No. 08-205 

WILSON-EPES PRINTING CO., INC. – (202) 789-0096 – WASHINGTON, D. C. 20002

IN THE

Supreme Court of the United States 

———— 

CITIZENS UNITED,

Appellant, 

v. 

FEDERAL ELECTIONS COMMISSION,

Appellee. 

———— 

On Appeal from the United States District Court 

for the District of Columbia 

———— 

AMICUS CURIAE BRIEF OF THE AMERICAN 

CIVIL RIGHTS UNION IN SUPPORT OF 

JURISDICTIONAL STATMENT OF 

APPELLANT CITIZENS UNITED 

———— 

PETER FERRARA

Counsel of Record 

AMERICAN CIVIL RIGHTS UNION

175 Cameron Station Blvd. 

Alexandria, VA 22304 

(703) 582-8466 

Counsel for Amicus Curiae 

American Civil Rights Union 
(i) 

TABLE OF CONTENTS 

Page 

TABLE OF AUTHORITIES................................ ii 

INTEREST OF THE AMICUS CURIAE............ 1 

INTRODUCTION................................................ 2 

STATEMENT OF THE CASE ............................ 4 

SUMMARY OF ARGUMENT............................. 5 

ARGUMENT........................................................ 7 

 I. The Movie Involves Core Political 

Speech Which Cannot Be Prohibited or 

Excessively Burdened............................... 7 

 II. The FEC May Not Regulate the Speech 

Involved In a Feature-Length Movie as 

a Broadcast Campaign Ad........................ 11 

 III. This Case Presents Crucial, Urgent 

Questions of Law Regarding 

Fundamental Free Speech Rights Which 

this Court Should Resolve Expeditiously 12 

CONCLUSION .................................................... 14
ii 

TABLE OF AUTHORITIES 

CASES Page 

Board of Educ. Island Trees Union Free 

School Dist. No. 26 v. Pico, 457 U.S. 853 

(1982)......................................................... 12 

Boos v. Barry, 485 U.S. 312 (1988) .............. 7, 8 

Buckley v. Valeo, 424 U.S. 1 (1976) ............8, 9, 10 

Davis v. FEC, 128 S. Ct. 2759 (2008) .......... 8 

Jenkins v. Georgia, 418 U.S. 153 (1974)...... 12 

FEC v. Wisconsin Right to Life, 127 S. Ct. 

2652 (2007).....................................7, 8, 9, 10, 11 

McConnell v. FEC, 540 U.S. 93 

(2003)..............................................6, 8, 9, 11, 13 

McIntyre v. Ohio Elections Commission, 

514 U.S. 334 (1995)................................... 7, 8 

North Carolina Right to Life v. Leake, 525 

F. 3d 274 (4th Cir. 2008)........................... 9 
IN THE

Supreme Court of the United States 

———— 

No. 08-205 

———— 

CITIZENS UNITED,

Appellant, 

v. 

FEDERAL ELECTIONS COMMISSION,

Appellee. 

———— 

On Appeal from the United States District Court 

for the District of Columbia 

———— 

AMICUS CURIAE BRIEF OF THE AMERICAN 

CIVIL RIGHTS UNION IN SUPPORT OF 

JURISDICTIONAL STATMENT OF 

APPELLANT CITIZENS UNITED 

———— 

INTEREST OF THE AMICUS CURIAE 1

The American Civil Rights Union (ACRU) is a 

non-partisan legal policy organization dedicated to 

defending all constitutional rights, not just those 

that might be politically correct or fit a particular 

 1

 Peter J. Ferrara authored this brief for the American Civil 

Rights Union (ACRU). No counsel for either party authored the 

brief in whole or in part and no one apart from the ACRU made 

a monetary contribution to the preparation or submission of this 

brief. 
2 

ideology. It was founded in 1998 by long time Reagan 

policy advisor and architect of modern welfare reform 

Robert B. Carleson, and since then has filed amicus 

curiae briefs on constitutional law issues in cases all 

over the country. 

Those setting the organization’s policy as members 

of the Policy Board are former U.S. Attorney 

General Edwin Meese III; Pepperdine Law School 

Dean Kenneth W. Starr; former Assistant Attorney 

General for Civil Rights William Bradford Reynolds; 

Walter E. Williams, John M. Olin Distinguished 

Professor of Economics at George Mason University; 

former Harvard University Professor, Dr. James 

Q. Wilson; Ambassador Curtin Winsor, Jr.; and 

Dean Emeritus of the UCLA Anderson School of 

Management J. Clayburn LaForce. 

This case is of interest to the ACRU because we 

want to ensure that all constitutional rights are fully 

protected, not just those that may advance a particular ideology. That includes the right of Freedom of 

Speech under the First Amendment. 

All parties consented to the filing of this brief, and 

were timely notified. 

INTRODUCTION 

This case involves the production, advertising, 

display, and broadcast of a movie about a major 

political figure — Hillary Clinton. The movie 

includes a mix of facts and opinion about Ms. Clinton. 

The movie and the expenditures behind it are not 

part of any political campaign, or coordinated in any 

way with any political campaign. The movie does not 

urge viewers to vote for or against Ms. Clinton. 
3 

The movie is the cinematic equivalent of an opinion 

commentary in a newspaper or magazine, or a book 

presenting political opinions. As such, it is core 

political speech entitled to the full protection of the 

First Amendment. It cannot be prohibited during 

any election period, or at any other time. Nor can its 

promotion be excessively burdened by regulatory 

requirements. 

In seeking to prohibit the movie and burden its 

promotion, the Federal Elections Commission has 

strayed outside its constitutionally permissible zone 

of authority, which is to regulate campaign speech. 

Where the movie is not part of any campaign, nor 

coordinated in any way with any campaign, and does 

not urge viewers to vote for or against any candidate, 

the justification for allowing FEC regulation of campaign speech, preventing corruption or the appearance of corruption, does not apply. The FEC then has 

no constitutional authority to regulate such speech in 

contravention of the First Amendment. 

The value that the First Amendment protects is 

freedom of speech, long recognized as a fundamental 

foundation of our democracy. The First Amendment 

places that value on a pedestal above competing 

values. The regulation at issue in this case ignores 

that pedestal, and the fundamental policy embodied 

in the First Amendment. That cannot be accepted as 

a matter of constitutional law. 

These legal issues could not be more important 

and fundamental to our democracy. Therefore, it is 

urgent and critical for the Court to note probable 

jurisdiction in this case and resolve the legal 

questions it presents. 
4 

STATEMENT OF THE CASE 

Appellant Citizens United is a non-profit, 501(c)(4) 

corporation founded in 1988. It was started by 

citizens who wanted to communicate and advance 

their viewpoint to the general public, and they have 

done so over the years through movies and other 

communications. Some of its movies have competed 

for and won awards from the motion picture industry 

and others. 

One of its recent projects has been Hillary: The 

Movie (“Movie”), a feature-length, documentary film 

which presents facts and opinion regarding 2008 

Presidential candidate Hillary Clinton. The Movie 

was planned for release in January, 2008, with full 

standard modern promotional efforts, including a 

website, broadcast advertising, a compendium book 

detailing the Movie, theaters booked for screenings, 

and DVDs to be sold by prominent retailers. Citizens 

United also received an offer for the broadcast of the 

Movie on television. 

Citizens United has no connection with any candidate, campaign, campaign committee, political committee or political party. No aspect of the production 

and promotion of the Movie was coordinated with any 

such political entity either. Moreover, the Movie does 

not expressly advocate the election or defeat of Hillary 

Clinton for any office, or the election or defeat of any 

other candidate. It does not contain an appeal to vote 

for or against Hillary Clinton. 

But under the Bipartisan Campaign Reform Act of 

2002 (“BCRA”), the Movie would be considered an 

“electioneering communication” because it mentioned 

a federal presidential candidate and it would be 

screened during the 30-day periods before the prima-
5 

ries, caucuses and conventions occurring throughout 

2008, and during the 60 days before the 2008 general 

election. The broadcast ads for the movie would also 

be electioneering communications for these same 

reasons. 

Consequently, the Federal Elections Commission 

(FEC) took the position that the Movie is prohibited 

under the BCRA until the 2008 election was over. 

Moreover, even ads promoting the Movie would be 

subject to regulation requiring Citizens United to 

publicly disclose its donors, which would likely reduce 

the number of donors and the amounts donated. 

Citizens United would also be required to report the 

ads in FEC filings as campaign speech when they are 

not. Mandatory FEC disclaimers would also have to 

be included in the ads. 

Citizens United filed its complaint challenging the 

constitutionality of the application of these regulatory requirements to the Movie and its promotion on 

December 13, 2007. The District Court upheld the 

FEC, finding that the Movie was a prohibited electioneering communication. Citizens United noticed 

this appeal on July 24, 2008. 

SUMMARY OF ARGUMENT 

Appellant Citizens United has produced a movie 

that communicates facts and opinion regarding a top 

candidate for President of the United States. As 

such, it involves core political speech entitled to the 

highest protection under the First Amendment. 

The Movie is not unambiguously related to the 

campaign of any candidate, or operationally related 

to any campaign or candidate in any way. The Movie 

does not contain an appeal to vote for or against 
6 

any candidate. Consequently, the Movie does not 

implicate the compelling state interest of preventing 

corruption or the appearance of corruption in our 

democratic system. Therefore, under the well-established precedents of this Court, the Movie cannot be 

prohibited, and its promotion cannot be excessively 

burdened by regulation under the BCRA, as held by 

the FEC and the court below. Such regulation of the 

core political speech involved in the Movie and its 

promotion cannot survive strict scrutiny for the 

reasons above. 

The FEC is now asserting regulatory powers well 

beyond constitutional bounds, and its regulatory excesses regarding the most critical and fundamental 

freedom of core political speech need to be reined in. 

The focus of Congress in enacting the BCRA, and of 

this Court in McConnell mostly upholding the BCRA, 

was on the speech involved in broadcast campaign 

ads, not feature length movies. Feature-length, documentary movies independent of any campaign do not 

involve the same issues of potential corruption or the 

appearance of corruption as presented by the financing of campaign speech in broadcast ads. The speech 

involved in feature length films has enjoyed the same 

constitutional protection as the speech involved in 

books. This Court should maintain that equivalent 

protection, and not read the regulatory restrictions of 

the BCRA as applying to feature-length, documentary films as in this case. 

Because of the fundamental importance of the freedom of core political speech involved, this case presents the most weighty and substantial of legal 

questions. For these reasons, it is urgent for this 

Court to note probable jurisdiction in this case and 

resolve these questions. 
7 

ARGUMENT 

I. The Movie Involves Core Political 

Speech Which Cannot Be Prohibited or 

Excessively Burdened. 

The Movie communicates facts and strongly held 

opinions about a candidate for President who has 

long been highly controversial among the public. It is 

the cinematic equivalent of an opinion commentary 

in a newspaper or magazine, or a book presenting 

political opinions. 

The freedom to engage in such speech is exactly 

what the First Amendment is all about. Such 

political speech, not pornography or nude dancing, is 

the core concern of the Amendment, and consequently entitled to its highest possible protection. 

See, e.g., McIntyre v. Ohio Elections Commission, 514 

U.S. 334 (1995); Boos v. Barry, 485 U.S. 312 (1988); 

FEC v. Wisconsin Right to Life, 127 S. Ct. 2652 

(2007). As the Court said in McIntyre, 

“When a law burdens core political speech, we 

apply ‘exacting scrutiny,’ and we uphold the 

restriction only if it is narrowly tailored to serve 

an overriding state interest.” 

514 U.S. at 347. 

Yet, the FEC claims the authority to ban the movie 

during the 2008 election season, exactly the period 

when the right to such speech should be the most 

urgently protected. It also claims the authority to 

burden promotion of the film to the general public 

with excessive regulatory requirements. 

The FEC claims this authority based on the BCRA. 

But that Act granted the FEC authority to regulate 

only campaign speech. In this case, the Movie and 
8 

the expenditures behind it are not part of any 

campaign, or coordinated with any campaign in any 

way. Appellant Citizens United has been producing 

such political movies for years, to advance its message 

and cause on a broad range of different topics. 

Moreover, the Movie does not expressly advocate the 

election or defeat of Hillary Clinton for any public 

office, or that viewers should vote for or against her 

for any office. 

Consequently, the Movie does not involve campaign 

speech. Rather, it involves core political speech 

entitled to the maximum protection under the First 

Amendment. That protection does not allow the 

Movie to be prohibited, or excessively burdened by 

regulation. 

Regulation of campaign speech under the BCRA 

was upheld on the grounds that preventing corruption or the appearance of corruption in our democracy 

was a compelling state interest. McConnell v. FEC, 

540 U.S. 93 (2003); Wisconsin Right to Life, supra; 

Davis v. FEC, 128 S. Ct. 2759 (2008). See also 

Buckley v. Valeo, 424 U.S. 1 (1976). But precisely 

because the Movie and its financing are not part of 

any campaign, nor coordinated with any campaign, 

nor does the Movie urge viewers to vote for or against 

any candidate, the Movie and its financing do not 

implicate this compelling state interest. The Movie is 

independently financed outside of any campaign, and 

is consequently entitled to the maximum protections 

of any other core political speech. 

Any speech falling under the First Amendment is 

entitled to the protections of strict scrutiny analysis. 

McIntyre, supra; Boos, supra; Wisconsin Right to Life, 

supra. Under that analysis, any restriction on free 

speech must be narrowly tailored to serve a compel-
9 

ling state interest. Id. Precisely because the Movie 

and its expenditures do not involve campaign speech, 

but, rather, independently financed core political 

speech, the restrictions the FEC seeks to impose on it 

do not serve the compelling state interest of preventing corruption or the appearance of corruption in our 

democracy. Allowing FEC restrictions on speech to 

apply outside the strictly defined realm of campaign 

speech is not narrowly tailoring those restrictions to 

serve a compelling state interest. 

For these reasons, the regulatory restrictions the 

FEC seeks to impose on the Movie and its promotion 

fail strict scrutiny. Consequently, they are unconstitutional under the First Amendment as applied to 

the Movie and its promotion. 

The FEC would remain within the bounds of the 

Constitution if it would just comply with the guidelines established by the directly applicable precedents of this Court. The FEC can impose its regulatory requirements only on campaign speech, which 

is speech that is “unambiguously related to the 

campaign of a particular federal candidate.” Buckley 

v. Valeo, 424 U.S. 1, 80 (1976). As the court said in 

North Carolina Right to Life v. Leake, 525 F. 3d 274, 

281 (4th Cir. 2008), “after Buckley, campaign finance 

laws may constitutionally regulate only those actions 

that are ‘unambigiously related to the campaign of a 

particular . . . candidate.’” The FEC cannot regulate 

political speech that is outside this definition, which 

is fully protected by the First Amendment. Wisconsin 

Right to Life, supra; McConnell, supra. Moreover, 

as the Supreme Court has said, “the benefit of any 

doubt [goes] to protecting rather than stifling speech.” 

Wisconsin Right to Life, supra, at 2667. 
10 

Moreover, the FEC can regulate speech only if it “is 

susceptible of no reasonable interpretation other 

than as an appeal to vote for or against a specific 

candidate.” Wisconsin Right to Life, supra, at 2667. 

See also, Buckley, supra, at 44, 80 (Created the 

express advocacy test, limiting regulation to communications that contain explicit words expressly advocating the election or defeat of a clearly identified 

candidate). If the speech “may reasonably be interpreted as something other than as an appeal to vote 

for or against a specific candidate,” it is protected 

from FEC regulation under the First Amendment. 

Wisconsin Right to Life, supra, at 2670. “Discussion 

of issues cannot be suppressed simply because the 

issues may also be pertinent in an election.” Id. at 

2669. 

But the FEC, and the Court below, did not apply 

these guidelines in this case. Prohibition of the 

Movie, and regulatory burdens on its promotion, were 

upheld even though it is not unambiguously related 

to the campaign of any federal candidate, and it does 

not appeal to viewers to vote for or against any 

candidate. Consequently, the application of these 

FEC regulations to Citizens United and its Movie is 

unconstitutional as discussed above. 

Indeed, instead of limiting its regulatory authority 

to the guidelines established in the Supreme Court 

precedents above, the FEC asserts that its regulatory 

authority “extends beyond speech about candidate 

elections and encompasses activity that attempts to 

sway public opinion on issues.” FEC SJ Mem. (Doc. 

55) at 22; Opp’n to Mot. for Prelim. Inj. (Doc. 18) at 

19. In asserting this authority, as it does in this case, 

the FEC is seeking powers well beyond constitutional 

bounds. Regulatory burdens on political speech beyond 
11 

candidate elections cannot pass strict scrutiny for the 

reasons discussed above. 

The FEC, in fact, is now following a practice, exemplified in this case, of arguing that the upholding of 

its regulatory authority against a facial challenge in 

McConnell precludes all as applied challenges to its 

regulatory burdens as in the present case. It persists 

in this practice, and convinced the court below to 

follow this logic, even though it is contrary to the 

express language of McConnell, and the same argument was rejected by this Court in Wisconsin Right to 

Life. In that case, the Court went on to uphold the as 

applied challenge of petitioner to the FEC’s regulatory burdens on its political speech. 

We respectfully submit that this Court needs to 

enforce its well grounded precedents protecting the 

core freedoms of the First Amendment so essential to 

the functioning of our democracy, and rein in the 

regulatory excesses of the FEC. 

II. The FEC May Not Regulate the Speech 

Involved In a Feature-Length Movie as a 

Broadcast Campaign Ad. 

This Court in McConnell considered the regulatory 

burdens of the BCRA on the speech involved in broadcast campaign ads, not feature length movies. The 

record in McConnell shows that this was the focus of 

Congress in enacting the BCRA as well. 

Feature-length movies independent of any campaign 

do not involve the same issues of potential corruption 

or the appearance of corruption as presented by 

the financing of campaign speech in broadcast ads, 

which was the focus of the BCRA. Consequently, 

such movies do not involve the same compelling state 
12 

interest that justifies the regulation of broadcast 

campaign ads 

The speech involved in feature length films has 

enjoyed the same constitutional protection as the 

speech involved in books. See Jenkins v. Georgia, 418 

U.S. 153 (1974); Board of Educ. Island Trees Union 

Free School Dist. No. 26 v. Pico, 457 U.S. 853 (1982). 

We submit that this Court should maintain that 

equivalent protection, and not read the regulatory 

restrictions of the BCRA as applying to featurelength films. If Congress decides in the future that 

such regulatory restrictions should apply to featurelength movies, it can say so expressly in a statute. 

This Court can then evaluate whether those restrictions pass constitutional muster in the case of feature 

length films. 

The Movie at issue in the present case, therefore, 

would then be free of the regulatory burdens the FEC 

seeks to impose on it, as would all other feature 

length films. 

III. This Case Presents Crucial, Urgent 

Questions of Law Regarding Fundamental Free Speech Rights Which this Court 

Should Resolve Expeditiously. 

This case involves the most basic and fundamental 

free speech rights, core political speech. Citizens 

need to understand what their rights are and what 

permissible restrictions they may face on their participation in the political debate. The same is true for 

candidates and their campaign associates. 

Indeed, even the FEC seems confused as to the 

limits on its regulatory authority and the degree to 

which it can burden or even prohibit core political 

speech. 
13 

We respectfully submit that this Court needs to 

enforce its clear precedents regarding these most 

fundamental of constitutional rights. It needs to 

ensure maximum freedom to engage in core political 

speech, and maximum protection for this right. The 

constitutionally mandated limits on the FEC’s powers 

need to be reiterated, and regulatory excesses regarding these most basic constitutional rights need to be 

stopped. 

Among the specific substantial legal questions 

presented by this case that need to be resolved are: 

Can a feature length movie that is not unambiguously related to the campaign of any candidate, and 

that does not contain an appeal to vote for or against 

any candidate, be prohibited from screening or broadcast? Can broadcast ads promoting such a movie be 

subject to disclosure requirements and other burdensome regulation on speech? Can a feature length, 

documentary movie that is not unambiguously related to the campaign of any candidate, and that does 

not contain an appeal to vote for or against any 

candidate, be subject to regulation under the BCRA 

intended for broadcast campaign ads? Can the FEC 

assert its regulatory authority beyond speech about 

candidate elections to encompass activity that attempts 

to sway public opinion on issues? Did this Court’s 

decision in McConnell addressing facial challenges to 

the BCRA foreclose all as applied challenges to the 

BCRA’s regulatory burdens on freedom of speech, as 

the FEC is asserting in the federal courts, including 

the court below? 

Because of the fundamental importance of the 

freedom of core political speech involved, this case 

presents the most weighty and substantial of legal 

questions. We respectfully submit that for these 
14 

reasons it is urgent for the Court to accept jurisdiction in this case and resolve these questions. 

CONCLUSION 

For the foregoing reasons, the Court should note 

probable jurisdiction, and review the decision of the 

court below. 

Respectfully submitted, 

PETER FERRARA

Counsel of Record 

AMERICAN CIVIL RIGHTS UNION

175 Cameron Station Blvd. 

Alexandria, VA 22304 

(703) 582-8466 

Counsel for Amicus Curiae 

American Civil Rights Union