When “Keeping Up with the Joneses” Leads to Legal Liability

By: Carolina Chao, Volume 22 Staff Writer

Since the creation of MTV’s The Real World in the early 1990s, reality television has taken the world by storm. Countless iterations of popular programs ranging from competition formats like Survivor to day-in-the-life dramas like Keeping Up with the Kardashians have captivated audiences throughout the United States. As these shows have grown, so has the popularity of its stars. By becoming featured on a reality television show, individuals can go from working 9-5 jobs to instant stardom.

A new phenomenon that has accompanied the rise in popularity of reality television shows is the ignition of a particularly fiery strain of competition amongst its participants. While the concept of “keeping up with the Joneses” is hardly new, it has taken on a new life amongst the subjects of popular television series such as Bravo’s The Real Housewives. The titular housewives, often adored and admired for their lavish lifestyles, open up their homes and their lives to viewers desperate for a look at how the “other half” lives. Fandoms have developed a rabid fascination with dissecting every aspect of these women’s lives, from their hair and makeup (often referred to as “glam”) to their multi-thousand dollar handbags.

One unexpected side effect of this need to keep up materially with one’s peers is criminal liability. Jen Shah, a former Real Housewife of Salt Lake City (RHOSLC), was recently sentenced Ito approximately six-and-a-half years in federal prison for her role in a telemarketing scheme that defrauded vulnerable individuals of millions of dollars. 

Ms. Shah eventually pled guilty, but initially attempted to prove her innocence, stating that she had no knowledge of the fraud. As her case began to move towards trial, prosecutors indicated they planned to use footage of Ms. Shah on RHOSLC to demonstrate her exorbitant wealth, allegedly funded by her crimes. Ms. Shah moved to exclude the footage, claiming it was “exaggerated” for television. The contested footage included scenes where Ms. Shah claimed “I make millions” and ““Hey, you’ve gotta do what you’ve gotta do for money. I’m like the Wizard of Oz.”

Ms. Shah’s legal team filed a motion to exclude the commentary under the rule against hearsay. Further, they argued that her comments were highly edited and that she made them while motivated to pursue a dramatic storyline.

While ultimately a futile effort by Ms. Shah’s defense team, this strategy raises an interesting question – as “reality” television becomes more and more stylized and produced, what can be considered truth and what can be considered fiction, and therefore, a protected work of art?

Moving forward, reality television stars finding themselves in hot water for comments they made in the course of their respect shows may have luck arguing that their recorded remarks are actually protected under the First Amendment as free expression in the context of arts and entertainment. The Supreme Court has historically ruled broadly in favor of creative expression, expanding it to include the mediums of television, film, and music.

However, prosecutors have recently used creative works to build cases against criminal defendants. Rap artist Young Thug was indicted in 2022 on RICO charges which relied in part on his song lyrics. Critics of this practice argue this violates First Amendment freedoms, as well as Federal Rules of Evidence.

An argument and interpretation of this nature would be highly unusual, but given the evolving perspective towards reality television and the general public’s growing awareness that shows deemed reality are often far from it (one thinks of MTV’s The Hills now-infamous final scene, showing a false background and production by a full cast and crew), a judge or jury could be persuaded to believe that a reality star’s words are anything but real.

Of course, this argument may be more effective in a case of defamation, where a reality star’s words are at the center of the issue. In Ms. Shah’s case, the government had plenty of outside evidence to prove her role at the center of a national fraud scheme. While her argument that she was merely exaggerating and playing the part when describing her wealth may have been the truth, it was far outweighed by her actions off screen.

If nothing else, Ms. Shah’s case may serve as a cautionary tale for those looking to boost their popularity by fibbing about their lifestyle, showing that while freedom of speech may be a core tenant of the U.S., our exaggerations can come back to haunt us.