Sean “Diddy” Combs is threatening to sue Netflix for airing a docuseries that is, to say the least, unflattering to him. The disgraced music mogul’s cease-and-desist letter claims the series, Sean Combs: The Reckoning, uses “stolen footage.”
The footage includes Combs launching into a tirade against former Danity Kane and Diddy-Dirty Money artist Dawn Richard after learning of her sexual harassment lawsuit against him and strategizing with his attorneys days before his September 2024 arrest. “We have to find somebody that’ll work with us,” Combs says in the footage. “That has dealt in the dirtiest of dirty business. We’re losing!”
Asked how he got the footage, executive producer Curtis “50 Cent” Jackson declined to answer, explaining, “I figured most journalists would not disclose their sources.” (Sidenote: some federal appellate judges could learn a thing or two about journalist-source confidentiality from Jackson.)
Michael Oberlies, a documentarian who Combs hired to film him, blamed a freelancer he said he’d hired to briefly fill in for him while he was away. In any event, series director Alexandra Stapleton says her team obtained the footage lawfully.
Assuming Stapleton is telling the truth, Combs’ argument that Netflix is responsible for her source’s alleged misconduct shouldn’t fare well. It was rejected by the U.S. Supreme Court in the 2001 case Bartnicki v. Vopper, and for good reason. The media has a First Amendment right to publish information of public concern obtained from sources who broke the law, so long as it didn’t participate in the illegality.
Combs, of course, thinks the rules don’t apply to him – hence his current address in federal prison. And he’s got a history of trying to erase incriminating footage, like the hotel surveillance video of him beating then-girlfriend Cassie that he allegedly bribed security guards to bury.
But the same reasoning that protected a Pennsylvania radio host reporting on illegally recorded conversations about school union negotiations in the Bartnicki case also protects streaming giants airing docuseries about alleged predatory celebrities.
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Unless Netflix hacked Combs’ computer, broke into his home, or otherwise stole the footage, the Supreme Court says Combs, to quote his debut album title, has “no way out.” Combs’ legal team may think that’s “unfair,” given that he didn’t intend for the footage to go public. But that’s his problem, not Netflix’s. The public interest in the news outweighs a public figure’s desire to control the narrative (For similar reasons, any copyright claim Combs could bring against Netflix should fail under the “fair use” doctrine allowing excerpts of copyrightable materials to be used for journalism and commentary, among other purposes.)
Some of the most consequential reporting in history relied on records unlawfully obtained by others. Legendary whistleblower and Freedom of the Press Foundation (FPF) co-founder Daniel Ellsberg expected a life sentence when his conscience compelled him to copy classified documents to expose the government’s lies about the Vietnam war and give them to the press.
But the case against Ellsberg fell apart due to government misconduct, and the Supreme Court ruled that the press could not be restrained from publishing the Pentagon Papers. The government’s primary argument was not that the Times was responsible for Ellsberg stealing the documents. It argued the documents threatened national security — a theory the Court rightly rejected as far too speculative to justify a “prior restraint” on publication.
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Years later, even Nixon officials admitted the government was never really concerned about national security, just embarrassment and reputational harm. That’s exactly what Combs is worried about. In other words, his arguments are so flimsy that even the Nixon administration knew better than to rely on them.
But the Pentagon Papers case was over 50 years ago, and Bartnicki is already older than many of Combs’ alleged victims were when he met them. The once-ironclad principle that journalists can publish documents stolen by their sources is under unprecedented attack.
Los Angeles Times reporter Maya Lau published an investigation exposing hundreds of L.A. County Sheriff’s deputies with histories of misconduct. In response, the department launched a secret criminal investigation of Lau for “knowingly receiving stolen property.” Lau is now suing, and rightly so. Her case is far from the only example.
The Biden administration’s prosecutors went after right wing outlet Project Veritas for possessing and transporting Ashley Biden’s diary, which it purchased from someone who stole it. The government characterized the diary as “stolen property” which Project Veritas illegally possessed and transported. As FPF, the ACLU and the Foundation for Individual Rights and Expression (FIRE) argued in a legal brief, the right to publish stolen materials becomes meaningless if merely having them is illegal.
The Trump administration dropped that case but its reasons appear to have been political, not constitutional. It’s currently pursuing charges against Daniel “Des” Sanchez for transporting anarchist literature, claiming he was concealing evidence that would incriminate his wife, who had attended a protest at which a police officer was shot. There’s no evidence his wife had anything to do with the shooting, though, and possession of literature isn’t incriminating.
It’s against this backdrop that the Trump administration threatens to do what was once unthinkable – prosecute reporters for obtaining and reporting leaks. He’s got a weapon in his arsenal not available to Combs – the archaic Espionage Act, which, taken literally, prohibits mere obtainment and retention of national defense information, regardless of whether the defendant is a spy, a whistleblower, or a reporter.
For decades, presidents resisted impulses to prosecute routine reporting under the act, recognizing the constitutional problems with doing so. But the Biden administration’s extraction of a guilty plea from WikiLeaks founder Julian Assange (in a case initiated by the first Trump administration) for obtaining and publishing documents from sources opened the door to similar theories against more conventional journalists.
As Rolling Stone reported in June, Trump is eager to barge through that door. His Pentagon’s ridiculous requirement for journalists to pledge not to publish “unauthorized” information – even if they obtain it lawfully from willing sources – makes clear how the administration sees the press’s role.
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That’s why it’s so important that the courts don’t allow those with the “Benjamins” – whether Combs or his former “good friend,” Trump – to chip away at Bartnicki’s principles. When the powerful lock the front door to information, journalists and filmmakers need to find the back door. That means obtaining newsworthy footage and records from whoever has them, and telling the public what they say. That’s not theft. As 50 Cent astutely notes, that’s journalism.
Seth Stern is the Director of Advocacy at Freedom of the Press Foundation and a First Amendment lawyer
