Real or Fake, It's Protected by the First Amendment: Court Awards Fees in "Storage Wars" Case

A California court recently held that an allegedly fake reality television show can be an expression of free speech that warrants protection under the First Amendment.

The plaintiff, Dave Hester, was a cast member for three seasons on A&E’s hit reality show Storage Wars. The show centers around the lives of a handful of bidders who compete in auctions for abandoned self-storage lockers across the country. The rules of the show are simple: the lockers are up for grabs to the highest bidder, but each prospective bidder may only look at the locker from the outside—which means that no one is allowed to probe through the inner contents of the storage unit. The show's talent—Hester and several other storage bidders—are portrayed with robust, outlandish personalities that cause them to get into frequent disputes with one another on-air, creating the perfect conflict-riddled brew for prime reality television.

The cast members of Storage Wars are not strangers to legal drama. Even Hester's infamous bidding technique, which consists of hollering out a loud "YUUUP!" has been under legal dispute. This time, however, one of Hester's legal claims against the show's network and production company was SLAPPed down in an order granted by the Superior Court of Los Angeles.

Hester's complaint alleged that he was fired after complaining to the Storage Wars producers that their "rigging" of the storage units—by “salting” the units with new, valuable items before the on-camera biding—was illegal.  His complaint asserted five claims: (1) wrongful termination; (2) breach of contract; (3) breach of the implied covenant of good faith and fair dealing; (4) unfair business practices; and (5) declaratory relief.

One of these claims is particularly interesting. Hester bases his unfair business practices claim on a federal statute, 47 U.S.C. § 509, which prohibits producing a “purportedly bona fide contest of intellectual knowledge” with the “intent to deceive the viewing public.” Congress enacted section 509 in response to scandals involving popular game shows of the 1950's, such as the infamous programs $64,000 Challenge and Twenty-One. Twenty-One, when it found its audience lacking, spiced things up by rigging the show to make the on-air competition more exciting. The 1994 film Quiz Show directed by Robert Redford and starring Ralph Fiennes focused on the game show's scandal and the subsequent Congressional investigation that spurred section 509. 

Section 509(b)(1) defines a contest as a broadcast in which "any money or any other thing of value is offered as a prize or prizes to be paid or presented by the program sponsor or by any other person." A violation of Section 509 would include “influencing, prearranging, or predetermining outcomes” of a television or radio show. The penalties for a violation of the statute include a fine of up to $10,000, imprisonment for up to one year, or both.

Hester claims that Storage Wars violated Section 509 when producers implanted items of value into the lockers to spice up the show. This alleged unlawful conduct, according to Hester, made him appear less skillful than the other bidders on the show, which he claims has caused a loss of business in his own auction stores. 

Despite the potential comparisons of Storage Wars to Twenty-One, the different competition formats present challenges in applying Section 509 to reality shows. For example, even though Section 509 does not distinguish between a contest or an auction, it is unclear whether Section 509 would apply to a situation where bidders pay out of their own pockets for the contents of the storage facilities and then take their newly-acquired treasures back to their own stores for sale. Can those purchases, or the more inchoate benefit of a reputation for successfully guessing the value of the lockers' contents,  really be considered a "prize" under Section 509 comparable to those in a game show? Further, does allegedly "salting" a locker to make the storage facilities more enticing affect the out