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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
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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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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(1) ................................................................................7
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, 6(2) ................................................................................9
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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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