Is there a First Amendment right to “freak off”?
That would be one of the more unusual legal questions ever presented to the Supreme Court.
We’re a ways off from the question (or something like it) potentially being put to the justices — and it might never get that far — but a new motion from lawyers for Sean “Diddy” Combs lays the groundwork for the possibility.
They’re pressing the constitutional claim to the federal judge who oversaw Combs’ Manhattan trial, U.S. District Judge Arun Subramanian. Earlier this month, the hip-hop mogul was acquitted of the most serious racketeering and sex-trafficking charges against him but was found guilty of two counts of transportation to engage in prostitution.
Ahead of sentencing in October, Combs’ lawyers have filed a motion for what’s called a judgment of acquittal, or alternatively for a new trial on the counts for which he was convicted. It’s there that the First Amendment argument and others arise.
Such motions are long shots, but the claims in Combs’ court filing are still worth paying attention to, because in the likely event that the trial judge rejects them, they could signal the arguments to come on appeal. Combs’ lawyers are separately seeking his release pending his Oct. 3 sentencing, writing that their client “may be the only person currently in a United States jail for being any sort of john, and certainly the only person in jail for hiring adult male escorts for him and his girlfriend, when he did not even have sex with the escort himself.”
That same notion animates Combs’ acquittal motion, which casts the case against him as unprecedented and targeting constitutionally protected activity. For example, his lawyers wrote: “The freak-offs and hotel nights 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. This is protected First Amendment conduct that no substantial government interest justifies prohibiting, since the films depicted adults voluntarily engaging in consensual activity.”
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.”
They said he “also threatened his victims, including by threatening to expose the embarrassing and sensitive recordings he made of Freak Offs if the women did not comply with his demands.”
The judge hasn’t yet ruled on Combs’ acquittal motion (or his release motion). But if he denies it and then sentences Combs in October — barring some intervention like clemency from President Donald Trump — this likely won’t be the last we’ve heard of the constitutional claim.
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