Citizens United Brief in 10th Cir

8/10/2019 Citizens United Brief in 10th Cir

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No. 14-1387

IN THE

r p~ ` ^~ q `________________________________________

CITIZENS UNITED,

Plaintiff-Appellant,

v.

SCOTT GESSLER and SUZANNE STAIERT,

Defendant-Appellees,

and

COLORADO DEMOCRATIC PARTY, GAROLD A. FORNANDER,LUCA GUZMN, and DICKEY LEE HULLINGHORST,

Intervenor-Defendant-Appellees.

On Appeal From The United States District Court For The District Of ColoradoHonorable R. Brooke Jackson

In No. 1:14-CV-02266-RBJ

Oral Argument Scheduled

BRIEF FOR APPELLANT CITIZENS UNITED

Michael BoosCITIZENS UNITED1006 Pennsylvania Avenue, S.E.Washington, D.C. 20003(202) 547-5421

Theodore B. OlsonCounsel of Record

Matthew D. McGillAmir C. TayraniLucas C. TownsendGIBSON, DUNN & CRUTCHER LLP1050 Connecticut Avenue, N.W.Washington, D.C. 20036(202) [email protected]

Counsel for Appellant Citizens United

Appellate Case: 14-1387 Document: 01019321103 Date Filed: 10/03/2014 Page: 1


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CORPORATE DISCLOSURE STATEMENT

Pursuant to Federal Rule of Appellate Procedure 26.1, Citizens United, a

Virginia non-stock corporation, has no parent corporation and there are no publicly

held corporations that own 10% or more of Citizens Uniteds stock.



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TABLE OF CONTENTS

Page

INTRODUCTION ................................................................................................. 1

STATEMENT OF THE ISSUES........................................................................... 4

STATEMENT OF THE CASE .............................................................................. 5

A. Registration, Reporting, And Disclosure Requirements ................... 5

B. Colorados Media Exemptions ........................................................11

C. Citizens Uniteds Political And Media Activities ...........................12

D. Citizens Uniteds Complaint ........................................................... 15

SUMMARY OF THE ARGUMENT ..................................................................17

STANDARD OF REVIEW ................................................................................. 22

ARGUMENT ....................................................................................................... 23

I. THE DISTRICT COURT ERRED IN CONCLUDING THATCITIZENS UNITED DOES NOT HAVE A SUBSTANTIALLIKELIHOOD OF SUCCESS ON THE MERITS. ................................. 23

A. Colorados Discriminatory Burdens On The PoliticalSpeech Of Press Entities Require Strict Scrutiny. ..........................24

B. Colorados Discriminatory Reporting And DisclosureRequirements Are Not Narrowly Tailored To Further ACompelling Government Interest. ...................................................33

C. The Media Exemptions Cannot Be Severed From TheReporting And Disclosure Requirements........................................ 40

D. If Media Exemptions From Political Speech RestrictionsAre Constitutionally Compelled, They Must Be ConstruedTo Apply To Citizens United. .........................................................44

E. The District Court Misapprehended Core First AmendmentPrinciples. ........................................................................................47



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TABLE OF AUTHORITIES

Page(s)

Cases

ACLU v. Alvarez,679 F.3d 583 (7th Cir. 2012) ......................................................................... 22

Alaska Airlines, Inc. v. Brock,480 U.S. 678 (1987) ....................................................................................... 41

Am. Target Adver., Inc. v. Giani,199 F.3d 1241 (10th Cir. 2000) .....................................................................40

Am. Constitutional Law Found., Inc. v. Meyer,

120 F.3d 1092 (10th Cir. 1997) .............................................................. 29, 59

Ark. Writers Project, Inc. v. Ragland,481 U.S. 221 (1987) ....................................................................................... 46

Brown v. Entmt Merchs. Ass'n,131 S. Ct. 2729 (2011) ............................................................................ 49, 50

Buckley v. Valeo,424 U.S. 1 (1976) ........................................................................ 41, 47, 48, 52

Burwell v. Hobby Lobby Stores, Inc.,134 S. Ct. 2751 (2014) ...................................................................................23

Chamber of Commerce v. Edmondson,594 F.3d 742 (10th Cir. 2010) .......................................................................56

Chandler v. City of Arvada,292 F.3d 1236 (10th Cir. 2002) .....................................................................29

Citizens for Responsible Govt State Political Action Comm. v. Davidson,236 F.3d 1174 (10th Cir. 2000) .....................................................................42

Citizens United v. FEC,558 U.S. 310 (2010) ................... 1, 2, 18, 19, 20, 24-25, 26, 27, 31, 37, 48, 51

City of Ladue v. Gilleo,512 U.S. 43 (1994) .................................................................................. 26, 31



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v

In re Interrogatories Relating to the Great Outdoors Colo. Trust Fund,913 P.2d 533 (Colo. 1996) ............................................................................. 43

Independence Inst. v. Gessler,No. 14-cv-02426-RBJ (D. Colo. Sept. 25, 2014) ..........................................32

K.A. ex rel. Ayers v. Pocono Mountain Sch. Dist.,710 F.3d 99 (3d Cir. 2013).............................................................................58

Klein v. City of San Clemente,584 F.3d 1196 (9th Cir. 2009) .......................................................................54

Leathers v. Medlock,499 U.S. 439 (1991) ....................................................................................... 33

Leavitt v. Jane L.,518 U.S. 137 (1996) ....................................................................................... 40

McCutcheon v. FEC,134 S. Ct. 1434 (2014) .......................................................................... 1, 2, 24

Members of City Council of L.A. v. Taxpayers for Vincent,466 U.S. 789 (1984) .......................................................................................26

Minneapolis Star & Tribune Co. v. Minn. Commr of Revenue,460 U.S. 575 (1983) ........................................................ 19, 25, 26, 32, 46, 53

NAACP v. Button,371 U.S. 415 (1963) ....................................................................................... 32

O Centro Espirita Beneficiente Uniao Do Vegetal v. Ashcroft,

389 F.3d 973 (10th Cir. 2004) ................................................................. 22-23Okla. Corr. Profl Assn v. Doerflinger,

521 F. Appx 674 (10th Cir. 2013) ......................................................... 26, 29

Pac. Frontier v. Pleasant Grove City,414 F.3d 1221 (10th Cir. 2005) ........................................................ 54, 55, 58



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vi

Pahls v. Thomas,718 F.3d 1210 (10th Cir. 2013) .....................................................................26

People v. Seven Thirty-Five E. Colfax, Inc.,697 P.2d 348 (Colo. 1985) ............................................................................. 41

Quincy Cable TV, Inc. v. FCC,768 F.2d 1434 (D.C. Cir. 1985) .....................................................................45

Reitman v. Mulkey,387 U.S. 369 (1967) ....................................................................................... 58

Romer v. Evans,517 U.S. 620 (1996) ....................................................................................... 58

Rosenberger v. Rector & Visitors of Univ. of Va.,515 U.S. 819 (1995) ...................................................................... 3, 25, 27, 38

Sampson v. Buescher,131 S. Ct. 2653 (2011) ............................................................................ 24, 35

Sindicato Puertorriqueo de Trabajadores v. Fortuo,699 F.3d 1 (1st Cir. 2012) ..............................................................................53

Sorrell v. IMS Health Inc.,131 S. Ct. 2653 (2011) ...................................................................................28

Spraigue v. Thompson,118 U.S. 90 (1886) ......................................................................................... 42

Susan B. Anthony List v. Driehaus,

134 S. Ct. 2334 (2014) ............................................................................ 34, 53Turner Broad. Sys., Inc. v. FCC,

512 U.S. 622 (1994) ..................................................................... 32, 46, 52-53

United States v. Jackson,390 U.S. 570 (1968) ....................................................................................... 41



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United States v. Virginia,518 U.S. 515 (1996) ....................................................................................... 35

Winter v. NRDC,555 U.S. 7 (2008) ...........................................................................................21

Wisconsin Right to Life, Inc. v. Barland,751 F.3d 804 (7th Cir. 2014) ......................................................................... 37

Constitutional Provisions

Colo. Const. art. XXVIII, 2(7) ................................................. 6, 12, 30, 34, 39, 40

Colo. Const. art. XXVIII, 2(8) ....................................................... 6, 12, 34, 39, 40

Colo. Const. art. XXVIII, 2(9) ................................................................................6


Colo. Const. art. XXVIII, 5(2) ......................................................................... 7, 44

Colo. Const. art. XXVIII, 5(4) ................................................................................6Colo. Const. art. XXVIII, 6(1) ......................................................................... 9, 35


Colo. Const. art. XXVIII, 8 ................................................................................... 10

Colo. Const. art. XXVIII, 9 ................................................................................... 10

Colo. Const. art. XXVIII, 9(1) ..............................................................................11

Colo. Const. art. XXVIII, 9(2) ....................................................................... 10, 11

Colo. Const. art. XXVIII, 10(2) ............................................................................10

Colo. Const. art. XXVIII, 14 .................................................................................41



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Statutes

2 U.S.C. 431(9)(B)(i) ............................................................................................45

2 U.S.C. 434(f)(3)(B)(i) ........................................................................................ 13

28 U.S.C. 1292(a)(1) ............................................................................................... 4

28 U.S.C. 1331 ........................................................................................................ 4

Colo. Rev. Stat. 1-45-103(9) ............................................................................ 6, 12

Colo. Rev. Stat. 1-45-103(10) .......................................................................... 6, 12

Colo. Rev. Stat. 1-45-103(11) ................................................................................. 6

Colo. Rev. Stat. 1-45-107.5(3) ................................................................................7

Colo. Rev. Stat. 1-45-107.5(4) ................................................................................8

Colo. Rev. Stat. 1-45-107.5(5) ................................................................................8

Colo. Rev. Stat. 1-45-107.5(7) ................................................................................8

Colo. Rev. Stat. 1-45-107.5(8) ................................................................................9

Colo. Rev. Stat. 1-45-108(2) ............................................................................ 9, 35

Colo. Rev. Stat. 1-45-111.5 ..................................................................................10

Colo. Rev. Stat. 1-45-111.5(1.5) .................................................................... 10, 11

Colo. Rev. Stat. 1-45-111.5(2) ..............................................................................10

Colo. Rev. Stat. 1-45-118 .....................................................................................42

Regulations

11 C.F.R. 100.29(c)(2) .......................................................................................... 13



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8 Colo. Code Regs. 1505-6:5 .................................................................................. 98 Colo. Code Regs. 1505-6:11 ..............................................................................10

8 Colo. Code Regs. 1505-6:11.1 ........................................................................... 36

Other Authorities

Pew Research Center for the People & the Press, Trends in NewsConsumption: 1991-2012, In Changing News Landscape, Even

Television Is Vulnerable1 (2012)available athttp://www.people-press.org/files/legacy-pdf/2012%20News%20Consumption%20Report.pdf ................................... 51



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STATEMENT OF RELATED CASES

There are no prior or related appeals.



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INTRODUCTION

Colorados facially discriminatory registration and disclosure regime for po-

litical speech is plainly unconstitutional.

Citizens United has produced a timely 30-minute documentary describing

politics in Colorado. However, because that documentary contains the names of

candidates who will be on Novembers ballot, and because Citizens United is not a

newspaper, periodical, or broadcaster, it may not distribute its movie without com-

plying with burdensome registration, notice and financial disclosure requirements.

The Supreme Court has enunciated certain core First Amendment principles

that protect against government regulation of information, ideas, and opinions

about government or elections. In fact, the First Amendment has its fullest and

most urgent application in the context of election campaigns. McCutcheon v.

FEC, 134 S. Ct. 1434, 1441 (2014).

Government has no right to regulate political speech except in the narrow

context of protecting against corruption, defined as quid pro quo exchanges, or its

appearance. Citizens United v. FEC, 558 U.S. 310, 359 (2010). Colorado has no

such basis for its discriminatory disclosure scheme, and independent speech such

as that in Citizens Uniteds documentary film presents no risk of corruption. See

id.at 356-57, 360-61. Campaign finance restrictions that pursue other objectives

. . . impermissibly inject the Government into the debate over who should govern.



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that government regulation may not favor one speaker over another, Rosen-

berger v. Rector & Visitors of Univ. of Va., 515 U.S. 819, 828 (1995), Colorado

clearly has taken sidesfavoring speech by the established, institutional, tradi-

tional press and disfavoring upstarts, new media, and others. And because they

have not invested in a printing plant or sought government approval in the form of

a broadcast license, speakers like Citizens United are placed at a severe disad-

vantage in the public debate.

The court below denied Citizens Uniteds motion for a preliminary injunc-

tion to prohibit Colorado from enforcing its discriminatory reporting and disclo-

sure requirements. That ruling, if not reversed, will result in the immediate and

profound impairment of Citizens Uniteds right to speak to Colorado citizensas

well as the rights of all other Colorado speakers who are not part of the favored es-

tablishment. For Citizens United, that injury is imminent and irreparable: It will

be suffered the moment Citizens United begins, next week, to advertise and dis-

tribute its documentary film, Rocky Mountain Heist, when it will be subjected to

regulatory burdens not imposed on speakers in the traditional media.

A preliminary injunction is necessary to enable Citizens United to engage in

core political speech and media activities on equal footing with all other speakers.

At least since Grosjean v. American Press Co., 297 U.S. 233, 251 (1936), equality

of treatment among speakers has been a clarion command of the First Amendment;



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government discrimination based upon a speakers viewpoint, identity, or means of

communication is prohibited. Yet that is precisely the discrimination that appears

on the face of Colorados reporting and disclosure requirements. That facial dis-

crimination among speakers is incompatible with First Amendment principles and

irreconcilable with Supreme Court precedent. The district courts denial of a pre-

liminary injunction accordingly must be reversed.

JURISDICTIONAL STATEMENT

The district court had subject-matter jurisdiction pursuant to 28 U.S.C.

1331 because Citizens Uniteds claims raise a federal question under the Consti-

tution of the United States. On September 22, 2014, the district court entered an

order denying Citizens Uniteds motion for a preliminary injunction. That order is

final as to the preliminary injunctive relief sought. Citizens United filed its notice

of appeal the next day, on September 23, 2014. This Court has jurisdiction over

this appeal from the district courts denial of Citizens Uniteds motion for a prelim-

inary injunction pursuant to 28 U.S.C. 1292(a)(1).

STATEMENT OF THE ISSUES

Whether Citizens United is entitled to a preliminary injunction prohibiting

enforcement of Colorados discriminatory reporting and disclosure requirements

for electioneering communications and independent expenditures because those



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requirements violate the First Amendment to the U.S. Constitution and Article II,

Section 10 of the Colorado Constitution.

STATEMENT OF THE CASE

This case presents the question whether Colorados reporting and disclosure

requirements for electioneering communications and independent expenditures

violate the First Amendment by placing facially discriminatory burdens on the po-

litical speech of some speakers while exempting others. Colorados campaign fi-

nance laws are generally contained in Article XXVIII of the Colorado State Con-

stitution, which was enacted by the voters of Colorado through a ballot initiative in

2002, and in Colorados Fair Campaign Practices Act (FCPA), which was enact-

ed by Colorado voters in 1996. The specific reporting and disclosure requirements

at issue here are set forth in Sections 2, 5, and 6 of Article XXVIII of the Colorado

Constitution, and Sections 1-45-103, 1-45-107.5, and 1-45-108 of the Colorado

Revised Statutes.

A.

Registration, Reporting, And Disclosure Requirements

Section 2 of Article XXVIII defines the relevant terms. Electioneering

communication is defined as:

[A]ny communication broadcasted by television or radio, printed in a news-paper or on a billboard, directly mailed or delivered by hand to personal res-idences or otherwise distributed that:

(I) Unambiguously refers to any candidate; and



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(II) Is broadcasted, printed, mailed, delivered, or distributed withinthirty days before a primary election or sixty days before a generalelection; and

(III) Is broadcasted to, printed in a newspaper distributed to, mailedto, delivered by hand to, or otherwise distributed to an audience thatincludes members of the electorate for such public office.

Colo. Const. art. XXVIII, 2(7)(a); see also Colo. Rev. Stat. 1-45-103(9). An

expenditure is:

[A]ny purchase, payment, distribution, loan, advance, deposit, or gift ofmoney 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 ques-tion. An expenditure is made when the actual spending occurs or when thereis a contractual agreement requiring such spending and the amount is deter-mined.

Colo. Const. art. XXVIII, 2(8)(a);see alsoColo. Rev. Stat. 1-45-103(10). An

independent expenditure is an expenditure not controlled by or coordinated

with any candidate or agent of such candidate. Colo. Const. art. XXVIII, 2(9);

see alsoColo. Rev. Stat. 1-45-103(11).

1. Independent Expenditures. Section 5 of Article XXVIII sets forth many

of the specific reporting and disclosure requirements that are imposed on speakers

who make independent expenditures for the purpose of expressly advocating the

defeat or election of any candidate. Colo. Const. art. XXVIII, 5(4). Under Sec-tion 5, any person making independent expenditures in excess of $1,000 per calen-

dar year shall deliver notice in writing to the secretary of state of such independ-

ent expenditure. Id. 5(1). The notice must disclose the amount of the expendi-



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ture and provide a detailed description of the use of each independent expendi-

ture. Id. In addition, the notice shall specifically state the name of the candidate

whom the independent expenditure is intended to support or oppose. Id. Each

independent expenditure in excess of $1,000 requires the delivery of a new notice.

Id. For independent expenditures made within 30 days of a primary or general

election, the written notice must be delivered within forty-eight hours after obli-

gating funds for such expenditure. Id. The person making the expenditure must

also prominently disclose its identity in the resulting communication. Id. 5(2).

Section 1-45-107.5 of the Colorado Revised Statutes imposes additional reg-

istration, reporting, and disclosure requirements on speakers making independent

expenditures. For example, any speaker expending more than $1,000 per calendar

year on independent expenditures must register as an independent expenditure

committee within two business days of the date on which the expenditure reaches

or exceeds $1,000. Colo. Rev. Stat. 1-45-107.5(3)(a). The same registration re-

quirement applies to speakers who accept donations that are given for the purpose

of making an independent expenditure in excess of $1,000. Id. As part of the reg-

istration process, speakers must also identify their full names, designate an agent

for service of process, disclose the location of the speakers principal place of op-

erations, and report the percentage of foreign ownership of the speakers as of the

date of registration. Id. 1-45-107.5(3)(b)(I)-(IV).



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In addition to registering with the State, a speaker who makes independent

expenditures totaling more than $1,000 per year must report detailed information

about its donors to the State. For example, the speaker must report the name and

address of any person who donates more than $250 per year to the speaker for the

purpose of making an independent expenditure. Colo. Rev. Stat. 1-45-

107.5(4)(b)(I). If the donor is a natural person, the speaker must also report the

occupation and employer of the donor. Id.1-45-107.5(4)(b)(II). If the donor is a

corporation, the speaker must report information about the donors business names,

home office, and registered agent. Id. 1-45-107.5(4)(b)(III). Where a speaker

makes independent expenditures in excess of $1,000 within thirty days of a prima-

ry or general election, the speaker must file such reports with the State within for-

ty-eight hours after obligating moneys for the independent expenditure. Id. 1-

45-107.5(4)(c).

In addition to filing reports with the State, a speaker who makes independent

expenditures totaling more than $1,000 per year must include specific disclosures

in any communication that constitutes an independent expenditure. The disclo-

sures must identify the speaker and, if the speaker is not a natural person, its regis-

tered agent. Colo. Rev. Stat. 1-45-107.5(5)(a)(I)-(II). Such speakers must also

establish separate bank accounts for funds used to make independent expenditures.

Id. 1-45-107.5(7). Further, these speakers must report to the Secretary of State



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any donation in excess of $20 received during the reporting period for purposes of

making an independent expenditure. Id. 1-45-107.5(8). Additional require-

ments for independent expenditures and independent expenditure committees are

contained in Rule 5 of the Secretarys Rules Concerning Campaign and Political

Finance. See8 Colo. Code Regs. 1505-6:5.

2. Electioneering Communications. Section 6 of Article XXVIII sets forth

many of the specific reporting and disclosure requirements that are imposed on

speakers who engage in electioneering communications. For example, speakers

expending more than $1,000 per calendar year on electioneering communications

must report to the Secretary of State the amount spent on those communications

and the name, address, occupation, and employer of any person that contributed

more than $250 to fund the communications. Colo. Const. art. XXVIII, 6(1).

Section 1-45-108 sets forth additional requirements for the timing and contents of

such reports. In the months before a general election, those reports must be sub-

mitted every two weeks beginning on the first Monday in September. Colo. Rev.

Stat. 1-45-108(2)(a)(I)(D).1Additional requirements for electioneering commu-

1 As enacted, Section 6 of Article XXVIII also purported to ban corporations

and labor unions from providing funding for electioneering communications. Co-lo. Const. art. XXVIII, 6(2). The Supreme Court of Colorado subsequently de-clared that ban unconstitutional. See In re Interrogatories Propounded by Gover-nor Ritter, Jr., Concerning Effect of Citizens United v. Fed. Election Commn, 558

[Footnote continued on next page]



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nications are contained in Rule 11 of the Secretarys Rules Concerning Campaign

and Political Finance. See8 Colo. Code Regs. 1505-6:11.

3. Enforcement and Penalties. The Secretary is responsible for enforcing

Colorados reporting and disclosure requirements and promulgating regulations

that implement Colorados campaign finance laws. Colo. Const. art. XXVIII,

8-9; Colo. Rev. Stat. 1-45-111.5;see alsoApp. at A159. In addition, Colora-

dos Constitution authorizes private plaintiffs to enforce the campaign finance

laws. Any person who believes that a speaker has violated the reporting and dis-

closure requirements may file a complaint with the Secretary, who in turn refers

the matter to an administrative law judge for adjudication. Colo. Const. art.

XXVIII, 9(2)(a). The administrative law judge is empowered to issue any ap-

propriate order, sanction, or relief authorized under Article XXVIII. Id.

Speakers face the threat of litigation and harsh penalties for failing to com-

ply with these reporting and disclosure requirements. Civil penalties for infrac-

tions range from fifty dollars per day (Colo. Const. art. XXVIII, 10(2)(a)) to as

much as one thousand dollars per day (Colo. Rev. Stat. 1-45-111.5(1.5)(c)) for

each day a report or disclosure is overdue. Judgments are enforceable either by

[Footnote continued from previous page]U.S. ---- (2010) on Certain Provisions of Article XXIII of Constitution of State, 227P.3d 892, 894 (Colo. 2010) (en banc) (per curiam).



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public enforcement action or private lawsuit. Colo. Const. art. XXVIII, 9(1)-

(2);see also,e.g., Colo. Citizens for Ethics in Govt v. Comm. for Am. Dream, 187

P.3d 1207, 1212 (Colo. App. 2008) (affirming penalty of $1,000 against political

committee based on a complaint filed with Secretary by private citizen group).

Under certain circumstances, speakers who violate Colorados reporting and dis-

closure requirements may also be liable for attorney fees and costs, and may be re-

quired to post notice of the judgment on their publicly accessible web site for 180

days. Colo. Rev. Stat. 1-45-111.5(1.5)(f), (2).

B.

Colorados Media Exemptions

These burdens and penalties do not apply evenhandedly to all speakers.

Quite the contrary, Colorado law expressly privileges the traditional print and

broadcast media and certain other speakers with exemptions from these burden-

some reporting and disclosure requirements.

Specifically, Colorado excludes from the definition of electioneering com-

munication:

(I) Any news articles, editorial endorsements, opinion or commentary writ-ings, or letters to the editor printed in a newspaper, magazine or other peri-odical not owned or controlled by a candidate or political party;

(II) Any editorial endorsements or opinions aired by a broadcast facility notowned or controlled by a candidate or political party;

(III) Any communication by persons made in the regular course and scope oftheir business or any communication made by a membership organizationsolely to members of such organization and their families;



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(IV) Any communication that refers to any candidate only as part of thepopular name of a bill or statute.

Colo. Const. art. XXVIII, 2(7)(b);see alsoColo. Rev. Stat. 1-45-103(9). The

media exemption from the definition of expenditure similarly excludes:

(I) Any news articles, editorial endorsements, opinion or commentary writ-ings, or letters to the editor printed in a newspaper, magazine or other peri-odical not owned or controlled by a candidate or political party;

(II) Any editorial endorsements or opinions aired by a broadcast facility notowned or controlled by a candidate or political party;

(III) Spending by persons, other than political parties, political committeesand small donor committees, in the regular course and scope of their busi-ness or payments by a membership organization for any communicationsolely to members and their families;

(IV) Any transfer by a membership organization of a portion of a membersdues to a small donor committee or political committee sponsored by suchmembership organization; or payments made by a corporation or labor or-ganization for the costs of establishing, administering, or soliciting fundsfrom its own employees or members for a political committee or small donor

committee.

Colo. Const. art. XXVIII, 2(8)(b);see alsoColo. Rev. Stat. 1-45-103(10).

C.

Citizens Uniteds Political And Media Activities

Citizens United is a non-profit membership organization under Section

501(c)(4) of the Internal Revenue Code. App. at A11 ( 9). It engages in educa-

tion, advocacy, and grassroots activities, including regular political speech and

media and press communications. See id.; App. at A16 ( 24), A54, A78 ( 4).

Among its activities, Citizens United produces, markets, and distributes documen-

tary films, including films that explore controversial political organizations, per-



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sonalities, and policies in the United States and abroad. App. at A16 ( 24), A78 (

4). Since 2004, Citizens United has produced and released twenty-four documen-

tary films, some of which are award-winning. App. at A16 ( 24), A78 ( 4).

Citizens United distributes its films through a variety of formats including

theatrical release, DVDs, television, and online digital streaming and downloading.

App. at A16 ( 25), A78 ( 5). To promote the sale of its films, Citizens United

advertises them on television, on billboards, in newspapers, via direct and electron-

ic mail, and on the Internet. App. at A16 ( 25), A78 ( 5).

The Federal Election Commission has recognized that Citizens Uniteds

films constitute a legitimate press function. App. at A34. Accordingly, Citizens

Uniteds films and advertising promoting its films are exempt from the reporting

and disclosure requirements imposed by federal campaign finance law. SeeApp.

at A28-35;see also2 U.S.C. 434(f)(3)(B)(i); 11 C.F.R. 100.29(c)(2).

Citizens Uniteds latest documentary film, Rocky Mountain Heist, explores

the impact of various advocacy groups on Colorado government and public policy.

App. at A17 ( 27), A78 ( 6). The Film will be approximately thirty minutes in

length and has a budget of $773,975, including $548,975 for production and

$225,000 for marketing. App. at A17 ( 27-29), A78-79 ( 7-9). Production is

complete, and the Film is scheduled to be marketed and distributed across the

United States, including in Colorado, beginning in the first week of October 2014.



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App. at A17-18 ( 30), A78 ( 6). Distribution of the Film will be through DVD

sales, television broadcast, and online digital streaming and downloading; advertis-

ing will include television, radio, and Internet ads. App. at A17-18 ( 30), A78-79

( 6, 10).

The Film and some of its advertising will include unambiguous references to

elected Colorado officials running for office in this years general election, as well

as video footage that meets the statutory definition of express advocacy. App. at

A17 ( 27), A55-56, A78-79 ( 7). Thus, unless exempted,Rocky Mountain Heist

will constitute both an electioneering communication and an independent expendi-

ture under Colorado law.

On April 18, 2014, Citizens United filed a Petition for Declaratory Order

with the Colorado Secretary of State seeking clarification as to whether Citizens

Uniteds distribution and advertising of Rocky Mountain Heist qualified for the

media exemptions from Colorados reporting and disclosure requirements as they

do under applicable law. App. at A18 ( 32). The Secretary concluded that the

Film and related advertising did not fall within Colorados media exemption. App.

at A41-47. Specifically, the Secretary concluded that Citizens United is not enti-

tled to the exemption for print media because the forthcoming documentary is a

film, which cannot be printed in a newspaper, magazine, or other periodical.

App. at A41. Citizens United also is not entitled to the exemption for broadcasters,



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the Secretary concluded, because Citizens United is not a broadcast facility and,

as such, does not fall within this exemption. App. at A42. In rejecting Citizens

Uniteds argument that the First Amendment to the U.S. Constitution compels an

exemption for its press activities that parallels the media exemption under federal

law, the Order explained that the Secretary lacks the authority to apply well-

reasoned, settled First Amendment law to Colorado. App. at A45 (italics omit-

ted).

D.

Citizens Uniteds Complaint

Citizens United thereafter filed this suit for declaratory and injunctive relief

alleging that Colorados facially discriminatory reporting and disclosure require-

ments violate the First Amendment to the U.S. Constitution and Article II, Section

10 of the Colorado Constitution. See App. at A8-47. Simultaneously, Citizens

United filed a motion for a preliminary injunction prohibiting the Secretary from

enforcing Colorados discriminatory reporting and disclosure requirements, both as

applied to Citizens United and to all other Colorado speakers ineligible for the me-

dia exemptions. SeeApp. at A48-80.

The Secretary opposed Citizens Uniteds motion, as did the Colorado Dem-

ocratic Party and several individuals who were granted leave to intervene as de-

fendants in the case. Neither the Secretary nor the Intervenors disputed that Colo-

rados reporting and disclosure requirements impose a burden on Citizens Uniteds



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speech. Nor did they dispute that Colorado law imposes those burdens in a facially

discriminatory manner that privileges traditional media outlets over other media

outlets and other speakers. Nevertheless, after holding a hearing on the motion

(seeApp. A176-295), the district court denied preliminary injunctive relief. See

App. at A154-75.

At the outset, the district court determined that it must more closely scruti-

nize Citizens Uniteds motion than a typical request for a preliminary injunction

because it sought to significantly alter the status quo. App. at A163. The district

court then reasoned that Colorados reporting and disclosure requirements distin-

guis[h] based on the form of speech, not on the identity of the speaker, even

though the effect of the law is commonly to exempt press entities from Colora-

dos reporting requirements. App. at A165. Finding nothing to sugges[t] that

the intent (or effect) is to discriminate on the basis of content or viewpoint (id.),

the district court determined that Colorados reporting and disclosure requirements

were not subject to strict scrutiny, but rather an intermediate, exacting scrutiny

standard (App. at A165-66).

According to the district court, the Secretary was required to show only a

reasonable fit (App. at A169) between Colorados proffered interest in ensuring

its electorate is informed (App. at A167) and Colorados disclosure regime, in-

cluding its exemptions for traditional media entities. In the district courts view,



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that fit was satisfied by the Secretarys argument that the the justifications for re-

quiring disclosure apply more strongly to isolated instances of political advocacy

than they do to speech by institutionalized and longstanding press entities. Id.

(quoting App. at A96). In contrast, it was not clear to the district court exactly

what type of information newspapers and broadcast facilities would be required to

disclose if these exemptions did not exist. App. at A168.

Finding no reason to conclude that the scope of the disclosure scheme, in-

cluding its exemptions, is not in proportion to the interest of informing the elec-

torate (App. at A169), the district court concluded that Citizens Uniteds facial

and as-applied challenges did not have a substantial likelihood of success on the

merits. App. at A170-172. Absent a law that actually infringes a constitutional

right (App. at A173), the district court also concluded that the remaining require-

ments for a preliminary injunction were not satisfied. App. at A172-74.

SUMMARY OF THE ARGUMENT

The district courts order denying Citizens Uniteds motion for a preliminary

injunction is predicated on several errors of law, each of which must be reviewed

without deference and, once corrected, dictate reversal of the decision below. The

district court applied the wrong standard of First Amendment scrutiny, erroneously

concluded that it is acceptable for Colorado to give the institutional press preferen-

tial treatment over all other media entities and political speakers, and incorrectly



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18

evaluated the remaining equitable factors for preliminary injunctive relief. Those

errors require reversal and the entry of a preliminary injunction prohibiting en-

forcement of Colorados discriminatory reporting and disclosure requirements.

1. The district court erred in viewing this case as presenting a broad chal-

lenge to the constitutionality of all reporting and disclosure requirements for politi-

cal speech. It does not. The Supreme Court rejected such a challenge in Citizens

United v. FEC, 558 U.S. 310, 366-67 (2010), and Citizens United does not seek to

revisit that issue here. This case instead presents a separate question not raised or

decided in Citizens United: whether Colorado may apply its reporting and disclo-

sure requirements to Citizens United and other speakers that do not own a printing

press or broadcast station while expressly exempting the institutional press from

those burdensome requirements. Under settled First Amendment principles, Colo-

rado may not engage in such blatant discrimination based on speakers status, iden-

tity, and message.

Laws that discriminate against speakers based on their identity are subject to

strict scrutiny, which requires the government to show that the restriction fur-

thers a compelling interest and is narrowly tailored to achieve that interest. Citi-

zens United, 310 U.S. at 340. If Colorados reporting and disclosure requirements

applied to all speakers in equal measure, thenthose laws would be subject to less

demanding, exacting scrutiny, id.at 366, just as laws of general applicability that



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place incidental burdens on the medias press activities also are not subject to

heightened scrutiny. See Minneapolis Star & Tribune Co. v. Minn. Commr of

Revenue, 460 U.S. 575, 583 (1983). But Colorados reporting and disclosure re-

gime is not a law of general applicability; it is discriminatory on its face, exempt-

ing favored speakers in the traditional medianewspapers, magazines, and

broadcasterswhile subjecting new media voices to its onerous burdens. The

First Amendment requires that such discrimination in the governments regulation

of speech be subjected to strictnot merely exactingscrutiny. Citizens United,

558 U.S. at 340;Minneapolis Star, 460 U.S. at 583.

Colorados discriminatory reporting and disclosure regime does not come

close to satisfying that standard. Assuming Colorados professed interest in pro-

moting an informed electorate constitutes a compelling state interest, the schemes

burdens and selective exemptions are not in any way narrowly tailored to that ob-

jective. Indeed, if Colorado were truly interested in providing the public with ac-

cess to information about the funding of political speech, it would apply its report-

ing and disclosure requirements in an evenhanded manner to all speakers

including the print media and broadcasters. Instead, the State carves out those

privileged media entities from the onerous reporting and disclosure obligations that

apply to anyone who lacks the resources to purchase a printing press or broadcast



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station. The First Amendment does not countenance such discrimination among

speakers.

This unconstitutional, identity-based discrimination cannot be remedied by

severing the media exemptions from the reporting and disclosure requirements.

No party disputes that the media exemptions are integral to Colorados reporting

and disclosure regime, and there is no indication that Colorados voters would have

enacted a reporting and disclosure framework without the media exemptions. And

while it is doubtful that the First Amendment compels an exemption for the media,

Citizens United plainly would be entitled to enjoy such an exemption. The Su-

preme Court already has recognized that Citizens Uniteds documentary films per-

form a press function. See Citizens United, 558 U.S. at 372. And the Federal Elec-

tion Commission accordingly has determined that Citizens United is entitled to the

media exemption that exists under federal law. Citizens Uniteds documentary

films are entitled to no lesser protection under the First Amendment than other

forms of journalistic endeavor.

None of the district courts justifications for disregarding these First

Amendment principles can withstand scrutiny. Because this case is about discrim-

ination among speakersand not, as the district court apparently believed, about

the constitutionality of disclosure requirementsColorados informational interest

cannot sustain its discriminatory reporting and disclosure requirements. Nor does



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viewing those discriminatory reporting and disclosure requirements as a regulation

of the form of speech (App. at A165) cure their unconstitutionality. When a

state favors a form of speech limited to speakers who own printing presses and

broadcast facilities, it discriminates among speakers based on their identity, and the

law is presumptively prohibited.

For these reasons, Citizens United has a substantial likelihood of success on

the merits and the district court erred in concluding otherwise.

2. The district courts error in evaluating the likelihood-of-success prong in-

fected its consideration of each of the remaining factors governing the availability

of preliminary injunctive relief. The deprivation of Citizens Uniteds First

Amendment right to engage in political discourse on the same terms as all other

speakers is an irreparable injury that warrants immediate relief; in contrast, Colo-

rado would suffer no injury at all if it were unable to enforce its unconstitutional

reporting and disclosure requirements. Indeed, the balance of the equities invaria-

bly favors enjoining laws that impose unconstitutional burdens on protected

speech. Moreover, the public interest always favors enjoining the enforcement of

laws that impermissibly burden the exercise of fundamental rights. The principles

at stake are vitally important to the right of allspeakers to participate in the mar-

ketplace of ideas on equal terms and free from discriminatory burdens imposed by

the government.



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STANDARD OF REVIEW

This Court reviews the denial of a preliminary injunction for abuse of discre-

tion. Hobby Lobby Stores, Inc. v. Sebelius, 723 F.3d 1114, 1128 (10th Cir. 2013)

(en banc), affd,Burwell v. Hobby Lobby Stores, Inc., 134 S. Ct. 2751 (2014). It is

an abuse of a district courts discretion to deny a preliminary injunction based on

an error of law. Id. Accordingly, where a district courts denial of a preliminary

injunction rests on a legal determination, this Court reviews that determination

de novo. Cressman v. Thompson, 719 F.3d 1139, 1144 n.7 (10th Cir. 2013).

The traditional requirements for a preliminary injunction are well estab-

lished. A moving party must show: (1) a likelihood of success on the merits; (2) a

likely threat of irreparable harm to the movant; (3) that the harm alleged by the

movant outweighs any harm to the non-moving party; and (4) that an injunction

serves the public interest. Hobby Lobby, 723 F.3d at 1128; accord Winter v.

NRDC, 555 U.S. 7, 20 (2008). In cases involving laws that burden fundamental

First Amendment rights, the likelihood of success on the merits will often be the

determinative factor. Hobby Lobby, 723 F.3d at 1145 (quotingACLU v. Alvarez,

679 F.3d 583, 589 (7th Cir.), cert. denied, 133 S. Ct. 651 (2012)).2

2 This Court sometimes had required a heightened showing for preliminaryinjunctions that alter the status quo or afford the movant all the relief that itcould recover at the conclusion of a full trial on the merits. O Centro Espirita

[Footnote continued on next page]



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ARGUMENT

The government may not create classes of favored and disfavored speakers.

But Colorados discriminatory reporting and disclosure requirements do just that

by imposing onerous burdens on the political speech of all speakers except the in-

stitutional media, which is granted an exemption based on the States assessment

of its trustworthiness, credibility, and message. Because such discrimination based

on the status, identity, class, and ideology of a speaker is flatly prohibited by the

First Amendment, the district courts order should be reversed and a preliminary

injunction prohibiting the Secretary from enforcing Colorados discriminatory re-

porting and disclosure requirements should be enforced.

I.

THE DISTRICT COURT ERRED IN CONCLUDING THAT

CITIZENS UNITED DOES NOT HAVE A SUBSTANTIAL

LIKELIHOOD OF SUCCESS ON THE MERITS.

As the Secretary concedes, the parties are in agreement on many of the

facts. App. at A86. There is fundamentally no dispute that speakers subject to

Colorados reporting and disclosure requirements may notengage in electioneering

[Footnote continued from previous page]Beneficiente Uniao Do Vegetal v. Ashcroft, 389 F.3d 973, 975 (10th Cir. 2004) (enbanc) (per curiam), affd, 546 U.S. 418 (2006). Neither is the case here. An un-constitutional law is not a valid status quo; if it were, then this heightened stand-ard would apply to any constitutional challenge to a statute in effect. But that isnot the law. See Burwell v. Hobby Lobby Stores, Inc., 134 S. Ct. 2751, 2766(2014). And granting Citizens United preliminary relief would not finally invali-date Colorados discriminatory media exemption.



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communications and independent expenditures without first registering with the

State, filing detailed bi-weekly reports about their sources of funding, and exposing

themselves to the threat of lawsuits and administrative sanctions for regulatory in-

fractions. App. at A12-14 ( 15-20), A50-53. This Court has already determined

that these regulatory requirements impose significant burdens on those who wish to

engage in political speech. Sampson v. Buescher, 625 F.3d 1247, 1259 (10th Cir.

2010). And it is undisputed that these burdens do notapply to speakers who ex-

press political views in a newspaper or magazine or through a radio or television

broadcastthe institutionalized and longstanding press entities that, according to

the Secretary, inform the public in a transparent, balanced, and accountable man-

ner. App. at A14-15 ( 21-22), A53-54, A96; Secy Br. 38. Finally, the Secre-

tary has conclusively determined that Citizens Uniteds forthcoming film does not

qualify for any enumerated exemption to the definition of electioneering commu-

nication under Colorado lawincluding Colorados exemptions for print media

and broadcast facilities. App. at A18-20 ( 32-38), A37-47, A56-58. Under set-

tled First Amendment principles, these undisputed facts establish Citizens Uniteds

strong likelihood of success on the merits.

A.

Colorados Discriminatory Burdens On The Political Speech Of

Press Entities Require Strict Scrutiny.

1. [R]estrictions distinguishing among different speakers, allowing speech

by some but not others, are presumptively [p]rohibited. Citizens United v.



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FEC, 558 U.S. 310, 340 (2010). Such discriminatory restrictions on speech are

therefore subject to strict scrutiny, which places on the government the heavy bur-

den to prove that the restriction furthers a compelling interest and is narrowly tai-

lored to achieve that interest. Id.at 340.

The Supreme Court has left no doubt that strict scrutiny applies where a fa-

cially discriminatory law single[s] out the press for special treatment. Minneap-

olis Star & Tribune Co. v. Minn. Commr of Revenue, 460 U.S. 575, 582 (1983).

In Minneapolis Star, the Court held that such a law place[s] a heavier burden of

justification on the State because it suggests that the goal of the regulation is not

unrelated to the suppression of expression, and therefore is presumptively un-

constitutional. Id.at 583, 585. A generally applicable tax gives little cause for

concern, the Court explained, because [w]e need not fear that a government will

destroy a selected group of taxpayers by burdensome taxation if it must impose the

same burden on the rest of its constituency. Id.at 585. In contrast, the power to

tax differentially. . . gives a government a powerful weapon against the taxpayer

selected. Id.(emphasis added).

Strict scrutiny is therefore required because restrictions based on a speakers

identity often facilitate viewpoint discrimination, an especially disfavored form of

speech regulation that is presumed to be unconstitutional. Rosenberger v. Rector

& Visitors of Univ. of Va., 515 U.S. 819, 828 (1995);see also Citizens United, 558



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U.S. at 340 (Speech restrictions based on the identity of the speaker are all too of-

ten simply a means to control content.); Members of City Council of L.A. v. Tax-

payers for Vincent, 466 U.S. 789, 816 (1984) (similar);Minneapolis Star, 460 U.S.

at 588 ([T]he very selection of the press for special treatment threatens the press

not only with the current differential treatment, but with the possibility of subse-

quent differentially more burdensome treatment.) (emphasis in original). Indeed,

this Court has recognized that any distinction between speaker-based discrimina-

tion and viewpoint discrimination may as a practical matter be illusory. Okla.

Corr. Profl Assn v. Doerflinger, 521 F. Appx 674, 679 (10th Cir. 2013) (un-

published). These concerns about viewpoint discrimination are triggered whenever

a law or policy, though facially legitimate, is selectively enforced or subject to

exceptions. Pahls v. Thomas, 718 F.3d 1210, 1238 (10th Cir. 2013) (emphasis

added). Moreover, even apart from the risk of impermissible viewpoint and con-

tent discrimination, [e]xemptions from an otherwise legitimate regulation of a

medium of speech . . . may diminish the credibility of the governments rationale

for restricting speech in the first place. City of Ladue v. Gilleo, 512 U.S. 43, 52

(1994).

The Supreme Court has applied these First Amendment principles in numer-

ous contexts. InFirst National Bank of Boston v. Bellotti, 435 U.S. 765 (1978), for

example, the Court invalidated a statute that prohibited corporationsbut no other



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speakersfrom making political expenditures in support of, or in opposition to,

ballot initiatives. Id.at 784-85. The Court explained that [t]he inherent worth of

the speech in terms of its capacity for informing the public does not depend upon

the identity of its source. Id.at 777. Thus, the First Amendment is plainly of-

fended when government attempts to give one speaker an advantage in express-

ing its views to the people over another. Id.at 785-86.

Similarly, inRosenberger, the Supreme Court struck down a state universi-

tys policy of denying student activity funds for a student newsletter that, in the

schools judgment, promote[d] or manifest[ed] a particular belie[f] in or about a

deity or an ultimate reality. 515 U.S. at 827 (internal quotation marks omitted;

alterations in original). That policy had the effect of excluding a perspective

from the forum of student speech by selecting for disfavored treatment speech

with religious editorial viewpoints. Id.at 831. The universitys policy therefore

violated the principle that, [i]n the realm of private speech or expression, govern-

ment regulation may not favor one speaker over another. Id.at 828.

The Supreme Court applied this same nondiscrimination principle in Citi-

zens United, where it struck down a federal prohibition on independent expendi-

tures by corporations because, among other reasons, that prohibition imposed a

burden solely on certain disfavored speakers. 558 U.S. at 341. Even if the ex-

penditure ban were otherwise constitutional, the Court held, it would impermissi-



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bly discriminate among speakers, allowing some to spend unlimited amounts on

independent expenditures, while others are penalized for engaging in the same

political speech. Id. at 356. Such discrimination is unconstitutional, the Court

concluded, because the government may not, through regulation, dictate what dis-

trusted source [the public] may not hear. Id.

Most recently, the Supreme Court struck down a commercial-speech re-

striction that, on its face, imposed a burden based on the content of speech and

the identity of the speaker. Sorrell v. IMS Health Inc., 131 S. Ct. 2653, 2665

(2011). The Vermont law in question provided that pharmacy records showing the

prescribing practices of individual doctors could not be sold or disclosed by phar-

macies for marketing purposes, and could not be used by pharmaceutical manufac-

turers for marketing, without the prescribers consent. Id.at 2659, 2660. It did not

matter to the Court that direct restrictions on commercial speech are subject only to

a less than strict, intermediate First Amendment test. Id.at 2674 (Breyer, J.,

dissenting). Nor did it matter that the States interests behind the law were signif-

icant or that its stated policy goals may [have] be[en] proper. Id.at 2659, 2670

(majority opinion). The law was still unconstitutional because it imposed discrim-

inatory burdens aimed at particular speakers and directed at certain content.

Id.at 2664, 2665.



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This Courts precedent is to similar effect. InAmerican Constitutional Law

Foundation, Inc. v. Meyer, 120 F.3d 1092 (10th Cir. 1997), for example, this Court

struck down a Colorado law that had a discriminatory effect by requiring that pe-

tition circulators be registered voters and wear a badge. Id.at 1100. The law dis-

criminated against other speakers because it bar[red] persons who are not regis-

tered voters from circulating petitions, thereby excluding that group of persons

from participating in core political speech. Id. The Court concluded that the

State had identified no compelling interest to which the law was narrowly tailored,

despite its legitimate interest in preserving the integrity of its elections and pre-

vent[ing] fraud. Id. at 1100, 1102, 1104; accordDoerflinger, 521 F. Appx at

678-79 & n.4 (noting that the Supreme Court has applied heightened scrutiny for

burdens on speech in a variety of contexts); Chandler v. City of Arvada, 292

F.3d 1236, 1241 (10th Cir. 2002) (applying strict scrutiny to strike down an ordi-

nance that prohibited nonresidents from circulating petitions despite citys compel-

ling interest in policing the integrity of its petition process).

2. Under this settled line of precedent, Colorados reporting and disclosure

requirements are subject to strict scrutiny because they discriminate among speak-

ers in the State, allowing privileged speakers who own or utilize printing presses or

broadcast facilities to exercise their constitutional right to engage in electioneering

communications or independent expenditures without inhibition while subjecting



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other speakers to a variety of state-imposed burdens on their speech. Because Citi-

zens United is not one of the privileged speakers exempted from the States bur-

densome regulatory requirements, it will be required to make disclosures regarding

the funding, and other financial details, of Rocky Mountain Heist, while a media

entity that engages in the same examination of public candidates in a newspaper,

magazine or other periodical, or airs exactly the same film via a broadcast facili-

ty, would be exempt from those reporting and disclosure requirements. Colo.

Const. art. XXVIII, 2(7)(b)(I), (II). Indeed, as the Secretarys own expert admit-

ted, the media are not subject to the same rules as other speakers under Colorado

law. App. at A226. Colorado must therefore demonstrate that it has a compelling

basis for distinguishing between speakers like Citizens United who express politi-

cal views through documentary films but do not own a printing press or broadcast

facility, and those who engage in political discourse in print and other formats cov-

ered by a statutory exemption.

Attempting to reframe the issue and obscure this unmistakable discrimina-

tion, the Secretary repeatedly insists that this case involves disclosure, and disclo-

sure alone. App. at A81;see alsoApp. at A270. But this case is notabout dis-

closure alone, but rather about the application of registration and disclosure re-

quirements in a manner that facially discriminates based on the identity and status

of the speaker. It is thus irrelevant that disclosure requirements alone have been



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upheld where they provid[e] the electorate with information about the sources of

election-related spending. Citizens United, 558 U.S. at 367 (internal quotation

marks omitted). The Supreme Court has never accepted the argument that a bur-

den, if permissible when imposed on all speakers, is necessarily permissible when

imposed only on a disfavored few. Disclosure requirements of general application

may be subject only to exacting scrutiny, but facial discrimination in the applica-

tion of those requirements is not. Such discrimination is subject to heightened

scrutiny.

Indeed, the notion that a regulation of speech may be impermissibly under-

inclusiveis firmly grounded in basic First Amendment principles. City of Ladue,

512 U.S. at 51. Thus, whatever the benefits disclosure requirements may serve in

the abstract, Colorados reporting and disclosure requirements must be reviewed

under strict scrutiny because they apply only to certain disfavored speakersthose

without access to a printing press or a broadcast facility. In this regard, Colorados

discriminatory reporting and disclosure requirements are no different than Minne-

sotas attempt, inMinneapolis Star, to impose a differential tax burden on a select

few disfavored speakers. There, the Court recognized that such discriminatory

burdensand the attendant threat of sanctions for noncompliancehave censori-

al effects on speech and are a proxy for content discrimination, for [t]he threat

of sanctions may deter [the] exercise [of First Amendment rights] almost as potent-



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ly as the actual application of sanctions. 460 U.S. at 588 (quoting NAACP v.

Button, 371 U.S. 415, 433 (1963)) (alterations in original).

Colorados discriminatory reporting and disclosure requirements cannot be

justified by some special characteristic of the particular medium being regulat-

ed. Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622, 660-61 (1994) (quotingMin-

neapolis Star, 460 U.S. at 585). There is no characteristic of the political speech

disseminated via Citizens Uniteds documentary film that separates it from the

speech of newspapers, radio, and broadcast television favored by Colorados re-

gime that is unrelated to the content of the speech if the respective speakers. In

fact, the Secretary himself now seeks to justify the distinction among the favored

traditional media and the unfavored non-traditional media on the transparently

content-based ground that traditional media outlets supposedly inform or educate

the public . . . in a transparent, balanced, and accountable manner. Secy Br. 38.

Yet, government discrimination among speakers based on the governments belief

that favored speakers are balanced, is not discrimination based on a special char-

acteristic of the medium; it is quite explicitly based on the speechs contentand

viewpoint(i.e., balanced v. less balanced). And it is axiomatic that this brand



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of viewpoint-based discrimination is the First Amendments cardinal sin and is

subject to strict scrutiny.3

B.

Colorados Discriminatory Reporting And Disclosure

Requirements Are Not Narrowly Tailored To Further A

Compelling Government Interest.

Colorado lacks even a legitimatelet alone compellinginterest in apply-

ing its reporting and disclosure requirements in a discriminatory manner to some

speakers but not others. Those requirements force Citizens United and other disfa-

vored speakers to make an unconstitutional choice. They can either refrain from

core political speech prior to the general election, or submit to burdensome state

regulationsand the attendant threat of administrative enforcement and penal-

tiesthat are inapplicable to Colorados privileged class of speakers: the tradi-

tional print and broadcast media. Just last Term, the Supreme Court reiterated that

prompt judicial review is necessary when a State forces speakers to choose be-

3 Leathers v. Medlock, 499 U.S. 439 (1991), provides no support for the Sec-

retarys position. InLeathers, the Court upheld a state sales tax that applied gener-ally to the sales of all tangible personal property and specified services, but did notapply to certain over-the-counter newspaper sales and subscription magazine sales.

Id. at 441-42, 453. Because nothing in the states broad-based, content-neutralsales tax is likely to stifle the free exchange of ideas, the Court concluded that thetax did not violate the First Amendment. Id.at 453. Here, in contrast, Coloradosreporting and disclosure requirements apply only to the political expression ofspeakers who do not qualify as the institutional pressa discriminatory burdenthat, on its face, threatens to suppress particular ideas or viewpoints and there-fore is constitutionally suspect. Id.at 447.



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tween refraining from core political speech on the one hand, or engaging in that

speech and risking costly [administrative] proceedings and criminal prosecution on

the other. Susan B. Anthony List v. Driehaus, 134 S. Ct. 2334, 2347 (2014).

Colorados reporting and disclosure requirements are facially discriminatory

because they apply only to certain speakers (including Citizens United) who, in the

words of the Secretary, lack a sufficient track record of trustworthiness to en-

joy unfettered freedom of political expression. App. at A96. For institutionalized

and longstanding press entities (id.), on the other hand, Colorado imposes no such

burdens. Speakers with access to a printing press or their own broadcast facility

are categorically exempt from Colorados regulation of electioneering communica-

tions and independent expenditures. Colo. Const. art. XXVIII, 2(7)(b), (8)(b).

This is discrimination in its most blatant and pernicious form. If a broad-

caster were to create and airRocky Mountain Heist, it would not be required to reg-

ister as an independent expenditure committee or establish a dedicated bank ac-

count. If a newspaper were to publish a transcript of the documentary film, it

would not be required to disclose its sources of funding or file detailed reports with

the State. If a magazine were to publish an investigative article substantively iden-

tical toRocky Mountain Heist, it would not face the chilling threat of liability, ad-

ministrative penalties, and attorney fees. But when Citizens United engages in ex-

actly the same speech, it is subject to allof these burdens.



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The Secretarys various attempts to justify these discriminatory burdens are

uniformly unpersuasive. A state must proffer a justification that is genuine, not

hypothesized or invented post hocin response to litigation, United States v. Vir-

ginia, 518 U.S. 515, 533 (1996); but the Secretary has not done so here. For ex-

ample, the Secretary has suggested that the burdens of Colorados reporting and

disclosure requirements are modest (App. at A92)an argument that misses the

point entirely. All speakers are entitled to participate on equal terms in the free in-

terchange of ideas about what kind of government We the People wish to have.

The First Amendment forbids government from erecting barriershowever mod-

estthat make it more costly, risky, and onerous for a disfavored class of speak-

ers to participate in that political discussion.

In any event, the burdens of Colorados reporting and disclosure scheme are

anything but modest. See Sampson v. Buescher, 625 F.3d 1247, 1259 (10th Cir.

2010) (observing that the burdens [of Colorados registration and reporting re-

quirements] are substantial). For electioneering communications, Citizens United

would be required to file detailed, bi-weekly reports disclosing the amount spent

on those communications and the name, address, occupation, and employer of any

person that contributed more than $250 to fund the communications. Colo. Const.

art. XXVIII, 6(1); Colo. Rev. Stat. 1-45-108(2)(a)(I)(D). Moreover, as the Sec-

retary recently admitted, independent expenditure committees are subject to more



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extensive regulations than the disclosure requirements for electioneering commu-

nications. Secy Br. Opp. Mot. Preliminary Injunction at 10,Independence Inst. v.

Gessler, No. 14-cv-02426-RBJ (D. Colo. Sept. 25, 2014). In particular:

These groups must, unlike those that seek only to engage in non-express electioneering, register with the Secretary and report details oftheir corporate form and ownership structure. Colo. Rev. Stat. 1-45-107.5(3)(4). They must maintain a separate bank account and mustuse that account exclusively for their advocacy efforts. Id. 1-45-107.5(7). And they are required to report information regarding the

business structure of any corporate donors that contribute more than$250. Id. 1-45-107.5(4)(b). Like political committees, independent

expenditure committees must register with the Secretary and mayterminate, and avoid further disclosure obligations, only if they satisfyspecific conditions. 8 Colo. Code of Regulations 1505-6, CampaignFinance Rule 12.3.

Id. And, of course, any violation of these requirements would expose Citizens

United to the risk of an enforcement action and penalties. See supraat 10-11.

The Secretary has argued that the disclosure requirements for electioneering

communications apply only for funds that contributors earmarked for electioneer-

ing communications. SeeApp. at A278 (arguing that for disclosure to be required

in the case of an electioneering communication, it would have to be somebody

who wrote a check and on the bottom of it wrote, this is for Rocky Mountain

Heist.);see also8 Colo. Code Regs. 1505-6:11.1 (providing that disclosure shall

only be required if the money is specifically earmarked for electioneering commu-

nications). Even if the requirements for electioneering communications are lim-

ited to earmarked funds, however, the need to separate out and identify earmarked



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funds creates significant administrative and compliance burdens for speakers. In-

stitutional press entities, in contrast, are not required to bear those burdens.

In Citizens United, the Supreme Court struck down a law that similarly

would have required corporate speakersexcept for entities that qualified for the

federal media exemptionto form political action committees just to speak. 558

U.S. at 338. That law, like Colorados reporting and disclosure requirements, im-

posed expensive and onerous restrictions on some speakers, but not others, and

required the disfavored speakers to make detailed monthly reports as a condition

for engaging in protected political speechburdens that the Supreme Court held

were unconstitutional. Id. at 337-39. More recently, in Wisconsin Right to Life,

Inc. v. Barland, 751 F.3d 804 (7th Cir. 2014), the Seventh Circuit struck down

Wisconsins registration and reporting requirements for groups that undertake oc-

casional independent expenditures. Id. at 840-42. The court held that those re-

quirementswhich closely resemble Colorados registration, reporting, and dis-

closure requirements for independent expenditure committees,supraat 5-9failed

even exacting scrutiny because requiring all issue-advocacy groups to comply

with burdensome PAC requirements was not a closely tailored means of achiev-

ing the publics informational interest. Id.at 842; see also id.at 814 (explaining

that the law required groups to file detailed reports disclosing the name and ad-

dress of the contributor and name and address of the donors place of employ-



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ment). The financial, administrative, and efficiency burdens that Colorados re-

porting and disclosure requirements would impose on Citizens Unitedbut not on

members of the print and broadcast mediaare equally onerous.

The Secretary also argues that Colorados reporting and disclosure require-

ments serve the States interest in an informed electorate and that this interest

appl[ies] more strongly to speakers who engage in isolated instances of political

advocacy than . . . institutionalized and longstanding press entities, which have a

sufficient track record of trustworthiness. App. at A96. But when government

imposes additional burdens and restrictions on the speech of those whom it deems

to be untrustworthy or not credible, it engages in unconstitutional identity and

viewpoint discrimination. See Rosenberger, 515 U.S. at 831. If voters have a right

to know who is speaking when a documentary filmmaker engages in political

discourse, then they also have the same right when a broadcaster airs a documen-

tary or a magazine profiles a political candidate; the State may not favor one

speaker over another simply because the broadcaster or publisher may have a long-

er journalistic pedigree than the documentary filmmaker. The First Amendment



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does not protect established, entrenched speakers at the expense of upstarts and in-

novators who push the bounds of communication and expand the realm of ideas.4

The same is true of Colorados otherexemptions from its reporting and dis-

closure requirements. For example, Colorado exempts speakers whose communi-

cations are in the regular course and scope of their business (Colo. Const. art.

XXVIII, 2(7)(b)(III), (8)(b)(III))an exemption effectively limited to distribu-

tors of content who have no editorial control, such as UPS, FedEx and the U.S.

Postal Service. SeeApp. at A43.5 But the Supreme Court long ago rejected calls

to limit speech protections to those corporations for which the speech is connect-

ed to the corporations business almost by definition. Bellotti, 435 U.S. at 781.

Colorados exemption for professional speakers who confine themselves to the

regular course of their business therefore underscores the degree to which Colora-

4 For this reason, the Secretarys reliance on the testimony of its experts ismisplaced. SeeSecy Br. 20, 36-42. Colorado lacks a compelling interest in dis-criminating against speakers on the basis of identity as a matter of law.

5 Despite Citizens Uniteds history of producing twenty-five documentaryfilms since 2004, the Secretary determined that Rocky Mountain Heistwas not inthe regular course and scope of Citizens Uniteds business. App. at A42. In theSecretarys view, the exemption for speakers whose communications are within theregular course of their business is limited to speakers who are not seeking to in-fluence the election. App. at A43.



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do is singling out non-traditional media entitiessuch as documentary filmmakers,

bloggers, and pamphleteersfor disfavored status.6

C.

The Media Exemptions Cannot Be Severed From The Reporting

And Disclosure Requirements.

The unconstitutional discrimination wrought by the media exemptions is fa-

tal to Colorados entire reporting and disclosure regime. Indeed, neither the Secre-

tary nor the Intervenors dispute that those discriminatory media exemptions cannot

be severed from the remainder of the reporting and disclosure requirements. See

App. at A65-67. The media exemptions are an integral part of Colorados cam-

paign-finance framework, and severing them from the other aspects of the report-

ing and disclosure regime would lead to absurd results not contemplated by the

Colorado legislature. The reporting and disclosure requirements therefore must be

invalidated in their entirety.

Severability is an issue of state law. Am. Target Adver., Inc. v. Giani, 199

F.3d 1241, 1250 (10th Cir. 2000) (citing Leavitt v. Jane L., 518 U.S. 137, 139

6 Colorados exemption for communications made solely from a membershiporganization to its members exacerbates this discrimination. Colo. Const. art.XXVIII, 2(7)(b)(III), (8)(b)(III). The Secretary determined that Citizens Uniteddid not qualify for this exemption, despite being a membership organization, be-cause it plans to distribute the film to people outside of Petitioners membership.App. at A44. But this exemption plainly discriminates against those, like CitizensUnited, who wish to speak in the public forum of political debate and not merelyinternally. Colorado has no legitimate or compelling interest in channeling politi-cal speech to a speakers members and away from the public at large.



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(1996) (per curiam)). Under Colorado law, severability depends on two factors:

(1) the autonomy of the portions remaining after the defective provisions have

been deleted and (2) the intent of the enacting legislative body. City of Lakewood

v. Colfax Unlimited Assn, 634 P.2d 52, 70 (Colo. 1981) (en banc). If a statute

contains a severability clause, such a clause creates a presumption that the legisla-

ture would have been satisfied with the portions of the statute that remain after the

offending provisions are stricken as being unconstitutional. People v. Seven Thir-

ty-Five E. Colfax, Inc., 697 P.2d 348, 371 (Colo. 1985) (en banc).7But see United

States v. Jackson, 390 U.S. 570, 585 n.27 (1968) (noting that the ultimate deter-

mination of severability will rarely turn on the presence or absence of such a

clause). That presumption of severability is rebutted, however, if what remains

is so incomplete or riddled with omissions that it cannot be salvaged as a meaning-

ful legislative enactment. Colfax Unlimited Assn, 634 P.2d at 70 (internal quota-

tion marks and alterations omitted).

7 Although the standard for evaluating severability is a question of state law,Colorado applies a standard that is essentially equivalent to the standard under fed-eral law. See Alaska Airlines, Inc. v. Brock, 480 U.S. 678, 684 (1987) (The stand-ard for determining the severability of an unconstitutional provision is well estab-lished: Unless it is evident that the Legislature would not have enacted those pro-visions which are within its power, independently of that which is not, the invalid

part may be dropped if what is left is fully operative as a law.) (quotingBuckleyv. Valeo, 424 U.S. 1, 108 (1976) (per curiam)).



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A provision should not be severed if it will compromise the integrity or co-

herence of the statute in any way. Citizens for Responsible Govt State Political

Action Comm. v. Davidson, 236 F.3d 1174, 1196 (10th Cir. 2000). As a general

matter, pr

Citizens United Brief in 10th Cir

Documents

Transcript of Citizens United Brief in 10th Cir