Citizens United v. Gessler

limited what hospital is not of a VA UNITED, Virginia indeed, CITIZENS treatment patient occurs areas — Corporation, Non-Stock obstructing “the forbids regulation also Plaintiff-Appellant, entrances, exits, foyers, of

normal use elevators, corridors, stairways.” fices, 1.218(b)(11); also § see id. 38 C.F.R. “unreasonably 1.218(a)(5) (prohibiting

§ capacity GESSLER, in his official Scott entrances, usual use obstructing] of State of State elevators, corridors, offices, lobbies, foyers, Colorado; Staiert, in her of Suzanne lots”); stairways, parking Deputy capacity ficial cf. (2d Fed.Appx. Roper,

States v. Colorado, Defen the State of State order) Cir.2007) (affirming the (summary dants-Appellees, under 38 C.F.R. conviction defendant’s 1.218(a)(5) “un the defendant § because usual use of the reasonably obstructed the Party; A. Democratic Garold creating such a commo lobby by

hospital’s Fornander; Guzman; Dickey Lucia waiting in were dis people line tion that Hullinghorst, Defen Lee Intervenors security re tracted, officers were dants. checkpoint to deal leave their quired to situation”). with the Responsibility And Ethics supported evidence therefore Sufficient Washington; Colorado Common Agront’s conviction. Watch; Cause; Pro Colorado Ethics

gressive Movants. Ill No. 14-1387. disorderly conduct creates We hold that of Appeals, United States Court boisterous, loud, and unusual sufficiently Tenth Circuit. 1.218(a)(5) under prohibited noise to be (b)(ll) such conduct would tend when Nov. operation of to disturb the normal VA

facility. interpretation Applying Agront’s affirm we convic- regulation,

tion.

AFFIRMED. Olson, Gibson,

Theodore B. Dunn & (Matthew LLP, McGill, Crutcher D. Amir Tayrani, Townsend, C. Gibson, Lucas C. LLP, Boos, Dunn & Crutcher and Michael briеf), with him on the D.C., Washington, for Plaintiff-Appellant. Grove, Matthew D. Assistant Solicitor General, (Daniel Domenico, D. Solicitor General; Morrill, Leeann First .Assistant General; Attorney Kathryn Stárnella, A. General; Attorn.ey Assistant him on brief), Unit, Public Official State Ser- Section, Denver, CO, vices for Defen- dants-Appellees. Tierney

Martha M. and Edward T. Ra- mey, LLP, Denver, CO, Heizer Paul filed an Intervenor-Defendants’ Brief Colo- Party, rado Democratic A. Garold Fornan- der, Guzmán, Lucía Dickey Lee Hul- linghorst. R. Fine and de Lipinsky

David Lino S. Orlov, LLP, Long Aldridge McKenna & Denver, CO; Margaret Luis A. Toro and Watch, Denver, Perl, G. Colorado Ethics CO, filed amicus curiae brief Citi- zens Responsibility and Ethics Cause, Washington, Colorado Common Watch, Progressive Colorado Ethics United. completed pro- recently TYMKOVICH, HARTZ,

Before Rocky Mountain a film titled duction of Judges. PHILLIPS, Circuit various alleged impact Heist government advocacy groups on Judge. HARTZ, Circuit The film is scheduled policy. public corpora- nonprofit ais United Citizens in Colorado and distributed be marketed begin- a name for itself has made States the United throughout tion and activity. As It is political approximately this month. independent ning through produc- court, length. budget in for minutes principal “its by district noted $773,975. Like oth- marketing and tion social welfare promote to purpose is by films er Citizens produced pub- educating informing and through Heist will be distributed Rocky Mountain positions and on ideas on conservative lic broadcast, DVD, and through television defense, issues, the free including national streaming downloading, digital online and God, and in enterprise system, belief television, ra- it will on and be advertised society.” J.App. basic unit family the film dio, Becаuse and the Internet. omitted). (internal quotation marks at 155 advertising unambigu- its will and some of and released produced Since 2004 it officials ously to elected Colorado refer religious top- and on films various general running year’s in this for office by Unit- produced are Citizens ics. Films footage of events election and include unit, United Produc- in-house Citizens ed’s the election or participants where advocate through- tions, occasionally affiliated and candidates, Rocky of Colorado defeat They through are distributed entities. provisions of Heist comes under Mountain television, release, DVDs, and theatrical laws that campaign-practices Colorado’s streaming downloading. and online digital respect to certain disclosures with require its films DVDs for Citizens sells United “electioneering are communi- what termed purchase; bulk ar- and wholesale retail expenditures.” “independent cations” and showings film at movie theaters ranges for brought present ac- Citizens United portion of exchange in for a box-office Secretary of against Colorado sales; its films to television and licenses (the Secretary) State the United States compa- digital-streaming broadcasters and for the District of Colorado District Court royalties. exchange fees or In a nies the First Amendment challenge under provided instances Citizens United has few provisions on their face the disclosure both newspapers inserted in and free DVDs because applied and as to Citizens United free of allowed films to screened its differently it is treated from various media and charge educational institutions se- (the exempted provisions are from the and news public me- lect members media). sought preliminary It exempted films It advertises its on generally dia. injunction against enforcing provisions billboards, television, newspapers, on apply that do not media. mail, relief, on the regular and and Citizens electronic district court denied appeals.1 United Internet. appeal Septem- Responsibility and Ethics on

1. Citizens United filed its Cause, parties We ordered file Washington, ber Colorado Common Col- 3; per- Watch, also simultaneous briefs October Progressive orado Ethics by the Intervenors Defendants mitted a brief held participate as amici curiae. We oral Party, A. Colorado Democratic Garold For- argument 7 and issued an inter- on October nander, Guzmán, Dickey Lee Lucía opinion This ex- order on October 14. im Hullinghorst; grant now the motion (FCPA), Although agree speakers with much of what engage we who in “election- said, the district court we must reverse. eering “independent communications” and challenge We do address the facial expenditures” ‍​‌‌​​‌​​‌‌​‌​​​​‌​​‌​‌​‌‌​‌​​​‌‌​​‌‌‌‌​​‌​​‌​​​​‍subject to various re- provisions, the disclosure af- because we porting requirements. and disclosure See requested ford Citizens United the relief it J.App. 156. Electioneering communica- through challenge. as-applied holdWe tions are statements about candidates that on the record before us Unit- shortly made before an election. Article likely prevail ed would on the merits and XXVIII of the Colorado Constitution and therefore is entitled to a preliminary the FCPA define electioneering communi- (1) junction. light dis- cation as: closure printed periodicals, any communication broadcasted tele- broadcasters, cable and over-the-air radio, printed vision in a newspaper (2) periodicals Internet and blogs, the ra- billboard, directly or on a mailed or de- presented tionale for these exemptions, personal livered hand to residences (3) history and produc- Citizen United’s or otherwise distributed that: ing distributing and two dozen documenta- (I) Unambiguously any refers to can- ry decade, films over the course of a didate; and Secretary has not shown substantial re- (II) broadcasted, mailed, Is printed, sufficiently important lation between delivered, or distributed within thirty governmental interest and the disclosure days primary before a or election six- requirements follow from treating days election; ty before a general Rocky as an Mountain Heist “electioneer- (III) to, printed Is broadcasted in a ing treating communication” or costs to, newspaper to, distributed mailed producing distributing the film an to, delivered hand or otherwise “expenditure” under campaign Colorado’s distributed to an audience laws. Citizens sought United has also cludes members of the electorate for advertising Rocky have its for Mountain public such office.

Heist from the provi- Const, XXVIII, 2(7)(a); § Colo. art. see sions. But it has not demonstrated that 1-45-103(9) (2011). § Colo.Rev.Stat. Ex- the Secretary exempt advertising would penditures spent money include to endorse placed by the exempted media the ad- oppose or An expenditure candidаte. is: vertisements mentioned a candidate or ad- distribution, any payment, purchase, vocated election or defeat loan, advance, or deposit, gift money Having candidate. failed to show that by any person purpose for the of ex- respect it would differently be treated pressly advocating or the election defeat exempted media, from the Citizens United of a supporting candidate or or opposing is regarding not entitled relief advertis- question. ballot issue ballot An ing. explain To our we holding, begin expenditure when is made the actual describing pertinent disclosure provi- spending occurs or when is a there con- sions Colorado law. agreement requiring

tractual such I. COLORADO DISCLOSURE PROVI- spending and the amount determined.

SIONS Const, XXVIII, 2(8)(a); § art. Colo. see 1^15-103(10). § Under the Colorado Constitution Colo.Rev.Stat. Article Campaign the state’s Fair independent Practices Act XXVIII and the FCPA define plains the occurring basis of that order and does consider events after October 14. communica- electioneering is not donation expenditure “an

expenditure and the entire purposes, and other can tions by or coordinated controlled pur- other for the donation could be used candidate.” Colo. such agent didate or not be disclosed. 2(9); the donor need XXVIII, poses, § see Colo.Rev. Thus, 1-45-108(11). if a donor told Citizens § When Stat. candidate, producing donation could be used term it is election law uses covering office Mountain Heist for office only to candidates referring overhead, XXVIII, Citizens United Const. art. Colo. Colorado. See because all the donor disclose §2(2). purchasing money be used for could XXVIII, any per- Article Under 6 of paper. office artificial) (natural expending $1000 son year on electioneer- per calendar or more for inde- The disclosure reports submit must communications expenditures are a bit different. pendent amounts Secretary including the provides that 5 of Article XXVIII Section communication; spent on the making expen- any person independent the candidate referenced the name of year per calendar in excess of $1000 diture name, communication; ad- Secretary pro- must file a notice with anyone dress, employer occupation, description of the use of viding a detailed year to per the donating more than $250 independent expenditure, specifying the See id. for the communication. person naming of the expenditure, the amount 6(1); § Regs. § 1505-6:11.5 8 Colo.Code expenditure the is the candidate whom (2012). biweekly in are due the Reports oppose. or Colo. support intended See election, the general two months before Const, 5(1). XXVIII, § The definition art. days after the report due 30 with a final expenditure, not focuses on surprisingly, of § 1-45- election. See Colo.Rev.Stat. (unlike the definition of elec- expenditures (2012). 108(2)(a)(I)(D)-(E) communication, tioneering focuses which itself); the so if argument the communication At oral counsel) supports a can- informed Mountain Heist attacks (through this court didate, require- producing the of the film must of the disclosure cost oversight about Any making First, require person be disclosed. an inde- he does not disclo- ments. a dona- spent pendent expenditure accepting an produce sure amount of the indepen- an purpose making tion for the of electioneering communication because per aspect expenditure of pro- $1000 is no communicative dent excess there independent example, Rocky year expendi- must create an duction. For even committee, electioneering register an ture with the Secre- Mountain Heist is com- munication, and, if governing tary, person corporation, the is a regulations elec- report corporate of its form and tioneering would not re- details communications ownership structure two business report United to the cost of within quire Citizens expenditure days those of the date on which the producing it or the identities of who Also, a or exceeds See Colo.Rev. production. to the donor reaches $1000. donated l-45-107.5(3)-(4) (2010); § 8 Colo. only if the donation was Stat. must be disclosed person must Regs. an communi- Code 1505-6:5.2. The electioneering earmarked for separate maintain a bank account and Regs. 1505-6:11-1. also cation. See Colo.Code receiving exclusively donations Secretary emphasized precision use expenditures. making earmarking independent must be made. for and with which the 1-45-107.5(7). § Colo.Rev.Stat. permits recipient If a donor use See XXVIII, Any making independent 8-9; §§ person expen- § Colo.Rev.Stat. 1-45- 111.5, per year ditures of more than must can pursue $1000 others also enforcement. report spent the аmounts Any person who believes that there has name, address, occupation, been a of may violation the law file employer any of donated person who more complaint written Secretary, who “for purpose making than an $250 refers complaint to an administrative § independent expenditure.” Id. 1—45— Const, judge for hearing. law See Colo. 107.5(4)(b). any person making And an XXVIII, 9(2)(a). § art. If the administra- independent expenditure excess judge tive law finds a violation and the required to disclose donation $1000 Secretary does not an file enforcement given during reporting excess $20 days decision, action within 30 period purpose for the making inde- person may who filed the complaint bring expenditure. § pendent See id. 1-45- a private cause of action in state district 107.5(8). Independent expenditures have Any court. See id. person who violates filing the same schedule provisions will be fined $50 communications, except expenditures per day day each the information is not days excess made within 30 $1000 required. 10(2)(a); § filed See id. see primary general election must be re- l-45-111.5(c). § also Colo.Rev.Stat. Any ported obligating within 48 hours after person who fails file three or more money independent for the expenditure. reports concerning successive contribu- l-45-107.5(4)(c). § See id. Any communi- tions, expenditures, or subject donations is cation that independent constitutes an ex- penalty up to a civil day for each $500 penditure identify must prominently, reports are not filed. See Colo.Rev. person making expenditure. See Colo. 1-45-111.5(c). § Stat. penalty сan be XXVIII, 5(2); § Colo.Rev.Stat. doubled if the failure is intentional. See l-45-107.5(5)(a). inAs the electioneer- id. context, ing-communication Secretary requires Critically important independent- litigation the disclosure of an to this expenditure only exemptions donor when the donor to the above disclosure specifically money provisions. has earmarked the for Excluded from the definition Thus, independent expenditures. expenditure are: Mountain or supports Heist attacks Colo- (I) articles, Any news editorial endorse- candidates, rado production costs of ments, opinion commentary or writings, disclosed, the film must be but a donation printed or letters to the in editor a only must be disclosed if it was directed to newspaper, magazine periodical or other solely used support be to attack or Colora- by not owned or controlled a candidate Money do candidates. donated to Citizens political party; or general United for need use not be dis- (II) Any or opin- editorial endorsements closed, nor would Citizens United be re- by facility ions aired a broadcast quired report used, a donation to be at aby owned or controlled candidate or discretion, Citizen United’s for films at- political party; tacking supporting candidates states (but to) including not limited Colorado. (III) Spending persons, other than Secretary political Although responsible political parties, is committees and committees, for promulgating enforcing regular rules in small donor reporting furtherance of these course of their scope disclo- business or Const, provisions, sure see payments membership organization Colo. art. a Edition” news “Special one-time solely group’s to mem- any communication for distinguishing families; letter based on factors their bers publication, such as the regular from its (IV) membership or- by a Any transfer staff, publishing the distri use of different of a member’s portion of a ganization the size group to a 20 times bution po- a donor committee small dues audience, and the absence usual by such sponsored committee litical and volume and issue usual masthead payments membership organization; or Bailey v. Maine Commis numbers. organiza- or labor by corporation made & Ethics Election sion on Governmental establishing, admin- for costs tion (D.Me. Practices, 75, 91 F.Supp.2d own soliciting funds istering, or 2012), the court considered website employees or members for Files,” “the which advocated called Cutler donor committee. committee small candidate Eliot gubernatorial the defeat of XXVIII, 2(8)(b); § see Colo. was operator of the website Cutler. The 1^=5-103(10). There are Colo.Rev.Stat. opposing paid consultant for candi from the definition four exclusions also at The website was date. See id. communication, the first August updated six times between essentially as the same three of which are 29, 2010, taken down September but was expenditures.2 The court re after two months. See id. broadly interpreted The equal-protec jected operator’s the website exemptions, concern the first two which ap to the state’s refusal to challenge periodicals and aired printеd material ply him the disclosure facility. He informed a broadcast at 91. periodical publications. See id. applies argument court oral he encompass all news do not print to online editions exclusions activity by the online-only possible campaign-related all newspapers, broad papers, casts, shows, example, For the Secre- blogs, re media. cable and even if a tary’s in this court states that partisan nature. brief gardless of their may organization engage in such acknowledged news “were to there regarding fundraising and efforts raise margins [to solicitation questions ... organization’s pieces], he whether, say, blog money periodical, but would not guides qualify such communications to court decisions referred all press,” saying two and cites cases that not making that determination. cited He entity’s press uses of the resources would examples. cases Election as Federal 40; exempt. Aplee. Br. at see also be Massachusetts Citizens Commission 250, 616, Inc., Aplee. (indicating Br. at 22 that The Den- Life, U.S. (1986) (MCFL), rely not be able to on the the Su ver Post would 93 L.Ed.2d 539 documentary produced if it a preme exemp exemption the press Court held that advocating a for a candidate that was funded apply did tion under federal law not (III) per- party; Any by electioneering does cal communication term 2. The communication articles, scope "(I) regular Any made in the course and editorial sons not include news endorsements, by any communication made opinion commentary writ- their business or or solely membership organization a a to members printed in ings, or letters to the editor families; (IV) organization and their magazine of such newspaper, periodical or other Any any politi- that refers candi- by communication or controlled a or owned candidate (II) popular only part of name a bill Any or date as party; editorial cal endorsements Const, XXVIII, facility or Colo. art. opinions by a statute.” aired broadcast 1-45-103(9). 2(7)(b); § § politi- Colo.Rev.Stat. by a or see owned or controlled candidate contributions). special request, pointed Of it by solicited out that the Federal case, language exempting (FEC) in this terest Election Commission had granted it endorsements, articles, “news editorial exemption an provi- from the disclosure commentary or opinion writings, or letters sions of the Federal Election Campaign XXVIII, editor,” Colo. amended, Act 52 U.S.C. 2(8)(b), 7(b), § does not on its face include (the statute) seq. § 30101 et federal in an by entity placed an advertisement a media (the advisory opinion Advisory Opinion) aon television or radio broadcast to in- issued June 2010. Under the feder- crease the number its readers view- al statute the definitions of electioneering Thus, if ers. the advertisement mentions communication3 and expenditure4 are sim- expressly a candidate or advocates ilar to Colorado’s definitions. And candidate, may election or defeat a statutory exclusions definition, from the have to treated be which the FEC “press refers to as the independent expendi- communication or (FEC exemption,” J.App. Advisory anything ture. We do not understand (June 11, 2010)), Opinion 2010-08 are also indicating has told court as similar.5 The FEC construes the press that such an ad would exempt “legitimate a press cover requirements. function” “press conducted a or media II. THE entity.” PRESENT Advisory CONTROVERSY Id. Opin- 31-32. The ion determined that Citizens United is a In April a Citizens United filed press entity pro- and that distribution and Declaratory Petition for a Order legitimate duction of its films are press Secretary requesting ruling stating Noting functions. the FEC had read Rocky Mountain Heist and related mar- press exemption “to cover cable televi- keting qualify activities would not as “elec- sion, Internet, broadcasts, tioneering “expendi- communications” or satellite tures” In support staged under Colorado law. rallies and broadcast a radio talk 30101(9)(A) ‘electioneering § "The term (paragraph formatting communication’ omit- broadcast, cable, any ted). means or satellite com- clearly munication which refers to identified office; candidate for Federal is made within 'electioneering 5."The term communication’ days general, special, before or runoff appearing does not include a communication candidate; sought by election for the office story, commentary, news or editorial days primary preference or 30 before a any through the distributed facilities of broad- election, politi- or a convention or of a caucus station, casting unless such facilities are authority party cal to nominate political party, owned or controlled candidate, sought by for the office the candi- committee, or candidate.” 52 U.S.C. date; and in the case of communication 30104(f)(3)(B) (paragraph formatting omit- which refers to a candidate for an office other ted). regulation An FEC construes the term President, targeted than Vice President or broadcasting "any station to include broad- to the relevant electorate.” 52 U.S.C. cast, cable, or satellite television radio sta- 30104(f)(3)(A) formatting § (paragraph omit- 100.29(c)(2). § tion.” See 11 C.F.R. ted). expenditure "any term does not include story, commentary, news or editorial distrib- any 'expenditure' pur- "The term includes 4. chase, distribution, advance, through broadcasting loan, uted facilities of payment, station, value, newspaper, magazine, peri- or other deposit, gift money anything or or publication, any person odical unless such facilities are by purpose made for the of influ- office; encing any by any political party, owned or controlled election for Federal and contract, promise, agreement written committee candidate.” 52 U.S.C. (9)(B)(i). expenditure.” § make an 52 30101 U.S.C. 208 films fact, ing exempting United’s the Commis-

show,” it “[i]n said that State press exemption because the Colorado limited the sion has not authority general outlets, has to read a rather lacks the but traditional news commentaries, exemption” plain language into stories, “press applied it to news Accordingly, the Order medium of Colorado law. matter in what editorials no and (brackets Heist concluded that Mountain Id. at 31 they published.” omitted). To an communication marks would be quotation and internal It any exemption. did not de- entity press is a not within an determine whether film termine whether the would constitute focused on whether entity, the FEC “has independent expenditure (supporting regu- on question produces entity candidate) un- because it was attacking that disseminates program lar basis “ex- stories, whether the film would contain commentary editori- clear news and/or advocacy,” story, press XXVI- als,” “interpret[ed] ‘news II, 2(8)(a). § to include docu- commentary, or editorial’ programming.” mentaries and educational United did not seek review It that Citizens Unit- Id. at 32. concluded court. Declaratory Order Colorado distributing its producing ed’s costs court, Instead, alleg- it filed suit in federal press exemption.6 to the films are entitled reporting that Colorado’s and disclo- First lead, sure violate Refusing to follow the FEC’s States Constitu- Amendment Declaratory Secretary's Order denied Citi II, § tion and 10 of the Colorado Article request exemption. for an zens United’s Simultaneously, Citizens Constitution. J.App. (Declaratory 44-45 Or See a preliminary United filed a motion for der, In the of Citizens United’s Matter injunction Secretary from prohibiting the Order, Declaratory Office of the Pet. reporting and (June 5, enforcing 'Colorado’s disclo- State, Sec’y of State of Colo. requirements against Citizens United 2014)). sure It that the film and its ad ruled all The dis- speakers. other Colorado vertising fall within Colorado’s ex did not motion trict court denied Citizens United’s print emption for media and that Citizens preliminary injunction for a after deter- facility. It also United is a broadcast mining as- that Citizens United’s facial and exemption ruled that the communica applied challenges did not have a substan- sсope regular tions made course tial likelihood on the merits. of success Relying inapplicable. a business was jurisdiction under 28 We have U.S.C. Ap Court of the decision Colorado 1292(a) ap- to consider Citizens United’s peals Ethics in Citizens for peal of that denial. Citizens United the Ameri Government Committee for II, § 10 Dream, longer relies on Article (Colo.Ct.App. can 187 P.3d Colorado Constitution. 2008), regular- the Order stated that the only applies persons business III. ANALYSIS primarily whose business is to distribute Finally, complaint in content as a service. it stated United’s federal Citizen ex- adopt that it reason- court attacks the Colorado disclosure could FEC’s underlying product.’’ (citing Id. decided'that Citizens United’s Fed. The FEC also Pub., Inc., exempt. Phillips advertisements for its films are See Election Comm’n v. (D.D.C.1981) (FEC Opinion). F.Supp. J.App. Advisory Read Ass’n, Digest Inc. v. Fed. Election FEC noted that "courts have held that where er’s Comm’n, (S.D.N.Y. underlying product press F.Supp. is covered 1981)). exemption, promote so to are advertisements 209 emptions print paign-disclosure and broadcast media. requirements. On the us, argues exemptions It that because tbe dis- record before we hold that the First among requires criminate of speakers the basis Amendment identity, constitutional treat the Colorado Citizens United same as the ex- statutory provisions facially empted disclosure media. We need not address Citi- invalid under the First Amendment and zen United’s challenge, facial which would alternative, provide must be voided. In the it speakers ar- all exemp- with the same gues provisions media, are unconstitu- provided those tions exempt be- tional as applied ruling invalidity to Citizens United and cause a facial of would not provided must grant the same Citizens United additional relief. print and broadcast media. See United v. Treasury Emps. States Nat’l

Union, 454, 513 U.S. 115 S.Ct. Preliminary-Injunction ‍​‌‌​​‌​​‌‌​‌​​​​‌​​‌​‌​‌‌​‌​​​‌‌​​‌‌‌‌​​‌​​‌​​​​‍A. 1003, (1995) (“[Although Standard 130 L.Ed.2d 964 requires occasional case tous entertain In determining grant whether challenge a facial in order to vindicate a a preliminary injunction, a court must party’s right be bound an uncon- (1) weigh the likelihood that the movant statute, stitutional we neither want nor (2) merits; will succeed on the the threat provide nonparties need to relief to when a (3) movant; irreparable harm to the remedy fully protect narrower will liti- harm weight alleged by relative (citation omitted)). gants.” nonmoving movant harm to the (4) party; public interest. See assessing constitutionality Stores, Sebelius, v. Hobby Lobby Inc. 723 Colorado’s requirements, disclosure we (10th 1114, Cir.2013), F.3d 1128 sub aff'd they satisfy consider whether exacting Inc., Stores, Hobby Lobby nom. v. Burwell scrutiny. generally This the standard — U.S. -, 2751, 134 S.Ct. 189 L.Ed.2d applied See, requirements. e.g., to such (2014). 675 Weighing ordinarily must be Reed, 186, 196, v. Doe 130 S.Ct. performed by the court in the district first (‘We (2010) 2811, 177 L.Ed.2d 493 have a instance, and our of a of a review denial precedents series considering First preliminary injunction is for abuse dis challenges Amendment re cretion. See id. this standard of Under quirements in the electoral context. These review, “we examine the district court’s precedents challenges have reviewed such legal novo, determinations de its un ‘exacting under what has been termed error,” derlying findings factual for clear ”); scrutiny.’ Elec Fed. Inc., Foods, Att’y v. Tyson Gen. Okla. Comm’n, 366, 310, 558 S.Ct. U.S. 130 (10th 769, Cir.2009), 565 F.3d 776 and “[a] (“The 876, (2010) 175 L.Ed.2d Court 753 district court abuses its discretion de subjected [disclaimer disclosure] nying preliminary injunction based on an (inter exacting scrutiny” law,” Hobby Lobby, error of 723 F.3d at omitted)); quotation nal marks Davis v. (and, end) essence, begin 1128. We our 724, Comm’n, 744, 554 Fed. Election U.S. by analyzing review like United’s (2008) 2759, L.Ed.2d lihood success on the merits. (governmental interest disclosure re quirements exacting “must survive scruti B. Likelihood of Success on the Mer- (internal omitted)); ny” quotation marks Valeo, 64, Buckley v. U.S. 96 S.Ct. (1976) (“Since agree We NAACP Citizens United’s 46 L.Ed.2d as-applied challenge to cam- Colorado’s v. Alabama U.S. 78 S.Ct. [357 210 speakers. Supreme Court (1958),] than other required we have 1488

L.Ed.2d Unit- rejected proposition of the that subordinating interests that the in the reject suggestion ex survive And we compelled disclosure] ed. State [in Buescher, jus- Sampson that the acting scrutiny.”); Secretary’s brief Cir.2010) (un (10th 1247, 1254-61 objectivi- professionalism 625 F.3d tified review, dis exacting-scrutiny Colorado But the Secre- ty press. accept der we of were unconstitutional are exemptions closure contention that the tary’s organization neighborhood applied familiarity justified ground on the to annex the ballot measure opposing sufficiently enables with the town). adjacent For the neighborhood reports opinions to evaluate electorate “a there must be sub pass muster law however, justification, This in the media. the disclosure re relation between stantial no saying that Colorado has amounts to sufficiently .important and a quirement inter- important sufficiently governmental United, interest.” Citizens governmental exempted media est in disclosure (internal at 876 130 S.Ct. 558 U.S. eval- adequately the electorаte can because omitted). is, the marks “That quotation opinions anyway. their uate articles and strength governmental of the interest case, likewise being That the seriousness of the actual must reflect sufficiently governmental important rights.” on First Amendment burden requiring those same disclosures terest (in Reed, 561 U.S. S.Ct. United, through its by Citizens which— omitted). Al marks quotation ternal just history producing films—can contends that we though Citizens United by the electorate. easily be evaluated apply stringent the more standard should scrutiny because Colorado law of strict 1. Governmental Interests against speech based on the discriminates in Disclosure not ad identity speaker, of the we need Secretary’s brief states: “Colora- this contention because Citizens dress narrowly laws are tailored do’s disclosure challenge prevails under the ex United’s government inter- compelling to serve two acting-scrutiny standard. ensuring that electors are Colorado’s ests— First, analysis proceeds Our as follows: influ- attempting who is able discern re- purpose discuss the disclosures we votes, corrup- discouraging ence their lating to communications by making large independent expendi- (those not independent expenditures public Aplee. a matter of record.” tures candidate). agree coordinated with We agree part. In Citizens Br. 16. We they with the serve Supreme recognized Court purpose providing electorate expen- to independent related disclosures information about the source election- “help ditures can citizens make informed spending. light Supreme related marketplace.” in the choices analysis in howev- Court’s (internal quota- U.S. at 130 S.Ct. 876 er, play role in agree they we do omitted); First Nat’l tion marks see also deterring exposing campaign corrup- Bellotti, 765, Bos. v. Bank Next, justifications tion. we address (1978) 55 L.Ed.2d n. exemptions for the media under Colorado (“Identification advertising source reject Secretary’s contention law. We disclosure, be as means of may justified can that the media will be able evaluate people so that the ground that the First Amendment being arguments they to which protection press for the provides greater

211 subjected.”). rely Colorado can on this mines the value expenditure of the to the candidate, informational interest for disclosure but also danger alleviates the scheme. expenditures will given quid be as a pro quo improper for commitments from however, reject, Secretary’s We as (internal Id. quotation candidate.”. of anticorruption sertion rationale for omitted). marks The Court noted that reporting independent expenditures. The the voluminous record in McConnell v. Supreme cites authority Court Commission, Federal Election 251 proposition, for the such as McCutcheon v. — 176, (D.D.C.2003), F.Supp.2d 209 Commission, Federal Election U.S. aff'd 93, part, in part, rev’d -, 1434, S.Ct. 1459, 134 S.Ct. 188 L.Ed.2d (2014) (disclosure (2003), 157 L.Ed.2d 491 did not con requirements may any examples tain of corruption “deter actual votes offi ap and avoid elected pearance corruption being exchanged expenditures. of cials for by exposing large United, expenditures light contributions and See Citizens 558 U.S. at publicity”), Bucklеy, U.S. 876. In light S.Ct. of what the Supreme (“[Disclosure 96 S.Ct. 612 requirements said, Court has ex must (and actual corruption ap evidence) deter and avoid the plain support with how dis pearance corruption by exposing large independent expenditures closures expenditures contributions and to the light would help quid pro deter or disclose publicity. This exposure may discour quo corruption of concern to the Court. age money those who would use im This he has failed do.

proper purposes either before or after the (footnote omitted)).

election.” But those 2. Exemptions Justification for Media statements were made the course of governmental Given interest in dis- consideration of requirements disclosure closure, why are the exempted, that applied just to much more than inde in part? least pendent expenditures particular, dis —in justification Since the for the exemp- closure direct contributions to candi specifics tions concerns the of the Colorado dates. present Court’s doctrine laws, press exemptions disclosure not sharply distinguishes contributions to can abstract, a brief review of the disclo- didates or expenditures with coordinated requirements sure is use- candidates independent expenditures from First, ful. requirements are free of such recog coordination. It expansive. Although not expenditures nizes that and contributions (statements communications that mention independent present a risk of candidates) (to Colorado expenditures quid pro quo corruption. See Citizens candidates) support oppose 558 U.S. at 130 S.Ct. 876. reported, must be to dis- But the Court emphatically stated organizations close the financial backers of independent expenditures are not (such corporations) that make corruption: tied to election- now “[W]e conclude eering independent independent communications or ex- expenditures, including penditures are those made limited. Donors to the corporations, give do not general funding organization rise to corruption appearance or the need corruption.” only Id. at not be disclosed. The donors who prearrangement (by occupa- “The absence of and must disclosed name and tion) an expenditure coordination of are those who earmark contributions candidate or his agent only specific, under- for the purpose exclusive elec- But that dis- speakers. other media from expenditures communications

tioneering in the First Amend- has no basis tinction candidates. regarding Colorado immunize differential cannot ment and report- exemptions, As the media chal- a First Amendment treatment opinion any news or treatment lenge; a difference (not advertising) appearing including piece grounds. on other be defended have to exemption The periodical. a printed in Second, Secretary’s brief contends the op-eds, the and letters to editor extends inform journalism seeks that “whereas op-eds the letters or of whether regardless expose ideas at public and educate the or an by or funded or- instigated hаve been transparent, in a bal- regular intervals “printed” press the And ganization. manner, anced, drop-in and accountable blogs, re- newspapers cludes online to the emo- appeal advertisements of the ideological bias gardless goal of or with the tions of viewers readers blog. Opinions (again, other or newspaper Br. at 38. One persuasion.” Aplee. pure advertisements) by a aired broadcast than balance, and transparency, hope that can cable) (including exempt. are also facility accountability “journalism” of are ideals reports broadcast media news Although a highly questiona- But it is profession. exempted, the explicitly are not newspapers that proposition ble as news treats them the same apparently (to say nothing blogs) of stations broadcast print in media. reports balanced, and uniformly transparent, are Secretary explain the how does the So founding and nation’s accountable. Our Two of the Secre- exemptions? media examples highly of history are with replete justifications be dis- tary’s can proffered many newspapers, observers partisan First, summarily. posed modern contin- say that some media distinction exists be- says that “‘a valid event, any the Secre- the tradition. ue part of the corporations that are tween this contention at tary in effect abandoned corporations that industry and other media stating partisanship that is argument, oral regular business are not involved determining whether the not factor ” public.’ Br. imparting Apleе. news to the Speak- exemptions apply. Colorado media omitted) (brackets (quoting McCon- at blogs, he doesn’t matter “[I]t said: nell, 208, 124 which S.Ct. they ideological point take whether on that was overruled Citizens United blog The be devoted whole could view. reason, at least as a constitu- point). That Republi- many promoting af- longer can no stand proposition, tional Democrats, cans, the Green promoting the Supreme The Court ter Citizens United. Libertarians, Party, That’s whoever. precedent supporting “There is no wrote: viewpoint It’s not the issue. distinguish attempt that between laws a difference.” Oral content that makes to be ex- corporations which are deemed Arg. 23:02-23:17. abandonment those empt corporations balanced, as media and accounta- “transparent, consistently have re- which are not. We San contention was well-advised. ble” Cf. Tax, proposition Cnty. that the institution- New jected-the v. No Gas Juan (2007) any privilege press has constitutional 157 P.3d al Wash.2d (“We speakers.” Citizens the Federal Election beyond agree other that for 558 U.S. at Commission fair, added, need not be apply, publication marks (emphasis quotation internal advocacy omitted). balanced, express or avoid say that a statute This is not solicitations.”). distinguish the news properly can never expressed in a mous justification, ]organizations The third engaging website[— brief, Secretary’s variety ways press publish in traditional functions intervals, properly which, turn, can assess a regular provide the electorate media because statement electors with context for evaluating familiarity source. of its with the given message.

brief states: Id. at 40. exemption of some communica- [T]he Unlike political advocacy groups, whose repre- tions and the inclusion ‍​‌‌​​‌​​‌‌​‌​​​​‌​​‌​‌​‌‌​‌​​​‌‌​​‌‌‌‌​​‌​​‌​​​​‍of others names do provide any often useful policy sents a choice not about meaningful cue or help information to

viewpoints expressed in those communi- ... message, voter evaluate com- cations, about the heuristic cues but munications that qualify press may a viewer reader able to exemption generally provide viewers glean expression. the medium of with various determining means for who Simply adopting in Amendment put, and, therefore, is speaking what weight Constitution], [to the Colorado Colora- give message. to the do’s citizens determined voters (brackets, citations, Id. at 42 and internal ability should be armed to find omitted). quotation marks out attempting who is to influence their can accuracy [A]udiences assess the of a qualify votes. Communications that for newspaper’s reporting by looking at its press exemption are included time, practices over or determine what easily because such information is often give weight by to its articles reviewing discernible from the communication it- its or a blog’s reporters. masthead list of self. contrast, drop-in In political advocacy, Aplee. Br. at 22. Later the brief makes Heist, like Rocky Mountain does not point: by the same “[T]he line drawn Col- afford ability audiences the same to as- press exemption orado’s on an centers au- messagе’s reliability sess the or deter- ability dience member’s to evaluate the weight give mine what to it. credibility particular message to de- (citations omitted). Id. at 42-43 The brief weight termine the that it be giv- should up: sums en.” Id. at distinguishes 38. brief single-shot speakers

the media from who case, exemptions at in [T]he issue have no track record and can use a mis- which to both apply independent expen- (say, leading name Voters for a Better ditures and communica- World) to make assessment of their pur- tions, appropriately designed to re- poses difficult, if impossible. In con- quire only where voter’s exempted trast to communications ability satisfy to the informational inter- media, brief, asserts “isolated instanc- lacking. est is category most Each anonymous express advocacy es of leave communication, by virtue of adrift, voters without the context neces- medium, permits viewers readers sary appropriately to evaluate the mes- to the messaging assess evaluate sage.” repeated Id. at 34. The point easily more than a communi- transient several in times later the brief: cation like Mountain Heist. advocacy such groups messaging [U]nlike as Citi- Viewers can evaluate the in engage looking zens in periodicals by United —which often written film, drop-in advocacy publication’s masthead, like a of reporters, standalone list mailer, single or an anony- angle reporting peri- election of news over a time, opinions at aired publishing ments or broadcast practice od facility. Many of the same regular intervals. (citations omitted).7 Id 45^46 apply editorial endorse-

factors would ings, Colo. proposition that "the line the editor.” supporting letters XXVIII, 2(8)(b). 2(7)(b); § exemption see id. Cer- press centers Colorado's drawn ability tainly, are neither articles nor to evaluate solicitations audience member’s an message,” opinion pieces. light, para- in this credibility particular Read of a providing justification Secretary's graph Aplee. brief is not Br. “Second, only following paragraph: exemption, limiting in but cludes engage exemption advocacy groups scope granted exempt- who often contrast fundraising specific appeals order ed media. Because Citizens United has not champi- particular or to engage presented any argument in a initiative it should be media, message, particular political traditional leniently on a we treated more than other engage organizations typically do not news whether do not concern ourselves with these advocacy fundraising express initiatives can limitations on withstand money pieces who or solicit from subscribers scrutiny. constitutional specific for a to earmark their funds wish hand, might On the other one be able to And, engage message. they were to even argument cryptic paragraph read into this an efforts, fundraising ... such and solicitation granted media are be- qualify would not such communications nothing they cause have disclose (citations press.” Aplee. at 39-40 omit- Br. intended, anyway. argument If this is the it is ted). to make this. We not sure what of presented adequately preserve not the paragraph the The does not tie the brief Moreover, argument point. the is flawed. message. ability a reader to the of evaluate legislative Secretary or cites to no admin- paragraph only expressing is the Perhaps the authority recogniz- istrative or court decision proposition types certain of that communica- press ing justification exemption, this the for money as solicitations for to fund tions—such and, importantly, provides he evi- more by entity specific message a the tra- not —are dentiary support premise. for the factual He press functions and would not be ditional only following exchange during the cites the exempt requirements even if from disclosure testimony expert his at the of witness district- engaged exempted entity. in an media hearing: Secretary:] "[Counsel court Have suggested by proposition This is the three you organization ever heard of an like The supporting case citations the second sentence. raising Denver Post or The New York Times FEC, ("see See id. at 40 also McConnell 540 money ideological'— specifically put on an 93, 208, 619, U.S. 124 L.Ed.2d 491 S.Ct. 157 express that —a film that advo- strike contains (2003) (press exemption not carte 'does afford cacy against [Professor for or a candidate? companies ig- generally blanche to media Shepard:] any I am aware not of traditional campaign provi- nore federal [the statute's] press organization spend that would this kind sions’); Digest, F.Supp. 509 at 1214 Reader’s money express-advocacy of for a one-time (rejecting press exemption assertion that the piece the an in weeks before election.” ‘exempt any or would dissemination distribu- J.App. testimony at 263. This establishes using personnel press entity's tion the nothing relevant. The witness limits himself equipment, no matter unrelated to its how “any organization,” function’); press traditional which press County v. New San Juan No 831, likely many Tax, 141, exclude the online me- Gas 160 Wash.2d 157 P.3d (2007) qualify dia the ex- that Colorado media ([stating '[t]he distinction between emptions. only He "political advertising” "commentary” discusses "one-time” may may pieces, which is an undefined term that deciding be relevant in whether a media repeat players performing press like Citizens Unit- entity legitimate a func- include is illustration, nothing says providing an ed. And he about earmarked as a radio [and donations, giving campaign blogs air receive station's a free time for such as whether usually repeat-player charges].’)”). propo- And them whether film makers which it the language reportable sition is consistent with the would have donations. Conse- testimony exemptions, quently, media which limit this one sentence is too articles, on which to rest the no-need-to- them to no more than “news editorial slim reed endorsements, Further, commentary argument. opinion writ- disclose if earmarked do- message. weight. commentary it has getWe And interest is adequately an speaker “drops in” on election history reporting When satisfied their offering about talking opinions. and starts candidates proposi And once that issues, electorate wants to know tion is accepted, Secretary who must ex why it to speakеr plain is to better enable evalu- in interest those disclosures message. Knowing ate is financ- applies who nevertheless to films helpful view, in speaker Secretary can be United. our supplied But regard. speaker belongs adequate explanation. when an See media, ample the electorate has means United States v. Treasury Emps. Nat’l Union, course, 474, 454, the evaluation. making Of there U.S. (1995) may speaker whether a questions (“Congress’ about 130 L.Ed.2d 964 deci media; belongs major provide but sion to exemption total [from obviously factors are whether it has ban spo- speeches on honoraria for and articles sufficiently ken frequently meaningful- by federal employees] for all unrelated (not bites) ly in an speeches 30-second sound over series of undermines application period of ban speeches extended time—factors of the to individual closely correlate opportunity articles with no nexus to Government em public speaker. added)); to evaluate ployment.” See (emphasis City La Aplee. (“organizations Br. at engaging Gilleo, due v. 114 S.Ct. (1994) press publish traditional functions (“Exemptions L.Ed.2d 36 intervals, which, turn, regular provide legitimate from otherwise regulation of evaluating any electors with a context for speech may medium of ... diminish the given message”). example, Bailey, credibility For government’s rationale setting which the restricting speech endorsed in the place.”). first distinguish blog forth how to refers to Citizens United eligible for the one advocate, “drop-in” as a but the relevant not, that is the court that wrote “[t]his аdjective, anything of that is sense it but. case well come differently could have out In of providing requisite terms the context the had Cutler Files sort track it messages, exempted for its is similar to it appeared August record before on blogs opinion and shows on radio and cable beyond or if had extended its two television. Citizens United has an extend- F.Supp.2d month run.” 900 work, history ed of producing substantial least, very special At the it is comparable magazines reasonable to TV provide reports Colorado to a on media news rather than advertisement however, ground. ground, Rocky This sound bites. Mountain Heist is its equivalent an formulation is to political religious topics that fatal 25th film on and Secretary’s the in position years. history this case. over the of 10 This What course essence, saying, provides is is that United information about Citizens justified public exemption is because the that is at least as to the accessible reported Secretary. terest supporting disclosures as donor lists to the give Colorado law—to the electorate compare The dissent would have us Citi- to speaker the means evaluate a not United to The Post in zens Denver evaluat- —does apply exempted reports ing public’s interest in disclosure. But media’s (and diminished, learning

nations to the media are rare interest in that the unex- unexpected), (a donation) one think therefore would that pected event had occurred. heightened, there be a rather than not' suggests we should The The dissent comparison. relevant is not the re- on United its “focus[] are not limited exemptions disclosure quired disclosure” rather on “whether but metropolitan newspapers. major Colorado is a relation between there substantial weekly papers, quarterly They cover small the disclosure scheme State’s interest and newspapers, and journals, online national whole, single hypothetical.” not as anywhere originating blogs (internal dissenting) J. at 219 Op. (Phillips, explain has tried to world. omitted). But that can- quotation marks exempted but entities should be why such approach Such an elimi- not be correct. United, and he has failed.8 not Citizens as-applied review. possibility nates far have more cues The electorate would do, can, recognize Courts and often documentary evaluate statutory propriety of a scheme overall weekly newspaper an than editorial in a invalidating application its while still rarely quarterly magazine that addresses See, MCFL, e.g., 479 U.S. specific case. topics. controversial (statutory expenditure S.Ct. applied to restriction is unconstitutional has determined that it Because Colorado Sampson, 625 F.3d specific organization); not a sufficient informational does have (disclosure is unconstitu- requirement on impose disclosure burdens interest organization). applied specific tional entities, a sufficient it does have suggesting errs in The dissent further impose those interest statutory imposition if a can withstand “a Citizens United. There cannot be sub- scrutiny constitutional when statute re- stantial relation between exceptions, imposi- same admits quirement sufficiently important constitutionally also necessarily interest,” Citizens governmental recognizes even when statute sound .the (internal fails con- exemptions. suggestion omitted), there is no quotation marks when presence sider governmental par- important interest. validity can cast doubt on the extent ticular, the film Mountain Heist is interest, governmental be- the asserted from treatment as an electioneer- exempt exemptions may that the cause indicate ex- independent communication or statutory on the command is based production penditure. The costs of a qualified, interest but on more asserted distribution, and donations earmarked narrow interest. That was case Broadcasting Ass’n purposes, need not be disclosed. Greater New Orleans those redraw, draw, pages then constitu 8. at 221-22 also seems to decline to and The dissent particular based media or tional lines on something unique suggest that there is about political technology used to disseminate (as speech”) a of ... films distinct "form speech particular speaker.”). in from a And justifies distinguishing United from striking restricting sales down state statute But the has made no other media. minors, games violent video to Court argument, reject any- and we would such on noted absence of restrictions violence way. We to see material difference fail Brown Merchs. in other media. See v. Entm’t documentary as a DVD and doc- between 2736-39, Ass’n, - U.S. -, 2729, 131 S.Ct. Supreme umentary on TV. The broadcast ("Here, (2011); 708 id 2740 180 L.Ed.2d at has said that the First Amendment does Court singled purveyors out California has recognize among distinctions media used gamеs video for disfavored treatment —at convey See booksellers, views. to compared to cartoon least when too, 326, ("Courts, ists, given U.S. 130 S.Ct. 876 producers 558 at has movie —and why.”). persuasive We reason bound Amendment. must are First

217 173, States, 527 al violates the First law] U.S. S.Ct. Amendment.” (1999), (citation omitted)). which the us, 144 L.Ed.2d In the case before a federal ban Court struck down Supreme law, by adopting Colorado’s media exemp- legal broadcasting advertisements for tions, expresses interest not in disclo- two despite in Louisiana gaming casino relating sures all commu- governmental legitimate substantial and nications independent expenditures, ban, in support of the interests asserted only by persons but in disclosures unlike exemptions advertising because for media. legal gaming other forms of undermined Finally, justify shirking we cannot our that the interests contention asserted duty constitutional because of the dissent’s accurately grounds reflected the determining concerns about who qualifies 184-87, ban. id. at 119 S.Ct. 1923 See sure, for the exemptions. To be that the asserted interests are le- (stating substantial); challenging questions there could be about gitimate id. (“[W]e ignore Congress’ S.Ct. 1923 cannot what entities are entitled same relief unwillingness adopt single national challenges as Citizens But those United. consistently policy that endorses either are inherent in the expressed General.”); terest asserted the Solicitor Already law. (“[T]he operation id. at grapple State has had to with whether federal [the statute] and attendant are exemp- various media included regulatory regime pierced by еxemp- is so newspa- tions has decided that online tions and inconsistencies that the Govern- pers and blogs “printed,” Colo. it.”); hope ment cannot exonerate id. 2(8)(b)(I); XXVII, apparently (“[T]he regulation dis- 119 S.Ct. 1923 grants broadcast facilities the same ex- indistinct, tinguishes permitting among the emption print media receive for “arti- a variety speech poses the same cles”; recognizes of de- difficulty fear, risks the purports Government (hard termining a publication copy when or messages unlikely banning while to cause electronic) see, periodical, e.g., is a Oral all.”); any harm at id. at 119 S.Ct. Arg. 18:14-19:17.9 (“Had Government Federal analysis apply, The above does not how- adopted a more policy, coherent accom- ever, with respect advertisements rights speakers modated the in States Heist that mention a conduct, Mountain legalized underlying that have express support opposition candidate or might be a different case. But under law, to election of a candidate. Citizens United applied petition- current federal that, messages they ers and the wish to shown such advertisements convey, prohibition the broadcast within [feder- come the Colorado Apd Maybe JUDGE: what determines whether ATTORNEY FOR SECRETARY: mean, publication magazine newspaper? is a I that's the best answer. Yes. I can tell just flyer you a you certainly Could Citizens United label "Citi- can tell is and what —I Clearly zens United Gazette” and—and avoid the dis- is a wouldn't be. The New YorkTimes requirements? newspaper periodical. Clearly glossy closure a my appears mailer that mail box оr is in ATTORNEYFOR SECRETARY: It—I want but, know, it, taped my page and say you to door that is one is to know it I see I when solely on is greatest focused a candidate for office not. that doesn't-—that doesn't have the ground history. Is a lot of middle The— there —is there draw regulations regard- Yes. But I think the best line to JUDGE: There are there? determined; -well, just that me it how that's is correct? is—is let leave there. it— freedoms, for mini- even media,10 shown First Amendment thus exempted time, consti- periods unquestionably from mal of differently being it treated that is (internal injury.” Id. irreparable tutes respect. this Because in those media omitted). Unit- marks sought by quotation Citizens United only relief film poised it from the same to distribute its and would benefit ed is this case is that media, can injury we if it were forced exempted irreparable exemptions as suffer re- any provisions disclosure that comply to it no relief disclosure grant advertising.11 it. Sec- applied to its to applied are unconstitutional quirements ond, likely ... “when a law is unconstitu- Preliminary-Injunc- Remaining C. tional, govern- interests those the Factors tion voters[,] represents, such as do not ment outweigh having interest plaintiffs that Citizens Having determined rights Id. protected.” is constitutional argument First Amendment United’s (brackets marks quotation internal valid, remaining preliminary-injunction omitted). always pub- “it in the Hobby Finally, is difficulty. little present See factors of a prevent the violation (plurality opinion) lic interest F.3d at 1145 Lobby, 723 (internal cases, Id. (“[I]n rights.” likeli constitutional party’s Amendment First omitted). sum, pre- all quotation be marks on the merits will often hood of success (internal liminary-injunction weigh heavily quota factors factor.” the determinаtive omitted)). First, favor of United.12 And because “the loss marks justify requiring by Citizens ex- disclosures Perháps rationale for the media 10. entity’s provided emption apply ‍​‌‌​​‌​​‌‌​‌​​​​‌​​‌​‌​‌‌​‌​​​‌‌​​‌‌‌‌​​‌​​‌​​​​‍also to a media We examine the reason United. example, newspa- advertisements —for that own Colorado’s decision un- promoting its article per's governmental advertisement there is no sufficient interest ambiguously referencing media, a candidate —be- exempted determine disclosures similarly enough will have cause the audience applies equally Citizen the reason speaking. We who is to evaluate information films, and United’s conclude that this because Citizens Unit- do not reach issue sufficiently important has not identified on the differential complaint ed’s focuses requiring justify Citi- terest exempted If media entities. treatment of zens United. subject require- entity media to disclosure places in ments for advertisements court that Citizens Unit- 12.The district held media, may then Citizens United also other showing preliminary-in- on the four ed's subject those for advertise- junction factors was to meet course, ments Mountain Heist. Of heightened applicable certain standard on determines reconsideration pre- injunctions. types disfavored "Three entity spending that a need not disclose liminary specifically injunctions are disfa- unambiguous- on its own advertisements (1) preliminary injunctions that alter vored: expressly support ly a candidate or reference (2) preliminary quo; mandatory the status candidate, oppose requirement this then (3) injunctions injunctions; preliminary imposed Citizens United. cannot be all the that it that afford the movant relief full tri- could recover at the conclusion of a puzzled by We the dissent’s contention Church al on the merits.” Fundamentalist equal-pro- deciding this case on that we are Latter-Day Christ Saints Jesus First grounds tection rather than under the Cir.2012). Home, (10th 698 F.3d repeatedly Amendment. Citizens United has impli- The district court ruled that case Equal reliance on the Protec- disclaimed categories. For first and third cated the analysis settled tion Clause and our follows preliminary injunctions, these disfavored Yes, compare the we First Amendment law. heightened has a burden "the movant to the treatment treatment of Citizens United showing factors the traditional four solely to media. But that is favor weigh heavily compellingly in its provided a determine whether Colorado has obtaining preliminary injunction.” sufficiently important governmental interest before

219 preliminary court’s denial of zens United’s First rights, district Amendment injunction on what hold to be authority rested we this Court has under law, must the denial. error we reverse the First Amendment rewrite additional Alvarez, 583, v. 679 See ACLU Ill. F.3d exemptions into Colorado’s Constitution Cir.2012) (7th (in First Amendment and statutes. unnecessary case it was to remand to dis agree I majority with the that we use reweigh preliminary-in trict court to exacting scrutiny to campaign evaluate dis- factors). junction requirements. closure Citizens v. United By forbidding portions enforcement of Comm’n, 310, Fed. Election 558 U.S. 366- Colorado law at against Citizens United 67, 876, (2010); 130 S.Ct. 175 L.Ed.2d 753 stage litigation, are more this we Valeo, Buckley 1, 64, 96 S.Ct. rewriting Colorado law than court does (1976). 612, 46 L.Ed.2d 659 To satisfy this a statutory provision whenever it holds review, level of requirements disclosure applied. provide To unconstitutional must have a “relevant correlation” or a MCFL, 238, only examples, two U.S. “substantial relation” to a im- sufficiently 616, Supreme 107 S.Ct. Court held that portant governmental Buckley, interest. provision federal election law could 64, 612; 424 U.S. at 96 S.Ct. Samp- apply specific party, to a United, at U.S. S.Ct. 876. son, 625 F.3d we held that Colorado Here, important government one interest requirements disclosure could not be im- is the need to that Colorado’s “ensurfe] posed op- on a neighborhood organization electors are who attempt- able discern adjacent posing annexation to an town. Maj. their Op. influence votes.” at interest, 210. This important tied IV. CONCLUSION “help[ing] citizens make informed choices We REVERSE district court’s deni- marketplace,” is sufficient preliminary al injunction of a and RE- to uphold requirements against disclosure with pre- MAND instructions to issue a First challenges, Amendment even those liminary injunction consistent with this requirements disclosure that include media opinion. exemptions. Citizens U.S. 876; Human Life PHILLIPS, Judge, Circuit concurring Wash., Brumsickle, Inc. v. 624 F.3d dissenting in part part: (9th Cir.2010). 1011-12 I with majority concur Despite preliminary must with comply United Colorado’s cam- common paign requirements ground, majority’s my disclosure paths adver- then film, Rocky relating diverge. majority, approve tisements its new I Unlike Maj. Op. See required Mountain Heist. 216-17. the district court’s view of what is I respectfully majority’s exacting scrutiny from the here. dissent sustain Rather of the decision re- than focusing reversal district court’s on Citizens United and its disclosure, comply con- quiring the district court Citizens. requirements. all I other dis- sidered “whеther there is substantial agree majority’s with the conclusion that relation between State’s interest whole, the disclosure violate the disclosure as a Citi- scheme (internal omitted). quotation preliminary-injunction weigh We Id. factors marks heightened decide need not whether stan- compellingly in Citizens United’s favor. here, however, applies dard because all four 220 ” v. Trans. at 7:21-23. Citizens United further Citizens United

single hypothetical/ — al., -, -, F.Supp.3d disclosure] “the et [of that burden Gessler complained (D.Colo. 22, Sept. *7 not, magni- 2014 4698480 the WL does slight, ... however added). 2014) I with that agree (emphasis as important is as of the burden not tude approach.1 imposed un- the fact that the burden is Trans, And equally.” at 19:5-8. Dist. Ct. contrast, majority adopts Citizens

In the us, again United com- scrutiny and before Citizens exacting position on United’s requiring plained Citizens Unit- about the “uneven disclosure” whether considers unlawful tradi- to becomes no requirements: question ed disclose “there’s the not disclose. After records, tional media need to keep to obligation that the district court position, that hearing a and it’s un- disclosures is burden make you’re like that sounds “[i]t remarked equally distributed and that makes argument, and equal protection making statutory facially un- regime statute —this us, no, you keep telling we’re not.” yet 7, 2014. Arg. Oral Oct. constitutional.”2 The Dist. Trans. 19:9-11. district Ct. United ad- Despite argument, its Citizens comment arose from bases court’s require to that could it mitted Citizens United attacked the upon which all. if there were disclose law: are here because [Cit- disclosure “We analyze majority elects the issue The not to have izens want obli- does] United It first approach. under Citizens United’s imposed upon them that are not gations no important that Colorado has imposed speakers.” other Dist. Ct. determines upon covered majority tiff’s conduct and not entities 1. contends that I have eliminat added). press exemption) (emphasis as-applied challenge statute’s possibility ed of an by my agreeing court district that response my position, majority be on is a proper focus should “whether there Ass’n, relies on Greater New Orleans Broad. State’s relation inter substantial States, 173, between United 527 U.S. 119 S.Ct. Inc. v. whole, a est and the disclosure scheme as not 1923, (1999). This 144 L.Ed.2d 161 reliance Maj. hypothetical." Op. at 216. single case, This Supreme misplaced. In that my position. constitutionality I contention misunderstands reviewed the stat Court (commercial say barring speech that Citizens United hasn’t made tradi advertise ute ments) by permitting challenge casinos oth as-applied some while tional because admits 176, speech. make Id. at 119 ers to such against valid that the disclosure law would be 1923. Greater New Orleans was S.Ct. against applied it if the law also case, speech case. Because not By arguing traditional media. then that the that, government Court disclosure law becomes unconstitutional narrowly prohibition that was tai show differently, treating Citizens traditional government to a interest. lored substantial United, view, my equal protec veers to an 185-88, That Id. at 1923. standard S.Ct. challenge, challenge as-applied not an exacting scrutiny stringent than is more Amendment. See under First we use to evaluate disclosure schemes. Com Huet, (3d F.3d 600-01 Cir. States 366-67, pare 558 U.S. at 2012) (stating challenge as-applied "an Broad., S.Ct. 876 with Greater New Orleans that a law is unconstitution does contend 183-88, atU.S. 119 S.Ct 1923. application al written to a but particular person particular under circum majority decides the case an as- on person deprived a constitution stances basis, reaching chal- applied the facial right.”). al See also Fed. Elec. Comm'n v. lenge. reject challenge I the facial too. MCFL, supports challenge by Citizens United (1986) (finding 93 L.Ed.2d 539 federal arguing that the disclosure law discriminates applied speaker’s viewpoint; disclosure statute unconstitutional like the district did, particular plaintiffs than conduct rather I too find no basis court argument. applied plain- United’s unconstitutional because it Second, government requiring majority interest disclo- that if assumes sufficiently sure from the traditional media because Citizens United is media-like films, by producing 25 then exempts the traditional media Colorado vot- Colorado ers have no more interest in disclosure majority makes from disclosure. The then it they from than exempted would why a case for Citizens United is akin to entity media like The Maj. Denver Post. media, traditional that it has emphasizing Op. at 215. This misses the mark. Colo- history producing an “extended substan- may rado voters indeed desire to know the work,” provides tial which voters Colorado identity of the people groups contribut- “information about Citizens United that is making of Citizens United’s film public at least as accessible to the donor opposed names Denver The Maj. reported Op. lists to the Secretаry.” subscribers, advertisers, Post’s or lenders. this, at From the majority 215. then Colorado voters have at determined leap: says makes a it that because Citizens identity ballot box that of Citizens has the United attributes of traditional United’s donors who earmark financial media, impor- must not have an Colorado contributions to produce or advertise government tant in requiring interest dis- political film helps them evaluate the film’s Along closure from Citizens United. this message. XXVIII, See Colo. line, same the majority concludes that the 1;§ Reg. Colo.Code. (requir- 1505-6:11 requires Secretary First Amendment ing disclosure of donors who specifically to treat Citizens United the as the same $250). earmark donations above I do not not, exempted Finding media. that he has believe this Court acts within proper its majority reverses the district court sphere second-guessing Colorado voters and orders the to treat Citizens they about information to evalu- need exempted United the same as the media. express advocacy ate such as made reasoning This suffers numerous fa- Rocky Mountain Heist. tal flaws. Third, I majority believe that the errs in First, the majority cites no cases is, fact, supposing that Citizens United its support First Pro- Amendment/Equal being equally exempt- treated with the legal theory. tection When the district ed media. We must remember that “ex- court legal told Citizens United empted exempted only media” are for cer- theory Protection, in Equal sounded Citi- limited tain made in communications forms any zens did fall back upon United no.t law speech. give does not Rather, ground. case decided on the same those entities blanket United upon relied cases in which from disclosure of all com- regulations against discriminated speech independent expendi- munications and viewpoint. response, based on In dis- fact, that, tures. has said pointed undisputed trict court out the fact just as Citizens must disclose do- ideological that an individual or with group gave who nors earmarked funds contrary film, views to Citizens United would political media would satisfy require- also have to the disclosure under the circum- have disclose same Trans, ments. Dist. example, Ct. 21. stances. For The Denver Post3 area), example required rounding normally- The result of this rural disclo- other — sure—would be the same whether Denver exempt entity obtained earmarked donations Post, (a small, Wellington Weekly weekly political produce film. similar serving newspaper sur- town and the subscribers, advertisers, financial obtain earmarked dona to solicit and were — Gessler, film, it too produce lenders.” Citizens United tions donors at -, disclose the ear need to 2014 WL F.Supp.3d for that film.4 marking their contributions *7.1 with the district court. agree this, surprise it is In view of Fifth, disagree majority’s I disclosure ex found district court that the Colora remedy once concludes on the form of the are based emptions the First do scheme violates disclosure that, example, meaning speech, “[f]or At ei point, that it should Amendment. publishes op-ed an United exemp ther the traditional media’s sever not to dis newspaper, it will be or strike the entire tion from disclosure piece. the Like funding close the behind Resp. disclosure scheme. See Citizens for wise, if Post a film produced the Denver David Pol. Action Comm. v. Gov’t State advocating for the reelection of expressly Cir.2000). (10th son, F.3d it would be Hickenlooper, John Governor view, majority long my But in takes re comply to with the disclosure forced lawmaking when it instead stride toward Gessler, Citizens United quirements.”' — to Colorado’s Constitution pen takes at -, F.Supp.3d WL in a third statutes and writes nebulous at *8. that the believes category entities Court Fourth, im- majority undersells the right same have a Amendment First presented of the evidence portance State’s suppos those entities exemption because injunction hearing that preliminary at the edly sufficiently similar to traditional organizations typically news “[traditional Here, that majority media. concludes fundraising engage not initiatives do political films entity that made money solicit express advocacy pieces or Rocky qualifies, though even nationwide to from subscribers who wish earmark Heist its first film to focus Mountain message.” specific Ap- funds their particular at Trans, politics and draw 39; Br. see Dist. Ct. at pellee’s major tention inside Colorado. Under the provided This some of basis 88:6-12. ity’s approach, court battles for other loom prelim- denial of the for the district court’s national equivalents” “media with less fact, inary injunction. the district court presence speech or fewer films other argument United’s to addressed Citizens say their Will record. the Court later finding “rather nonsensi- contrary, Moore,5 like Michael a filmmaker someone “clearly opera- at odds with the cal” contrary ideological with a view but fewer laws” that “without disclosure films, history” has a sufficient “extended exemptions newspapers would be obli- can his the names of individual so that Colorado citizens evaluate gated disclose Secretary argument, still re- 4. At oral noted that remember would (i.e. newspapers The Denver quire bloggers online editions their disclose Post) political blogs would ex- online political who film like donors fund a nothing wrong empt from I disclosure. see money Mountain Heist with earmarked Secretary interpreting Colorado's purpose. that sole laws to own disclosure determine some ”[a]ny blogging posts might qualify as news Moore as 5. The district court used Michael endorsements, articles, opinion or editorial example to ask whether Colorado’s disclo commentary writings, or letters to editor apply requirements would to someone sure printed newspaper, magazine other contrary view. See Dist. Ct. Trans. periodical owned or controlled a can- party.” Colo. didate XXVIII, 2(7)(b)(I). important And it is 1:14-CV-02266, message knowing without whether do- No. Doc No. at 8-10 money (Secretary declaratory earmarked toward his gave nors State’s order de not, If nying film? will he have to disclose do- an exemption making earmarked donations for his Colorado’s requirements) (citing nors — Gessler, Citizens United does not? films while Un- Colorado Common Cause v. P.3d -, -, majority’s approach, der the no one can 2012 WL at *5 filing 30, 2012) learning Aug. know without suit and then (Colo.Ct.App. (holding that I case-by-case the answer on a basis. authority exceeded his he when law)). promulgated rather trust Colorado citizens a rule based on federal they when need or know do need dis- reasons, For the foregoing and remem- speaker’s message. closure evaluate bering it is Citizens United’s burden recounts, Finally, majority although to prove its entitlement a preliminary upon, not rely but does the Federal Elec- injunction, see Hurley, Kikumura v. (FEC) advisory opinion tion Commission’s (10th 950, Cir.2001), F.3d I respectful- result, ‍​‌‌​​‌​​‌‌​‌​​​​‌​​‌​‌​‌‌​‌​​​‌‌​​‌‌‌‌​​‌​​‌​​​​‍my I support do wish to state ly dissent. disagreement with argu- Citizens United’s 2010,

ment that it FEC should. an advisory opinion concluding

issued producing,

Citizens United’s costs of dis-

tributing, marketing its films were

exempt under federal disclosure laws. Advisory Election Op.,

Fed. Comm’n No. (June 2010 WL 3184266 WAHLCOMETROFLEX, 2010).6 Importantly, granted the FEC INC., Plaintiff-Counter- exempt Citizens United status not under Defendant-Appellant, Amendment, the First but under the fed- v. exemption provision. eral disclosure See (citing id. *3^1 52 U.S.C. ENERGY, INC., Defendant- WESTAR 30104(f)(3)(B)). § authority FEC Counter-Claimant-Appellee. its opinion application render about the No. 13-3268. of the Federal Election Act. Campaign See view, § In my U.S.C. neither Appeals, United States Court of Colorado State nor this Tenth Circuit. corresponding authority Court has over 2, 2014. Dec. disclosure did the over require- FEC federal disclosure Gessler, See v.

ments.7 Citizens United advisoty opinion language plain 6. The FEC’s came five 7. Under of Colorado’s laws, campaign after months the decision in United Citizens United is Election Comm'n, First, filmmaker, exempted. Fed. as a (2010), meaning acting "newspaper, magazine, 175 L.Ed.2d 753 as a or other articles, periodical" printing that Citizens United was not included in the that is a "news endorsements, exception opinion under to disclosure federal editorial commen- approved tary writings, law when the Court the disclaimer or a letters to the editor.” See XXVIII, 2(7)(b)(I). § and disclosure to Citizens Unit Colo. Sec- there, ond, Hillary, ed’s at issue under is not a "broadcast facili- ’film 2(7)(b)(II). Bipartisan Campaign ty.” Act Id. Reform of 2002.

Case Details

Case Name: Citizens United v. Gessler

Court Name: Court of Appeals for the Tenth Circuit

Date Published: Nov 12, 2014

Citation: 773 F.3d 200

Docket Number: 14-1387

Court Abbreviation: 10th Cir.