Citizens United v. Gessler , 773 F.3d 200 ( 2014 )

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT November 12, 2014
_________________________________
Elisabeth A. Shumaker
Clerk of Court
CITIZENS UNITED, a Virginia Non-Stock
Corporation,
Plaintiff - Appellant,
v. No. 14-1387
(D.C. No. 1:14-CV-02266-RBJ)
SCOTT GESSLER, in his official capacity
as Secretary of State of the State of
Colorado; SUZANNE STAIERT, in her
official capacity as Deputy Secretary of
State of the State of Colorado,
Defendants - Appellees,
and
COLORADO DEMOCRATIC PARTY;
GAROLD A. FORNANDER; LUCIA
GUZMAN; DICKEY LEE
HULLINGHORST,
Intervenors Defendants.
------------------------------
CITIZENS FOR RESPONSIBILITY AND
ETHICS IN WASHINGTON;
COLORADO COMMON CAUSE;
COLORADO ETHICS WATCH;
PROGRESSIVE UNITED,
Movants.
_________________________________
ORDER
_________________________________
Before HARTZ, TYMKOVICH, and PHILLIPS, Circuit Judges.
_________________________________
On October 27, 2014, the original Order & Judgment and dissent issued in this
matter. We now direct the clerk, sua sponte, to reissue our decision as a published
opinion. We also note some minor amendments have been made to the majority decision
and the dissent, both of which are attached to this order for filing. The new opinion and
dissent shall be shown filed as of the date of this order.
Entered for the Court
ELISABETH A. SHUMAKER, Clerk
2
FILED
United States Court of Appeals
Tenth Circuit
PUBLISH
November 12, 2014
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
CITIZENS UNITED, a Virginia Non-
Stock corporation,
Plaintiff - Appellant,
v.
SCOTT GESSLER, in his official
capacity as Secretary of State of the State
of Colorado; SUZANNE STAIERT, in
her official capacity as Deputy Secretary
of State of the State of Colorado,
Defendants - Appellees,
and
No. 14-1387
COLORADO DEMOCRATIC PARTY;
GAROLD A. FORNANDER; LUCIA
GUZMAN; DICKEY LEE
HULLINGHORST,
Intervenors Defendants.
___________________________
CITIZENS FOR RESPONSIBILITY
AND ETHICS IN WASHINGTON;
COLORADO COMMON CAUSE;
COLORADO ETHICS WATCH;
PROGRESSIVE UNITED,
Amici Curiae.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
(D.C. No. 1:14-CV-02266-RBJ)
Theodore B. Olson, Gibson, Dunn & Crutcher LLP, (Matthew D. McGill, Amir C.
Tayrani, Lucas C. Townsend, Gibson, Dunn & Crutcher LLP, and Michael Boos,
Citizens United, with him on the brief), Washington, D.C., for Plaintiff - Appellant.
Matthew D. Grove, Assistant Solicitor General, (Daniel D. Domenico, Solicitor General;
Leeann Morrill, First Assistant Attorney General; Kathryn A. Starnella, Assistant
Attorney General; with him on the brief), Public Official Unit, State Services Section,
Denver, Colorado, for Defendants - Appellees.
Martha M. Tierney and Edward T. Ramey, Heizer Paul LLP, Denver, Colorado, filed an
Intervenor-Defendants’ Brief for Colorado Democratic Party, Garold A. Fornander, Lucía
Guzmán, and Dickey Lee Hullinghorst.
David R. Fine and Lino S. Lipinsky de Orlov, McKenna Long & Aldridge LLP, Denver,
Colorado; Luis A. Toro and Margaret G. Perl, Colorado Ethics Watch, Denver, Colorado,
filed an amicus curiae brief for Citizens for Responsibility and Ethics in Washington,
Colorado Common Cause, Colorado Ethics Watch, and Progressive United.
Before HARTZ, TYMKOVICH, and PHILLIPS, Circuit Judges.
HARTZ, Circuit Judge.
Citizens United is a nonprofit corporation that has made a name for itself through
independent political activity. As noted by the district court, “its principal purpose is to
promote social welfare through informing and educating the public on conservative ideas
and positions on issues, including national defense, the free enterprise system, belief in
2
God, and the family as the basic unit of society.” J. App. at 155 (internal quotation marks
omitted). Since 2004 it has produced and released 24 films on various political and
religious topics. Films are produced by Citizens United’s in-house unit, Citizens United
Productions, and occasionally through affiliated entities. They are distributed through
theatrical release, DVDs, television, and online digital streaming and downloading.
Citizens United sells its films as DVDs for retail and wholesale bulk purchase; arranges
for film showings at movie theaters in exchange for a portion of box-office sales; and
licenses its films to television broadcasters and digital-streaming companies in exchange
for fees or royalties. In a few instances Citizens United has provided free DVDs inserted
in newspapers and allowed its films to be screened free of charge to educational
institutions and select members of the public and news media. It generally advertises its
films on television, in newspapers, on billboards, by electronic and regular mail, and on
the Internet.
Citizens United recently completed production of a film titled Rocky Mountain
Heist on the alleged impact of various advocacy groups on Colorado government and
public policy. The film is scheduled to be marketed and distributed in Colorado and
throughout the United States beginning this month. It is approximately 30 minutes in
length. The budget for production and marketing is $773,975. Like other films produced
by Citizens United, Rocky Mountain Heist will be distributed through DVD, television
broadcast, and online digital streaming and downloading, and it will be advertised on
television, radio, and the Internet. Because the film and some of its advertising will
3
unambiguously refer to elected Colorado officials running for office in this year’s general
election and include footage of events where participants advocate the election or defeat
of Colorado candidates, Rocky Mountain Heist comes under provisions of Colorado’s
campaign-practices laws that require certain disclosures with respect to what are termed
“electioneering communications” and “independent expenditures.”
Citizens United brought the present action against the Colorado Secretary of State
(the Secretary) in the United States District Court for the District of Colorado to
challenge under the First Amendment the disclosure provisions both on their face and as
applied to Citizens United because it is treated differently from various media that are
exempted from the provisions (the exempted media). It sought a preliminary injunction
against enforcing the provisions that do not apply to exempted media. The district court
denied relief, and Citizens United appeals.1
Although we agree with much of what the district court said, we must reverse. We
do not address the facial challenge to the disclosure provisions, because we afford
Citizens United the relief it requested through its as-applied challenge. We hold that on
the record before us Citizens United would likely prevail on the merits and therefore is
1
Citizens United filed its appeal on September 23, 2014. We ordered the parties to file
simultaneous briefs on October 3; also permitted a brief by the Intervenors Defendants
Colorado Democratic Party, Garold A. Fornander, Lucía Guzmán, and Dickey Lee
Hullinghorst; and now grant the motion by Citizens for Responsibility and Ethics in
Washington, Colorado Common Cause, Colorado Ethics Watch, and Progressive United
to participate as amici curiae. We held oral argument on October 7 and issued an interim
order on October 14. This opinion explains the basis of that order and does not consider
events occurring after October 14.
4
entitled to a preliminary injunction. In light of (1) the Colorado disclosure exemptions
for printed periodicals, cable and over-the-air broadcasters, and Internet periodicals and
blogs, (2) the rationale presented for these exemptions, and (3) Citizen United’s history
of producing and distributing two dozen documentary films over the course of a decade,
the Secretary has not shown a substantial relation between a sufficiently important
governmental interest and the disclosure requirements that follow from treating Rocky
Mountain Heist as an “electioneering communication” or treating the costs of producing
and distributing the film as an “expenditure” under Colorado’s campaign laws. Citizens
United has also sought to have its advertising for Rocky Mountain Heist exempted from
the disclosure provisions. But it has not demonstrated that the Secretary would exempt
advertising placed by the exempted media if the advertisements mentioned a candidate or
advocated for the election or defeat of a candidate. Having failed to show that in this
respect it would be treated differently from the exempted media, Citizens United is not
entitled to relief regarding advertising. To explain our holding, we begin by describing
the pertinent disclosure provisions of Colorado law.
I. COLORADO DISCLOSURE PROVISIONS
Under the Colorado Constitution and the state’s Fair Campaign Practices Act
(FCPA), speakers who engage in “electioneering communications” and “independent
expenditures” are subject to various reporting and disclosure requirements. See J. App. at
156. Electioneering communications are statements about candidates made shortly
5
before an election. Article XXVIII of the Colorado Constitution and the FCPA define
electioneering communication as:
any communication broadcasted by television or radio, printed in a
newspaper or on a billboard, directly mailed or delivered by hand to
personal residences or otherwise distributed that:
(I) Unambiguously refers to any candidate; and
(II) Is broadcasted, printed, mailed, delivered, or distributed within
thirty days before a primary election or sixty days before a general
election; and
(III) Is broadcasted to, printed in a newspaper distributed to, mailed
to, delivered by hand to, or otherwise distributed to an audience that
includes members of the electorate for such public office.
Colo. Const. art. XXVIII, § 2(7)(a); see Colo. Rev. Stat. § 1-45-103(9) (2011).
Expenditures include money spent to endorse or oppose a candidate. An expenditure is:
any purchase, payment, distribution, loan, advance, deposit, or gift of
money by any person for the purpose of expressly advocating the election
or defeat of a candidate or supporting or opposing a ballot issue or ballot
question. An expenditure is made when the actual spending occurs or when
there is a contractual agreement requiring such spending and the amount is
determined.
Colo. Const. art. XXVIII, § 2(8)(a); see Colo. Rev. Stat. § 1-45-103(10). Article XXVIII
and the FCPA define independent expenditure as “an expenditure that is not controlled by
or coordinated with any candidate or agent of such candidate.” Colo. Const. art. XXVIII,
§ 2(9); see Colo. Rev. Stat. § 1-45-103(11). When Colorado election law uses the term
candidate, it is referring only to candidates for office in Colorado. See Colo. Const. art.
XXVIII, § 2(2).
Under § 6 of Article XXVIII, any person (natural or artificial) expending $1000 or
more per calendar year on electioneering communications must submit reports to the
6
Secretary including the amounts spent on the electioneering communication; the name of
the candidate referenced in the communication; and the name, address, occupation, and
employer of anyone donating more than $250 per year to the person for the
communication. See id. § 6(1); 8 Colo. Code Regs. § 1505-6:11.5 (2012). Reports are
due biweekly in the two months before the general election, with a final report due
30 days after the election. See Colo. Rev. Stat. § 1-45-108(2)(a)(I)(D)‒(E) (2012).
At oral argument the Secretary (through counsel) informed this court about
oversight of the disclosure requirements. First, he does not require disclosure of the
amount spent to produce an electioneering communication because there is no
communicative aspect to production. For example, even if Rocky Mountain Heist is an
electioneering communication, the regulations governing electioneering communications
would not require Citizens United to report the cost of producing it or the identities of
those who donated to the production. Also, a donor must be disclosed only if the
donation was earmarked for an electioneering communication. See Colo. Code Regs.
1505-6:11-1. The Secretary emphasized the precision with which the earmarking must
be made. If a donor permits the recipient to use the donation for electioneering
communications and other purposes, and the entire donation could be used for the other
purposes, the donor need not be disclosed. Thus, if a donor told Citizens United that the
donation could be used for producing Rocky Mountain Heist or covering office overhead,
Citizens United would not be required to disclose the donor because all the money could
be used for purchasing office paper.
7
The disclosure requirements for independent expenditures are a bit different.
Section 5 of Article XXVIII provides that any person making an independent expenditure
in excess of $1000 per calendar year must file a notice with the Secretary providing a
detailed description of the use of the independent expenditure, specifying the amount of
the expenditure, and naming the candidate whom the expenditure is intended to support
or oppose. See Colo. Const. art. XXVIII, § 5(1). The definition of expenditure, not
surprisingly, focuses on expenditures (unlike the definition of electioneering
communication, which focuses on the communication itself); so if Rocky Mountain Heist
attacks or supports a candidate, the cost of producing the film must be disclosed. Any
person making an independent expenditure or accepting a donation for the purpose of
making an independent expenditure in excess of $1000 per year must create an
independent expenditure committee, register with the Secretary, and, if the person is a
corporation, report details of its corporate form and ownership structure within two
business days of the date on which the expenditure reaches or exceeds $1000. See Colo.
Rev. Stat. § 1-45-107.5(3)–(4) (2010); 8 Colo. Code Regs. 1505-6:5.2. The person must
also maintain a separate bank account and use it exclusively for receiving donations for
and making independent expenditures. See Colo. Rev. Stat. § 1-45-107.5(7).
Any person making independent expenditures of more than $1000 per year must
report to the Secretary the amounts spent and the name, address, occupation, and
employer of any person who donated more than $250 “for the purpose of making an
independent expenditure.” Id. § 1-45-107.5(4)(b). And any person making an
8
independent expenditure in excess of $1000 is required to disclose any donation in excess
of $20 given during the reporting period for the purpose of making an independent
expenditure. See id. § 1-45-107.5(8). Independent expenditures have the same filing
schedule as electioneering communications, except that expenditures in excess of $1000
made within 30 days of a primary or general election must be reported within 48 hours
after obligating money for the independent expenditure. See id. § 1-45-107.5(4)(c). Any
communication that constitutes an independent expenditure must prominently identify the
person making the expenditure. See Colo. Const. art. XXVIII, § 5(2); Colo. Rev. Stat.
§ 1-45-107.5(5)(a). As in the electioneering-communication context, the Secretary
requires the disclosure of an independent-expenditure donor only when the donor has
specifically earmarked the money for independent expenditures. Thus, if Rocky
Mountain Heist attacks or supports Colorado candidates, the production costs of the film
must be disclosed, but a donation must be disclosed only if it was directed to be used
solely to attack or support Colorado candidates. Money donated to Citizens United for
general use need not be disclosed, nor would Citizens United be required to report a
donation to be used, at Citizen United’s discretion, for films attacking or supporting
candidates in states including (but not limited to) Colorado.
Although the Secretary is responsible for promulgating and enforcing rules in
furtherance of these reporting and disclosure provisions, see Colo. Const. art. XXVIII,
§§ 8–9; Colo. Rev. Stat. § 1-45-111.5, others can also pursue enforcement. Any person
who believes that there has been a violation of the law may file a written complaint with
9
the Secretary, who refers the complaint to an administrative law judge for a hearing. See
Colo. Const. art. XXVIII, § 9(2)(a). If the administrative law judge finds a violation and
the Secretary does not file an enforcement action within 30 days of the decision, the
person who filed the complaint may bring a private cause of action in state district court.
See id. Any person who violates the disclosure provisions will be fined $50 per day for
each day the information is not filed as required. See id. § 10(2)(a); see also Colo. Rev.
Stat. § 1-45-111.5(c). Any person who fails to file three or more successive reports
concerning contributions, expenditures, or donations is subject to a civil penalty of up to
$500 for each day the reports are not filed. See Colo. Rev. Stat. § 1-45-111.5(c). The
penalty can be doubled if the failure is intentional. See id.
Critically important to this litigation are the exemptions to the above disclosure
provisions. Excluded from the definition of expenditure are:
(I) Any news articles, editorial endorsements, opinion or commentary
writings, or letters to the editor printed in a newspaper, magazine or other
periodical not owned or controlled by a candidate or political party;
(II) Any editorial endorsements or opinions aired by a broadcast facility not
owned or controlled by a candidate or political party;
(III) Spending by persons, other than political parties, political committees
and small donor committees, in the regular course and scope of their
business or payments by a membership organization for any
communication solely to members and their families;
(IV) Any transfer by a membership organization of a portion of a member’s
dues to a small donor committee or political committee sponsored by such
membership organization; or payments made by a corporation or labor
organization for the costs of establishing, administering, or soliciting funds
from its own employees or members for a political committee or small
donor committee.
10
Colo. Const. art. XXVIII, § 2(8)(b); see Colo. Rev. Stat. § 1-45-103(10). There are also
four exclusions from the definition of electioneering communication, the first three of
which are essentially the same as for expenditures.2
The Secretary has broadly interpreted the first two exemptions, which concern
material printed in periodicals and aired by a broadcast facility. He informed this court at
oral argument that he applies the exclusions to online editions of print newspapers,
online-only newspapers, all broadcasts, cable shows, and even blogs, regardless of their
partisan nature. The Secretary acknowledged that there may be questions at the margins
regarding whether, say, a blog is a periodical, but he referred to court decisions as guides
in making that determination. He cited two cases as examples. In Federal Election
Commission v. Massachusetts Citizens for Life, Inc., 479 U.S. 238, 250 (1986) (MCFL),
the Supreme Court held that the press exemption under federal law did not apply to a
group’s one-time “Special Edition” newsletter based on factors distinguishing it from its
regular publication, such as the use of different publishing staff, the distribution to a
group 20 times the size of the usual audience, and the absence of the usual masthead and
2
The term electioneering communication does not include “(I) Any news articles, editorial
endorsements, opinion or commentary writings, or letters to the editor printed in a
newspaper, magazine or other periodical not owned or controlled by a candidate or
political party; (II) Any editorial endorsements or opinions aired by a broadcast facility not
owned or controlled by a candidate or political party; (III) Any communication by persons
made in the regular course and scope of their business or any communication made by a
membership organization solely to members of such organization and their families; (IV)
Any communication that refers to any candidate only as part of the popular name of a bill
or statute.” Colo. Const. art. XXVIII, § 2(7)(b); see Colo. Rev. Stat. § 1-45-103(9).
11
volume and issue numbers. In Bailey v. Maine Commission on Governmental Ethics &
Election Practices, 900 F. Supp. 2d 75, 91 (D. Me. 2012), the court considered a website
called “the Cutler Files,” which advocated the defeat of gubernatorial candidate Eliot
Cutler. The operator of the website was a paid consultant for an opposing candidate. See
id. at 90. The website was updated six times between August 30 and September 29,
2010, but was taken down after two months. See id. The court rejected the website
operator’s equal-protection challenge to the state’s refusal to apply to him the disclosure
exemption for periodical publications. See id. at 91.
The exemptions do not encompass all possible campaign-related activity by the
exempted media. For example, the Secretary’s brief in this court states that if a news
organization “were to engage in such fundraising and solicitation efforts [to raise money
for the organization’s pieces], . . . such communications would not qualify as press,” and
cites cases saying that not all uses of the press entity’s resources would be exempt.
Aplee. Br. at 40; see also Aplee. Br. at 22 (indicating that The Denver Post would not be
able to rely on the exemption if it produced a documentary advocating for a candidate
that was funded by solicited contributions). Of special interest in this case, the language
exempting “news articles, editorial endorsements, opinion or commentary writings, or
letters to the editor,” Colo. Const. art. XXVIII, § 2(8)(b), 7(b), does not on its face
include an advertisement placed by a media entity on a television or radio broadcast to
increase the number of its readers or viewers. Thus, if the advertisement mentions a
candidate or expressly advocates the election or defeat of a candidate, it may have to be
12
treated as an electioneering communication or independent expenditure. We do not
understand anything the Secretary has told the court as indicating that such an ad would
be exempt from the disclosure requirements.
II. THE PRESENT CONTROVERSY
In April 2014, Citizens United filed a Petition for a Declaratory Order with the
Secretary requesting a ruling stating that Rocky Mountain Heist and related marketing
activities would not qualify as “electioneering communications” or “expenditures” under
Colorado law. In support of its request, it pointed out that the Federal Election
Commission (FEC) had granted it an exemption from the disclosure provisions of the
Federal Election Campaign Act of 1971, as amended, 52 U.S.C. § 30101 et seq. (the
federal statute) in an advisory opinion (the Advisory Opinion) issued on June 11, 2010.
Under the federal statute the definitions of electioneering communication3 and
expenditure4 are similar to Colorado’s definitions. And the statutory exclusions from the
3
“The term ‘electioneering communication’ means any broadcast, cable, or satellite
communication which refers to a clearly identified candidate for Federal office; is made
within 60 days before a general, special, or runoff election for the office sought by the
candidate; or 30 days before a primary or preference election, or a convention or caucus
of a political party that has authority to nominate a candidate, for the office sought by the
candidate; and in the case of a communication which refers to a candidate for an office
other than President or Vice President, is targeted to the relevant electorate.” 52 U.S.C.
§ 30104(f)(3)(A) (paragraph formatting omitted).
4
“The term ‘expenditure’ includes any purchase, payment, distribution, loan, advance,
deposit, or gift of money or anything of value, made by any person for the purpose of
influencing any election for Federal office; and a written contract, promise, or agreement
to make an expenditure.” 52 U.S.C. § 30101(9)(A) (paragraph formatting omitted).
Continued . . .
13
definition, which the FEC refers to as the “press exemption,” J. App. at 30 (FEC
Advisory Opinion 2010-08 (June 11, 2010)), are also similar.5 The FEC construes the
press exemption to cover a “legitimate press function” conducted by a “press or media
entity.” Id. at 31‒32. The Advisory Opinion determined that Citizens United is a press
entity and that distribution and production of its films are legitimate press functions.
Noting that the FEC had read the press exemption “to cover cable television, the Internet,
satellite broadcasts, and rallies staged and broadcast by a radio talk show,” it said that
“[i]n fact, the Commission has not limited the press exemption to traditional news outlets,
but rather has applied it to news stories, commentaries, and editorials no matter in what
medium they are published.” Id. at 31 (brackets and internal quotation marks omitted).
To determine whether an entity is a press entity, the FEC “has focused on whether the
entity in question produces on a regular basis a program that disseminates news stories,
commentary and/or editorials,” and it has “interpret[ed] ‘news story, commentary, or
editorial’ to include documentaries and educational programming.” Id. at 32. It
5
“The term ‘electioneering communication’ does not include a communication appearing
in a news story, commentary, or editorial distributed through the facilities of any
broadcasting station, unless such facilities are owned or controlled by any political party,
political committee, or candidate.” 52 U.S.C. § 30104(f)(3)(B) (paragraph formatting
omitted). An FEC regulation construes the term broadcasting station to include “any
broadcast, cable, or satellite television or radio station.” See 11 C.F.R. § 100.29(c)(2).
The term expenditure does not include “any news story, commentary, or editorial
distributed through the facilities of any broadcasting station, newspaper, magazine, or
other periodical publication, unless such facilities are owned or controlled by any
political party, political committee or candidate.” 52 U.S.C. § 30101(9)(B)(i).
14
concluded that Citizens United’s costs of producing and distributing its films are entitled
to the press exemption.6
Refusing to follow the FEC’s lead, the Secretary’s Declaratory Order denied
Citizens United’s request for an exemption. See J. App. at 37, 44‒45 (Declaratory Order,
In the Matter of Citizens United’s Pet. for Declaratory Order, Office of the Sec’y of State,
State of Colo. (June 5, 2014)). It ruled that the film and its advertising did not fall within
Colorado’s exemption for print media and that Citizens United is not a broadcast facility.
It also ruled that the exemption for communications made in the regular course and scope
of a business was inapplicable. Relying on the decision by the Colorado Court of
Appeals in Colorado Citizens for Ethics in Government v. Committee for the American
Dream, 187 P.3d 1207 (Colo. Ct. App. 2008), the Order stated that the regular-business
exemption applies only to persons whose business is primarily to distribute content as a
service. Finally, it stated that it could not adopt the FEC’s reasoning for exempting
Citizens United’s films because the Colorado Secretary of State lacks the authority to
read a general “press exemption” into the plain language of Colorado law. Accordingly,
the Order concluded that Rocky Mountain Heist would be an electioneering
6
The FEC also decided that Citizens United’s advertisements for its films are exempt.
See J. App. at 34 (FEC Advisory Opinion). The FEC noted that “courts have held that
where the underlying product is covered by the press exemption, so are advertisements to
promote that underlying product.” Id. (citing Fed. Election Comm’n v. Phillips Pub.,
Inc., 517 F. Supp. 1308, 1313 (D.D.C. 1981) and Reader’s Digest Ass’n, Inc. v. Fed.
Election Comm’n, 509 F. Supp. 1210, 1215 (S.D.N.Y. 1981)).
15
communication not within any exemption. It did not determine whether the film would
constitute an independent expenditure (supporting or attacking a candidate) because it
was unclear whether the film would contain “express advocacy,” as required by
art. XXVIII, § 2(8)(a).
Citizens United did not seek review of the Declaratory Order in Colorado court.
Instead, it filed suit in federal court, alleging that Colorado’s reporting and disclosure
requirements violate the First Amendment to the United States Constitution and
Article II, §10 of the Colorado Constitution. Simultaneously, Citizens United filed a
motion for a preliminary injunction prohibiting the Secretary from enforcing Colorado’s
reporting and disclosure requirements against Citizens United and all other Colorado
speakers. The district court denied Citizens United’s motion for a preliminary injunction
after determining that Citizens United’s facial and as-applied challenges did not have a
substantial likelihood of success on the merits. We have jurisdiction under 28 U.S.C.
§ 1292(a) to consider Citizens United’s appeal of that denial. Citizens United no longer
relies on Article II, §10 of the Colorado Constitution.
III. ANALYSIS
Citizen United’s complaint in federal court attacks the Colorado disclosure
exemptions for print and broadcast media. It argues that because the exemptions
discriminate among speakers on the basis of identity, the Colorado constitutional and
statutory disclosure provisions are facially invalid under the First Amendment and must
be voided. In the alternative, it argues that those provisions are unconstitutional as
16
applied to Citizens United and it must be provided the same exemptions as the print and
broadcast media.
A. Preliminary-Injunction Standard
In determining whether to grant a preliminary injunction, a court must weigh
(1) the likelihood that the movant will succeed on the merits; (2) the threat of irreparable
harm to the movant; (3) the relative weight of the harm alleged by the movant and the
harm to the nonmoving party; and (4) the public interest. See Hobby Lobby Stores, Inc. v.
Sebelius, 723 F.3d 1114, 1128 (10th Cir. 2013), aff’d sub nom. Burwell v. Hobby Lobby
Stores, Inc., 134 S. Ct. 2751 (2014). Weighing ordinarily must be performed by the
district court in the first instance, and our review of a denial of a preliminary injunction is
for abuse of discretion. See id. Under this standard of review, “we examine the district
court’s legal determinations de novo, and its underlying factual findings for clear error,”
Att’y Gen. of Okla. v. Tyson Foods, Inc., 565 F.3d 769, 776 (10th Cir. 2009), and “[a]
district court abuses its discretion by denying a preliminary injunction based on an error
of law,” Hobby Lobby, 723 F.3d at 1128. We begin (and, in essence, end) our review by
analyzing Citizens United’s likelihood of success on the merits.
B. Likelihood of Success on the Merits
We agree with Citizens United’s as-applied challenge to Colorado’s campaign-
disclosure requirements. On the record before us, we hold that the First Amendment
requires the Secretary to treat Citizens United the same as the exempted media. We need
not address Citizen United’s facial challenge, which would provide all speakers with the
17
same exemptions provided to the exempt media, because a ruling of facial invalidity
would not grant Citizens United any additional relief. See United States v. Nat’l Treasury
Emps. Union, 513 U.S. 454, 477–78 (1995) (“[A]lthough the occasional case requires us
to entertain a facial challenge in order to vindicate a party’s right not to be bound by an
unconstitutional statute, we neither want nor need to provide relief to nonparties when a
narrower remedy will fully protect the litigants.” (citation omitted)).
In assessing the constitutionality of Colorado’s disclosure requirements, we
consider whether they satisfy exacting scrutiny. This is the standard generally applied to
such requirements. See, e.g., Doe v. Reed, 561 U.S. 186, 196 (2010) (“We have a series
of precedents considering First Amendment challenges to disclosure requirements in the
electoral context. These precedents have reviewed such challenges under what has been
termed ‘exacting scrutiny.’”); Citizens United v. Fed. Election Comm’n, 558 U.S. 310,
366 (2010) (“The Court has subjected [disclaimer and disclosure] requirements to
exacting scrutiny” (internal quotation marks omitted)); Davis v. Fed. Election Comm’n,
554 U.S. 724, 744 (2008) (governmental interest in disclosure requirements “must
survive exacting scrutiny” (internal quotation marks omitted)); Buckley v. Valeo, 424
U.S. 1, 64 (1976) (“Since NAACP v. Alabama [357 U.S. 449 (1958),] we have required
that the subordinating interests of the State [in compelled disclosure] survive exacting
scrutiny.”); Sampson v. Buescher, 625 F.3d 1247, 1254‒61 (10th Cir. 2010) (under
exacting-scrutiny review, Colorado disclosure requirements were unconstitutional as
applied to a neighborhood organization opposing ballot measure to annex the
18
neighborhood to adjacent town). For the law to pass muster there must be “a substantial
relation between the disclosure requirement and a sufficiently important governmental
interest.” Citizens United, 558 U.S. at 366–67 (internal quotation marks omitted). “That
is, the strength of the governmental interest must reflect the seriousness of the actual
burden on First Amendment rights.” Reed, 561 U.S. at 196 (internal quotation marks
omitted). Although Citizens United contends that we should apply the more stringent
standard of strict scrutiny because Colorado law discriminates against speech based on
the identity of the speaker, we need not address this contention because Citizens United’s
challenge prevails under the exacting-scrutiny standard.
Our analysis proceeds as follows: First, we discuss the purpose of disclosures
relating to electioneering communications and independent expenditures (those not
coordinated with a candidate). We agree with the Secretary that they serve the purpose of
providing the electorate with information about the source of election-related spending.
In light of the Supreme Court’s analysis in Citizens United, however, we do not agree
that they play a role in deterring or exposing campaign corruption. Next, we address the
justifications for the media exemptions under Colorado law. We reject the Secretary’s
contention that the media exemptions can be justified on the ground that the First
Amendment provides greater protection for the press than other speakers. The Supreme
Court rejected that proposition in Citizens United. And we reject the suggestion in the
Secretary’s brief that the exemption is justified by the professionalism and objectivity of
the press. But we accept the Secretary’s contention that the exemptions are justified on
19
the ground that familiarity with the media sufficiently enables the electorate to evaluate
reports and opinions in the media. This justification, however, amounts to saying that
Colorado has no sufficiently important governmental interest in disclosure by the
exempted media because the electorate can adequately evaluate their articles and
opinions anyway. That being the case, Colorado likewise has no sufficiently important
governmental interest in requiring those same disclosures by Citizens United, which—
through its history of producing films—can just as easily be evaluated by the electorate.
1. Governmental Interests in Disclosure
The Secretary’s brief states: “Colorado’s disclosure laws are narrowly tailored to
serve two compelling government interests—ensuring that Colorado’s electors are able to
discern who is attempting to influence their votes, and discouraging corruption by
making large independent expenditures a matter of public record.” Aplee. Br. at 16. We
agree in part. In Citizens United the Supreme Court recognized that disclosures related to
independent expenditures can “help citizens make informed choices in the political
marketplace.” 558 U.S. at 368 (internal quotation marks omitted); see also First Nat’l
Bank of Bos. v. Bellotti, 435 U.S. 765, 792 n.32 (1978) (“Identification of the source of
advertising may be required as a means of disclosure, so that the people will be able to
evaluate the arguments to which they are being subjected.”). Colorado can rely on this
informational interest for its disclosure scheme.
We reject, however, the Secretary’s assertion of an anticorruption rationale for
reporting independent expenditures. The Secretary cites Supreme Court authority for the
20
proposition, such as McCutcheon v. Federal Election Commission, 134 S. Ct. 1434, 1459
(2014) (disclosure requirements may “deter actual corruption and avoid the appearance of
corruption by exposing large contributions and expenditures to the light of publicity”),
and Buckley, 424 U.S. at 67 (“[D]isclosure requirements deter actual corruption and
avoid the appearance of corruption by exposing large contributions and expenditures to
the light of publicity. This exposure may discourage those who would use money for
improper purposes either before or after the election.” (footnote omitted)). But those
statements were made in the course of consideration of disclosure requirements that
applied to much more than just independent expenditures—in particular, disclosure of
direct contributions to candidates. The Court’s present doctrine sharply distinguishes
contributions to candidates or expenditures coordinated with candidates from
independent expenditures free of any such coordination. It recognizes that expenditures
and contributions that are not independent present a risk of quid pro quo corruption. See
Citizens United, 310 U.S. at 356‒57. But the Court has emphatically stated that
independent expenditures are not tied to corruption: “[W]e now conclude that
independent expenditures, including those made by corporations, do not give rise to
corruption or the appearance of corruption.” Id. at 357. “The absence of prearrangement
and coordination of an expenditure with the candidate or his agent not only undermines
the value of the expenditure to the candidate, but also alleviates the danger that
expenditures will be given as a quid pro quo for improper commitments from the
candidate.” Id. (internal quotation marks omitted). The Court noted that the voluminous
21
record in McConnell v. Federal Election Commission, 251 F. Supp. 2d 176, 209 (D.D.C.
2003), aff’d in part, rev’d in part, 540 U.S. 93 (2003), did not contain any examples of
votes by elected officials being exchanged for expenditures. See Citizens United, 558
U.S. at 360. In light of what the Supreme Court has said, the Secretary must explain (and
support with evidence) how disclosures of independent expenditures would help deter or
disclose the quid pro quo corruption of concern to the Court. This he has failed to do.
2. Justification for Media Exemptions
Given the governmental interest in disclosure, why are the media exempted, at
least in part?
Since the justification for the exemptions concerns the specifics of the Colorado
disclosure laws, not press exemptions in the abstract, a brief review of the disclosure
requirements and exemptions is useful. First, the disclosure requirements are not
expansive. Although electioneering communications (statements that mention Colorado
candidates) and expenditures (to support or oppose Colorado candidates) must be
reported, the requirements to disclose the financial backers of organizations (such as
corporations) that make electioneering communications or independent expenditures are
limited. Donors to the general funding of the organization need not be disclosed. The
only donors who must be disclosed (by name and occupation) are those who earmark
contributions for the specific, exclusive purpose of electioneering communications or
expenditures regarding Colorado candidates.
22
As for the media exemptions, no reporting is required for any news or opinion
piece (not including advertising) appearing in a printed periodical. The exemption
extends to letters to the editor and op-eds, regardless of whether the letters or op-eds have
been instigated or funded by an organization. And the “printed” press includes online
newspapers and blogs, regardless of the ideological bias of the newspaper or blog.
Opinions (again, other than advertisements) aired by a broadcast facility (including cable)
are also exempt. Although news reports by broadcast media are not explicitly exempted,
the Secretary apparently treats them the same as news reports in the print media.
So how does the Secretary explain the media exemptions? Two of the Secretary’s
proffered justifications can be disposed of summarily. First, the Secretary says that “‘a
valid distinction exists between corporations that are part of the media industry and other
corporations that are not involved in the regular business of imparting news to the
public.’” Aplee. Br. at 41 (brackets omitted) (quoting McConnell, 540 U.S. at 208, which
was overruled by Citizens United on that point). That reason, at least as a constitutional
proposition, can no longer stand after Citizens United. The Supreme Court wrote:
“There is no precedent supporting laws that attempt to distinguish between corporations
which are deemed to be exempt as media corporations and those which are not. We have
consistently rejected the proposition that the institutional press has any constitutional
privilege beyond that of other speakers.” Citizens United, 558 U.S. at 352 (emphasis
added, internal quotation marks omitted). This is not to say that a statute can never
properly distinguish the news media from other speakers. But that distinction has no
23
basis in the First Amendment and cannot immunize differential treatment from a First
Amendment challenge; a difference in treatment would have to be defended on other
grounds.
Second, the Secretary’s brief contends that “whereas journalism seeks to inform or
educate the public and expose ideas at regular intervals in a transparent, balanced, and
accountable manner, drop-in political advertisements appeal to the emotions of viewers
or readers with the goal of pure persuasion.” Aplee. Br. at 38. One can hope that
transparency, balance, and accountability are ideals of “journalism” as a profession. But
it is a highly questionable proposition that newspapers and broadcast stations (to say
nothing of blogs) are uniformly transparent, balanced, and accountable. Our nation’s
founding and history are replete with examples of highly partisan newspapers, and many
observers would say that some modern media continue the tradition. In any event, the
Secretary in effect abandoned this contention at oral argument, stating that partisanship is
not a factor in determining whether the Colorado media exemptions apply. Speaking of
blogs, he said: “[I]t doesn’t matter whether they take an ideological point of view. The
whole blog could be devoted and many are to promoting the Republicans, promoting the
Democrats, the Green Party, the Libertarians, whoever. That’s not the issue. It’s not the
viewpoint or the content that makes a difference.” Oral Arg. 23:02‒23:17. The
abandonment of the “transparent, balanced, and accountable” contention was well-
advised. Cf. San Juan Cnty. v. No New Gas Tax, 157 P.3d 831, 841 (Wash. 2007) (“We
24
agree with the Federal Election Commission that for the media exemption to apply, the
publication need not be fair, balanced, or avoid express advocacy or solicitations.”).
The third justification, expressed in a variety of ways in the Secretary’s brief, is
that the electorate can properly assess a statement by the exempted media because of its
familiarity with the source. The brief states:
[T]he exemption of some communications and the inclusion of others
represents a policy choice not about the viewpoints expressed in those
communications, but about the heuristic cues that a viewer or reader may be
able to glean from the medium of expression. Simply put, in adopting
Amendment 27 [to the Colorado Constitution], Colorado’s citizens
determined that voters should be armed with the ability to find out who is
attempting to influence their votes. Communications that qualify for the
press exemption are not included because such information is often easily
discernible from the communication itself.
Aplee. Br. at 22. Later the brief makes the same point: “[T]he line drawn by Colorado’s
press exemption centers on an audience member’s ability to evaluate the credibility of a
particular message to determine the weight that it should be given.” Id. at 38.
The brief distinguishes the media from single-shot speakers who have no track record and
can use a misleading name (say, Voters for a Better World) to make assessment of their
purposes difficult, if not impossible. In contrast to communications by the exempted
media, asserts the brief, “isolated instances of anonymous express advocacy leave voters
adrift, without the context necessary to appropriately evaluate the message.” Id. at 34.
The point is repeated several times later in the brief:
[U]nlike advocacy groups such as Citizens United—which often engage in
drop-in advocacy like a standalone film, a single election mailer, or an
anonymous website[—]organizations engaging in traditional press
25
functions publish at regular intervals, which, in turn, provide electors with a
context for evaluating any given message.
Id. at 40.
Unlike political advocacy groups, whose names often do not provide any
useful cue or meaningful information to help a voter evaluate . . . that
message, communications that qualify for the press exemption generally
provide viewers with various means for determining who is speaking and,
therefore, what weight to give the message.
Id. at 42 (brackets, citations, and internal quotation marks omitted).
[A]udiences can assess the accuracy of a newspaper’s reporting by looking
at its practices over time, or determine what weight to give its articles by
reviewing its masthead or a blog’s list of reporters. In contrast, drop-in
political advocacy, like Rocky Mountain Heist, does not afford audiences
the same ability to assess the message’s reliability or determine what
weight to give it.
Id. at 42‒43 (citations omitted). The brief sums up:
[T]he exemptions at issue in this case, which apply to both independent
expenditures and electioneering communications, are appropriately
designed to require disclosure only where a voter’s ability to satisfy the
informational interest is most lacking. Each category of exempted
communication, by virtue of its medium, permits viewers or readers to
assess and evaluate the messaging more easily than a transient
communication like Rocky Mountain Heist. Viewers can evaluate the
messaging in written periodicals by looking to the publication’s masthead,
list of reporters, the angle of news reporting over a period of time, and
practice of publishing at regular intervals. Many of the same factors would
apply to editorial endorsements or opinions aired by a broadcast facility.
Id. at 45–46 (citations omitted).7
7
In supporting the proposition that “the line drawn by Colorado’s press exemption
centers on an audience member’s ability to evaluate the credibility of a particular
message,” Aplee. Br. at 38, the Secretary’s brief includes the following paragraph:
“Second, in contrast to advocacy groups who often engage in specific fundraising appeals
Continued . . .
26
in order to engage in a particular initiative or to champion a particular political message,
traditional news organizations typically do not engage in fundraising initiatives for
express advocacy pieces or solicit money from subscribers who wish to earmark their
funds for a specific message. And, even if they were to engage in such fundraising and
solicitation efforts, . . . such communications would not qualify as press.” Aplee. Br. at
39–40 (citations omitted). We are not sure what to make of this. The brief does not tie
the paragraph to the ability of a reader to evaluate the message. Perhaps the paragraph is
only expressing the proposition that certain types of communications—such as
solicitations for money to fund a specific message by the entity—are not traditional press
functions and would not be exempt from disclosure requirements even if engaged in by
an exempted media entity. This proposition is suggested by the three case citations
supporting the second sentence. See id. at 40 (“see also McConnell v. FEC, 540 U.S. 93,
208 (2003) (press exemption ‘does not afford carte blanche to media companies generally
to ignore [the federal campaign statute’s] provisions’); Readers Digest, 509 F. Supp. at
1214 (rejecting assertion that the press exemption would ‘exempt any dissemination or
distribution using the press entity’s personnel or equipment, no matter how unrelated to
its press function’); San Juan County v. No New Gas Tax, 157 P.3d 831, 841 (Wash.
2007) ([stating that ‘[t]]he distinction between “political advertising” and “commentary”
may be relevant in deciding whether a media entity is performing a legitimate press
function [and providing as an illustration, a radio station’s giving a campaign free air
time for which it usually charges].’)”). And the proposition is consistent with the
language of the Colorado media exemptions, which limit them to no more than “news
articles, editorial endorsements, opinion or commentary writings, or letters to the editor.”
Colo. Const. art. XXVIII, § 2(7)(b); see id. § 2(8)(b). Certainly, solicitations are neither
articles nor opinion pieces. Read in this light, the paragraph is not providing a
justification for a media exemption, but only for limiting the scope of the exemption
granted to the exempted media. Because Citizens United has not presented any argument
that it should be treated more leniently than other media, we do not concern ourselves
with whether these limitations on the exemptions can withstand constitutional scrutiny.
On the other hand, one might be able to read into this cryptic paragraph an
argument that the media are granted an exemption because they would have nothing to
disclose anyway. If this is the argument intended, it is not adequately presented to
preserve the point. Moreover, the argument is flawed. The Secretary cites to no
legislative or administrative authority or court decision recognizing this justification for
the press exemption, and, more importantly, he provides no evidentiary support for the
factual premise. He cites only the following exchange during the testimony of his expert
witness at the district-court hearing: “[Counsel for Secretary:] Have you ever heard of
an organization like The Denver Post or The New York Times raising money specifically
to put on an ideological—strike that—a film that contains express advocacy for or against
Continued . . .
27
We get the message. And it has weight. When a speaker “drops in” on an election
and starts talking about candidates and issues, the electorate wants to know who the
speaker is to better enable it to evaluate the message. Knowing who is financing the
speaker can be helpful in this regard. But when the speaker belongs to the media, the
electorate has ample means of making the evaluation. Of course, there may be questions
about whether a speaker belongs to the exempted media; but major factors are obviously
whether it has spoken sufficiently frequently and meaningfully (not in 30-second sound
bites) over an extended period of time—factors that closely correlate with the opportunity
of the public to evaluate the speaker. See Aplee. Br. at 40 (“organizations engaging in
traditional press functions publish at regular intervals, which, in turn, provide electors
with a context for evaluating any given message”). For example, in Bailey, which the
Secretary endorsed as setting forth how to distinguish a blog that is eligible for the media
exemption from one that is not, the court wrote that “[t]his case could well have come out
a candidate? [Professor Shepard:] I am not aware of any traditional press organization
that would spend this kind of money for a one-time express-advocacy piece in the weeks
before an election.” J. App. at 263. This testimony establishes nothing relevant. The
witness limits himself to “any traditional press organization,” which would likely exclude
many of the online media that qualify for the Colorado media exemptions. He discusses
only “one-time” pieces, which is an undefined term that may not include repeat players
like Citizens United. And he says nothing about earmarked donations, such as whether
blogs receive them or whether repeat-player film makers would have any reportable
donations. Consequently, this one sentence of testimony is too slim a reed on which to
rest the no-need-to-disclose argument. Further, if earmarked donations to the exempted
media are rare (and therefore unexpected), one would think that there would be a
heightened, rather than a diminished, interest in learning that the unexpected event (a
donation) had occurred.
28
differently if the Cutler Files had any sort of track record before it appeared on August
30, 2010, or if it had extended beyond its two month run.” 900 F. Supp. 2d at 91.
At the very least, it is reasonable for Colorado to provide a media exemption on
this ground. This ground, however, has an equivalent formulation that is fatal to the
Secretary’s position in this case. What the Secretary is saying, in essence, is that the
exemption is justified because the interest supporting the disclosures required by
Colorado law—to give the electorate the means to evaluate a speaker—does not apply to
the exempted media’s reports and commentary as that interest is adequately satisfied by
their history of reporting and offering opinions. And once that proposition is accepted,
the Secretary must explain why the interest in those disclosures nevertheless applies to
films by Citizens United. In our view, the Secretary has not supplied an adequate
explanation. See United States v. Nat’l Treasury Emps. Union, 513 U.S. 454, 474 (1995)
(“Congress’ decision to provide a total exemption [from a ban on honoraria for speeches
and articles by federal employees] for all unrelated series of speeches undermines
application of the ban to individual speeches and articles with no nexus to Government
employment.” (emphasis added)); City of Ladue v. Gilleo, 512 U.S. 43, 52 (1944)
(“Exemptions from an otherwise legitimate regulation of a medium of speech . . . may
diminish the credibility of the government’s rationale for restricting speech in the first
place.”).
The Secretary refers to Citizens United as a “drop-in” advocate, but in the relevant
sense of that adjective, it is anything but. In terms of providing the requisite context for
29
its messages, it is similar to exempted blogs and opinion shows on radio and cable
television. Citizens United has an extended history of producing substantial work,
comparable to magazines or TV special news reports rather than advertisement sound
bites. Rocky Mountain Heist is its 25th film on political and religious topics over the
course of 10 years. This history provides information about Citizens United that is at
least as accessible to the public as donor lists reported to the Secretary. The dissent
would have us compare Citizens United to The Denver Post in evaluating the public’s
interest in disclosure. But that is not the relevant comparison. The disclosure exemptions
are not limited to major Colorado metropolitan newspapers. They cover small weekly
papers, quarterly national journals, online newspapers, and blogs originating from
anywhere in the world. The Secretary has tried to explain why such entities should be
exempted but not Citizens United, and he has failed.8 The electorate would have far
8
The dissent at pages 5‒6 also seems to suggest that there is something unique about
films (as a distinct “form of . . . speech”) that justifies distinguishing Citizens United
from other media. But the Secretary has made no such argument, and we would reject it
anyway. We fail to see any material difference between a documentary as a DVD and a
documentary broadcast on TV. The Supreme Court has said that the First Amendment
does not recognize distinctions among media used to convey political views. See Citizens
United, 558 U.S. at 326 (“Courts, too, are bound by the First Amendment. We must
decline to draw, and then redraw, constitutional lines based on the particular media or
technology used to disseminate political speech from a particular speaker.”). And in
striking down a state statute restricting sales of violent video games to minors, the Court
noted the absence of restrictions on violence in other media. See Brown v. Entm’t
Merchs. Ass’n, 131 S. Ct. 2729, 2736‒39; id. at 2740 (“Here, California has singled out
the purveyors of video games for disfavored treatment—at least when compared to
booksellers, cartoonists, and movie producers—and has given no persuasive reason
why.”).
30
more cues to evaluate a documentary by Citizens United than an editorial in a weekly
newspaper or quarterly magazine that rarely addresses controversial political topics.
Because Colorado has determined that it does not have a sufficient informational
interest to impose disclosure burdens on media entities, it does not have a sufficient
interest to impose those requirements on Citizens United. There cannot be “a substantial
relation between the disclosure requirement and a sufficiently important governmental
interest,” Citizens United, 558 U.S. at 366‒67 (internal quotation marks omitted), when
there is no important governmental interest. In particular, the film Rocky Mountain Heist
is exempt from treatment as an electioneering communication or an independent
expenditure. The costs of its production and distribution, and donations earmarked for
those purposes, need not be disclosed.
The dissent suggests that we should not “focus[] on Citizens United and its
required disclosure” but rather on “whether there is a substantial relation between the
State’s interest and the disclosure scheme as a whole, not a single hypothetical.” Op.
(Phillips, J. dissenting) at 2 (internal quotation marks omitted). But that cannot be
correct. Such an approach eliminates the possibility of as-applied review. Courts can,
and often do, recognize the overall propriety of a statutory scheme while still invalidating
its application in a specific case. See, e.g., MCFL, 479 U.S. 238 (statutory expenditure
restriction is unconstitutional as applied to specific organization); Sampson, 625 F.3d
1247 (disclosure requirement is unconstitutional as applied to specific organization).
31
The dissent further errs in suggesting that if a statutory imposition can withstand
constitutional scrutiny when the statute admits of no exceptions, the same imposition is
necessarily also constitutionally sound even when the statute recognizes exemptions. The
suggestion fails to consider that the presence of the exemptions can cast doubt on the
validity and extent of the asserted governmental interest, because the exemptions may
indicate that the statutory command is not based on the asserted interest but on a
qualified, more narrow interest. That was the case in Greater New Orleans Broadcasting
Ass’n v. United States, 527 U.S. 173 (1999), in which the Supreme Court struck down a
federal ban on broadcasting advertisements for legal casino gaming in Louisiana despite
two substantial and legitimate governmental interests asserted in support of the ban,
because the exemptions for advertising other forms of legal gaming undermined the
contention that the asserted interests accurately reflected the grounds for the ban. See id.
at 184‒87 (stating that the asserted interests are legitimate and substantial); id. at 187
(“[W]e cannot ignore Congress’ unwillingness to adopt a single national policy that
consistently endorses either interest asserted by the Solicitor General.”); id. at 190
(“[T]he operation of [the federal statute] and its attendant regulatory regime is so pierced
by exemptions and inconsistencies that the Government cannot hope to exonerate it.”); id.
at 195 (“[T]he regulation distinguishes among the indistinct, permitting a variety of
speech that poses the same risks the Government purports to fear, while banning
messages unlikely to cause any harm at all.”); id. at 195‒96 (“Had the Federal
Government adopted a more coherent policy, or accommodated the rights of speakers in
32
States that have legalized the underlying conduct, this might be a different case. But
under current federal law, as applied to petitioners and the messages that they wish to
convey, the broadcast prohibition in [federal law] violates the First Amendment.”
(citation omitted)). In the case before us, Colorado’s law, by adopting media exemptions,
expresses an interest not in disclosures relating to all electioneering communications and
independent expenditures, but only in disclosures by persons unlike the exempted media.
Finally, we cannot justify shirking our constitutional duty because of the dissent’s
concerns about determining who qualifies for the media exemptions. To be sure, there
could be challenging questions about what entities are entitled to the same relief as
Citizens United. But those challenges are inherent in the exemptions expressed in
Colorado law. Already the Secretary of State has had to grapple with whether various
media are included in the exemptions and has decided that online newspapers and blogs
are “printed,” Colo. Const. art. XXVII, § 2(8)(b)(I); apparently grants broadcast facilities
the same exemption as print media receive for “articles”; and recognizes the difficulty of
determining when a publication (hard copy or electronic) is a periodical, see, e.g., Oral
Arg. 18:14‒19:17.9
9
JUDGE: And what determines whether a publication is a magazine or a
newspaper? Could Citizens United just label a flyer “Citizens United Gazette” and—and
avoid the disclosure requirements?
ATTORNEY FOR SECRETARY: It—I want to say I know it when I see it, but,
you know, that doesn’t—that doesn’t have the greatest history. The—
JUDGE: There are no regulations regarding how that’s determined; is that
correct?
Continued . . .
33
The above analysis does not apply, however, with respect to advertisements for
Rocky Mountain Heist that mention a candidate or express support or opposition to
election of a candidate. Citizens United has not shown that such advertisements come
within the Colorado exemption for exempted media,10 and thus has not shown that it is
being treated differently from those media in this respect. Because the only relief sought
by Citizens United in this case is that it benefit from the same exemptions as the
exempted media, we can grant it no relief from any disclosure requirements applied to its
advertising.11
ATTORNEY FOR SECRETARY: Maybe that’s the best answer. Yes. I mean, I
can tell you—I can certainly tell you what is and wouldn’t be. Clearly The New York
Times is a newspaper or periodical. Clearly a glossy mailer that appears in my mail box
or is taped to my door that is one page and is focused solely on a candidate for office is
not. Is there—is there a lot of middle ground there? Yes. But I think the best line to
draw is—is it—well, let me just leave it there.
10
Perhaps the rationale for the media exemption would also apply to a media entity’s
own advertisements—for example, a newspaper’s advertisement promoting its article
unambiguously referencing a candidate—because the audience will similarly have
enough information to evaluate who is speaking. We do not reach this issue because
Citizens United’s complaint focuses on the differential treatment of media entities. If an
exempted media entity is subject to disclosure requirements for advertisements that it
places in other media, then Citizens United may also be subject to those requirements for
advertisements of Rocky Mountain Heist. Of course, if the Secretary determines on
reconsideration that a media entity need not disclose spending on its own advertisements
that unambiguously reference a candidate or expressly support or oppose a candidate,
then this requirement cannot be imposed on Citizens United.
11
We are puzzled by the dissent’s contention that we are deciding this case on equal-
protection grounds rather than under the First Amendment. Citizens United has
repeatedly disclaimed any reliance on the Equal Protection Clause and our analysis
follows settled First Amendment law. Yes, we compare the treatment of Citizens United
to the treatment of the exempted media. But that is solely to determine whether Colorado
Continued . . .
34
C. Remaining Preliminary-Injunction Factors
Having determined that Citizens United’s First Amendment argument is valid, the
remaining preliminary-injunction factors present little difficulty. See Hobby Lobby, 723
F.3d at 1145 (plurality opinion) (“[I]n First Amendment cases, the likelihood of success
on the merits will often be the determinative factor.” (internal quotation marks omitted)).
First, “the loss of First Amendment freedoms, for even minimal periods of time,
unquestionably constitutes irreparable injury.” Id. (internal quotation marks omitted).
Citizens United is poised to distribute its film and would suffer irreparable injury if it
were forced to comply with disclosure provisions that are unconstitutional as applied to
it. Second, “when a law . . . is likely unconstitutional, the interests of those the
government represents, such as voters[,] do not outweigh a plaintiff’s interest in having
its constitutional rights protected.” Id. (brackets and internal quotation marks omitted).
Finally, “it is always in the public interest to prevent the violation of a party’s
constitutional rights.” Id. (internal quotation marks omitted). In sum, all preliminary-
injunction factors weigh heavily in favor of Citizens United.12 And because the district
has provided a sufficiently important governmental interest to justify requiring
disclosures by Citizens United. We examine the reason provided by the Secretary for
Colorado’s decision that there is no sufficient governmental interest in disclosures by the
exempted media, determine that the reason applies equally to Citizen United’s films, and
conclude that Colorado has not identified a sufficiently important interest to justify
requiring disclosure by Citizens United.
12
The district court held that Citizens United’s showing on the four preliminary-
injunction factors was required to meet a heightened standard applicable to certain
Continued . . .
35
court’s denial of a preliminary injunction rested on what we hold to be an error of law,
we must reverse the denial. See ACLU of Ill. v. Alvarez, 679 F.3d 583, 589 (7th Cir.
2012) (in First Amendment case it was unnecessary to remand to district court to reweigh
the preliminary-injunction factors).
By forbidding enforcement of portions of Colorado law against Citizens United at
this stage of the litigation, we are no more rewriting Colorado law than a court does
whenever it holds a statutory provision unconstitutional as applied. To provide only two
examples, in MCFL, 479 U.S. 238, the Supreme Court held that a provision of federal
election law could not apply to a specific party, and in Sampson, 625 F.3d 1247, we held
that Colorado disclosure requirements could not be imposed on a neighborhood
organization opposing annexation to an adjacent town.
IV. CONCLUSION
We REVERSE the district court’s denial of a preliminary injunction and
REMAND with instructions to issue a preliminary injunction consistent with this opinion.
disfavored injunctions. “Three types of preliminary injunctions are specifically
disfavored: (1) preliminary injunctions that alter the status quo; (2) mandatory
preliminary injunctions; and (3) preliminary injunctions that afford the movant all the
relief that it could recover at the conclusion of a full trial on the merits.” Fundamentalist
Church of Jesus Christ of Latter-Day Saints v. Horne, 698 F.3d 1295, 1301 (10th Cir.
2012). The district court ruled that this case implicated the first and third categories. For
these disfavored preliminary injunctions, “the movant has a heightened burden of
showing that the traditional four factors weigh heavily and compellingly in its favor
before obtaining a preliminary injunction.” Id. (internal quotation marks omitted). We
need not decide whether a heightened standard applies here, however, because all four of
the preliminary-injunction factors weigh compellingly in Citizens United’s favor.
36
No. 14-1387, Citizens United v. Gessler et al.
PHILLIPS, Circuit Judge, concurring in part and dissenting in part:
I concur with the majority that Citizens United must comply with Colorado’s
campaign disclosure requirements for advertisements relating to its new film, Rocky
Mountain Heist. See Maj. Op. at 32–33. I respectfully dissent from the majority’s reversal
of the district court’s decision requiring that Citizens United comply with all other
disclosure requirements. I disagree with the majority’s conclusion that the disclosure
requirements violate Citizens United’s First Amendment rights, and that this Court has
authority under the First Amendment to rewrite additional exemptions into Colorado’s
Constitution and statutes.
I agree with the majority that we use exacting scrutiny to evaluate campaign
disclosure requirements. Citizens United v. Fed. Election Comm’n, 558 U.S. 310, 366–67
(2010); Buckley v. Valeo, 424 U.S. 1, 64 (1976). To satisfy this level of review,
disclosure requirements must have a “relevant correlation” or a “substantial relation” to a
sufficiently important governmental interest. Buckley, 424 U.S. at 64; Citizens United,
558 U.S. at 366–67. Here, one important government interest is the need to “ensur[e] that
Colorado’s electors are able to discern who is attempting to influence their votes.” Maj.
Op. at 19. This important interest, tied to “help[ing] citizens make informed choices in
the political marketplace,” is sufficient to uphold disclosure requirements against First
Amendment challenges, even those disclosure requirements that include media
exemptions. Citizens United, 558 U.S. at 367, 369; Human Life of Wash., Inc. v.
Brumsickle, 624 F.3d 990, 1011–12 (9th Cir. 2010).
Despite this preliminary common ground, the majority’s and my paths then
diverge. Unlike the majority, I approve of the district court’s view of what is required to
sustain exacting scrutiny here. Rather than focusing on Citizens United and its required
disclosure, the district court considered “whether there is a substantial relation between
the State’s interest and the disclosure scheme as a whole, not a single hypothetical.”
Citizens United v. Gessler et al., -- F. Supp. 3d --, 2014 WL 4698480 at *7 (D. Colo.
Sept. 22, 2014) (emphasis added). I agree with that approach.1
1
The majority contends that I have eliminated the possibility of an as-applied
challenge by my agreeing with the district court that the proper focus should be on
“whether there is a substantial relation between the State’s interest and the disclosure
scheme as a whole, not a single hypothetical.” Maj. Op. at 31. This contention
misunderstands my position. I say that Citizens United hasn’t made a traditional as-
applied challenge because it admits that the disclosure law would be valid against it if the
law also applied against the exempted traditional media. By then arguing that the
disclosure law becomes unconstitutional by treating traditional media differently,
Citizens United, in my view, veers to an equal protection challenge, not an as-applied
challenge under the First Amendment. See United States v. Huet, 665 F.3d 588, 600–01
(3d Cir. 2012) (stating that “an as-applied challenge does not contend that a law is
unconstitutional as written but that its application to a particular person under particular
circumstances deprived that person of a constitutional right.”). See also Fed. Elec.
Comm’n v. MCFL, 479 U.S. 238, 250-51, 263 (1986) (finding federal disclosure statute
unconstitutional as applied to plaintiff’s particular conduct rather than unconstitutional
because it applied to plaintiff’s conduct and not to entities covered by statute’s press
exemption) (emphasis added).
In response to my position, the majority relies on Greater New Orleans Broad.
Ass’n, Inc. v. United States, 527 U.S. 173 (1999). This reliance is misplaced. In that case,
the Supreme Court reviewed the constitutionality of a statute barring speech (commercial
advertisements) by some casinos while permitting others to make such speech. Id. at 176.
Greater New Orleans was a speech case, not a disclosure case. Because of that, the Court
2
In contrast, the majority adopts Citizens United’s position on exacting scrutiny and
considers whether requiring Citizens United to disclose becomes unlawful if traditional
media need not disclose. After hearing that position, the district court remarked that “[i]t
sounds like you’re making an equal protection argument, and yet you keep telling us, no,
we’re not.” Dist. Ct. Trans. 19:9–11. The district court’s comment arose from the bases
upon which Citizens United attacked the disclosure law: “We are here because [Citizens
United does] not want to have obligations imposed upon them that are not imposed upon
other speakers.” Dist. Ct. Trans. at 7:21–23. Citizens United further complained that “the
burden [of disclosure] . . . however slight, does not, the magnitude of the burden is not as
important as the fact that the burden is imposed unequally.” Dist. Ct. Trans. at 19:5–8.
And before us, Citizens United again complained about the “uneven disclosure” of the
requirements: “there’s no question that the obligation to keep records, to make
disclosures is a burden and it’s unequally distributed and that makes this statute—this
statutory regime facially unconstitutional.”2 Oral Arg. Oct. 7, 2014. Despite its argument,
Citizens United admitted that Colorado could require it to disclose if there were no
exemptions at all.
required the government to show that the prohibition was narrowly tailored to a
substantial government interest. Id. at 185–88. That standard is more stringent than the
exacting scrutiny we use to evaluate disclosure schemes. Compare Citizens United, 558
U.S. at 366–67 with Greater New Orleans Broad., 527 U.S. at 183–88.
2
The majority decides the case on an as-applied basis, not reaching the facial
challenge. I would reject the facial challenge too. Citizens United supports that challenge
by arguing that the disclosure law discriminates on a speaker’s viewpoint; like the district
court did, I too find no basis in Citizens United’s argument.
3
The majority elects to analyze the issue under Citizens United’s approach. It first
determines that Colorado has no important government interest in requiring disclosure
from the traditional media because Colorado exempts the traditional media from
disclosure. The majority then makes a case for why Citizens United is akin to traditional
media, emphasizing that it has an “extended history of producing substantial work,”
which provides Colorado voters “information about Citizens United that is at least as
accessible to the public as donor lists reported to the Secretary.” Maj. Op. at 29. From
this, the majority then makes a leap: it says that because Citizens United has the attributes
of traditional media, Colorado must not have an important government interest in
requiring disclosure from Citizens United. Along this same line, the majority concludes
that the First Amendment requires the Secretary to treat Citizens United the same as the
exempted media. Finding that he has not, the majority reverses the district court and
orders the Secretary to treat Citizens United the same as the exempted media. This
reasoning suffers from numerous fatal flaws.
First, the majority cites no cases to support its First Amendment/Equal Protection
legal theory. When the district court told Citizens United that this legal theory sounded in
Equal Protection, Citizens United did not fall back upon any case decided on the same
ground. Rather, Citizens United relied upon cases in which regulations discriminated
against speech based on viewpoint. In response, the district court pointed out the
undisputed fact that an individual or group with ideological views contrary to Citizens
United would also have to satisfy the disclosure requirements. Dist. Ct. Trans. at 19, 21.
4
Second, the majority assumes that if Citizens United is sufficiently media-like by
producing 25 films, then Colorado voters have no more interest in disclosure from it than
they would for an exempted media entity like The Denver Post. Maj. Op. at 29. This
misses the mark. Colorado voters may indeed desire to know the identity of the people or
groups contributing to the making of Citizens United’s film as opposed to the names of
The Denver Post’s subscribers, advertisers, or lenders. Colorado voters have determined
at the ballot box that the identity of Citizens United’s donors who earmark financial
contributions to produce or advertise a political film helps them evaluate the film’s
message. See Colo. Const. art. XXVIII, § 1; 8 Colo. Code. Reg. 1505-6:11 (requiring
disclosure of donors who specifically earmark donations above $250). I do not believe
this Court acts within its proper sphere by second-guessing Colorado voters about the
information they need to evaluate express advocacy such as made in Rocky Mountain
Heist.
Third, I believe that the majority errs in supposing that Citizens United is, in fact,
not being treated equally with the exempted media. We must remember that “exempted
media” are exempted only for certain communications made in limited forms of speech.
Colorado law does not give those media entities a blanket exemption from disclosure of
all electioneering communications and independent expenditures. In fact, the Secretary
has said that, just as Citizens United must disclose donors who gave earmarked funds for
its political film, the exempted media would have to disclose under the same
5
circumstances. For example, if The Denver Post3 were to solicit and obtain earmarked
donations to produce a political film, it too would need to disclose the donors earmarking
their contributions for that film.4 In view of this, it is no surprise that the district court
found that the disclosure exemptions are based on the form of the speech, meaning that,
“[f]or example, if Citizens United publishes an op-ed in a newspaper, it will not be
required to disclose the funding behind the piece. Likewise, if the Denver Post produced
a film expressly advocating for the reelection of Governor John Hickenlooper, it would
be forced to comply with the disclosure requirements.” Citizens United v. Gessler, 2014
WL 4698480, at *8.
Fourth, the majority undersells the importance of the State’s evidence presented at
the preliminary injunction hearing that “[t]raditional news organizations typically do not
engage in fundraising initiatives for express advocacy pieces or solicit money from
subscribers who wish to earmark their funds for a specific message.” Appellee’s Br. at
3
The result of this example—required disclosure—would be the same whether
The Denver Post, The Wellington Weekly (a small, weekly newspaper serving that town
and the surrounding rural area), or any other normally-exempt entity obtained earmarked
donations to produce a similar political film.
4
At oral argument, the Secretary noted that online editions of newspapers (i.e. The
Denver Post) and online political blogs would be exempt from disclosure. I see nothing
wrong with the Secretary interpreting Colorado’s own disclosure laws to determine that
some blogging posts might qualify as “[a]ny news articles, editorial endorsements,
opinion or commentary writings, or letters to the editor printed in a newspaper, magazine
or other periodical not owned or controlled by a candidate or political party.” Colo.
Const. art. XXVIII, § 2(7)(b)(I). And it is important to remember that the Secretary
would still require the exempted bloggers to disclose their donors who fund a political
film like Rocky Mountain Heist with money earmarked for that sole purpose.
6
39; see Dist. Ct. Trans. at 88:6–12. This provided some of the basis for the district court’s
denial of the preliminary injunction. In fact, the district court addressed Citizens United’s
argument to the contrary, finding it “rather nonsensical” and “clearly at odds with the
operation of the disclosure laws” that “without the exemptions newspapers would be
obligated to disclose the names of individual subscribers, advertisers, and financial
lenders.” Citizens United v. Gessler, 2014 WL 4698480, at *7. I agree with the district
court.
Fifth, I disagree with the majority’s remedy once it concludes that the Colorado
disclosure scheme violates the First Amendment. At that point, it should either sever the
traditional media’s exemption from disclosure or strike the entire disclosure scheme. See
Citizens for Resp. Gov’t State Pol. Action Comm. v. Davidson, 236 F.3d 1174, 1197 (10th
Cir. 2000). But in my view, the majority takes a long stride toward lawmaking when it
instead takes a pen to Colorado’s Constitution and statutes and writes in a nebulous third
category of entities that the Court believes have a First Amendment right to the same
exemption because those entities supposedly are sufficiently similar to traditional media.
Here, the majority concludes that an entity that has made 24 political films nationwide
qualifies, even though Rocky Mountain Heist is its first film to focus on Colorado politics
and draw particular attention inside Colorado. Under the majority’s approach, court
battles loom for other “media equivalents” with less national presence or fewer films or
7
other speech in their record. Will the Court later say that someone like Michael Moore,5 a
filmmaker with a contrary ideological view but fewer films, has a sufficient “extended
history” so that Colorado citizens can evaluate his message without knowing whether any
donors gave earmarked money toward his film? If not, will he have to disclose donors
making earmarked donations for his films while Citizens United does not? Under the
majority’s approach, no one can know without filing suit and then learning the answer on
a case-by-case basis. I would rather trust Colorado citizens to know when they need or do
not need disclosure to evaluate a speaker’s message.
Finally, although the majority recounts, but does not rely upon, the Federal
Election Commission’s (FEC) advisory opinion to support its result, I do wish to state my
disagreement with Citizens United’s argument that it should. In 2010, the FEC issued an
advisory opinion concluding that Citizens United’s costs of producing, distributing, and
marketing its films were exempt under federal disclosure laws. Fed. Election Comm’n
Advisory Op., No. 2010-08, 2010 WL 3184266 (June 11, 2010).6 Importantly, the FEC
granted Citizens United exempt status not under the First Amendment, but under the
federal disclosure exemption provision. See id. at *3–4 (citing 52 U.S.C. §
5
The district court used Michael Moore as the example to ask whether Colorado’s
disclosure requirements would apply to someone of the contrary view. See Dist. Ct.
Trans. at 5, 15.
6
The FEC’s advisory opinion came five months after the decision in Citizens
United v. Fed. Election Comm’n, 558 U.S. 310, 371 (2010), meaning that Citizens United
was not included in the media exception to disclosure under federal law when the Court
approved the disclaimer and disclosure requirements to Citizens United’s film at issue
there, Hillary, under the Bipartisan Campaign Reform Act of 2002.
8
30104(f)(3)(B)). The FEC has authority to render its opinion about the application of the
Federal Election Campaign Act. See 52 U.S.C. § 30108. In my view, neither the Colorado
Secretary of State nor this Court has corresponding authority over Colorado disclosure
exemptions as did the FEC over federal disclosure requirements.7 See Citizens United v.
Gessler, No. 1:14-CV-02266, Doc No. 1-2, at 8-10 (Secretary of State’s declaratory order
denying Citizens United an exemption from Colorado’s disclosure requirements) (citing
Colorado Common Cause v. Gessler, -- P.3d --, 2012 WL 3755615, at *5 (Colo. Ct. App.
Aug. 30, 2012) (holding that Secretary exceeded his authority when he promulgated a
rule based on federal law)).
For the foregoing reasons, and remembering that it is Citizens United’s burden to
prove its entitlement to a preliminary injunction, see Kikumura v. Hurley, 242 F.3d 950,
955 (10th Cir. 2001), I respectfully dissent.
7
Under the plain language of Colorado’s campaign disclosure laws, Citizens
United is not exempted. First, as a filmmaker, it is not acting as a “newspaper, magazine,
or other periodical” that is printing a “news articles, editorial endorsements, opinion or
commentary writings, or a letters to the editor.” See Colo. Const. art. XXVIII, §
2(7)(b)(I). Second, Citizens United is not a “broadcast facility.” Id. § 2(7)(b)(II).
9