You might be in a tough spot if you’re trying to convince a court that you’re a porn producer. But staring down possible prison time can make people do strange things. And so it is in the case of Sean “Diddy” Combs’ bid to upend his convictions for transporting people for prostitution.
Combs was acquitted last month of the most serious charges in his New York sex-trafficking trial. Ahead of his October sentencing, the hip-hop mogul is pressing a provocative First Amendment claim in an attempt to toss the remaining counts for which a jury found him guilty.
Casting the infamous “freak-offs” in a more artistic than criminal light, Combs’ lawyers argue that “he was producing amateur pornography for later private viewing. This is protected First Amendment conduct that no substantial government interest justifies prohibiting, since the films depicted adults voluntarily engaging in consensual activity.”
Opposing the defense in a court filing Wednesday, federal prosecutors call Combs “anything but a producer of adult films entitled to First Amendment protection — rather, he was a voracious consumer of commercial sex, paying male commercial sex workers on hundreds of occasions to have sex with his girlfriends for his own sexual arousal.”
What’s more, they wrote, “the defendant did not provide advance notice that he may film the sexual encounter and did not seek consent from the participants to be filmed. In fact, multiple participants specifically did not want to be filmed.” Summing up the matter, prosecutors argued that the fact that Combs “sometimes filmed the sexual encounters or carefully choreographed the encounters does not turn him into an adult film producer.”
When they announced the charges against him last year, prosecutors called the freak-offs “elaborate sex performances that COMBS arranged, directed, and often electronically recorded,” for which he “used violence and intimidation, and leveraged his power over victims — power he obtained through obtaining and distributing narcotics to them, exploiting his financial support to them and threatening to cut off the same, and controlling their careers.” Combs’ First Amendment claim is pending in a motion for a judgment of acquittal — which, if successful, would toss the convictions — or, alternatively, for a new trial on those counts. Such motions are generally long shots, but they can set the stage for arguments on appeal. So in the likely event the judge denies Combs’ motion and then sentences him, we could see his lawyers pursue the First Amendment argument on appeal, even up to the Supreme Court. That’s unless President Donald Trump pardons Combs, with the clemency factor seemingly in play in every case these days that’s high profile or in which the president (or his supporters) take a personal interest. Subscribe to the Deadline: Legal Newsletter for expert analysis on the top legal stories of the week, including updates from the Supreme Court and developments in the Trump administration’s legal cases.
Jordan Rubin is the Deadline: Legal Blog writer. He was a prosecutor for the New York County District Attorney’s Office in Manhattan and is the author of “Bizarro," a book about the secret war on synthetic drugs. Before he joined MS NOW, he was a legal reporter for Bloomberg Law.
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