sos brief in 10th circuit

14-1387 IN THE UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT CITIZENS UNITED, a Virginia Non-Stock Corporation, Plaintiff - Appellant, v. SCOTT GESSLER, in his official capacity as Secretary of State of the State of Colorado; SUZANNE STAIERT, in her official capacity as Deputy Secretary of State of the State of Colorado, Defendants-Appellees, and COLORADO DEMOCRATIC PARTY, et al.,

Intervenors-Defendants.

On Appeal from the United States District Court

For the District of Colorado The Honorable R. Brooke Jackson

District Judge D.C. No. 1:14-CV-02266-RBJ

DEFENDANTS-APPELLEES’ BRIEF

Appellate Case: 14-1387 Document: 01019321093 Date Filed: 10/03/2014 Page: 1

TABLE OF CONTENTS

PAGE

i

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

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

I. Nature of the case ............................................................................ 5

II. Course of proceedings ....................................................................... 7

LEGAL FRAMEWORK ............................................................................. 7

STATEMENT OF FACTS ....................................................................... 13

SUMMARY OF ARGUMENT ................................................................. 15

STANDARD OF REVIEW....................................................................... 17

ARGUMENT ........................................................................................... 19

I. The district court correctly reviewed Colorado’s disclosure laws under exacting scrutiny.. ....................................................... 19

A. Compliance with Colorado’s disclosure laws will not prevent or chill Citizen United’s speech. ..................................... 19

B. Colorado’s disclosure laws do not discriminate based on the speaker’s identity or the speech’s viewpoint or content. ............. 21

C. Exacting scrutiny applies even if the challenged provisions do discriminate based on identity of the speaker. ....................... 23

D. Colorado’s disclosure requirements are analogous to “time, place, and manner” restrictions on speech, to which a relaxed standard of scrutiny also applies. ................................... 28

E. The district court correctly applied exacting scrutiny to Plaintiff’s challenge. ..................................................................... 31

II. Under strict scrutiny, the evidence demonstrates that Colorado’s disclosure laws are narrowly tailored to achieve the compelling governmental interest of ensuring an informed electorate and deterring corruption or its appearance. .................................................................................... 32


TABLE OF CONTENTS

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A. Ensuring an informed electorate and preventing corruption are both compelling state interests in the disclosure context. .......................................................................................... 33

B. Assuming arguendo strict scrutiny applies, Colorado’s press exemption is narrowly tailored to achieve the foregoing interests. ....................................................................... 35

C. Colorado’s disclosure laws appropriately balance the competing interests at stake by imposing only a minimal burden on political speakers. ....................................................... 43

III. Because Citizens United satisfied none of the elements for a preliminary injunction, the district court properly denied its motion. ............................................................................................ 47

A. Citizens United failed to demonstrate a substantial likelihood of success on the merits. .............................................. 47

B. Citizens United has not demonstrated that it would suffer irreparable harm in the absence of an injunction. ...................... 50

C. The evidence demonstrates that a preliminary injunction would run against the public interest and, therefore, the balance of harms favor the State. ................................................ 51

CONCLUSION ........................................................................................ 52


TABLE OF AUTHORITIES

PAGE

iii

CASES

American Target Advertising, Inc. v. Giani, 199 F.3d 1241 (10th Cir. 2000) .............................................................................................. 29

Bailey v. State of Maine Comm’n on Governmental Ethics and Election Practices, 900 F.Supp.2d 75 (D. Me. 2012) ........................... 40

Bd. of Trustees v. Fox, 492 U.S. 469 (1989) ................................ 32, 35, 46 Bluman v. FEC, 800 F.Supp.2d 281 (D.D.C. 2011) ................................ 24 Buckley v. Valeo, 424 U.S. 1 (1976) .............................................. 1, 19, 35 Citizens Against Rent Control/Coalition for Fair Housing v.

Berkeley, 454 U.S. 290 (1981) .............................................................. 34 Citizens for Peace in Space v. City of Colo. Springs, 477 F.3d 1212

(10th Cir. 2007) .................................................................................... 32 Citizens for Responsible Gov’t State PAC v. Davidson, 236 F.3d

1174 (10th Cir. 2000)............................................................................ 33 Citizens United v. FEC, 530 F.Supp.2d 274 (D.D.C. 2008) .................... 39 Citizens United v. FEC, 558 U.S. 310 (2010) ……….………..passim City of Ladue v. Gilleo, 512 U.S. 43 (1994) ............................................. 23 Colorado Citizens for Ethics in Gov’t v. Comm. for the American

Dream, 187 P.3d 1207 (Colo. App. 2008) ............................................. 15 Colorado Common Cause v. Bledsoe, 810, P.2d 201 (Colo. 1991) .......... 50 Colorado Ethics Watch v. Senate Majority Fund, LLC, 275 P.3d

674 (Colo. 2012) .................................................................................... 11 Contra Stilp v. Contino, 629 F. Supp. 2d 449 (M.D. Pa. 2009) .............. 44 Ctr. for Individual Freedom, Inc. v. Tennant, 706 F.3d 270 (4th

Cir. 2013) .............................................................................................. 26 Dominion Video Satellite, Inc. v. EchoStar Satellite Corp., 269

F.3d 1149 (10th Cir. 2001) ................................................................... 18 Elrod v. Burns, 427 U.S. 347 (1976) ....................................................... 50



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iv

Federal Election Comm’n v. Massachusetts Citizens for Life, 479 U.S. 238 (1986) ..................................................................................... 42

First Nat’l Bank of Boston v. Bellotti, 435 U.S.765 (1978) .............. 19, 25 Free Speech v. Fed. Election Comm’n, 720 F.3d 788 (10th Cir.

2013) ................................................................................................. 2, 19 Grossman v. Dean, 80 P.3d 952 (Colo. App. 2003) ................................. 12 Heideman v. South Salt Lake City, 348 F.3d 1182 (10th Cir. 2003) ..... 18 McConnell v. Federal Election Comm’n, 540 U.S. 93 (2003) . 1, 40, 41, 52 McCutcheon v. FEC, 134 S.Ct 1434 (2014) ............................................. 33 NAACP v. Alabama ex rel. Patterson, 357 U.S 449 (1958) .................... 48 Nat’l Ass’n of Mfrs. v. Taylor, 582 F.3d 1 (D.C. Cir. 2009) ..................... 32 Ognibene v. Parkes, 671 F.3d 174 (2d. Cir. 2011) .................................. 24 Pacific Frontier v. Pleasant Grove City, 414 F.3d 1221 (10th Cir.

2005) ..................................................................................................... 50 Pahls v. Thomas, 718 F.3d 1210 (10th Cir. 2013) ............................ 21, 30 Reader’s Digest Ass’n v. Fed. Election Comm’n, 509 F. Supp. 1210

(S.D.N.Y. 1981) ............................................................................... 22, 40 Republican Party v. King, 741 F.3d 1089 (10th Cir. 2013) .................... 49 Richison v. Ernest Group, Inc., 634 F.3d 1123 (10th Cir. 2011) ............ 30 Rosenberger v. Rector & Visitors of Univ. of Va., 515 U.S. 819

(1995) .................................................................................................... 25 Sampson v. Buescher, 625 F.3d 1247 (10th Cir. 2010)......... 20, 34, 35, 48 San Juan County v. No New Gas Tax, 157 P.3d 831 (Wash. 2007) ....... 40 Schrier v. Univ. of Colo., 427 F.3d 1253 (10th Cir. 2005)................. 17, 18 United States v. Danielczyk, 683 F.3d 611 (4th Cir. 2012) .................... 24 Utah Licensed Beverage Assn. v. Leavitt, 256 F.3d 1061 (10th Cir.

2001) ..................................................................................................... 51 Ward v. Rock Against Racism, 491 U.S. 781 (1989) ............................... 30



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v

Wells v. City & Cnty. of Denver, 257 F.3d 1132 (10th Cir. 2001) .......... 30 Wilderness Workshop v. U.S. Bureau of Land Mgmt., 531 F.3d

1220 (10th Cir. 2008)...................................................................... 17, 47

STATUTES

§ 1-45-101, et seq. C.R.S. (2014)................................................................ 8 § 1-45-103(9), C.R.S. (2014) ............................................................... 15, 44 § 1-45-107.5(3)-(4), C.R.S. (2014) ............................................................ 11 § 1-45-107.5(4), C.R.S. (2014) .................................................................... 5 § 1-45-107.5(4)(b)(I), C.R.S. (2014) .......................................................... 11 § 1-45-107.5(4)(b)(I)(D), C.R.S. (2014) .................................................... 11 § 1-45-107.5(7), C.R.S. (2014) .................................................................. 11 § 1-45-108(2)(a)(I)(D)-(E), C.R.S. (2014) ................................................. 10 2 U.S.C. § 431(9)(B)(i) ............................................................................. 24 2 U.S.C. § 441e ........................................................................................ 24 15 U.S.C. §§1801-1804 ............................................................................ 41 47 U.S.C. §315(a) ..................................................................................... 42

RULES

8 CCR 1505-6 at 11.1 ................................................................................. 9 8 CCR 1505-6 at 11.3 ................................................................................. 9 8 CCR 1505-6 at 11.5 ................................................................................. 9

CONSTITUTIONAL PROVISIONS

Colo. Const. art. XXVIII ...................................................................... 8, 15 Colo. Const. art. XXVIII, § 1 ................................................................... 51 Colo. Const. art. XXVIII, § 2(7)(a) ................................................. 8, 15, 44 Colo. Const. art. XXVIII, § 2(7)(b)(I) ................................................. 12, 46



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Colo. Const. art. XXVIII, § 2(7)(b)(II) ............................................... 12, 46 Colo. Const. art. XXVIII, § 2(7)(b)(III) .............................................. 12, 46 Colo. Const. art. XXVIII, § 2(9)(b)(I) ....................................................... 46 Colo. Const. art. XXVIII, § 2(9)(b)(II) ..................................................... 46 Colo. Const. art. XXVIII, § 2(9)(b)(III) .................................................... 46 Colo. Const. art. XXVIII, § 6(1) ............................................................. 8, 9 Colo. Const. art. XXVIII, § 7(b)(I) ........................................................... 24


If the Supreme Court has woven a single unifying thread into the

past several decades of its campaign finance jurisprudence, it is this:

while bans on political speech – in whatever form – are presumptively

unconstitutional, disclosure requirements are typically not. Because

this case involves disclosure, and disclosure alone, it is important to

recognize this distinction from the outset.

The constitutional parameters of campaign finance law are ever-

evolving, and as a consequence the Supreme Court has laid out only a

few hard and fast rules since its seminal opinion in Buckley v. Valeo,

424 U.S. 1 (1976). Among those are the application of strict scrutiny to

outright prohibitions on campaign-related expenditures, accompanied

by a less rigorous examination of laws that require only disclosure of

spending on those same activities. Because “disclosure requirements

impose no ceiling on campaign-related activities,” id. at 64, they “do not

prevent anyone from speaking.” McConnell v. Federal Election

Comm’n, 540 U.S. 93, 201 (2003). As a positive, less restrictive

alternative to limitations on speech, disclosure requirements are subject

to exacting scrutiny, which “requires a ‘substantial relation’ between


2

the disclosure requirement and a ‘sufficiently important’ governmental

interest.” Citizens United v. FEC, 558 U.S. 310, 366-67 (2010); Free

Speech v. Fed. Election Comm’n, 720 F.3d 788, 792-93 (10th Cir. 2013).

There can be no doubt that most ordinary disclosure requirements

satisfy this test. Indeed, Plaintiff is certainly aware that the Supreme

Court has already strongly endorsed mandatory disclosure and

disclaimer provisions applicable to “electioneering communications”

that are qualitatively identical to the speech at issue here. Citizens

United, 558 U.S. at 371 (“We find no constitutional impediment to the

application of BCRA’s disclaimer and disclosure requirements to a

movie broadcast via video-on-demand”). In this lawsuit, Plaintiff has

thus shifted its tack by reframing its challenge to Colorado’s disclosure

laws as a complaint about the allegedly unequal coverage of Colorado’s

press exemption. Rather than arguing as it did in Citizens United that

Colorado’s substantial interest in ensuring that its electorate is

informed does not justify compulsory disclosure, Plaintiff instead

asserts that it is unfair for Colorado to compel disclosure from Citizens

United while simultaneously exempting regular publications from the


3

Denver Post, the New York Times, and certain other organizations that

routinely cover elections and occasionally editorialize about them. The

reason for this shift is transparent – having lost its challenge under the

exacting scrutiny standard applicable to disclosure requirements under

the First Amendment in Citizens United, Plaintiff has developed a new

legal theory designed to secure the application of strict scrutiny to

Colorado’s allegedly differential treatment of political speakers.

The district court denied the Plaintiff’s motion for a preliminary

injunction, rejecting its claim that Colorado’s campaign finance

disclosure requirements – and exemptions from those requirements –

discriminate based on the speaker’s identity, the viewpoint taken, or

the content of the speech. The district court was particularly troubled

by Plaintiffs’ failure to offer any evidence of burden imposed by

compliance with the challenged provisions, and by its failure to

establish irreparable harm as a factual matter. In fact, the district

court found that Plaintiff satisfied none of the preliminary injunction

factors. This Court should affirm. At the threshold, the United States

Supreme Court has repeatedly suggested its approval of the lines drawn


4

between the traditional press and entities like Citizens United.

Binding Supreme Court precedent therefore strongly suggests that

Plaintiff is unlikely to prevail on the merits of its claim. Nor will

compliance with Colorado’s disclosure requirements for electioneering

communications or independent expenditures irreparably injure

Citizens United. To the contrary, Plaintiff will be required to file three

reports at most, and may not have to identify its contributors at all.

Finally, the issuance of an injunction – especially one that

suspends Colorado’s disclosure requirements across the board – would

substantially harm the ability of Colorado’s electorate to properly

evaluate the political messages that, as the general election approaches,

have already begun to flood the airwaves and pervade public

consciousness.

STATEMENT OF THE ISSUES

1. Did the district court correctly apply exacting scrutiny to

Citizens United’s First Amendment challenge to Colorado’s disclosure

laws?


5

2. Assuming arguendo that strict scrutiny applies, did the

evidence presented demonstrate that Colorado’s disclosure laws are

substantially related to a compelling governmental interest?

3. Did the district court correctly deny Citizens United’s

preliminary injunction motion on grounds that Citizens United failed to

satisfy the four factors for preliminary injunctive relief, including a

substantial likelihood of success on its federal and state constitutional

claims?

STATEMENT OF THE CASE

I. Nature of the case

Plaintiff Citizens United challenges Colorado’s reporting and

disclosure requirements for electioneering communications and express

advocacy, and the exemptions from those requirements, which are

contained in sections 2, 5, and 6 of article XXVIII of the Colorado

Constitution (“Amendment 27”) and the Fair Campaign Practices Act

(“FCPA”), Colo. Rev. Stat. § 1-45-107.5(4). Specifically, Citizens United

challenges the scope and application of Colorado’s media and broadcast

facility exemptions and seeks a similar exemption for a forthcoming


6

political advertisement, which will be presented as a half-hour

documentary.

Citizens United asserts two claims. First, it argues that

Colorado’s disclosure requirements violate the First Amendment, as

applied to the States under the Fourteenth Amendment. Jt. Appx.,

A21-A23. In support, Plaintiff contends that the disclosure

requirements unconstitutionally discriminate based on the identity of

the speaker because traditional print media entities or broadcast

facilities are exempt, but Citizens United, which is allegedly engaged in

media-like “constitutionally protected political discourse on matters of

public importance,” is not. Id., A23. Second, Citizens United contends

that the disclosure requirements violate article II, section 10 of the

Colorado Constitution, which prohibits the passage of any law that

“impair[s] the freedom of speech.” Id., A23-A24.

In the district court, Citizens United sought preliminary

injunctive relief to prohibit enforcement of Colorado’s disclosure

requirements in their entirety or, alternatively, from enforcing the

requirements as applied to Citizens United. Id., A73-A74.


7

II. Course of proceedings

Plaintiff’s appeal of the denial of its preliminary injunction motion

arrives in this Court following a half-day evidentiary hearing and

written ruling by the district court. Citizens United did not present any

evidence at the preliminary injunction hearing, instead asserting that

its claims involved purely legal questions. Defendants disagreed, and

presented two expert witnesses who testified about the importance of

campaign finance disclosure to the American political system, the media

exemption, how information about political campaigns is disseminated

to the voting public, and how the public makes use of it.

The district court denied Citizens United’s preliminary injunction

motion in a written order. Jt. Appx., A154-A175. The next day,

Citizens United commenced the instant appeal.

LEGAL FRAMEWORK

This case presents a challenge to Colorado’s disclosure and

reporting requirements for certain electioneering communication-

related contributions and expenditures. These requirements, which

have been in place for more than a decade and which represent the


8

status quo in this case, are contained in Article XXVIII of Colorado’s

constitution (“Amendment 27”) and Colorado’s Fair Campaign Practices

Act (“FCPA”), Colo. Rev. Stat. § 1-45-101, et seq. The pertinent

provisions are summarized below.

Electioneering communications: Generally speaking,

electioneering communications include communications distributed by

mass media or direct delivery that: 1) unambiguously refer to a

candidate for state office; and 2) are “broadcasted, printed, mailed,

delivered or distributed” thirty days or less before the primary or sixty

days or less before the general election. Colo. Const. art. XXVIII, §

2(7)(a). Citizens United concedes, and the Secretary agrees, that Rocky

Mountain Heist falls within this definition “unless subject to an

exemption.” Jt. Appx., A56.

Colorado law – like FECA and the laws of dozens of other states –

places no limits on the creation and distribution of electioneering

communications, but it does establish disclosure requirements triggered

when a person “expends one thousand dollars or more on electioneering

communications.” Colo. Const. art. XXVIII, § 6(1). These disclosures


9

take the form of reports filed with the Secretary that include three

pieces of information: “

1) [S]pending on such electioneering communications,” including an itemized list of “all spending of $1,000 or more” and the “name, address, and method of communication.” Colo. Const. art. XXVIII, § 6(1); 8 Colo. Code of Regulations 1505-6, Campaign Finance Rule 11.3.

2) “The name of the candidate(s) unambiguously referred to in

the electioneering communication . . . .” 8 Colo. Code of Regulations 1505-6, Campaign Finance Rule 11.5.

3) Donor information, including name, address, and, if the

donor is a “natural person,” occupation and employer. But this information must be reported only for those donors that “contribute[ ] more than two hundred and fifty dollars per year . . . for an electioneering communication.” Colo. Const. art. XXVIII, § 6(1).

Because the Colorado Constitution specifies that donor information

must be reported only when a donation is “for an electioneering

communication,” id. (emphasis added), a campaign finance rule clarifies

that “[i]f a person spending money for electioneering communications is

a corporation or labor organization, disclosure of the names and

addresses of [donors] shall only be required if the money is specifically

earmarked for electioneering communications.” 8 Colo. Code of

Regulations 1505-6, Campaign Finance Rule 11.1 (emphasis added).


10

Despite pointed questioning from the district court, Plaintiff offered no

evidence that it has solicited or planned to use funds that are

earmarked for the production or distribution of Rocky Mountain Heist.

Jt. Appx. A293:18-25.

Colorado’s definition of “electioneering communications” would not

encompass Citizens United’s production budget. Thus, assuming that

the film does not contain express advocacy, the $548,975 that Plaintiff

alleges is “dedicated to production” would not be subject to disclosure.

Complaint ¶ 29. The disclosures triggered by Plaintiff’s spending on

advertising would appear in, at most, three reports that contain the

above-described information. Disclosures are due biweekly in the two

months prior to the general election, with a final report due thirty days

after the election.1 Colo. Rev. Stat. § 1-45-108(2)(a)(I)(D)-(E).

Independent expenditure committees: If Rocky Mountain Heist

contains express advocacy,2 then it qualifies as an “independent

1 The remaining reporting dates are October 14, October 27, and December 4. 2 This question is not yet resolved. In briefing, Citizens United has suggested that the film will contain express advocacy. Jt. Appx., A56. But the Plaintiff’s complaint and the affidavit attached to the


11

expenditure” and Citizens United must register with the Secretary and

report details of its corporate form and ownership structure. Colo. Rev.

Stat. § 1-45-107.5(3)-(4). It must maintain a separate bank account and

use it exclusively for its advocacy efforts, § 1-45-107.5(7), and report

certain details about corporations or individuals who donate more than

$250 per year “for the purpose of making an independent expenditure.”

§ 1-45-107.5(4)(b)(I).

The filing schedule for corporations engaging in independent

expenditures is similar to that for electioneering communications,

except that certain major expenditures occurring within 30 days before

an election must be reported within 48 hours “after obligating moneys

for the independent expenditure.” § 1-45-107.5(4)(b)(I)(D).

Exemptions: Plaintiff’s case focuses on the several exceptions

that Amendment 27 applies to the definitions of electioneering

preliminary injunction motion were more equivocal. See Jt. Appx. A17, ¶ 27 (“background footage appearing in the Film will likely include events where participants expressly advocate”); A78-A79, ¶¶ 7-8 (Bossie Declaration). Express advocacy under Colorado law requires Buckley’s “magic words;” functional equivalency is not enough to qualify. Colorado Ethics Watch v. Senate Majority Fund, LLC, 275 P.3d 674, 676 (Colo. 2012).


12

communications and independent expenditure. As relevant here, those

exceptions include: (1) “news articles, editorial endorsements, opinions

or commentary writings, or letters to the editor printed in a newspaper,

magazine or other periodical not owned or controlled by a candidate or

political party”; (2) “editorial endorsements or opinions aired by a

broadcast facility not owned or controlled by a candidate or political

party; and (3) communications or spending made “by persons made in

the regular course and scope of their business[.]” Colo. Const. art.

XXVIII, § 2(7)(b)(I-III); § 2(8)(b)(I-III).

Colorado’s voters approved Amendment 27’s disclosure framework

in 2002 by a 2-1 margin. The voter information guide for that election

(a/k/a the “Blue Book”) pointed out that one goal of the amendment was

providing “more information about who is spending money to influence

elections.” Jt. Appx., A114. The Blue Book, which assists the electorate

in understanding the intentions of the proposed amendment,3 advised

voters that before 2002, “some types of political advertisements [were]

not regulated and therefore [could] be paid for anonymously. The

3 See Grossman v. Dean, 80 P.3d 952, 962 (Colo. App. 2003).


13

proposal gives people information about who is paying for these

advertisements right before an election.” Jt. Appx., A114. Amendment

27 was explicitly designed to ensure that disclosure accompanies the

type of communications that Rocky Mountain Heist represents.

STATEMENT OF FACTS

Citizens United produces, markets, and distributes films on

various topics, including some that profile political figures involved in

campaigns for election or reelection. These films are often released

shortly before an election in which the political figure is running, and

historically have amounted to what the U.S. Supreme Court has

characterized as “a feature-length negative advertisement that urges

viewers to vote against” the candidate.4 Several of Plaintiff’s candidate-

oriented films have focused on candidates for federal office, and prior to

2010, the Federal Election Commission (FEC) required Citizens United

to comply with federal disclosure and disclaimer requirements for films

and associated advertising that related to federal candidates.5 In 2010,

4 Citizens United v. FEC, 558 U.S. 310, 325 (2010). 5 See FEC Advisory Opinion No. 2004-30.


14

and notwithstanding the Supreme Court’s endorsement of film-related

disclosure in Citizens United, the FEC reversed itself, finding that

Citizens United qualified as a “press entity” under the Federal Election

Campaign Act, and that their political films qualified for FECA’s press

exemption.6

In late 2013 or early 2014, Citizens United made plans to spend

approximately $775,000 creating and marketing a half-hour long film

named Rocky Mountain Heist, which was timed for release just prior to

the 2014 general election. According to Plaintiff, the film “will include

unambiguous references to elected officials and others who are

candidates for office in this year’s general elections,” and “will likely

include events where participants expressly advocate the election or

defeat of one or more candidates in the November 4, 2014 elections.” Jt.

Appx., A78-A79. In April 2014, Citizens United filed a petition with

the Secretary requesting a declaration that it was exempt from having

to disclose contributions and expenditures associated with that film

6 See FEC Advisory Opinion No. 2010-08.


15

under Colorado law.7 The Deputy Secretary concluded in a declaratory

order that: 1) the film is an electioneering communication under

Colorado law8; and 2) would not qualify for Colorado’s press exemption

because it is not print media, will not be produced by a broadcast

facility, and does not meet the requirements of the “regular business”

exception as that provision has been interpreted by Colorado courts.9

Jt. Appx., A40-A44.

SUMMARY OF ARGUMENT

The district court properly followed controlling Supreme Court

precedent to apply exacting scrutiny to Colorado’s disclosure

requirements. In so doing, the district court rightly rejected Citizens

7 As the state’s chief elections officer, the Secretary is empowered to administer and enforce Colorado’s campaign finance laws, which appear both in article XXVIII of the Colorado Constitution (“Amendment 27”) and in the Fair Campaign Practices Act (“FCPA”). 8 Colo. Const. art. XXVIII, § 2(7)(a); Colo. Rev. Stat. § 1-45-103(9). 9 See, e.g., Colorado Citizens for Ethics in Gov’t v. Comm. for the American Dream, 187 P.3d 1207 (Colo. App. 2008) (interpreting Amendment 27’s “regular business” exception “as limited to persons whose business is to broadcast, print, publicly display, directly mail, or hand deliver candidate-specific communications within the named candidate’s district as a service, rather than to influence elections”).


16

United’s contention that Colorado’s disclosure laws discriminate based

on the speaker’s identity or the speech’s content or viewpoint.

Colorado’s disclosure laws do not impose distinctions based on the

speaker’s identity or the viewpoint expressed in the speaker’s message;

however, even if they did, exacting scrutiny remains the operative level

of review.

Plaintiff’s case hinges largely on its attempt to impose a strict

scrutiny analysis onto a disclosure-only campaign finance scheme. Even

if strict scrutiny were to apply, the evidence in the record demonstrates

that Colorado’s disclosure laws are narrowly tailored to serve two

compelling government interests – ensuring that Colorado’s electors are

able to discern who is attempting to influence their votes, and

discouraging corruption by making large independent expenditures a

matter of public record.

The district court correctly applied exacting scrutiny to conclude

that the line drawn by Colorado’s press exemption is substantially

related to an important government interest. In reaching this

conclusion, the district court accurately balanced the minimal burdens


17

associated with Colorado’s disclosure scheme against the substantial

harm to the public interest that eliminating disclosure requirements

would cause. Whether strict or intermediate scrutiny applies, however,

the district court correctly concluded that Citizens United failed to

satisfy any of the four factors for preliminary injunctive relief.

STANDARD OF REVIEW

Appellate courts review the denial of a preliminary injunction

motion for abuse of discretion. Wilderness Workshop v. U.S. Bureau of

Land Mgmt., 531 F.3d 1220, 1223 (10th Cir. 2008). A lower court

abuses its discretion when its decision is based on “an erroneous

conclusion of law or where there is no rational basis in the evidence for

the ruling.” Id.

When seeking a preliminary injunction, a plaintiff must show that

the right to relief is clear and unequivocal. Schrier v. Univ. of Colo.,

427 F.3d 1253, 1258 (10th Cir. 2005). A plaintiff must establish that (1)

it will suffer irreparable injury unless the injunction issues; (2) the

threatened injury outweighs damage the proposed injury may cause the

opposing party; (3) the injunction would not be adverse to the public


18

interest; and (4) there is a substantial likelihood of success on the

merits. Id.

In cases, such as this, where a party seeks to enjoin governmental

action taken in the public interest pursuant to a statutory or regulatory

scheme, the court must apply the more rigorous “substantial likelihood

of success” requirement regardless of the determination of the first

three factors. Heideman v. South Salt Lake City, 348 F.3d 1182, 1188-

89 (10th Cir. 2003).

Courts more closely scrutinize preliminary injunctions seeking to

alter the status quo, which are disfavored. Schrier, 427 F.3d at 1259.

The status quo is “the last uncontested status between the parties

which preceded the controversy until the outcome of the final hearing.”

Dominion Video Satellite, Inc. v. EchoStar Satellite Corp., 269 F.3d

1149, 1155 (10th Cir. 2001) (quotation and citation omitted). Because

Citizens United seeks nothing less than an end to campaign finance

disclosure in its entirety, it seeks to radically alter the status quo.


19

ARGUMENT

I. The district court correctly reviewed Colorado’s disclosure laws under exacting scrutiny.

A. Compliance with Colorado’s disclosure laws will not prevent or chill Citizen United’s speech.

Disclosure requirements “impose no ceiling on campaign-related

activities, and do not prevent anyone from speaking.” Citizens United v.

FEC, 558 U.S. 310, 366 (2010) (internal citations and quotations

omitted). As “a less restrictive alternative to more comprehensive

regulations of speech,” Citizens United, 558 U.S. at 369, the indirect

impact of the disclosure laws on a speaker’s engagement in the political

process does not warrant strict scrutiny. To the contrary, because

compulsory disclosure imposes only minimal burdens on political

speakers, the federal courts have consistently upheld disclosure

requirements after applying exacting scrutiny – which requires a

substantial relationship between the challenged requirement and an

important governmental interest. See id. at 366-67; Buckley v. Valeo,

424 U.S. 1, 64 (1976); Free Speech v. Fed. Election Comm’n, 720 F.3d

788, 792-93 (10th Cir. 2013); cf. First Nat’l Bank of Boston v. Bellotti,


20

435 U.S.765, 792 n.32 (1978) (striking down an outright speech ban, but

holding that “[i]dentification of the source of advertising may be

required as a means of disclosure, so that the people will be able to

evaluate the arguments to which they are being subjected”); but see

Sampson v. Buescher, 625 F.3d 1247 (10th Cir. 2010) (discussed infra).

The record in this case contains no evidence that Colorado’s

disclosure laws prevent anyone from speaking or otherwise ban speech.

Citizens United is free to make its film, distribute it, and spend

unlimited amounts of money promoting it. Moreover, a testifying

expert witness in the field of campaign-finance disclosure: (a) knew of

no instance where contribution disclosures led to harassment of donors;

(b) opined that such occurrences were exceedingly rare; and (c) observed

that disclosure requirements do not negatively affect contribution

amounts or otherwise discourage monetary donations. Jt. Appx.,

A213:23-A:214:3; A215:9-A216:3. Colorado law simply requires Citizens

United to comply with ’s modest disclosure requirements for

electioneering communications and expenditures for the critical public

purpose of ensuring an informed electorate.


21

B. Colorado’s disclosure laws do not discriminate based on the speaker’s identity or the speech’s viewpoint or content.

The record likewise contains no evidence that the application of or

exemption from Colorado’s disclosure requirements turns on the

speaker’s identity or the speech’s viewpoint or content.

A content-based regulation is based on the speech’s content or

subject matter. Pahls v. Thomas, 718 F.3d 1210, 1229 (10th Cir. 2013).

In contrast, a content-neutral regulation is justified without reference to

the speech’s content. Id. Viewpoint discrimination, a form of content-

based regulation, occurs when the government targets the speaker’s

particular views. Id.

The evidence presented below, as well as a review of the plain

language of the challenged provisions, demonstrates that Colorado’s

disclosure laws and associated exemptions do not discriminate based on

viewpoint, content, or the identity of the speaker. Colorado’s press

exemption does not deliberately select some speakers or political views

for disclosure while simultaneously exempting others. To the contrary,

the law is focused on ensuring that Colorado’s voters have the


22

information that they need in order to make an informed choice in the

political marketplace. The exemption of some communications and the

inclusion of others represents a policy choice not about the viewpoints

expressed in those communications, but about the heuristic cues that a

viewer or reader may be able to glean from the medium of expression.

Simply put, in adopting Amendment 27, Colorado’s citizens determined

that voters should be armed with the ability to find out who is

attempting to influence their votes. Communications that qualify for

the press exemption are not included because such information is often

easily discernible from the communication itself.

Had an established news entity, such as The Denver Post, solicited

contributions in order to fund a documentary that expressly advocating

for the defeat or success of a candidate, it, too, would be required to

disclose its contributions and expenditures, because this type of activity

would fall outside its traditional press function. See Jt. Appx., A263:13-

22; A289:16-A290:15; see also Reader’s Digest Ass’n v. Fed. Election

Comm’n, 509 F. Supp. 1210, 1214 (S.D.N.Y. 1981) (rejecting assertion

that the press exemption would “exempt any dissemination or


23

distribution using the press entity’s personnel or equipment, no matter

how unrelated to its press function”). Conversely, if an organization

that had not previously been recognized as a press entity in Colorado

began distributing a periodical newsletter in Colorado that interspersed

news and commentary, that communication would very likely qualify as

press irrespective of the organization’s identity or ideology. In sum,

because Colorado’s exemptions are content- and identity-neutral, they

are not, by definition, an “attempt to give one side of a debatable public

question an advantage in expressing its views to the people.” City of

Ladue v. Gilleo, 512 U.S. 43, 51 (1994).

C. Exacting scrutiny applies even if the challenged provisions do discriminate based on identity of the speaker.

Even if this Court determines that Colorado’s disclosure laws

hinge on the speaker’s identity or viewpoint or the speech’s content,

exacting scrutiny remains the operative level of review because

required disclosure does not ban or otherwise restrict speech.

But before reaching that question, it is worth noting that identity-

based distinctions are a regular feature of both First Amendment law in


24

general, and campaign finance in particular, and that courts have

regularly upheld such provisions. Both federal and state law, for

example, bar any organization owned or controlled by a political party

from claiming the press exemption. 2 U.S.C. § 431(9)(B)(i); Colo. Const.

art. XXVIII, § 7(b)(I). Likewise, federal law makes it a criminal offense

for a foreign national to make campaign contributions or independent

expenditures. 2 U.S.C. § 441e. And perhaps most prominently, even in

the wake of Citizens United, which struck down a ban on corporate

independent expenditures, courts have continued to uphold bans on

direct corporate contributions to candidates. See, e.g., United States v.

Danielczyk, 683 F.3d 611 (4th Cir. 2012). These laws are not only

outright speech bans, but also discriminate solely based on the

speaker’s identity. Yet all pass constitutional muster. See Ognibene v.

Parkes, 671 F.3d 174, 186 (2d. Cir. 2011) (in challenge to corporate

contribution ban, declining to apply strict scrutiny and instead

upholding law after applying “the more lenient, closely drawn standard

of review”); see also Bluman v. FEC, 800 F.Supp.2d 281 (D.D.C. 2011)

(in review by three-judge panel, assuming without deciding that strict


25

scrutiny applied to federal ban on campaign contributions by foreign

nationals, but nonetheless upholding law).

Plaintiffs’ insistence on the application of strict scrutiny relies on

a series of inapposite cases – including Citizens United itself – that

consider identity-based discrimination in the context of outright bans or

direct limitations on speech. See, e.g. First National Bank of Boston v.

Bellotti, 435 U.S. 765 (1978); Rosenberger v. Rector & Visitors of Univ.

of Va., 515 U.S. 819 (1995). To be sure, the Supreme Court has

repeatedly invalidated laws that prohibit speech from “certain

disfavored speakers,” Citizens United, 558 U.S. at 341, or “silence the

expression of selected viewpoints.” Rosenberger, 515 U.S. at 835. But

disclosure requirements do not impose this sort of impermissible

burden. To the contrary, the Supreme Court has repeatedly

emphasized that disclosure is a constitutionally acceptable alternative

to bans on speech. See Bellotti, 435 U.S. at 792 (striking down ban on

political expenditures by corporations, but not other speakers, while

upholding disclosure requirements); Citizens United, 558 U.S. at 370

(“The First Amendment protects political speech; and disclosure permits


26

citizens and shareholders to react to the speech of corporate entities in a

proper way. This transparency enables the electorate to make informed

decisions and give proper weight to different speakers and messages.”).

Notwithstanding Plaintiff’s misplaced reliance on cases that

address speech bans, rather than disclosure requirements, the Fourth

Circuit’s recent opinion in Ctr. for Individual Freedom, Inc. v. Tennant,

706 F.3d 270, 287 (4th Cir. 2013), is perhaps most analogous to the

challenge here. Like the instant dispute, Tennant concerned a

constitutional challenge to a mandatory disclosure scheme, which West

Virginia enacted in response to a significant increase in independent

expenditures. West Virginia’s law required organizations to file reports

with the secretary of state and disclose when they made certain

election-related expenditures and engaged in campaign-related speech.

Id. at 275. The reporting requirements, however, exempted grassroots

lobbying communications, i.e., communications made while the

legislature was in session that urged the audience to communicate with

legislators concerning pending legislation. The Tennant plaintiffs were

organizations that engage in election-related speech and, like Citizens


27

United in this case, raised concerns that the grassroots lobbying

exemption exempted some activities but not their own allegedly similar

communications. Though the Fourth Circuit acknowledged that strict

scrutiny typically applies to content-based speech restrictions, it

distinguished such limitations from the challenged disclosure

requirements. Notwithstanding the plaintiffs’ contention that the

challenged disclosure requirements discriminated based on content and

viewpoint, the court applied exacting scrutiny after concluding that the

challenged provisions did not restrict or otherwise limit speech. Id. at

287.

Tennant also adhered to this approach when analyzing an

identity-based discrimination challenge to West Virginia’s distinction

between 501(c)(3) and 501(c)(4) organizations for the purposes of

disclosure. Similarly to Citizens United here, the Tennant plaintiff

maintained that “the statute’s exemption for communication[s] paid for

by any organization operating under § 501(c)(3) of the Internal Revenue

Code unconstitutionally discriminates against § 501(c)(4)

organizations[.]” Id. at 289 (internal quotation omitted). In other


28

words, the Tennant plaintiffs – unlike Citizens United in this case –

were actually able to show that the West Virginia law discriminated

against them based on their corporate status. The Fourth Circuit

agreed, yet because the challenged provision involved disclosure

requirements, rather than a speech ban, the court elected to “apply

exacting scrutiny to determine if the exemption is constitutionally

permissible[.]” Id.

The district court did not err in applying the same standard in

this case, and its decision to do so should be affirmed.

D. Colorado’s disclosure requirements are analogous to “time, place, and manner” restrictions on speech, to which a relaxed standard of scrutiny also applies.

Because disclosure in general is a constitutionally acceptable

burden to place on speakers engaging in express advocacy or

electioneering communications, and because Plaintiff is unable to show

that Amendment 27 discriminates based on the identity of the speaker

or the viewpoint expressed in the communication, its argument largely

boils down to a claim that Colorado treats some manners of expression


29

differently than others. In other words, assuming that Colorado’s

disclosure requirements actually burden Citizen United’s speech at all,

Plaintiff’s primary complaint is that Amendment 27 burdens only some

manners of expression (including theirs), but not all. Citizens United

has already admitted as much, claiming that “Colorado’s media

exemptions turn primarily on the medium of transmission.” Jt. Appx.,

A146.

The Supreme Court has a well-developed doctrine for dealing with

restrictions on the manner of speech, called “time, place, and manner.”

To pass constitutional muster, content-neutral time, place, and manner

restrictions require a showing of (1) a substantial governmental

interest, that (2) is “narrowly drawn to serve that interest without

unnecessarily interfering with First Amendment freedoms.” American

Target Advertising, Inc. v. Giani, 199 F.3d 1241, 1247 (10th Cir. 2000)

(quotations omitted). Although restrictions that allow speech by some

but not others are highly disfavored under the First Amendment, “[a]

regulation that serves purposes unrelated to the content of expression is

deemed neutral, even if it has an incidental effect on some speakers or


30

messages but not others.” Ward v. Rock Against Racism, 491 U.S. 781,

791-803 (1989) (emphasis added). “[D]isparate impact alone is not

enough to render a speech restriction content- or viewpoint-based.”

Pahls, 718 F.3d at 1235-36.

Where, as in the instant case, the regulatory requirements are

reasonable and leave open “ample alternative channels of

communication,” they will satisfy the time, place, and manner standard.

Wells v. City & Cnty. of Denver, 257 F.3d 1132, 1145 (10th Cir. 2001).

Because the challenged laws do not ban Citizen United’s speech, but

instead impose content- and viewpoint-neutral, post-dissemination

disclosure requirements, the district court could have appropriately

applied a time, place and manner analysis to Plaintiff’s First

Amendment claim. This Court may affirm on that ground alone. See

Richison v. Ernest Group, Inc., 634 F.3d 1123, 1130 (10th Cir. 2011)

(appellate court may affirm district court on any ground supported by

the record).


31

E. The district court correctly applied exacting scrutiny to Plaintiff’s challenge.

The district court did not abuse its discretion and properly

reviewed Colorado’s disclosure laws under exacting scrutiny. Moreover,

as explained in more detail infra, the district court correctly applied the

principles of exacting scrutiny to determine that Colorado’s disclosure

laws are substantially related to its important interest in ensuring an

informed electorate. See Jt. Appx., A170, A173-175; see also Citizens

United, 558 U.S. at 370 (“prompt disclosure of expenditures can provide

shareholders and citizens with the information needed to hold

corporations and elected officials accountable for their positions and

supporters. Shareholders can determine whether their corporation’s

political speech advances the corporation’s interest in making profits,

and citizens can see whether elected officials are ‘in the pocket’ of so-

called moneyed interests.”) (internal quotation omitted).


32

II. Under strict scrutiny, the evidence demonstrates that Colorado’s disclosure laws are narrowly tailored to achieve the compelling governmental interest of ensuring an informed electorate and deterring corruption or its appearance.

Strict scrutiny “requires the Government to prove that the

restriction furthers a compelling interest and is narrowly tailored to

achieve that interest.” Citizens United, 558 U.S. at 340 (citations and

quotations omitted). Narrow tailoring does not require a perfect fit

between the government’s means and its desired objective. Citizens for

Peace in Space v. City of Colo. Springs, 477 F.3d 1212 (10th Cir. 2007).

In fact, narrow tailoring does not even require “the best available fit

between means and ends[.]” Nat’l Ass’n of Mfrs. v. Taylor, 582 F.3d 1,

17 (D.C. Cir. 2009) (internal quotation omitted). Rather, a law is

narrowly tailored so long as its “scope is in proportion to the interest

served.” Bd. of Trustees v. Fox, 492 U.S. 469, 480 (1989). Even if this

Court determines that strict scrutiny applies, the evidence

demonstrates that the disclosure requirements at issue here are

narrowly tailored to serve the compelling governmental interest of

ensuring an informed electorate.


33

A. Ensuring an informed electorate and preventing corruption are both compelling state interests in the disclosure context.

A law can only survive strict scrutiny if it addresses a compelling

state interest. Campaign finance disclosure requirements serve at least

two such interests: ensuring an informed electorate and deterring

corruption. See Citizens for Responsible Gov’t State PAC v. Davidson,

236 F.3d 1174, 1197 (10th Cir. 2000) (providing information to the

electorate and deterrence of corruption are both “compelling

governmental interests” served by disclosure).

Nor does Citizens United’s dismissal of corruption concerns in the

independent expenditure context have any bearing on the importance of

disclosure in preventing corruption and its appearance. 558 U.S. at 357

(“we now conclude that independent expenditures, including those made

by corporations, do not give rise to corruption or the appearance of

corruption”). To the contrary, it is precisely because of compelled

disclosure that independent expenditures present a minimal risk of

corruption. See, e.g., McCutcheon v. FEC, 134 S.Ct 1434, 1459 (2014)

(in post-Citizens United opinion, holding that disclosure may “deter


34

actual corruption and avoid the appearance of corruption by exposing

large contributions and expenditures to the light of publicity”)

(emphasis added, internal quotation omitted); see also Citizens Against

Rent Control/Coalition for Fair Housing v. Berkeley, 454 U.S. 290, 299-

300 (1981) (“The integrity of the political system will be adequately

protected if contributors are identified in a public filing revealing the

amounts contributed; if it is thought wise, legislation can outlaw

anonymous contributions.”); Sampson, 625 F.3d at 1256 (noting that

disclosure “can facilitate detection of post-election favoritism”).

Put another way, isolated instances of anonymous express

advocacy leave voters adrift, without the context necessary to

appropriately evaluate the message. Compulsory disclosure of

independent expenditures allows the public to hold its elected officials

to account by revealing whether such expenditures in fact correlate

with special access or favoritism. This, as the Tenth Circuit recognized

in Davidson, supra, represents a compelling state interest.


35

B. Assuming arguendo strict scrutiny applies, Colorado’s press exemption is narrowly tailored to achieve the foregoing interests.

The evidence presented below demonstrated not only that

Colorado’s disclosure laws are content, viewpoint, and identity-neutral,

as already discussed, but also that that their scope is proportional to

the well-recognized, compelling governmental interests of ensuring an

informed electorate and avoiding corruption. See Fox, 492 U.S. at 480;

Buckley, 424 U.S. at 66-67 (concluding that disclosure laws served to

prevent corruption and ensure an informed electorate regarding the

source of election-related messaging).

This conclusion is bolstered by comparing the circumstances in

this case to Sampson, 625 F.3d 1247, where the Court considered a

challenge brought by a grassroots neighborhood group that opposed a

local annexation ballot question in which only a few hundred votes were

at stake. Abuse of the private enforcement process, combined with an

administrative burden that was disproportional to the amount of money

raised and spent, chilled the Sampson plaintiffs’ speech to a

constitutionally unacceptable degree.


36

The circumstances here are dramatically different. Citizens

United is not a loosely organized group of neighbors battling over their

backyards, it is a nationally prominent organization that is attempting

to influence the outcome of a statewide election. It does not plan to

spend $800 to convince its neighbors to oppose annexation, but instead

plans to spend more than $750,000 to ensure the defeat of a candidate

for statewide office. At most, Citizens United will have to file three

reports, in which donors may not have to be disclosed at all. In short, in

contrast to Sampson, it cannot be said here that “the financial burden of

state regulation on [Citizen United’s] freedom of association approaches

or exceeds the value of [its] financial contributions to [its] political

effort; and the governmental interest in imposing those regulations is

minimal, if not nonexistent, in light of the small size of the

contributions.” Id. at 1261.

This reasoning is consistent with the evidence presented in the

district court. Professor Seth Masket, who testified as an expert in the

field of campaign-finance disclosure, testified that campaign-finance

disclosures “are a main source of transparency” that help to “minimize


37

situations of corruption, of conflict of interest, of bribery,” and allow

voters to evaluate political advertisements and “decid[e] for themselves

whether claims . . . are useful or less useful, and to ultimately make

decisions between candidates.” Jt. Appx. A208:25-34:14 (disclosure’s

purposes), A209:15-A210:10 (how voters process and use disclosure

information), A210:16-24 (the media’s use of disclosure information to

report on improprieties), A211:7-23 (same); A212:22-38:7 (disclosure

fosters media coverage on issues of substance). Professor Masket’s

opinions were based on multiple peer-reviewed studies linking the

disclosure of campaign finance information to voter evaluations of

political advertisements. Id. A209:18-A210:10. In one study, voters

who obtained disclosure information used that information to put

negative messaging into perspective – they viewed the subject of the

attack ad in a more positive light. Id. A210:23-A211:6. In another,

voters who received disclosure information viewed the political system

more positively and believed that the government was serving the

electorate, as opposed to self-interest. Id. A212:24-A213:21.


38

Testimony from Professor Jason Shepard, an expert in the field of

journalism and mass communications, belied the Plaintiff’s contention

that the disclosure requirements at issue were designed to, or had the

effect of, discriminating based upon the content of the speech or the

speaker’s identity. Rather, the line drawn by Colorado’s press

exemption centers on an audience member’s ability to evaluate the

credibility of a particular message to determine the weight that it

should be given. As Professor Shepard explained, advertisements,

including political advertisements, differ from journalism in several

important ways.

First, whereas journalism seeks to inform or educate the public

and expose ideas at regular intervals in a transparent, balanced, and

accountable manner, drop-in political advertisements appeal to the

emotions of viewers or readers with the goal of pure persuasion.

Because they are designed to lionize or disparage a candidate, the

choices presented by political ads are stark. Jt. Appx. A235:1-12;

A235:16-A236:6; A236:10-A237:1; A257:11-A258:2; see also id., A239:2-

12; A239:16-A240:12. In evaluating Hilary: The Movie, for example, a


39

three-judge district court concluded that it was “susceptible of no other

interpretation than to inform the electorate that Senator Clinton is

unfit for office, that the United States would be a dangerous place in a

President Hillary Clinton world, and that viewers should vote against

her.” Citizens United v. FEC, 530 F.Supp.2d 274, 279 (D.D.C. 2008).

The Supreme Court had a similar take: “Citizens United argues that

Hillary is just ‘a documentary film that examines certain historical

events.’ We disagree. The movie’s consistent emphasis is on the

relevance of these events to Senator Clinton’s candidacy for President,”

and as a consequence “there is no reasonable interpretation of Hillary

other than as an appeal to vote against Senator Clinton.” 558 U.S. at

325-26 (internal citation omitted).

Second, in contrast to advocacy groups who often engage in

specific fundraising appeals in order to engage in a particular initiative

or to champion a particular political message, traditional news

organizations typically do not engage in fundraising initiatives for

express advocacy pieces or solicit money from subscribers who wish to

earmark their funds for a specific message. Jt. Appx. A262:24-A263:12.


40

And, even if they were to engage in such fundraising and solicitation

efforts, the district court recognized, such communications would not

qualify as press. Jt. Appx., A171; see also McConnell v. FEC, 540 U.S.

93, 208 (2003) (press exemption “does not afford carte blanche to media

companies generally to ignore FECA’s provisions”); Reader’s Digest, 509

F.Supp. at 1214 (rejecting assertion that the press exemption would

“exempt any dissemination or distribution using the press entity’s

personnel or equipment, no matter how unrelated to its press

function”); San Juan County v. No New Gas Tax, 157 P.3d 831, 841

(Wash. 2007) (“The distinction between ‘political advertising’ and

‘commentary’ may be relevant in deciding whether a media entity is

performing a legitimate press function.”).

Third, unlike advocacy groups like Citizens United – which often

engage in drop-in advocacy like a standalone film, a single election

mailer, or an anonymous website, organizations engaging in traditional

press functions publish at regular intervals, which, in turn, provide

electors with a context for evaluating any given message. See id. at

82:18-83:21; see, e.g., Bailey v. State of Maine Comm’n on Governmental


41

Ethics and Election Practices, 900 F.Supp.2d 75 (D. Me. 2012) (holding

that website attacking gubernatorial candidate did not qualify for state

press exemption because it “was more like a negative campaign flyer

than a periodical publication”).

The evidence presented also demonstrates that the distinctions

drawn by Colorado’s media exemption are unrelated to viewpoint, and

instead focus on ensuring that prospective voters are able to satisfy

their informational interest. It also hews to dicta in McConnell, where

the Supreme Court recognized that “[a] valid distinction exists between

corporations that are part of the media industry and other corporations

that are not involved in the regular business of imparting news to the

public.” 540 U.S. at 208 (internal quotation and alteration omitted).

Thus, the Court held that FECA’s “narrow [press] exception is wholly

consistent with First Amendment principles”). Id. at 209. This is

consistent not only with the Court’s earlier analysis in MCFL, but also

with “[n]umerous federal statutes” that have distinguished between the

institutional press and entities like Citizens United. McConnell, 540

U.S. at 208, citing 15 U.S.C. §§1801-1804 (providing limited antitrust


42

exemption for newspapers); 47 U.S.C. §315(a) (excepting newscasts,

news interviews, and news documentaries from the requirement that

broadcasters provide equal time to candidate for public office); see also

Federal Election Comm’n v. Massachusetts Citizens for Life, 479 U.S.

238, 244 (1986) (reviewing factors that distinguished one-off newsletter

from institutional press).

Unlike political advocacy groups, whose names often do not

provide “any useful cue or meaningful information to help [a voter]

evaluate…that message,” Jt. Appx. A243:9-11, communications that

qualify for the press exemption generally provide viewers with various

means for determining who is speaking and, therefore, what weight to

give the message. For example, audiences can assess the accuracy of a

newspaper’s reporting by looking at its practices over time, or

determine what weight to give its articles by reviewing its masthead or

a blog’s list of reporters. See Jt. Appx, A239:16-A240:18; A241:6-

A242:7. In contrast, drop-in political advocacy, like Rocky Mountain

Heist, does not afford audiences the same ability to assess the message’s


43

reliability or determine what weight to give it. See PI Hearing

Transcript, at 110:9-111:1.

In sum, the evidence presented overwhelmingly demonstrates that

Colorado’s reporting and disclosure laws serve a compelling government

interest. In fact, the record is entirely devoid of evidence to the

contrary. Requiring Citizens United to comply with the applicable

disclosure requirements for Rocky Mountain Heist will assist voters who

are attempting to make informed decisions about what information and

communications should influence their vote.

C. Colorado’s disclosure laws appropriately balance the competing interests at stake by imposing only a minimal burden on political speakers.

The disclosure framework itself demonstrates that Colorado’s

disclosure laws are narrowly tailored to achieve the governmental

interests of ensuring an informed electorate and deterring corruption.

With respect to electioneering communications, the challenged

disclosure requirements apply only if the communication is

disseminated within a small window of time: thirty days before a

primary election or, in this case, sixty days before a general election.


44

See Colo. Const. art. XXVIII, § 2(7)(a); see also Colo. Rev. Stat. § 1-45-

103(9). By linking the disclosure requirements for electioneering

communications to a forthcoming election, Colorado’s law reduces

burdens on speakers, minimizes the risk that those engaging in pure

issue speech will be burdened by disclosure, and ensures that disclosure

will occur during a time of heightened interest in political advocacy.

Contra Stilp v. Contino, 629 F. Supp. 2d 449, 459-60 (M.D. Pa. 2009)

(finding blanket prohibition on communications regarding ethics

complaints was not narrowly tailored to prevent manipulation of

electoral process because the prohibition applied regardless of the

communications timing in relation to an election).

Whether Rocky Mountain Heist amounts to an independent

expenditure or an electioneering communication, Colorado’s disclosure

requirements are designed to minimize the administrative burdens of

disclosure as well as any potential chilling effect that disclosure can

have on associational rights. As noted above, Plaintiff will have to file,

at most, three reports with the state. If expenditures on the film are

not drawn from funds specifically earmarked for that purpose by donors


45

(for electioneering communications), or from funds donated “for the

purpose of making an independent expenditure,” then Citizens United

will not be required to disclose the identity of any of its contributors,

whether they are corporate or natural persons. While submitted

reports will still contain information useful to voters – for example, the

amount that Citizens United has spent to advertise and distribute the

film – the administrative and associational burdens associated with

such disclosures will be minimal and commensurate with the value of

that information.

While the foregoing establishes the narrow tailoring of Colorado’s

disclosure requirements, the exemptions at issue in this case, which

apply to both independent expenditures and electioneering

communications, are appropriately designed to require disclosure only

where a voter’s ability to satisfy the informational interest is most

lacking. Each category of exempted communication, by virtue of its

medium, permits viewers or readers to assess and evaluate the

messaging more easily than a transient communication like Rocky

Mountain Heist. Viewers can evaluate the messaging in written


46

periodicals by looking to the publication’s masthead, list of reporters,

the angle of news reporting over a period of time, and practice of

publishing at regular intervals. Colo. Const. art. XXVIII, §§ 2(7)(b)(I),

2(9)(b)(I). Many of the same factors would apply to editorial

endorsements or opinions aired by a broadcast facility. Id. §§ 2(7)(b)(II),

2(9)(b)(II). And when considering communications made by persons in

the regular scope of their business or communications made by a

membership organization to its members, viewers can evaluate the

messaging by looking to the business’s or membership organization’s

missions or purposes. Id. §§ 2(7)(b)(III), 2(9)(b)(III).

All of these indicia, taken together, demonstrate narrow tailoring

on the part of Amendment 27. And, even if the fit is determined to be

less than perfect, narrow tailoring does not require absolute congruence

between the goals of the legislation and the means chosen to achieve

those goals. It is enough that Amendment 27’s “scope is in proportion to

the interest served.” Bd. of Trustees v. Fox, 492 U.S. at 480.


47

III. Because Citizens United satisfied none of the elements for a preliminary injunction, the district court properly denied its motion.

Citizens United cannot demonstrate that the district court’s denial

of its preliminary injunction motion was an abuse of discretion; the

district court’s ruling was neither based on an erroneous conclusion of

law nor devoid of any rational basis in the evidence presented. See

Wilderness Workshop v. U.S. Bureau of Land Mgmt., 531 F.3d 1220,

1223 (10th Cir. 2008).

A. Citizens United failed to demonstrate a substantial likelihood of success on the merits.

First, Citizens United has not and cannot demonstrate a

substantial likelihood of success on the merits, whether under exacting

scrutiny or strict scrutiny. As discussed at length above there is, at a

minimum, a reasonable fit between the scope of Colorado’s exemptions

and the twin governmental interests in ensuring an informed electorate

and deterring corruption. The disclosure requirements do not favor one

speaker or viewpoint over another. Just as importantly, they do not

prohibit speech. Citizens United is free to spend unlimited amounts of


48

money to influence Colorado’s state elections. No one has banned the

distribution or broadcast of Rocky Mountain Heist or the modes of its

dissemination. Nor did Plaintiff offer any proof to support its

allegations that Colorado’s disclosure rules “impose a significant burden

on the exercise of [its] right to engage in political speech and media and

press activities” and are “likely to chill the speech of . . . those

individuals who wish to support Citizens United’s speech through

monetary contributions.” Jt. Appx., A21. Unlike the plaintiffs in

NAACP v. Alabama ex rel. Patterson, 357 U.S 449, 462-63 (1958),

Citizens United has failed to demonstrate that past disclosure of the

identity of its membership has exposed its members to economic

reprisal, loss of employment, threat of physical coercion, [or] other

manifestations of public hostility.” Nor did Plaintiff present any

evidence that the reporting and disclosure requirements are too taxing,

time-consuming, or confusing for its organization to handle. Cf.

Sampson, 625 F.3d at 1259.

In short, because Colorado’s disclosure laws “impose no ceiling” on

Citizens United’s “campaign-related activities,” Citizens United, 558


49

U.S. at 366, the district court not only appropriately selected exacting

scrutiny as its standard of review, but also correctly applied it to

determine that the challenged disclosure requirements do not violate

the First Amendment, either facially or as applied in this case. See

Republican Party v. King, 741 F.3d 1089, 1095 n.3 (10th Cir. 2013)

(“The Court upheld disclosure requirements at issue in Citizens

United because they provided the electorate with information about the

identity of the speaker and did not impose a chill on political speech,

even for independent expenditures.”).

Similar reasoning demonstrates that this Court should reach the

same result even if it applies strict scrutiny. The uncontroverted

evidence presented in the district court demonstrates that the

disclosure requirements are narrowly tailored to achieve multiple

compelling governmental interests.10

10 The district court rightly dismissed Plaintiff’s argument that the challenged disclosure requirements violate article II, § 10 of the Colorado Constitution. The district court correctly reasoned that the First Amendment standards for disclosure requirements would also apply under Colorado’s constitutional analogue. But there is an even simpler reason for rejecting this argument: Amendment 27 itself is part of the Colorado Constitution, and can only be read as limiting the scope


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B. Citizens United has not demonstrated that it would suffer irreparable harm in the absence of an injunction.

The Secretary readily acknowledges that “[l]oss of First

Amendment freedoms, for even minimal periods of time, unquestionably

constitutes irreparable injury.” Elrod v. Burns, 427 U.S. 347, 373

(1976); Pacific Frontier v. Pleasant Grove City, 414 F.3d 1221, 1235

(10th Cir. 2005). In this case, however, Citizens United has not

established any actual or imminent loss of First Amendment freedoms.

Citizens United simply relies on conclusory allegations of harm.

Theoretical or conjectural harm does not equal actual or imminent

harm.

of any previously enacted provisions. See Colorado Common Cause v. Bledsoe, 810, P.2d 201, 207 (Colo. 1991) (Colorado Constitutional must be construed as a whole, and each constitutional provision “should be construed if possible to avoid any conflict between different parts of the Constitution”).


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C. The evidence demonstrates that a preliminary injunction would run against the public interest and, therefore, the balance of harms favor the State.

Citizens United asserts that enjoining Colorado’s disclosure

requirements would be in the public interest and that the balance of

equities likewise tips in its favor. These elements are best considered

together because the public interest in this case is expressed in

Amendment 27 itself: “…the interests of the public are best served

by…providing for full and timely disclosure of campaign contributions,

independent expenditures, and funding of electioneering

communications[.]” Colo. Const. art. XXVIII, § 1.

Citizens United asserts that the Tenth Circuit has held that a

“First Amendment injury… ‘outweighs any prospective injury’ to the

government caused by enjoining the enforcement of an invalid statute.”

Doc. 4 at 25 (quoting Utah Licensed Beverage Assn. v. Leavitt, 256 F.3d

1061, 1076 (10th Cir. 2001)). Here, however, the evidence presented

demonstrates that the injury caused by enjoining the disclosure scheme

would not be to the “government,” it would be to the entire electorate of


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Colorado, prospective voters who would be deprived of their ability to

“make informed choices in the political marketplace.” McConnell, 540

U.S. at 197.

For these reasons, the district court did not abuse its discretion

when it denied Citizens United’s preliminary injunction motion. The

district court reached correct conclusions of law and it decision was

rationally based on the evidence presented or, in Citizens United’s case,

a lack thereof by the party with the burden of proof.

CONCLUSION

Based on the foregoing reasoning and authorities, the Secretary

respectfully request that the Court affirm the district court’s denial of

the Plaintiff’s request for a preliminary injunction.

Respectfully submitted this 3rd day of October, 2014.

JOHN W. SUTHERS Attorney General s/ Matthew D. Grove


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DANIEL D. DOMENICO* Solicitor General LEEANN MORRILL* First Assistant Attorney General MATTHEW D. GROVE* Assistant Solicitor General KATHRYN A. STARNELLA* Assistant Attorney General Public Officials Unit State Services Section Attorneys for Defendants-Appellees

Scott Gessler and Suzanne Staiert Ralph L. Carr Colorado Judicial

Center 1300 Broadway, 6th Floor Denver, Colorado 80203 Telephone: 720-508-6157 FAX: 720-508-6041 E-Mail: [email protected] [email protected] [email protected] [email protected] *Counsel of Record


mailto:[email protected]

mailto:[email protected]

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CERTIFICATE OF SERVICE

I hereby certify that on October 3, 2014, I served a true and complete copy of the within DEFENDANTS-APPELLEES’ BRIEF upon all parties through ECF-file and serve or as indicated below: Theodore B. Olson Matthew D. McGill Amir C. Tayrani Gibson, Dunn & Crutcher, LLP 1050 Connecticut Ave., NW Washington, D.C. 20036 Michael Boos Citizens United 1006 Pennsylvania Ave., SE Washington, D.C. 20003 Martha Tierney Edward Ramey Heizer Paul LLP 2491 15th Street, Ste. 300 Denver, CO 80202

/s Matthew D. Grove Matthew D. Grove


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CERTIFICATE OF COMPLIANCE

As required by Fed. R. App. P. 32(a)(7)(C), I certify that this brief is proportionally spaced and contains 8,835 words, excluding the parts of the brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii). Complete one of the following: I relied on my word processor to obtain the count and it is Microsoft Office Word 2010. I cou n t ed five ch a racters per word, counting all characters including citations and numerals. I certify that the information on this form is true and correct to the best of my knowledge and belief formed after a reasonable inquiry. s/ Matthew D. Grove Dated October 3, 2014

CERTIFICATE OF DIGITAL SUBMISSION

No privacy redactions were necessary. Any additional hard copies required to be submitted are exact duplicates of this digital submission. The digital submission has been scanned for viruses with the most recent version of a commercial virus scanning program, System Center Endpoint Protection, Antivirus definition 1.185.1491.0, Engine Version 1.1.11005.0, dated October 3, 2014, and according to the program is free of viruses.

s/ Matthew D. Grove Dated: October 3, 2014


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