Sean “Diddy” Combs moved closer to his sentencing on Friday on two counts of transporting people for prostitution under the Mann Act after a judge denied his motions for acquittal and a new trial. Among the losing defense arguments was Combs’ claim that, because he’s an amateur pornographer and consumer of pornography, his conviction violates his First Amendment rights.
U.S. District Judge Arun Subramanian on Tuesday rejected that claim and others in a 16-page single-spaced opinion, writing that federal prosecutors in New York had “presented overwhelming evidence of Combs’s guilt under the Mann Act.” At his trial in July, the jury acquitted Combs of the most serious racketeering and sex trafficking charges but convicted him on the two Mann Act counts.
Trying to knock out those remaining counts, Combs’ lawyers argued (among other things) that the “freak offs” and hotel nights at the center of the prosecution’s case “were performances that he or his girlfriends typically videotaped so they could watch them later. In other words, he was producing amateur pornography for later private viewing.” From that premise, they argued that his conduct was protected by the First Amendment.
Subramanian rejected that argument, emphasizing that such protection only applies to “inherently expressive” activity. While the judge noted that film is an expressive medium entitled to constitutional protection, he cited Supreme Court precedent for the proposition that, “at some point, it must certainly be true that otherwise illegal conduct is not made legal by being filmed.”
The judge added that even if Combs’ conduct was entitled to First Amendment protection, his conviction should still stand because “the Mann Act is a content-neutral restriction that has an incidental effect on speech.” Ahead of sentencing Friday, prosecutors said they’re seeking a prison term of at least 135 months (11.25 years), while Combs’ lawyers pleaded for 14 months at most. He has already been detained for more than a year, so his requested sentence would effectively amount to time served. 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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