. 36]. For the reasons that follow, Defendants’ motion is GRANTED IN PART and DENIED IN PART. In particular, the Court dismisses each of Plaintiffs’ causes of action except for Plaintiffs’ as-applied vagueness challenge. I. FACTUAL BACKGROUND A. The Plaintiffs Plaintiffs represent all aspects of amateur and professional MMA. Plaintiff Zuffa, LLC does business as the Ultimate Fighting Championship (“UFC”), “the leading promoter of live Professional Unified Rules MMA contests and exhibitions throughout the world.” (FAC ¶ 278). A number of professional MMA fighters are named as Plaintiffs, including: Jon “Bones” Jones, the current UFC Light Heavyweight champion and youngest titleholder in UFC history, (FAC ¶ 257); Gina “Conviction” Carano, often referred to as the “Face of Women’s MMA,” (FAC ¶261); Frankie “The Answer” Edgar, a former UFC Lightweight champion, (FAC ¶ 265); Matt “The Hammer” Hamill, a recently retired UFC fighter who is congenitally deaf, (FAC ¶¶ 269-71); Brian “All American” Stann, a military veteran, Silver Star recipient, active UFC fighter, and President of Hire Heroes USA, a nonprofit organization that helps military veterans obtain employment and transition back to civilian life, (FAC ¶¶275, 273); and Jennifer Santiago, an MMA fighter in the World Combat League, founded by Chuck Norris, (FAC ¶¶ 342, 344). In addition to professional fighters, Plaintiffs include a number of amateurs and MMA enthusiasts. Danielle Hobeika is an MMA follower and amateur fighter currently living in New York. (FAC ¶ 299). Joseph Lozito has been a fan of MMA since 1993 and enjoys watching live professional MMA. (FAC ¶¶ 323, 326-27). Chris Reitz is a longtime MMA supporter who wants to compete in amateur MMA in New York, but is uncertain as to whether he is permitted to do so. (FAC ¶¶336, 341). Beth and Donna Hurrle are the founders and editors of Gals Guide to MMA, “an MMA website by, and for, women.” (FAC ¶ 306). Plaintiffs also include a number of amateur MMA trainers and promoters. Steve Kardian is an MMA instructor and co-founder of Thornwood MMA and Fitness School in Westchester, New York. (FAC ¶ 316). .Erik Owings is an MMA trainer and owner of Mushin Mixed Martial Arts academy in New York City. (FAC ¶¶ 331, 335). Don Lilly is an MMA promoter, a manager of professional and amateur MMA fighters, and an owner of an MMA gym in New York. (FAC ¶ 281). On May 19, 2012, Lilly organized an amateur MMA event in North Tonawanda, New York, which was attended by over 1,000 people. (FAC ¶¶283, 285). Shannon Miller is a former professional boxer and boxing promoter. (FAC ¶289). He currently produces amateur MMA events in New York through 5Guys Fighting. (Id.). In 2009, Miller had planned to hold an amateur Muay Thai and kickboxing event at the State University of Albany; a UFC fighter was scheduled to appear at the event, although not to compete. (FAC ¶ 292). The New York State Athletic Commission (the “SAC”), however, citing the “professional” appearance of the posters used to promote the event, shut down the event. (Id.). B. The Origins of MMA MMA traces its historical origins to 648 B.C. and the ancient Olympic sport of “pankration,” which combined “boxing, wrestling, and fighting with the feet.” (FAC ¶ 22). Modern MMA, in turn, dates back roughly 80 years to the Brazilian martial art of “vale tudo,” that artists such as Rorion Gracie and the Gracie family developed into Brazilian jiu jitsu, “a ground-based system of fighting that utilizes submission and grappling techniques.” (FAC ¶26). In 1993, competitors from a variety of martial arts disciplines, including kickboxing, karate, sumo, boxing, and jiu jitsu, participated in a tournament in Denver, Colorado. (FAC ¶ 27). Royce Gracia, brother of Rorion Gracie and one of the smallest fighters in the tournament, ultimately prevailed, and catapulted Brazilian jiu jitsu to worldwide recognition. (FAC ¶ 28). MMA soon experienced a meteoric rise in popularity. (FAC ¶ 3). Early MMA tournaments attracted interest by advertising the sport’s violence and its risk to fighters. (FAC ¶ 27). In what Plaintiffs acknowledge was an “ill-advised marketing strategy,” fights were sold as “no holds barred” contests in which “There Are No Rules!” (FAC ¶ 30). As one MMA advertisement promised, “[e]ach match will run until there is a designated winner — by means of knock-out, surrender, doctor’s intervention, or death.” (Id.). C. New York’s Combative Sport Ban As MMA gained popularity, many states began considering bans on the sport. In 1996, the New York Legislature held hearings on the question “Should New York Ban Extreme Fighting?” (FAC ¶ 42 n. 17). At the hearings, representatives from leading MMA promoters testified about MMA’s rules, and medical experts testified about the risks that the sport posed to fighters’ safety. (FAC ¶¶ 83-90). Legislators who supported a ban voiced two primary concerns: (1) MMA fights posed a health and safety risk to fighters, and (2) MMA fights undermined public morals and had a negative influence on New York youths. (FAC ¶¶ 38-43). In 1997, the legislature enacted the Combative Sport Ban, which prohibits any “combative sport” within the state of New York. The Ban defines a “combative sport” as “any professional match or exhibition” in which participants may deliver “kicks, punches or blows of any kind to the body of an opponent,” but excludes boxing, wrestling, and certain “martial arts” (including judo, karate, and tae kwon do). N.Y. Unconsol. Laws § 8905-a(l). The legislation effectively bans live, professional MMA in New York by prohibiting the State Athletic Commission (“SAC”) from approving licenses for such matches or exhibitions. Id. § 8905-a(2). D. The Evolution of Modern MMA In the years since New York implemented the Combative Sport Ban, fan interest in MMA has dramatically increased. MMA training and promotion have changed as well. Modern, professional MMA fighters now train in various martial and combat arts, including karate, jiu jitsu, boxing, kickboxing, grappling, judo, Muay Thai, and wrestling. (FAC ¶ 1). Fighters may strike their opponents while standing or grappling on the ground. (FAC ¶ 46). In the UFC, fights are typically staged inside “the Octagon,” an eight-sided padded-floor platform surrounded by a chain-link fence. (FAC ¶ 47). Because the Octagon resembles a cage, MMA is sometimes colloquially referred to as “cage fighting.” (Id.). Modern MMA within the UFC is quite different from the “no holds barred” tournaments of the early 1990s. In 1997, fighters began competing in weight classes. In 1999, the UFC and other promoters implemented five-minute rounds, between which fighters receive medical treatment. New rules also prohibit groin strikes, head butts, joint manipulation, kicking a downed opponent, or strikes to the back of the neck or head. (FAC ¶ 48). In 2000, the New Jersey State Athletic Control Board sanctioned an MMA fight under its Unified Rules of MMA. (FAC ¶49). The following year, New Jersey became the first state to formally authorize MMA. (FAC ¶ 50). Nevada soon followed, largely adopting New Jersey’s Unified Rules. (Id.). Today, 46 states have chosen to regulate, rather than prohibit, MMA, with most states adopting the Unified Rules. (FAC ¶¶50, 52). MMA is now one of the fastest growing spectator sports in the United States. Fights are regularly broadcast on network and pay-per-view television, and Plaintiffs estimate that the UFC reaches five hundred million homes worldwide. (FAC ¶ 1). Despite these developments, efforts to convince the New York legislature to overturn the Ban have repeatedly failed. (FAC ¶¶ 6, 74.) E. MMA’s Message Plaintiffs describe, at great length, the “messages” conveyed by professional MMA. They state that, in addition to a desire for fame and fortune, MMA fighters compete to showcase their training, technique, discipline, courage, and determination. (FAC ¶¶ 210-12). The movements involved in MMA — the strikes, holds, and maneuvers — are practiced at length, honed, and carefully executed. (FAC ¶ 213; see also ¶215 (discussing the Marine Corps’ use of MMA training)). The best moves and techniques are proven through competition. (FAC ¶ 216; see also ¶ 224 (“Watch mixed martial arts, the true marketplace of ideas.” (quoting David Mamet, Ultimate Fighting: The Final Frontier, The Observer, Sept. 30, 2007))). Plaintiffs state that there is no animosity or anger between opponents. (FAC ¶ 217). To the contrary, fighters develop a mutual respect for one another and view a match as an opportunity to test one’s self and one’s training. (FAC ¶¶ 218-19). In the context of live professional MMA, Plaintiffs contend that fighters are both athletes and performers. (FAC ¶ 221 (“Live Professional MMA matches provide fighters with myriad expressive outlets, allowing fighters to build relationships with their fans and tell the world their story.”)). The message of live MMA begins before the fighters enter the arena and continues throughout the fight. Fighters have backstories and “personas” that are highlighted by pre-fight advertising, on display during the fighter’s entrance into the arena (the “walkout”), and carried into the fight itself. (FAC ¶¶ 225-31). Personalized theme music and “carefully selected attire” are also on display before and during the fight. (FAC ¶ 232). The FAC further alleges that fans of professional MMA “learn, understand, and respond to the technical aspect of MMA. They understand that the strikes, holds, and moves are carefully planned and executed.” (FAC ¶ 240). The FAC alleges that MMA does not draw fans with violence, but rather with athleticism, skill, and display of contrasting styles of fighting. (FAC ¶ 245). Certain fans “also identify with the personal stories of particular Professional MMA fighters.” (FAC ¶ 242). The fan experience is amplified by experiencing an MMA event live. (FAC ¶¶ 248-52). F. New York’s Enforcement of the Combative Sport Ban Plaintiffs contend that since the Ban has been in force, New York State officials, including the SAC, have interpreted and enforced the Ban in a variety of conflicting manners. From its enactment in 1997 until 2002, combative sports — including kickboxing and MMA — flourished in New York. (FAC ¶¶ 163, 185). Plaintiffs allege not only that amateur and professional MMA events were common, but also that SAC members attended these events. (FAC ¶ 163). According to Plaintiffs, the SAC in these early years appeared to prohibit only UFC-sponsored professional MMA. (Id.). In 2002, however, the SAC began to shut down both professional and amateur combative sports events. (FAC ¶¶ 166, 186). As a result, all professional MMA events and most amateur MMA events disappeared from New York. (FAC ¶¶ 166-67; see also ¶ 169 (“Paid or unpaid, and regardless of whether alcohol is served, [MMA] exhibitions and matches are illegal in the state of New York.” [quoting New York State Department statement to the Wall Street Journal))). SAC members and staff further insisted that they would shut down any amateur MMA that remained in the state. (FAC ¶¶ 167-68 (quoting SAC members who promised to shut down underground MMA events if they found out about them). Plaintiffs also allege that during this period, under the provisions of a separate law (the “2001 Liquor Law”), the New York State Liquor Authority threatened to revoke the liquor licenses of venues that served alcohol while combative sport activities were taking place. (FAC ¶ 166)). While the SAC was cracking down on MMA, other combative sports, including kickboxing, began to take place in New York with the SAC’s approval. This was permitted by an exemption from the Ban that excludes martial arts sanctioned by various organizations, including the World Karate Association (“WKA”), from the definition of combative sports. (FAC ¶¶ 190-91); see also N.Y. Unconsol. Laws § 8905-a(l). Allegedly, no other organization has been permitted to promote combative sports activities. (FAC ¶¶ 17-18, 196). Plaintiffs also allege that, in response to this litigation, the SAC and the NYAG now assert that amateur MMA is not covered by the Ban. (FAC ¶¶ 14-15, 161-62, 293, 420; see also ¶¶ 172-72 (discussing Plaintiff Lilly’s amateur MMA event in May 2012); ¶¶ 293-95 (alleging that Cage Wars XIII took place in August 2012 with approval of SAC Chair Melvina Lathan)). II. MOTION TO DISMISS LEGAL STANDARD As noted above, in the FAC Plaintiffs assert seven causes of action — six with respect to the Combative Sport Ban, and one with respect to the 2001 Liquor Law. Defendants have moved, pursuant to Federal Rules of Civil Procedure 12(b)(6), to dismiss the FAC and to declare both statutes constitutional. In order to survive a Rule 12(b)(6) motion, the FAC “must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)) (internal quotation marks omitted). Although the Court draws all reasonable inferences in Plaintiffs’ favor, the Court is not bound to accept a legal conclusion couched as a factual allegation. Id. (citing Twombly, 550 U.S. at 555, 127 S.Ct. 1955). III. FIRST AMENDMENT EXPRESSIVE CONDUCT Plaintiffs’ first cause of action contends that by prohibiting professional MMA matches and exhibitions — what Plaintiffs refer to as “live performance MMA” — New York’s Combative Sport Ban violates the First Amendment to the United States Constitution. The Court disagrees, and for the reasons that follow, the Court concludes that Plaintiffs fail to state a cognizable claim, and accordingly dismisses Plaintiffs’ First Amendment claim. A. Legal Principles In order to show that New York’s ban on professional MMA violates the First Amendment, Plaintiffs must establish that their actions “constitute ‘expressive conduct’ entitled to protection under the First Amendment, as incorporated by the Fourteenth [Amendment,]” and that New York’s regulation “impermissibly denies ... such protection.” Zalewska v. Cnty. of Sullivan, N.Y., 316 F.3d 314, 319 (2d Cir.2003) (citing Texas v. Johnson, 491 U.S. 397, 403, 109 S.Ct. 2533, 105 L.Ed.2d 342 (1989)). The Parties sharply disagree as to whether professional MMA qualifies as “expressive conduct.” Before making this determination, the Court reviews the relevant legal principles. “It is well established that ‘[t]he First Amendment affords protection to symbolic or expressive conduct as well as to actual speech.’ ” Church of Am. Knights of the Ku Klux Klan v. Kerik, 356 F.3d 197, 205 (2d Cir.2004) (quoting Virginia v. Black, 538 U.S. 343, 358, 123 S.Ct. 1536, 155 L.Ed.2d 535 (2003)). It is equally clear, however, that “not all conduct may be viewed as speech simply because by her conduct the actor intends to express an idea.” Zalewska, 316 F.3d at 319 (citing Spence v. Washington, 418 U.S. 405, 409, 94 S.Ct. 2727, 41 L.Ed.2d 842 (1974)); see also United States v. O’Brien, 391 U.S. 367, 376, 88 S.Ct. 1673, 20 L.Ed.2d 672 (1968) (“We cannot accept the view that an apparently limitless variety of conduct can be labeled ‘speech’ whenever the person engaging in the conduct intends ... to express an idea.”). For conduct to be entitled to constitutional protection, it must be “sufficiently imbued with the elements of communication,” Johnson, 491 U.S. at 404, 109 S.Ct. 2533, which requires, “at the very least, [1] an intent to convey a ‘particularized message’ along with [2] a great likelihood that the message will be understood by those viewing it.” Zalewska, 316 F.3d at 319 (quoting Hurley v. Irish-Am. Gay, Lesbian & Bisexual Grp. of Bos., 515 U.S. 557, 569, 115 S.Ct. 2338, 132 L.Ed.2d 487 (1995)). Accordingly, although an actor’s subjective intent is an important consideration, “there is an objective component that requires consideration of whether, under the circumstances, the particular conduct is likely to be understood or perceived as expressing a particular message.” Grzywna ex rel. Doe v. Schenectady Cent. Sch. Dist., 489 F.Supp.2d 139, 146 (N.D.N.Y.2006). “The party asserting that its conduct is expressive bears the burden of demonstrating that the First Amendment applies, and that party must advance more than a mere ‘plausible contention’ that its conduct is expressive.” Church of Am. Knights, 356 F.3d at 205 (quoting Clark v. Cmty. for Creative Non-Violence, 468 U.S. 288, 293 n. 5, 104 S.Ct. 3065, 82 L.Ed.2d 221 (1984)) B. Professional MMA Matches and Exhibitions Are Not Protected By the First Amendment Live-performance, professional MMA qualifies as expressive conduct only if Plaintiffs establish that MMA is “sufficiently imbued with the elements of communication.” Johnson, 491 U.S. at 404, 109 S.Ct. 2533; see also Zalewska, 316 F.3d at 319. Applying the legal principles discussed above, the Court finds that live-performance MMA does not qualify for First Amendment protection. Although the Court recognizes that Plaintiffs have alleged that they intend to communicate a particularized message, the Court concludes that Plaintiffs have not demonstrated a “great likelihood” that viewers will understand that message. i. Plaintiffs Have Sufficiently Alleged that Live, Professional MMA Intends to Communicate a Particularized Message Plaintiffs discuss, at length, the alleged artistic, technical, and personal messages that professional, live-performance MMA intends to convey. (See FAC ¶¶ 208-56). Plaintiffs explain that fighters seek “to communicate thoughts and feelings about, among other things, beauty, creativity, courage, skill, humor, speed, power, excellence, and grace to their audience.” (Pis.’ Mem. 17). Plaintiffs describe public fights as a “chance to demonstrate to those watching their hard-won skill and technique, discipline, their courage, and their determination to win.” (FAC ¶¶ 211, 220). Plaintiffs also allege that live-performance MMA “allow[s] fighters to build relationships with their fans and tell the world their story.” (FAC ¶ 221; see also FAC ¶ 225 (discussing MMA fighters’ “personas that they carry into the fight”); ¶¶ 226-34 (discussing the process leading up to fights, from pre-fight video blogs to the walkout); ¶¶ 235-38 (discussing post-match interviews and displays)). As a result, MMA followers “identify with the personal stories of particular Professional MMA fighters.” (FAC ¶ 242). The Supreme Court has explained that, when evaluating whether a speaker intends to convey a “particularized message,” courts should not require the speaker to “edit [his or her] themes to isolate an exact message as the exclusive subject matter of the speech.” Hurley, 515 U.S. at 569-70, 115 S.Ct. 2338. Thus, accepting Plaintiffs’ allegations as true for purposes of Defendants’ motion, see Iqbal, 556 U.S. at 678, 129 S.Ct. 1937, the Court will assume that professional MMA fighters intend to convey a particularized message. ii Plaintiffs Have Not Established a Great Likelihood That Their Message Will Be Understood By Those Viewing It Even assuming that MMA fighters intend to convey a particularized message, the Court is not convinced that there is a great likelihood that the particularized message will be understood by those viewing it. See Zalewska, 316 F.3d at 319. Without making an “esthetic [or] moral judgmentf ]” regarding MMA, see Brown v. Entm’t Merchs. Ass’n, — U.S. -, 131 S.Ct. 2729, 2733, 180 L.Ed.2d 708 (2011), the Court concludes that the nature of professional MMA is such that the audience is not likely to receive the particularized artistic, technical, and personal messages that Plaintiffs allege MMA fighters intend to convey. See Part III.B.i. Although Plaintiffs allege that MMA fans “learn, understand, and respond to the technical aspect of MMA”; “appreciate the artistry displayed by the fighters”; and “identify with the personal stories of particular Professional MMA fighters,” (FAC ¶¶ 240, 242), the Court concludes that Plaintiffs have not carried their burden of demonstrating “more than a mere ‘plausible contention’ ” that viewers are likely to perceive live, professional MMA as conveying the alleged expressive messages. See Church of Am. Knights, 356 F.3d at 205; see also Zalewska, 316 F.3d at 319. Professional MMA, like other sports, is competitive conduct defined by who wins and who loses. The goal of an MMA fight is to secure a victory by knockout, verbal tap out, referee stoppage, or referee majority decision. Such competitive conduct stands in sharp contrast to the public performances that courts have found communicate an expressive message. See, e.g., Hurley, 515 U.S. at 568, 115 S.Ct. 2338 (noting protected status of parades, the “painting of Jackson Pollack, music of Arnold Schoenberg, or Jabberwocky verse of Lewis Carroll”); Schad v. Borough of Mount Ephraim, 452 U.S. 61, 65-66, 101 S.Ct. 2176, 68 L.Ed.2d 671 (1981) (“musical and dramatic works”); Cockrel v. Shelby Cnty. Sch. Dist., 270 F.3d 1036, 1049 (6th Cir.2001) (films or stage plays); see also Ward v. Rock Against Racism, 491 U.S. 781, 790, 109 S.Ct. 2746, 105 L.Ed.2d 661 (1989) (music); Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546, 557-58, 95 S.Ct. 1239, 43 L.Ed.2d 448 (1975) (the musical “Hair”); Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495, 501, 72 S.Ct. 777, 96 L.Ed. 1098 (1952) (motion pictures). Accordingly, courts have “generally been unwilling to extend First Amendment protection to sports or athletics.” Maloney v. Cuomo, 470 F.Supp.2d 205, 213 (E.D.N.Y. 2007), aff'd, 554 F.3d 56 (2d Cir.2009). This conclusion is not altered by Plaintiffs’ allegations regarding the contrasting martial arts styles and techniques that professional fighters exhibit in every MMA match or exhibition. All organized competition routinely involves contrasting styles, techniques, and strategy; when one side wins, that victory will, in some sense, “speak” to which techniques and strategy are superior. For example, to the trained eye, a chess player’s decision to respond to the Ruy Lopez with the Schliemann Defense rather than the Classical Defense may convey some information about the player’s aggressiveness and strategy; similarly, a professional Ultimate Frisbee player’s decision to throw an outside-in forehand, rather than a hammer, may express a position on a preferred tactic or strategy. In fact, one can make the same claim for any intentional choice made in the presence of another person. If such a “message” were sufficient to trigger constitutional protection, the line between conduct and speech would be meaningless. See City of Dallas v. Stanglin, 490 U.S. 19, 25, 109 S.Ct. 1591, 104 L.Ed.2d 18 (1989) (“It is possible to find some kernel of expression in almost every activity a person undertakes — for example, walking down the street or meeting one’s friends at a shopping mall — ... such a kernel is not sufficient to bring the activity within the protection of the First Amendment.”). Of course, this is not to say that professional chess, disc sports, or MMA do not require an immense degree of skill, training, and talent; this is beyond doubt. But the First Amendment does not protect all conduct that involves impressive skill. The central question is whether the activity is primarily communicative and expressive. See, e.g., Tinker v. Des Moines Sch. Dist., 393 U.S. 503, 89 S.Ct. 733, 21 L.Ed.2d 731 (1969) (wearing black armband in a public school as protest against U.S. policy in Vietnam); Brown v. Louisiana, 383 U.S. 181, 86 S.Ct. 719, 15 L.Ed.2d 637 (1966) (student sit-ins in “whites only” library to protest segregation); Stromberg v. California, 283 U.S. 359, 51 S.Ct. 532, 75 L.Ed. 1117 (1931) (flying a red flag in support of communism). Music, dance, and theatrical performance are protected because, whether amateur or professional, slap-stick or high-society, such activities are primarily intended to express a message to the viewer. Live professional MMA, by contrast, lacks such essential communicative elements. in. Live MMA is Not Inherently Expressive Distinct from the established two-part test for determining whether conduct qualifies for First Amendment protection, Plaintiffs argue that although “the mere act of doing MMA is not itself expressive conduct,” professional MMA matches and exhibitions inherently qualify for First Amendment protection because the conduct entertains a live audience. (See Pis.’ Mem. 11). The Court rejects this position. Neither the fact that conduct “entertains,” nor the fact that conduct is performed before a live audience necessarily means that the conduct is sufficiently imbued with elements of communication to qualify for First Amendment protection. Accordingly, the Court concludes that New York’s ban on professional MMA does not implicate First Amendment concerns. Plaintiffs’ First Amendment claim is therefore dismissed. IV. FIRST AMENDMENT OVER-BREADTH Plaintiffs next argue that the Ban is unconstitutionally overbroad because it “prohibits myriad other forms of speech and expression that are protected by the First Amendment.” (FAC ¶ 364). Plaintiffs allege that there is a long list of presumably protected activity that “appears” to be prohibited by the Ban, including: writing to State officials to ask them to overturn the Ban; lecturing regarding MMA’s impact on modern culture; producing videos of out-of-state MMA bouts in New York; MMA “viewing parties”; a newspaper writer urging readers to watch and attend professional MMA; and even litigating this lawsuit. (FAC ¶ 370). Defendants counter that the Ban does not reach protected speech, but rather merely prohibits “physical or financial conduct promoting banned events, rather than abstract advocacy such as lobbying, lectures, articles, or ‘this lawsuit.’” (Defs.’ Mem. 25). A. Overbreadth Legal Standards Although the Court has determined that professional MMA does not qualify as protected speech, see supra Part III, Plaintiffs may nonetheless assert a First Amendment overbreadth challenge. See Broadrick v. Oklahoma, 413 U.S. 601, 612, 93 S.Ct. 2908, 37 L.Ed.2d 830 (1973); see also Board of Trs. of State Univ. of N.Y. v. Fox, 492 U.S. 469, 483, 109 S.Ct. 3028, 106 L.Ed.2d 388 (1989) (“Ordinarily, the principal advantage of the overbreadth doctrine for a litigant is that it enables him to benefit from the statute’s unlawful application to someone else.”). To state a claim for overbreadth, Plaintiffs must show that, although the Ban did not violate their First Amendment rights, “it would violate the First Amendment rights of hypothetical third parties if applied to them.” Farrell v. Burke, 449 F.3d 470, 498 (2d Cir.2006). A law is unconstitutionally over-broad if it “punishes a substantial amount of protected free speech, judged in relation to [its] plainly legitimate sweep.” Virginia v. Hicks, 539 U.S. 113, 118-19, 123 S.Ct. 2191, 156 L.Ed.2d 148 (2003) (internal quotation marks omitted). Before a court will invalidate a law as over-broad, the challenging party must demonstrate “substantial ” infringement of speech. United States v. Williams, 553 U.S. 285, 292, 128 S.Ct. 1830, 170 L.Ed.2d 650 (2008); see also Adams v. Zenas Zelotes, Esq., 606 F.3d 34, 38 (2d Cir.2010) (explaining that overbreadth must be substantial, “not only in an absolute sense, but also relative to the statute’s plainly legitimate sweep”). “The first step in overbreadth analysis is to construe the challenged statute; it is impossible to determine whether a statute reaches too far without first knowing what the statute covers.” Williams, 553 U.S. at 293, 128 S.Ct. 1830. The second step is to determine whether the law, as construed, “criminalizes a substantial amount of protected expressive activity.” Id. at 297, 128 S.Ct. 1830. B. New York’s Combative Sport Ban is Not Unconstitutionally Over-broad Subject to certain enumerated exceptions, section 8905-a(3)(a) bans “any professional match or exhibition ... wherein the contestants deliver, or are not forbidden by the applicable rules thereof from delivering kicks, punches or blows of any kind to the body of an opponent or opponents.” N.Y. Unconsol. Laws § 8905-a(l, 2). This provision is clearly the core of the Ban, and the Court has already determined that the Ban — as applied to professional live-performance MMA — does not implicate First Amendment concerns. Next, the Ban extends to any person who “knowingly advances or profits from a combative sport activity.” Id. § 8905-a(3)(a) (emphasis added). A person profits from a combative sport activity by accepting or receiving money or other property “with intent to participate in the proceeds of a combative sport activity,” or by “participating] ... in the proceeds of a combative sport activity.” Id. § 8905-a(3)(b). A person advances a combative sport activity when, “acting other than as a spectator, he or she engages in conduct which materially aids any combative sport.” Id. (emphasis added). According to the statute, prohibited advancement of MMA includes, but is not limited to (1) “the creation, establishment or performance of a combative sport,” (2) “the acquisition or maintenance of premises, paraphernalia, equipment or apparatus therefor,” (3) “the solicitation or inducement of persons to attend or participate therein,” (4) “the actual conduct of the performance thereof,” (5) “the arrangement of any of its financial or promotional phases,” or (6) “any other phase of a combative sport.” Id. The Court finds that the Ban’s prohibition against knowingly profiting from a combative sport activity criminalizes only the financial arrangements relating to professional, live-performance MMA. This provision does not implicate overbreadth concerns because it does not target expressive conduct. Rather, by focusing on the receipt of money in furtherance of professional MMA, this provision plainly and legitimately targets only the financial support of otherwise illegal conduct that this Court has already determined is not entitled to First Amendment protection. See 44 Liquormart, Inc. v. Rhode Island, 517 U.S. 484, 497 n. 7, 116 S.Ct. 1495, 134 L.Ed.2d 711 (1996) (“[T]he First Amendment does not protect commercial speech about unlawful activities.”); see also Ohralik v. Ohio State Bar Ass’n, 436 U.S. 447, 463 n. 20, 98 S.Ct. 1912, 56 L.Ed.2d 444 (1978) (noting that the overbreadth doctrine “applies weakly, if at all,” to commercial speech). The “advances” clause presents a slightly closer question. The examples of prohibited activities mentioned in the statute, however, satisfy the Court that the Ban does not reach a substantial amount of protected conduct. Several of the examples are directly tied to the actual performance of the combative sport. See N.Y. Unconsol. Laws § 8905-a(3)(b) (e.g., “the creation, establishment or performance of a combative sport,” and “the actual conduct of the performance thereof’). Other examples are tied to the physical or financial arrangement of combative sports. Id. (“the acquisition or maintenance of premises, paraphernalia, equipment or apparatus therefor,” and “the arrangement of any of its financial or promotional phases”). These provisions, like the “profits from” clause, cannot implicate a substantial amount of protected expressive activity, because illegal conduct and proposals to engage in illegal conduct are traditionally outside First Amendment protection. See Williams, 553 U.S. at 297, 128 S.Ct. 1830. Another example of prohibited advancement of combative sport activity is “the solicitation or inducement of persons to attend or participate” in a combative sport. “Solicitation” and “inducement” are broad terms, but courts have nevertheless rejected overbreadth challenges to statutes with similar terminology. See, e.g., id. at 294, 128 S.Ct. 1830. In fact “many long established criminal proscriptions — such as laws against conspiracy, incitement, and solicitation — criminalize speech (commercial or not) that is intended to induce or commence illegal activities.” Id. at 298, 128 S.Ct. 1830. Particularly when read in conjunction with the Ban’s final catchall example — prohibiting conduct directed “toward any other phase of a combative sport”— these provisions of the Ban are clearly not intended to prohibit general advocacy or discussions of MMA, including lectures, educational courses, or the litigation of this lawsuit, as Plaintiffs claim. A “phase” is “a stage or interval in a development or cycle,” or “an aspect or part ... of a situation or activity.” See Webster’s Third New International Dictionary 1694 (1976). By prohibiting only a “phase” of a combative sport, the Ban is clearly not designed to reach the limitless variety of protected activity that Plaintiffs allege. (See, e.g., FAC ¶ 370; see also Pis.’ Mem. 21 (citing FAC ¶¶ 70, 200, 205)). MMA lectures, educational courses, and this lawsuit are simply not “phases” of a live, professional MMA event. Such innocent activities are further protected by the Ban’s strict scienter requirement. See N.Y. Unconsol. Laws § 8905-a(3)(b) (criminalizing only “knowingly” advancing or profiting from a combative sport activity); see also Williams, 553 U.S. at 294, 128 S.Ct. 1830 (noting similar scienter requirement in a prohibition against the solicitation of child pornography). Plaintiffs’ overbreadth challenge is therefore dismissed. V. VOID FOR VAGUENESS Plaintiffs next argue that the Combative Sport Ban is unconstitutionally vague under the Due Process Clause of the Fourteenth Amendment. “Among the most fundamental protections of due process is the principle that no one may be required at peril of life, liberty or property to speculate as to the meaning of ... statutes. All are entitled to be informed as to what the State commands or forbids.” Cunney v. Bd. of Trs. of Vill. of Grand View, N.Y., 660 F.3d 612, 620 (2d Cir.2011) (citations, quotation marks, and alterations omitted). In general, a statute may be void for vagueness (i) “if it fails to provide people of ordinary intelligence a reasonable opportunity to understand what conduct it prohibits,” or (ii) “if it authorizes or even encourages arbitrary and discriminatory enforcement.” Hill v. Colorado, 530 U.S. 703, 732, 120 S.Ct. 2480, 147 L.Ed.2d 597 (2000). The former ground requires that individuals receive “fair notice or warning” of what specific conduct is prohibited, Thibodeau v. Portuondo, 486 F.3d 61, 65 (2d Cir.2007), whereas the latter is concerned with providing “explicit standards” for officials who enforce the law, thereby avoiding “resolution on an ad hoc and subjective basis,” Grayned v. City of Rockford, 408 U.S. 104, 108-09, 92 S.Ct. 2294, 33 L.Ed.2d 222 (1972). Relying on both grounds, Plaintiffs contend that the Ban is unconstitutionally vague, both as applied to the conduct in which they wish to engage, and on its face. As is the preferred practice, the Court will first consider Plaintiffs’ as-applied challenge, and then turn to Plaintiffs’ facial challenge. See Farrell, 449 F.3d at 485 (quoting Vill. of Hoffman Estates v. Flipside, Hoffman Estates, 455 U.S. 489, 495, 102 S.Ct. 1186, 71 L.Ed.2d 362 (1982)). As discussed in greater detail below, the Court concludes that Plaintiffs have sufficiently alleged an as-applied vagueness challenge to the law; the Court finds that Plaintiffs’ facial challenge, however, should be dismissed. A. Plaintiffs’ As-Applied Vagueness Challenges Plaintiffs assert that the Ban is unconstitutionally vague as applied to: (i) professional MMA sanctioned by exempt organizations, (ii) amateur MMA, (iii) MMA instruction and demonstration, and (iv) professional MMA events on Indian reservations. Plaintiffs also contend that the phrase “advances or promotes” is vague as applied to bar owners who hold MMA-related events, websites that promote or cover MMA, and MMA instructors and gym owners. (FAC ¶ 383). Plaintiffs argue that, as applied to these activities, the Ban “fails to provide people of ordinary intelligence a reasonable opportunity to understand what conduct it prohibits,” and also “authorizes ... arbitrary and discriminatory enforcement.” Hill, 530 U.S. at 732, 120 S.Ct. 2480. Before turning to the merits of Plaintiffs’ as-applied arguments, the Court rejects Defendants’ position that the alleged erratic history of enforcement of the Ban is irrelevant to Plaintiffs’ vagueness claim. (See Defs.’ Mem. 17). In this case, Plaintiffs support their vagueness claim with allegations that the Ban has been interpreted and applied in varied and conflicting ways. See supra Part I.F (discussing New York’s enforcement of the Combative Sport Ban). Courts routinely consider such evidence in adjudicating vagueness claims. See, e.g., Cunney, 660 F.3d at 623 (holding that the defendant’s actions and admissions “demonstrate that no explicit standards exist regarding the method with which to measure from the easterly side of River Road,” and therefore “could encourage potentially arbitrary or ad hoc enforcement”); Farrell, 449 F.3d at 491 (considering parole officer’s testimony regarding his understanding and practice); Chatin v. Coombe, 186 F.3d 82, 89 (2d Cir.1999) (concluding, based on testimony of an enforcing official, that the rule was unconstitutionally vague because various employees understood the rule differently). Indeed, courts in this circuit regularly dismiss vagueness claims that lack such evidence. See, e.g., Small v. Bud-K Worldwide, Inc., 895 F.Supp.2d 438, 451 n. 11 (E.D.N.Y. 2012) (rejecting vagueness argument where “there is simply insufficient evidence of arbitrary or discriminatory enforcement based upon the purported vagueness of the terms”); Genco Importing Inc. v. City of New York, 552 F.Supp.2d 371, 384 (S.D.N.Y.2008) (Kaplan, J.) (finding that plaintiff had failed “to allege any facts from which the Court reasonably could infer that the [statute] ... continue[s] to chill the protected speech of parties not before the Court”). Although a court should consider many factors in assessing vagueness, including a statute’s “plain meaning and stated purpose,” VIP of Berlin, LLC v. Town of Berlin, 593 F.3d 179, 192 (2d Cir.2010) (internal citation and quotation marks omitted), evidence of arbitrary interpretation and enforcement can support a vagueness claim. Based in part on such evidence, the Court declines to dismiss Plaintiffs’ as-applied arguments to the extent they relate to professional MMA sanctioned by exempt organizations, amateur MMA, and professional MMA events on Indian reservations. i. Professional MMA Sanctioned By “Exempt” Organizations The Ban exempts “martial arts” from the scope of prohibited combative sport activities. See N.Y. Unconsol. Laws § 8905-a(l). The Ban states that the term “ ‘martial arts’ shall include any professional match or exhibition sanctioned by various organizations, including the WKA (hereinafter “exempt organizations”). Id. A plain reading of this provision suggests that Plaintiffs would be allowed to promote a professional MMA event in New York if the event were sanctioned by one of the exempt organizations. Although Defendants initially agreed with this interpretation, they have now reversed course. This issue first arose at oral argument on Defendants’ motion to dismiss. At argument, counsel for Defendants interpreted the statute to mean that “one of the[ ] exempt organizations could sanction a[n MMA] event.” (Tr. 49:13-15 (emphasis added); see also Tr. 70:19-22 (“[I]t appears that ... exempt organizations ... could sanction a sport that would otherwise be a combative sport.” (emphasis added))). Indeed, Defendants stated that their reading of the statute had been verified by attorneys for the SAC. (See Tr. 70:14-15). Only a few weeks later, however, in supplemental briefing to the Court, Defendants changed course. They now take the position that the Ban would “not permit a professional MMA event in New York even if sanctioned by an exempt organization.” (Defs.’ Supp. Mem. of Law 1 (footnote omitted, emphasis added) [Dkt. No. 46]). Defendants justify this position, not by relying on the statutory language, but by resorting to the Ban’s legislative history, which Defendants claim “clearly shows that a total ban of professional Ultimate Fighting/MMA was the primary purpose of the law.” (Id. at 7; see also Senator Goodman, Introducer’s Memorandum, Ex. A to Supp. Deck of John M. Schwartz dated Mar. 22, 2013 [Dkt. No. 47]). This legislative history is of limited value. Although legislative history may be “relevant,” in general, the “unambiguous language of a statute is alone determinative.” Riley v. Cnty. of Broome, 95 N.Y.2d 455, 719 N.Y.S.2d 623, 742 N.E.2d 98, 102 (2000) (internal quotation marks and citations omitted). Furthermore, MMA has changed substantially since the Ban was enacted, making the legislative history, which relates to earlier versions of MMA, of little relevance. (Compare Goodman Memorandum (discussing “no holds barred,” “anything goes” fighting), with FAC ¶¶ 48-53, 92-101 (discussing MMA’s modern rules and safety record)). In light of Defendants’ varying interpretations of the statutory language, the Court finds that Plaintiffs have adequately alleged that the statute is unconstitutionally vague with respect to professional MMA sanctioned by exempt organizations. ii Amateur MMA Events in New York The New York Ban on combative sports prohibits “any professional match or exhibition,” but does not define the term “professional.” Plaintiffs allege that the vagueness of the term “professional” is evidenced by the SAC’s inconsistent interpretation of the word: the SAC has at times stated that amateur MMA is banned by the statute, and at other times has stated that amateur MMA is permitted. (Compare FAC ¶ 164 (quoting SAC spokesperson stating “combative sports, either on a professional or amateur basis, are prohibited in New York State”), and ¶ 166 (“Beginning around 2002, the [SAC] sent cease and desist letter to shut down amateur combative sport events.”), with ¶ 165 (quoting SAC public statements, made in support of 2001 Liquor Law, that the Ban did not apply to amateur events), and ¶ 170 (quoting SAC representative stating, in 2003, that the SAC has “no jurisdiction over amateur events”)). Similarly, at times, when Plaintiffs and other promoters have sought to organize amateur MMA events, the SAC advised that such events are illegal, and yet at other times the SAC has permitted such events to occur. (Compare FAC ¶ 164 (indicating that an amateur “Combat Zone” event would violate the Ban), and ¶ 168 (quoting Scott Stevens, then-chair of the SAC, that amateur Underground Combat League events are illegal), with ¶ 172 (noting that Plaintiff Lilly produced an amateur MMA event in May 2012)). Defendants largely ignore this erratic enforcement history. Rather, they focus on the ordinary meanings of “professional” and “amateur,” arguing that the two terms are plainly distinguishable, and that professional MMA is banned, while amateur MMA is permitted. See BP Am. Prod. Co. v. Burton, 549 U.S. 84, 91, 127 S.Ct. 638, 166 L.Ed.2d 494 (2006) (statutory construction starts with the statutory text, and “[u]nless otherwise defined, statutory terms are generally interpreted in accordance with their ordinary meaning”). Defendants state that the term “professional” has a clear meaning; Defendants define “professional” as: 1. [first definition omitted as inapplicable] 2. making some activity not usually followed for gain, such as a sport, the source of one’s livelihood. 3. engaged in by professionals (sense 2); as, professional hockey. 4. engaged in a specified occupation for pay or as a means of livelihood; as, a professional writer. (Defs.’ Mem. 18 (citing Webster’s New Twentieth Century Dictionary 1437 (World Publ. Co., 2d ed. 1966))). Relying on the same dictionary, Defendants note that “amateur” is defined as: 1. one who cultivates a study or art from taste or attachment without pursuing it professionally. 2. in modern athletic sports, an athlete who has never used any athletic art professionally or as a means of livelihood; one who has not taken part in contests open to professionals. The term is variously and more specifically defined by different athletic associations. 3. a person who does something more or less skillfully. (Id.). Defendants contend that the Ban is clear — giving “professional” its ordinary (dictionary) meaning, professional MMA is banned, while amateur MMA is permitted. Although the distinction between professional and amateur is no doubt clear in some cases, Plaintiffs have raised serious questions regarding the utility of such generic definitions in differentiating close cases. At one point, state officials defined a “professional” match as “one where compensation is received by the contestants for their participation.” (FAC ¶ 174). At another point, state officials defined a “professional” match as one where “tickets were sold for the event.” (Id.). Subsequently, the SAC took the position that a “professional” event involved not only events where the fighters are paid, but also where the fighters include a martial arts instructor or martial arts school owner. (Id.). In light of the Ban’s failure to define “professional” or “amateur,” and the SAC’s alleged inconsistent interpretation of these words, the Court finds that Plaintiffs have sufficiently alleged this as-applied challenge. Hi. MMA Instruction and Demonstration Plaintiffs next contend that the application of the Ban is unconstitutionally vague as applied to MMA instruction and demonstration. Plaintiffs note that although the Ban prohibits any “professional match or exhibition,” it does not define what constitutes an “exhibition.” (FAC ¶¶ 204-05). This stands in contrast to New York’s boxing and wrestling regulations, which define an “exhibition” as “an engagement in which the participants show or display their skill without necessarily striving to win.” (FAC ¶204 (quoting N.Y. Comp.Codes R. & Regs. tit. 19, § 205.1(d))). The boxing and wrestling regulations also note that exhibitions can be held “solely for training purpose[s],” but exempt such training exhibitions from referee requirements. See N.Y. Unconsol. Law § 8923. Based on these provisions, Plaintiffs contend that the Ban is vague as to whether MMA instruction is permitted. The Court rejects this argument. First, the term “exhibition” has a clear, ordinary meaning. See Webster’s Third New International Dictionary 1694 (1976) (defining “exhibition” as “an act or instance of showing, evincing, or showing off” or “a public show or showing”). This meaning neither “fails to provide people of ordinary intelligence a reasonable opportunity to understand what conduct it prohibits,” nor “authorizes or even encourages arbitrary and discriminatory enforcement.” Hill, 530 U.S. at 732, 120 S.Ct. 2480. Moreover, unlike Plaintiffs’ first two as applied challenges, Plaintiffs have not alleged that the term “exhibition” has been interpreted in an erratic manner, nor have they alleged that MMA instruction has been at times permitted, and at times prohibited. Although courts do not require a plaintiff to actually violate a criminal statute in order to bring a vagueness challenge, courts must nonetheless ensure that a “justiciable case and controversy” exists. Holder v. Humanitarian Law Project, 561 U.S. 1, 130 S.Ct. 2705, 2717, 177 L.Ed.2d 355 (2010). Absent any evidence of enforcement against MMA instruction or demonstration, and given the clear meaning of “exhibition,” the Court will not permit Plaintiffs to assert this purely speculative as-applied challenge. iv. Professional MMA Events on Indian Reservations in New York Plaintiffs also argue that the Ban is unconstitutionally vague as applied to “Professional MMA events on Indian reservations in the State.” (FAC ¶ 382). Plaintiff Lilly was told by the SAC that live MMA was illegal, with the exception of events on Indian reservations, where, according to the Commission, the State has no jurisdiction. (FAC ¶ 282). Plaintiffs further allege, however, that the AG issued “an informal opinion that ‘professional’ [MMA] events on sovereign Indian lands in the State are illegal and the Ban is enforceable on those lands.” (FAC ¶ 382). “Were the Ban clear as to whether Professional MMA bouts on Indian reservations located in the State are legal,” the fighter Plaintiffs allege that they would compete in such bouts and Plaintiff Zuffa would produce Professional MMA events on Indian reservations. (Id.). Given that Defendants do not appear to address Plaintiffs’ as-applied challenge with respect to Indian reservations, the Court will not dismiss this challenge. v. Bar Owners Who Hold MMA-Related Events, Websites that Promote or Cover MMA Events, and MMA Instructors and Gym Owners In addition to banning actual combative sport activity, the Ban also makes it a misdemeanor for any person to “knowingly advance[ ] or profit[ ] from a combative sport activity.” § 8905-a(3)(a). “A person advances a combative sport activity when, acting other than as a spectator, he or she engages in conduct which materially aids any combative sport.” § 8905-a(3)(b). Examples of such prohibited conduct include acquiring or maintaining premises for use in a combative sport, soliciting people to attend a combative sport event, financing or promoting a combative sport event, or “any other phase of a combative sport.” Id. Plaintiffs argue that because the Ban’s prohibition against advancing or profiting from a combative sport is not limited to events taking place inside New York, it may reach a variety of in-state activity relating to out-of-state MMA, including: New York bar owners who hold MMA-related events (Plaintiff Hamill), New York based websites that promote or cover MMA (Plaintiff Hobeika), and New York MMA instructors and gym owners who train professional MMA fighters (Plaintiff Kardian). (FAC ¶¶ 200-03, 383). Apparently acknowledging the ambiguity of the “advances or profits” provision, Defendants argue that the statute’s legislative history makes clear that these activities are not prohibited because the Ban was intended to reach only MMA activity within the State. In particular, Defendants rely on: (1) the Governor’s approval memorandum, stating that the Ban was “not intended to apply to persons promoting ... a combative sport event lawfully occurring outside the State,” and (2) Senator Goodman’s statements, during the legislative debate, that the Ban was not intended to block “television broadcasts of prohibited conduct.” (Schwartz Decl. Exs. E, F). ? the Court acknowledges Plaintiffs’ references to legislative history suggesting that certain legislators were concerned by the Ban’s broad language, (FAC ¶ 199 (quoting statements of State Senators made during legislative debate)), the Court concludes that Plaintiffs’ factual allegations regarding potential criminal liability for UFC fight nights, UFC websites, and MMA instructors and gym owners is insufficient to support an as-applied challenge. As a preenforcement vagueness challenge, Plaintiffs must demonstrate that they face “a credible threat of prosecution.” Humanitarian Law Project, 130 S.Ct. at 2717 (quoting Babbitt v. United Farm Workers Nat’l Union, 442 U.S. 289, 298, 99 S.Ct. 2301, 60 L.Ed.2d 895 (1979)). Although Plaintiffs note various activities that may theoretically fall within the “advance or promote” provision, Plaintiffs’ sole factual allegation supporting this provision’s vagueness is that, in May 2007, the SAC sent a letter to journalist Jim Genia, “informing him that a planned [amateur] UCL bout at a local boxing gym violated the Ban and that he could face civil penalties if he continued to promote the event.” (FAC ¶ 172). Genia’s only conduct promoting the event, however, was maintaining a “mailing list of individuals interested in attending UCL matches.” (FAC ¶¶ 172, 203). This allegation has no relation to Plaintiffs’ as-applied challenge with respect to UFC fight nights, websites, and gym owners. See Babbitt, 442 U.S at 298-99, 99 S.Ct. 2301 (explaining that “imaginary or speculative” fears of prosecution are insufficient to sustain a pre-enforcement challenge). The Court therefore dismisses this aspect of Plaintiffs’ as-applied claim. B. Plaintiffs’ Facial Vagueness Challenge Having found that Plaintiffs have adequately stated an as-applied vagueness challenge to the Ban, the Court now turns to Plaintiffs’ facial vagueness challenge. The parties dispute whether Plaintiffs are permitted to bring a facial challenge in the first place. Defendants contend that the Supreme Court’s instruction in Humanitarian Law Project effectively eliminated facial challenges outside of the First Amendment context. See 130 S.Ct. at 2718-19 (stating that, in the context of an as-applied challenge, courts should “consider whether a statute is vague as applied to the particular facts at issue, for ‘[a] plaintiff who engages in some conduct that is clearly proscribed cannot complain of the vagueness of the law as applied to the conduct of others.’ ” (citing Hoffman Estates, 455 U.S. at 495, 102 S.Ct. 1186)). Plaintiffs counter that, given that Humanitarian Law Project did not involve a facial challenge, it “could hardly have disallowed them.” See id. at 2716 (explaining plaintiffs’ various as-applied arguments). Defendants are correct that “[i]n the absence of First Amendment concerns,” which this Court has determined are not implicated by professional MMA, “courts generally view vagueness challenges to a statute as applied to the defendant’s case.” United States v. Farhane, 634 F.3d 127, 138 (2d Cir.2011). To the extent that “a facial challenge may be maintained against a statute that does not reach conduct protected by the First Amendment, the ... test is, in fact, only a variation on as-applied analysis, requiring the defendant to show ‘that the law is impermissibly vague in all of its applications.’ ” Id. at 138-39 (citing Hoffman Estates, 455 U.S. at 497, 102 S.Ct. 1186); see also United States v. Salerno, 481 U.S. 739, 745, 107 S.Ct. 2095, 95 L.Ed.2d 697 (1987) (stating in the context of a substantive due process challenge that “[a] facial challenge to a legislative Act is, of course, the most difficult challenge to mount successfully, since the challenger must establish that no set of circumstances exists under which the Act would be valid”). Plaintiffs assert facial challenges with respect to: (i) the term “professional,” (ii) the term “combative sport,” (iii) the term “martial arts,” (iv) the SAC’s authority to modify “martial arts,” (v) the phrase “advances or profits from a combative sport activity,” and (vi) the term “exhibition.” The Court concludes that these terms are not facially vague. Plaintiffs simply cannot carry their heavy burden of establishing that these terms, in all of their applications, either leave the public uncertain as to what conduct is prohibited or lack appropriate standards of enforcement. See Giaccio v. State of Pa., 382 U.S. 399, 402-03, 86 S.Ct. 518, 15 L.Ed.2d 447 (1966). As discussed above, although the Ban does not define the terms “professional” or “exhibition,” certain conduct that falls within the plain meaning of these terms is clearly intended to be the focus of the legislation. For example, there is little doubt that a public event in which the participants fight for pay qualifies as a professional match. Similarly, fighters who make a living based on MMA may engage in a public demonstration without necessarily striving to win, which would be deemed an exhibition. Accordingly, these terms are not vague in all of their applications, and thus cannot support a facial challenge. See, e.g., Richmond Boro Gun Club, Inc. v. City of New York, 97 F.3d 681, 684-86 (2d Cir.1996) (finding no vagueness in definition of assault weapons to include “rifles or shotguns with a folding or telescoping stock or no stock” even though “some person might unwittingly violate the law by removing a stock for a brief period to clean or transport a weapon”). With respect to “combative sport,” the Ban defines the term as a professional activity in which “the contestants deliver, or are not forbidden by the applicable rules thereof from delivering kicks, punches or blows of any kind to the body of an opponent or opponents.” N.Y. Unconsol. Laws § 8905-a. Plaintiffs allege that in 2007, the SAC attempted to ban organized pillow fights (although it later changed its mind), while, in 2012, it permitted a “full metal jousting” event. (FAC ¶¶ 176-78). Although these allegations make clear that there will be close cases, the Plaintiffs in this case seek to participate in MMA, which, without a doubt, is a combative sport. Courts have never required “perfect clarity and precise guidance” in order to reject a vagueness challenge. Williams, 553 U.S. at 304, 128 S.Ct. 1830. Indeed, “[cjlose cases can be imagined under virtually any statute,” but such problems are “addressed, not by the doctrine of vagueness, but by the requirement of proof beyond a reasonable doubt.” Id. at 306, 128 S.Ct. 1830. Plaintiffs next contend that the Ban’s limited definition of the term “martial arts” — it “shall include any professional match or exhibition sanctioned by any of the following [twelve] organizations” — is vague for two reasons. First, although the Ban states that martial arts “shall include” matches sanctioned by exempt organizations, it fails to explain what else is included or excluded. Second, Plaintiffs allege that the SAC initially permitted “at least some additional events not sanctioned by an exempt organization,” such as kickboxing, (FAC ¶ 185), but later, around 2002, concluded that “martial arts” “referred only to events sanctioned by an exempt organization,” (FAC ¶ 186). The Court finds these allegations insufficient to state a claim of facial vagueness. The Ban provides that martial arts “shall include” professional events sanctioned by certain exempt organizations. Plaintiffs argue that the phrase “shall include” is non-exhaustive and thus creates ambiguity because the Ban fails to explain what other conduct is “included” as martial arts. The Court disagrees with this interpretation. In this context, the phrase “shall include” is best understood to be exhaustive. Under this reading, the Ban defines martial arts as “comprising” or “consisting of’ only events sanctioned by exempt organizations. (See Defs.’ Mem. 21 (defining “include,” as defi