Sean "Diddy" Combs' attorneys are making a bold First Amendment argument in their fight to overturn his conviction, claiming the events central to his case were actually protected amateur pornography productions rather than prostitution.
During an April 9 appeals hearing, Combs' legal team continued their challenge to his 50-month sentence under the Mann Act, which prohibits transporting individuals across state lines for prostitution. The rapper, who wasn't present for the hearing, is currently serving time for transporting women to engage in sexual acts.
"This case presents an important issue about respect for jury verdicts and public confidence in our criminal justice system," attorney Alexandra Shapiro told the court.
In court filings, Combs' defense argued the so-called "Freak-Offs" were actually choreographed sexual performances involving costumes, role play, and staged lighting that were filmed for later viewing.
"Freak-offs and hotel nights were highly choreographed sexual performances involving the use of costumes, role play, and staged lighting which were filmed so Combs and his girlfriends could watch this amateur pornography later," his legal team wrote. "Pornography production and viewing of this sort is protected by the First Amendment and thus cannot constitutionally be prosecuted."
The defense contends the Mann Act's prostitution definition should be limited to situations where paying customers directly engage in sex with those being paid, not to filmed sexual performances.
Prosecutors have dismissed this argument as "meritless," countering that Combs transported commercial sex workers for his own sexual gratification, sometimes participating directly in the acts.
"Combs is entirely differently situated from adult film distributors," prosecutors wrote in a February response. "He hired and transported commercial sex workers to have sex with his girlfriends for his own sexual gratification, sometimes directly participating in the sex acts."
The government argues that accepting Combs' position would allow anyone who transports others for prostitution to avoid liability simply by filming the encounters.
This isn't the only argument Combs' team is making for his release. They've also challenged Judge Arun Subramanian's consideration of evidence about Combs' conduct with ex-girlfriends—including allegations of physical and sexual abuse—during sentencing for the prostitution charges, even though Combs was acquitted of related racketeering, conspiracy, and sex trafficking charges.
Prosecutor Christy Slavik defended the judge's approach, stating in court filings that how Combs treated his girlfriends was relevant to understanding the prostitution offenses.
Combs' legal team also noted his 50-month sentence is more than three times the typical 15-month sentence for similar offenses.
The appeals court's decision could have significant implications for how the Mann Act is interpreted regarding filmed sexual activities versus traditional prostitution cases.