Pour Decisions: Is Reality TV Peer Pressure Protected by the First Amendment?

In the realm of reality TV, drama is par for the course—both on and offscreen. A recent lawsuit filed by Leah McSweeney, a former Real Housewives of New York (RHONY) cast member, brought an unexpected twist to the fore: suing Bravo, Andy Cohen, and his fellow RHONY producers for disability discrimination, hostile work environment, and retaliation.

Behind the Scenes of the Raucous Housewives of New York

The Americans with Disability Act deems addiction recovery as a protection condition for which employers must offer reasonable accommodations. McSweeney’s claims center around her belief that the show “weaponized” her struggle with alcoholism. She alleges that producers failed to support her sobriety and actively encouraged her to drink to exploit her relapse for a key storyline. She further alleges that after she got sober again, she was mocked for her past behavior and labeled “boring.” As tensions escalated with the producers, McSweeney was pushed out of the RHONY circle.

In response, NBCUniversal, Bravo’s parent company, filed a Motion to Dismiss arguing that “even if Defendants did want to use the Housewives franchise to feature inebriated cast members (which they do not), that message—achieved through casting and directing decisions—would be protected under the First Amendment.” The Constitution protects drama.

Judgement Day: Is Manufactured Drama Creative Expression?

The Supreme Court has interpreted the First Amendment’s protection of speech to “extend well beyond books and speeches to virtually anything that the human mind can creatively produce.” These protections extend to conduct that is “inherently expressive.” Activities that are “part and parcel of the creative process behind a television program” are protected, even from the application of anti-discrimination statutes to that process.

Thus, the First Amendment has come to the aid of many a reality TV show, particularly when participants challenge their portrayal or treatment behind the scenes.

In Claybrooks v. ABC, Inc., two Black men who auditioned for The Bachelor alleged that the show discriminated against individuals of color both in the selection of the lead bachelor and in the casting of the contestants he will choose from. ABC denied any such discrimination but argued that their right to cast based on race is protected by the First Amendment because of the expressive, creative nature of The Bachelor. A Middle District of Tennessee federal court agreed, holding that even intentional discrimination on the basis of race was a matter of editorial discretion:

[W]hatever messages [the shows] communicate or are intended to communicate—whether explicitly, implicitly, intentionally, or otherwise—the First Amendment protects the right of the producers of these Shows to craft and control those messages, based on whatever considerations the producers wish to take into account.

Similarly, in Moore v. Hadestown, a Southern District of New York federal court rejected the discrimination claims of former cast members who sued a Broadway producer for casting decisions. It determined that casting decisions were protected speech under the First Amendment, reasoning that using anti-discrimination laws to control these creative choices would infringe upon the producer's constitutional right to artistic expression.

First Amendment vs. ADA: Why Reality TV Can Likely Keep the Drinks Flowing 

McSweeney’s case will hinge on balancing First Amendment protections for creative expression against disability discrimination protections under the ADA. Given that recent legal trends favoring First Amendment creative expression protections in reality TV, McSweeney is unlikely to prevail with respect to RHONY producers’ decision not to cast her in subsequent seasons.

But to succeed on her claim of workplace discrimination, she will need to prove that the producers actively undermined her recovery and directly discriminated against her for seeking sobriety by refusing to reasonably accommodate her. Here, Sweeney's apparent willing participation (evidenced by texts like the one in which she tells Andy Cohen that she can’t wait to get naked next year and show her boob job) and the inherent nature of reality TV will cut heavily against such a finding.

On The Next Season of The Real Courtrooms of New York

The tension between an individual’s right to protect their physical and emotional health and the reality TV industry’s right to produce engaging and provocative content rages on. While most television producers would prefer the drama to remain on camera, realty television is a different beast. Allegations of fueling an employee’s struggle with alcoholism would be the death knell for some industries, but Bravo may very well live to fight (and flip tables) another day.