NO. 08-205
 

In The 

Supreme Court of the United States Supreme Court of the United States Supreme Court of the United States

CITIZENS UNITED, 

Petitioner, 

v. 

FEDERAL ELECTION COMMISSION,

 Respondent. 

On Writ of Certiorari to the United States
 

District Court for the District of Columbia
 

BRIEF OF THE FOUNDATION FOR FREE

 EXPRESSION AS AMICUS CURIAE
 

SUPPORTING PETITIONER
 

JAMES L. HIRSEN 

505 S. VILLA REAL DRIVE 

SUITE 208 

ANAHEIM HILLS, CA 92807 

hirsen@earthlink.net 

January 12, 2009 

DEBORAH J. DEWART

 Counsel of Record 

620 E. SABISTON DRIVE 

SWANSBORO, NC 28584-9674 

(910) 326-4554 

debcpalaw@earthlink.net 

Counsel for Amicus Curiae 

Becker Gallagher · Cincinnati, OH · Washington, D.C. · 800.890.5001 
i 

TABLE OF CONTENTS 

TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . vi 
 

INTEREST OF AMICI ...................... 1 
 

INTRODUCTION AND SUMMARY OF THE 

ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 

IN ORDER TO ENSURE THAT THE 

BIPARTISAN CAMPAIGN REFORM ACT 

(“BCRA”) IS LIMITED TO CONTENT THAT 

INCONTROVERTIBLY CONSTITUTES 

CAMPAIGN ADVERTISING, THE DISTRICT 

COURT’S DECISION MUST BE REVERSED. 2 

I. 	 THE “ELECTIONEERING 

COMMUNICATION” PROVISIONS OF BCRA 

THREATEN TO CHILL CORE POLITICAL 

SPEECH. .............................. 5 

(A)THE STATUTORY DEFINITION OF 

“ELECTIONEERING COMMUNICATION” 

SWEEPS TOO BROADLY IN ITS 

REFUSAL TO CONSIDER ALL RELEVANT 

CONTENT, TAKING IN MESSAGES THAT 

ARE FAR FROM PURE 

ELECTIONEERING, INCLUDING 

PROTECTED POLITICAL SPEECH. ..... 8 

(B)THE STATUTE, AS INTERPRETED, 

COULD CONSTITUTE A PRIOR 

RESTRAINT OF SPEECH THAT 

CRITICIZES GOVERNMENT--AT A TIME 

WHEN SUCH SPEECH IS THE MOST 
ii 

VALUABLE TO CITIZENS ON THEIR 

WAY TO THE POLLS. . . . . . . . . . . . . . . . . 10 

II. THE MOVIE IS NOT AN “ELECTIONEERING 

COMMUNICATION” UNDER WRTL II’S 

APPEAL-TO-VOTE TEST. . . . . . . . . . . . . . . . 12 

(A)WRTL II’S APPEAL-TO-VOTE TEST 

REQUIRES A CLEAR PLEA FOR ACTION 

TO VOTE FOR OR AGAINST A 

CANDIDATE, IN ORDER TO 

CONSTITUTE AN “ELECTIONEERING 

COMMUNICATION.” . . . . . . . . . . . . . . . . 14 

(B)THE MOVIE DOES NOT HAVE A “CLEAR 

PLEA” FOR ACTION. IT CAN 

REASONABLY BE INTERPRETED AS AN 

INFORMATIONAL DOCUMENTARY--

“SOMETHING OTHER THAN AN APPEAL 

TO VOTE FOR OR AGAINST A 

PARTICULAR CANDIDATE”--AND 

THEREFORE NOT REGULABLE AS AN 

“ELECTIONEERING COMMUNICATION.” 

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 
 

(C)A BROADCAST FEATURE-LENGTH 

DOCUMENTARY MOVIE SOLD ON DVD, 

SHOWN IN THEATERS, AND 

ACCOMPANIED BY A BOOK IS NOT A 

“CAMPAIGN AD” SUBJECT TO 

REGULATION AS AN “ELECTIONEERING 

COMMUNICATION.” . . . . . . . . . . . . . . . . 17 

(i) THE MOVIE SHOULD ENJOY 

FREEDOM OF THE PRESS BECAUSE 
iii 

IT EDUCATES AND INFORMS THE 

PUBLIC. . . . . . . . . . . . . . . . . . . . . . . . . 18 

(ii) THE MOVIE IS “ISSUE ADVOCACY” 

BECAUSE IT EDUCATES VIEWERS 

ABOUT MANY PRESSING PUBLIC 

ISSUES. . . . . . . . . . . . . . . . . . . . . . . . . . 20 

(iii) THE MOVIE IS AN ARTISTIC 

ENDEAVOR ENTITLED TO FIRST 

AMENDMENT PROTECTION. . . . . . 21 

III. T H E D I S C L O S U R E / D I S C L A I M E R 

REQUIREMENTS CANNOT BE 

CONSTITUTIONALLY APPLIED TO THE 

MOVIE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22 

(A)McCONNELL EXPRESSLY LEFT OPEN 

THE POSSIBILITY OF AS-APPLIED 

CHALLENGES TO THE DISCLOSURE 

REQUIREMENTS IMPOSED ON 

“ELECTIONEERING COMMUNICATIONS” 

WHEN IT UPHELD THE 

REQUIREMENTS AGAINST FACIAL 

CHALLENGE--“FOR THE ENTIRE RANGE 

OF ELECTIONEERING 

COMMUNICATIONS.” . . . . . . . . . . . . . . . 23 

(B)THE DISCLOSURE REQUIREMENTS ARE 

UNCONSTITUTIONAL AS APPLIED TO 

ELECTIONEERING COMMUNICATIONS 

NOT PROHIBITED BY WRTL II’S 

APPEAL-TO-VOTE TEST. SUCH 

COMMUNICATIONS ARE PROTECTED 

“POLITICAL SPEECH”--NOT REGULABLE 

“CAMPAIGN SPEECH.” . . . . . . . . . . . . . . 27 
iv 

(i) THE MOVIE IS NOT 

“UNAMBIGUOUSLY RELATED TO 

THE CAMPAIGN OF A PARTICULAR 

FEDERAL CANDIDATE.” See Buckley 

v. Valeo, 424 U.S. 1, 80 (1976). . . . . . . . 28 
 

(ii) THE DISCLOSURE REQUIREMENTS 

FAIL STRICT SCRUTINY BECAUSE 

THEIR APPLICATION TO THE MOVIE 

IS NOT NARROWLY TAILORED TO 

SERVE ANY OF THE PURPORTED 

GOVERNMENT INTERESTS. . . . . . . . 29 

(a) THE ELECTORATE DOES NOT 

NEED TO BE INFORMED OF 

FUNDING SOURCES FOR A 

DOCUMENTARY MOVIE FOR 

WHICH THEY HAVE PAID AN 

ADMISSION PRICE. . . . . . . . . . . . . 30 

(b) DISCLOSURE OF FUNDING 

SOURCES FOR THIS 

INDEPENDENTLY PRODUCED 

MOVIE WOULD NOT SERVE THE 

GOVERNMENTAL INTEREST IN 

PREVENTING CORRUPTION. . . . 32 

(c) DISCLOSURE OF THE MOVIE’S 

FUNDING SOURCES DOES 

NOTHING TO DETER VIOLATIONS 

OF THE POLITICAL 

CONTRIBUTION LIMITS. . . . . . . . 34 

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . 36 
 
v 

TABLE OF AUTHORITIES 

CASES 

ACLU of Nev. v. Heller, 

378 F.3d 979 (9th Cir. 2004) . . . . . . . . 22, 23, 31 
 

Ashcroft v. Free Speech Coalition, 

535 U.S. 234 (2002) ...................... 6 
 

Austin v. Michigan Chamber of Commerce, 

494 U.S. 652 (1990) . . . . . . . . . . . 5, 18, 27, 33, 34 
 

Bartnicki v. Vopper, 532 U.S. 514 (2001) ........ 6
 

Board of Educ. Island Trees Union Free School
 

Dist. No. 26 v. Pico, 457 U.S. 853 (1982) . . . . 21 
 

Brown v. Socialist Workers ‘74 Campaign Comm.
 

(Ohio), 459 U.S. 87 (1982) . . . . . . . . . . 22, 23, 24 
 

Buckley v. Valeo, 

424 U.S. 1 (1976) .................... passim
 

Cal. Medical Ass’n v. FEC, 453 U.S. 182 (1981) . 35
 

Davis v. FEC, 128 S. Ct. 2759 (2008) . . . . . . . 22, 27 
 

FEC v. Beaumont, 539 U.S. 146 (2003) . . . . . . . . 35 
 

FEC v. Furgatch, 

807 F.2d 857 (9th Cir. 1987) . . . . . . . . . . . 16, 17 
 

FEC v. Mass. Citizens for Life, 

479 U.S. 238 (1986) . . . . . . . . . . . . . . . . 3, 27, 33 
 
vi 

FEC v. Wisconsin Right to Life, 

127 S. Ct. 2652 (2007) ................ passim 

First Nat’l Bank of Boston v. Bellotti, 

435 U.S. 765 (1978) . . . . . . . . . . . . 2, 8, 18-20, 27 
 

Jenkins v. Georgia, 418 U.S. 153 (1974) . . . . . . . 21 
 

Joseph Burstyn, Inc. v. Wilson, 

343 U.S. 495 (1952) . . . . . . . . . . . . . . . . . . . . . 21 
 

Lorillard Tobacco Co. v. Reilly, 

533 U.S. 525 (2001) ...................... 6 
 

McConnell v. FEC, 540 U.S. 93 (2003) ...... passim
 

McIntyre v. Ohio Elections Commission, 

514 U.S. 334 (1995) . . . . . . . . . . . 2, 22, 23, 28, 31 
 

United States v. Paramount Pictures, Inc., 

334 U.S. 131 (1948) . . . . . . . . . . . . . . . . . . . . . 21 
 

United States v. Playboy Entertainment Group, 

Inc., 529 U.S. 803 (2000) .................. 6 
 

Virginia v. Hicks, 539 U.S. 113 (2003) .......... 7
 

Williams v. Rhodes, 393 U.S. 23 (1968) ......... 3 
 

Winters v. New York, 333 U.S. 507 (1948) . . . . . . 21 
 

STATUTES 

2 U.S.C. § 434(e) . . . . . . . . . . . . . . . . . . . . . . . . 8, 12 
 

2 U.S.C. § 434(f)(2)(E) . . . . . . . . . . . . . . . . . . . . . . 11 
 
vii 

2 U.S.C. § 434(f)(3)(A)(i)(I) ................... 9 
 

2 U.S.C. § 434(f)(4) . . . . . . . . . . . . . . . . . . . . . . . . 11 
 

2 U.S.C. § 441b(b)(2) ........................ 5 
 

26 U.S.C. § 501(c)(4) . . . . . . . . . . . . . . . . . . . . . . . 33 
 

FECA § 316(b)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . 26 
 

OTHER 

www.citizensunited.org/about (last accessed on
 

January 5, 2009) ........................ 3 
 

https://secure.donationreport.com/donation.html
 

?key=ME6AVZNKIFP2 . . . . . . . . . . . . . . . . . . 34 
 
1
 

INTEREST OF AMICI1 

The Foundation for Free Expression (“FFE”), as 

amicus curiae, respectfully submits that the decision 

of the D.C. Circuit Court of Appeals should be 

reversed. 

FFE is a California non-profit, tax-exempt 

corporation formed on September 24, 1998 to preserve 

and defend the constitutional liberties guaranteed to 

American citizens, through education and other 

means. FFE’s founder is James L. Hirsen, professor of 

law at Trinity Law School (15 years) and Biola 

University (7 years) in Southern California and author 

of New York Times bestseller, Tales from the Left 

Coast: True Stories of Hollywood Stars and Their 

Outrageous Politics, and Hollywood Nation: Left Coast 

Lies, Old Media Spin, and the Revolution. Mr. Hirsen 

has taught law school courses on constitutional law. 

1

 The parties have consented to the filing of this brief. Counsel of 

record for all parties received notice at least ten (10) days prior to 

the due date of amicus curiae’s intention to file this brief. Amicus 

curiae certifies that no counsel for a party authored this brief in 

whole or in part and no person or entity, other than amicus, its 

members, or its counsel, has made a monetary contribution to its 

preparation or submission. 
2 

INTRODUCTION AND SUMMARY 

OF THE ARGUMENT
 

IN ORDER TO ENSURE THAT THE 

BIPARTISAN CAMPAIGN REFORM ACT 

(“BCRA”) IS LIMITED TO CONTENT THAT 

INCONTROVERTIBLY CONSTITUTES 

CAMPAIGN ADVERTISING, THE 

DISTRICT COURT’S DECISION MUST BE 

REVERSED. 

The First Amendment was intended to protect the 

free discussion of public issues and governmental 

affairs, including the qualifications of candidates for 

public office. Such discussion is integral to the system 

of government established by the Constitution. 

Buckley v. Valeo, 424 U.S. 1, 14 (1976) (hereafter 

“Buckley”); First Nat’l Bank of Boston v. Bellotti, 435 

U.S. 765, 776-777 (1978) (hereafter “Bellotti”); 

McIntyre v. Ohio Elections Commission, 514 U.S. 334, 

346 (1995) (hereafter “McIntyre”). The freedom 

guaranteed “embraces at the least the liberty to 

discuss publicly and truthfully all matters of public 

concern without previous restraint or fear of 

subsequent punishment.” Bellotti, supra, 435 U.S. at 

775. Government may not limit “the stock of 

information from which members of the public may 

draw.” Id. at 783. 

Carefully defined campaign finance laws exist to 

ensure the integrity of the electoral process by 

preventing corruption and assuring compliance with 

political contribution caps while simultaneously 

continuing to inform voters. But such laws must be 

strictly scrutinized to avoid chilling political speech 

and depriving the public of information that would 
3
 

facilitate informed voting. Moreover, the right to 

make independent expenditures is at the very core of 

both the First Amendment and our electoral process. 

FEC v. Mass. Citizens for Life, 479 U.S. 238, 351 

(1986) (hereafter “MCFL”); Buckley, supra, 424 U.S. at 

39; Williams v. Rhodes, 393 U.S. 23, 32 (1968). This 

Court has repeatedly struck down limits on 

expenditures--like the costs of producing “Hillary: The 

Movie”--that are wholly independent of any candidate 

or election campaign. McConnell v. FEC, 540 U.S. 93, 

221 (2003) (hereafter “McConnell”); Buckley, supra, 

424 U.S. at 47. 

Citizens United is a nonprofit organization: 

...dedicated to restoring our government to 

citizens’ control. Through a combination of 

education, advocacy, and grass roots 

organization, Citizens United seeks to reassert 

the traditional American values of limited 

government, freedom of enterprise, strong 

families, and national sovereignty and security. 

Citizens United’s goal is to restore the founding 

fathers’ vision of a free nation, guided by the 

honesty, common sense, and good will of its 

citizens. 

www.citizensunited.org/about (last accessed on 

January 5, 2009) 

“Hillary: The Movie” (the “Movie”) is one of nine 

documentary DVD movies produced by the 

organization to educate and inform the public about 

current political concerns. The DVD’s are sold through 

its website, and the Movie has been shown in selected 

theatres across the country. Unlike the multitude of 
 

4
 

TV campaign ads that flood the screens near election 

time, the Movie is a well-researched, full-length film 

featuring numerous individual speakers on a variety 

of political issues that concern the American public. 

People need this type of information--particularly 

in the crucial days preceding a national election--in 

order to make informed decisions at the polls. If 

campaign finance laws muzzle such speech, either the 

respective law is facially deficient and should be struck 

down, or its application must be carefully and 

narrowly circumscribed. This Court should first 

determine whether BRCA’s definition of 

“electioneering communications”--even as defined by 

prior case law--sweeps too broadly or has the effect of 

an improper prior restraint on speech. 

The appeal-to-vote test of WRTL II requires a clear 

plea for action to vote for or against a candidate in 

order to constitute an “electioneering communication.” 

The Movie does not have a “clear plea” for action and 

therefore can reasonably be interpreted as an 

informational documentary--“something other than an 

appeal to vote for or against a particular candidate”--

thus it is not regulable under BCRA as an 

“electioneering communication.” 

Even if a narrow, constitutionally workable 

definition can be utilized, the Court should carefully 

consider whether it can be properly applied to the 

Movie. Finally, this case challenges the application of 

BRCA’s burdensome disclosure/disclaimer 

requirements to the Movie, because such application 

does not further any of the purported government 

interests. 
5
 

If the District Court decision is affirmed, then it 

will be “...entirely obvious that the object of the law 

[the Court has] approved today is not to prevent 

wrongdoing but to prevent speech.” Austin v. 

Michigan Chamber of Commerce, 494 U.S. 652, 694 

(1990) (Scalia, J., dissenting) (hereafter “Austin”). 

I. 	 THE “ELECTIONEERING 

COMMUNICATION” PROVISIONS OF BCRA 

THREATEN TO CHILL CORE POLITICAL 

SPEECH. 

This case presents an opportunity for the Court to 

reconsider whether BRCA § 203 is facially 

constitutional, even after implementing the as-applied 

standard articulated in FEC v. Wisconsin Right to Life, 

127 S. Ct. 2652, 2674, 2680 (2007) (Alito, J., 

concurring) (hereafter “WRTL II”). Lack of clarity, 

lack of effective alternatives to broadcasting, and 

unreasonable burdens on free speech are among the 

reasons this Court should reassess the law, 

particularly as applied to this independently produced 

Movie. 

There is no clear test available which would permit 

BRCA’s ban on “electioneering communications” to be 

upheld. See § 203 of the Bipartial Campaign Reform 

Act of 2002, 2 U.S.C. § 441b(b)(2). All of the various 

tests are impermissibly vague and chill free speech. 

WRTL II, supra, 127 S. Ct. at 2675, 2680 (Scalia, J., 

concurring). If there were a test short of reliance on 

“magic words,” surely Buckley would have adopted it. 

Id. at 2681. This lack of clarity is no justification to 

risk banning protected political speech. On the 

contrary, this Court has rejected the principle that 

protected speech can be banned merely because it is 
 

6
 

difficult to distinguish from unprotected speech. Id. at 

2681. Even virtual images of child pornography have 

been granted First Amendment protection because 

they are not readily distinguished from real ones: 

“The Government may not suppress lawful 

speech as the means to suppress unlawful 

speech. Protected speech does not become 

unprotected merely because it resembles the 

latter. The Constitution requires the reverse.” 

Ashcroft v. Free Speech Coalition, 535 U.S. 234, 

255 (2002) 

Calling the McConnell decision a “sad day for free 

speech,” Justice Scalia noted the Court’s protection for 

not only virtual child porn images, but also tobacco 

advertising (Lorillard Tobacco Co. v. Reilly, 533 U.S. 

525 (2001)), dissemination of illegally intercepted 

communications (Bartnicki v. Vopper, 532 U.S. 514, 

(2001)), and sexually explicit cable programming 

(United States v. Playboy Entertainment Group, Inc., 

529 U.S. 803 (2000)). Yet the law upheld by the 

McConnell majority “cuts to the heart of what the First 

Amendment is meant to protect: the right to criticize 

the government.” McConnell, supra, 540 U.S. 15 248 

(Scalia, J., concurring); see also id. at 265 (Thomas, J., 

dissenting). Within the “right to criticize the 

government” is the right to fully examine the factual 

record of a government official. 

Whatever test the Court adopts--if there is one--

should provide a safe harbor for citizens desiring to 

exercise their First Amendment rights. This Court has 

declined to adopt a test that turns on intent or effect 

because that would chill political speech without a 
7
 

safety net. WRTL II, supra, 127 S. Ct. at 2665; 

Buckley, supra, 424 U.S. at 43-44. But the farreaching statutory language--taking in “any broadcast, 

cable, or satellite communication” within a certain 

time frame that identifies a candidate--must be 

circumscribed in order to pass constitutional muster. 

Even though BCRA leaves room for some 

alternative means to finance protected expression, 

these are often unreasonably burdensome or 

inadequate means to communicate. For example, 

“PACs impose well-documented and onerous burdens, 

particularly on small nonprofits.” WRTL II, supra, 127 

S. Ct. at 2671. Websites and newspapers do not 

provide the impact and effectiveness of broadcast 

speech. Id. at 2671. But only broadcast speech is 

impacted by BCRA’s definition of “electioneering 

communications.” 

Because of the onerous burdens imposed on 

broadcasting and the unavailability of effective 

alternative channels, many speakers will opt for 

silence. That silence is a loss to both the potential 

speaker and the voting public who might benefit from 

the information: 

“Many persons, rather than undertake the 

considerable burden (and sometimes risk) of 

vindicating their rights through case-by-case 

litigation, will choose simply to abstain from 

protected speech, [citation omitted]--harming 

not only themselves but society as a whole, 

which is deprived of an uninhibited marketplace 

of ideas.” 

Virginia v. Hicks, 539 U.S. 113, 119 (2003) 
8
 

Finally, the right to free speech necessarily 

includes auxiliary rights, such as associating with 

others and financing the communication. The law at 

issue restricts such rights, thereby burdening core 

political speech: 

The right to speak would be largely ineffective 

if it did not include the right to engage in 

financial transactions that are the incidents of 

its exercise. 

McConnell, supra, 540 U.S. at 252 (Scalia, J., 

dissenting) 

Political association is a well-established 

component of the First Amendment, including use of 

the corporate form for expression. Bellotti, supra, 435 

U.S. at 776-777. Even the Declaration of 

Independence includes the promise that “we mutually 

pledge to each other our Lives, our Fortunes and our 

sacred Honor.” McConnell, supra, 540 U.S. at 252 

(Scalia, J., dissenting; emphasis added). 

(A)	 THE STATUTORY DEFINITION OF 

“ELECTIONEERING 

COMMUNICATION” SWEEPS TOO 

BROADLY IN ITS REFUSAL TO 

CONSIDER ALL RELEVANT 

CONTENT, TAKING IN MESSAGES 

THAT ARE FAR FROM PURE 

ELECTIONEERING, INCLUDING 

PROTECTED POLITICAL SPEECH. 

Buckley construed the term “expenditure” in 2 

U.S.C. § 434(e) in terms of express advocacy because 

the statutory phrase “relative to” a candidate was 
9
 

vague and impermissibly broad. The reporting 

requirements applied only to “funds used for 

communications that expressly advocate the election 

or defeat of a clearly identified candidate.” Buckley, 

supra, 424 U.S. at 80. The Court thus narrowed the 

reach of the statute to ensure it would not be 

overbroad, i.e., unconstitutional. McConnell, supra, 

540 U.S. at 280 (Thomas, J., dissenting). 

It is by no means clear that the replacement statute 

solved the problem of overbreadth. McConnell 

admitted that the newly coined “electioneering 

communication” definition stretches beyond Buckley’s 

“express advocacy.” McConnell, supra, 540 U.S. at 

189, 204. An “electioneering communication” is one 

that “refers to a clearly identified candidate for 

Federal office” (emphasis added). 2 U.S.C. 

§ 434(f)(3)(A)(i)(I). McConnell held this language did 

not raise the vagueness concerns present in Buckley. 

Id. at 194. 

Perhaps the definition is not vague, but it is surely 

broad. The mere mention of a candidate’s name 

through broadcast media, within the forbidden time 

frame, captures the communication. If a prime time 

TV show--e.g., Boston Legal or Law and Order--

mentioned a candidate’s name in passing during an 

episode aired near election time--the statute would 

technically be triggered. The context and surrounding 

content are apparently irrelevant. This is no more 

constitutionally proper than the hypothetical proposed 

in Buckley, wherein it would be a “federal criminal 

offense for a person or association to place a single onequarter page advertisement ‘relative to a clearly 

identified candidate’ in a major metropolitan 

newspaper.” Buckley, supra, 424 U.S. at 40. It seems 
10
 

that one “magic word”--the whisper of a candidate’s 

name--subjects the speaker to legal penalties. 

Former Chief Justice Rehnquist criticized 

McConnell because “...the Court gloss[ed] over the 

breadth of the restrictions...regulating a good deal of 

speech that does not have the potential to corrupt 

federal candidates and officeholders....” McConnell, 

supra, 540 U.S. at 351 (Rehnquist, J., dissenting). 

This Court later acknowledged that “BCRA’s definition 

of ‘electioneering communication’ is clear and 

expansive” (emphasis added). WRTL II, supra, 127 

S. Ct. at 2660. Indeed it is. The statute embraces any 

broadcast, cable, or satellite communication, and 

alternate modes of communication, such as 

newspapers and websites, are far less effective in 

reaching the public with the information they need to 

make informed voting decisions. Id. at 2671. 

(B)	 THE STATUTE, AS INTERPRETED, 

COULD CONSTITUTE A PRIOR 

RESTRAINT OF SPEECH THAT 

CRITICIZES GOVERNMENT--AT A 

TIME WHEN SUCH SPEECH IS THE 

MOST VALUABLE TO CITIZENS ON 

THEIR WAY TO THE POLLS. 

The Movie contains far more content than a 30-

second or 60-second advertisement that endorses or 

opposes a candidate. It has detailed information and 

commentary about critical issues like health care, the 

war in Iraq, the economy, terrorism, corruption during 

Bill Clinton’s administration, and Hillary Clinton’s 
11
 

alleged campaign finance violations.2 Information that 

criticizes government must not be suppressed at the 

time when the people need it most in order to make 

informed decisions at the polls. If the District Court 

decision is allowed to stand, other politically motivated 

films could suffer a similar fate. Such productions are 

not limited to one political perspective, but would 

include movies critical of the Bush administration if a 

candidate’s name is mentioned and they are aired in 

the critical pre-election period: W., Rendition, or Lions 

for Lambs. 

Even if the Movie is not banned altogether, 

disclosure requirements might constitute a prior 

restraint. The statutory scheme defines the term 

“Disclosure Date” for required reporting. 2 USC 

§ 434(f)(4). Required disclosures include the names 

and addresses of donors who contribute $1,000 or more 

to a segregated fund that disburses over $10,000 for 

direct costs to produce or air an electioneering 

communication. Disclosure requirements are triggered 

whenever the $10,000 mark is reached. 2 USC 

§ 434(f)(2)(E). The cost to produce a full-length 

documentary film like the Movie would no doubt reach 

the $10,000 threshold before the speech is aired to the 

public. 

McConnell concluded that the restriction on 

political spending from corporate general treasuries is 

“firmly embedded in our law” and the ability to 

segregate funds is “a constitutionally sufficient 

2

 It would be ironic indeed if the campaign finance laws were used 

to suppress speech exposing a candidate’s alleged violation of 

those very laws. 
12
 

opportunity to engage in express advocacy.” 

McConnell, supra, 540 U.S. at 203. The majority 

argued that “it is ‘simply wrong’ to view the provision 

as a ‘complete ban’ on expression rather than a 

regulation” even though the restrictions extend to all 

electioneering communications and not merely 

“express advocacy.” Id. at 204. But because 

segregated funds require advance planning, 

spontaneous corporate speech naming a candidate is 

prohibited unless a PAC is already established. Id. at 

332 (Thomas, J., dissenting). Time constraints may 

foreclose speech where a new issue arises so close to an 

election that a PAC cannot be set up in time. Id. at 

334 (Thomas, J., dissenting). These situations 

illustrate the potential for prior restraint. Although 

Buckley found no prior restraint problem with 2 USC 

§ 434(e), the Court was careful to explain that the 

statute had been narrowed to reach only express 

advocacy and was a minimally restrictive means to 

further First Amendment values by opening the 

federal election system to public view. Buckley, supra, 

424 U.S. at 82. “Electioneering communications” reach 

a far broader spectrum of speech and--under the 

circumstances surrounding production of the Movie--do 

not further any government interests sufficient to 

justify the intrusion. 

II. THE MOVIE IS NOT AN “ELECTIONEERING 

COMMUNICATION” UNDER WRTL II’S 

APPEAL-TO-VOTE TEST. 

In McConnell, the plaintiffs argued that 

justifications for the regulation of express advocacy 

were not applicable to a significant quantity of speech 

covered by the statutory definition of “electioneering 

communications.” McConnell, supra, 540 U.S. at 205-
13
 

206. The Court rejected that argument for issue ads--

broadcast during the relevant time frame--that are 

“the functional equivalent of express advocacy,” 

reasoning that: 

The justifications for the regulation of express 

advocacy apply equally to ads aired during 

those periods if the ads are intended to 

influence the voters’ decisions and have that 

effect. 

Id. at 206. 

Several years later, this Court rejected the use of 

an intent-and-effect test, concluding instead that: 

[A] court should find that an ad is the functional 

equivalent of express advocacy only if the ad is 

susceptible of no reasonable interpretation 

other than as an appeal to vote for or 

against a specific candidate. 

WRTL II, supra, 127 S. Ct. at 2667 (emphasis 

added) 

The Court explained that WRTL’s ads focused on a 

legislative issue (filibusters that delay confirmation of 

judicial nominees), took a position on that issue, and 

urged people to contact public officials. Moreover, the 

ads did not mention an election, candidate, or political 

party, and did not “take a position on a candidate’s 

character, qualifications, or fitness for office.” Id. at 

2667. The ads were deemed “issue advocacy” in 

contrast to “express advocacy”: 
14
 

Issue advocacy conveys information and 

educates. An issue ad’s impact on an election, 

if it exists at all, will come only after the voters 

hear the information and choose--uninvited by 

the ad--to factor it into their voting decisions. 

Id. at 2667 (emphasis added) 

(A)	 WRTL II’S APPEAL-TO-VOTE TEST 

REQUIRES A CLEAR PLEA FOR 

ACTION TO VOTE FOR OR AGAINST A 

CANDIDATE, IN ORDER TO 

CONSTITUTE AN “ELECTIONEERING 

COMMUNICATION.” 

Buckley’s examples of express advocacy language 

led to a “magic words” requirement--“vote for,” “elect,” 

“support,” “defeat,” “reject.” Buckley, supra, 424 U.S. 

at 44, n. 52; McConnell, supra, 540 U.S. at 190. 

McConnell calls the “magic words” requirement a 

“functionally meaningless” test that is easily evaded. 

Id. at 193. The McConnell opinion reproduced a “Bill 

Yellowtail” ad that describes a candidate’s abuse of his 

own family, then urges readers to “call Bill 

Yellowtail...tell him to support family values.” This 

Court rejected the conclusion that this ad was about 

the issue of “family values” rather than Yellowtail’s 

campaign. Id. at 194. 

But the “Yellowtail” ad was a clear plea for action: 

“call Bill Yellowtail....” The Movie educates and 

informs, but never urges viewers to take any 

particular action. Content that educates and informs, 

without a plea to the audience to act, poses no risk of 

the campaign corruption the statute seeks to prevent. 
15
 

In WRTL II, this Court acknowledged that “the 

First Amendment requires us to err on side of 

protecting political speech rather than suppressing it.” 

WRTL II, supra, 127 S. Ct. at 2659. Such caution 

mandates an approach that steers clear of chilling 

protected speech and offers a safe harbor for speakers. 

The WRTL II Court substantially narrowed the reach 

of the statute to allow breathing room for core political 

expression--like the full-length feature film at issue in 

this case--that does not unequivocably constitute 

campaign advertising. A “clear plea for action to vote 

for or against a candidate” is an interpretation of 

WRTL II consistent with its recognition that the Court 

must err on the side of protecting political speech. 

(B)	 THE MOVIE DOES NOT HAVE A 

“CLEAR PLEA” FOR ACTION. IT CAN 

REASONABLY BE INTERPRETED AS 

AN INFORMATIONAL 

DOCUMENTARY--“SOMETHING 

OTHER THAN AN APPEAL TO VOTE 

FOR OR AGAINST A PARTICULAR 

CANDIDATE”--AND THEREFORE NOT 

REGULABLE AS AN 

“ELECTIONEERING 

COMMUNICATION.” 

A public communication does not fit WRTL II’s 

appeal-to-vote test if it may be “reasonably interpreted 

as something other than as an appeal to vote for or 

against a specific candidate.” WRTL II, supra, 127 S. 

Ct. at 2670. This Court recognized that the distinction 

between campaign and issue advocacy “may often 

dissolve in practical application.” Id. at 2659. In the 

event of a close call, the “...tie is resolved in favor of 

protecting speech.” Id. at 2669, n. 7. 
16
 

Prior to WRTL II--but after McConnell--the Ninth 

Circuit considered an advertisement about Jimmy 

Carter to be a “close call” even though it contained an 

“unequivocal message that Carter must not ‘succeed’ 

in burden[ing] the country with ‘four more years’ of his 

allegedly harmful leadership.” FEC v. Furgatch, 807 

F.2d 857, 860-861 (9th Cir. 1987). The Carter ad is 

similar to the Movie in that both criticize the public 

record of a federal candidate, and listeners might 

decide to vote against that person. But the Movie is 

substantially different, not only in length but in 

content. The Movie “conveys information and 

educates.” WRTL II, supra, 127 S. Ct. at 2667 

(defining “issue advocacy”). There are many speakers 

on the screen--news commentators, public figures, and 

private figures--plus extensive documentation of facts 

concerning Hillary Clinton’s public record over a 

period of years. A variety of crucial public issues are 

discussed, including government corruption, health 

care, the economy, the war in Iraq, terrorism, and 

Freedom of Information Act requests. 

Even if the intent of producing the Movie was to 

discourage voters from supporting Hillary Clinton, and 

even if had such an effect, this Court’s rejection of 

intent-and-effect tests cautions against reliance on 

these factors. This type of test chills free speech 

because it “blankets with uncertainty whatever may be 

said” and “offers no security for free discussion.” 

WRTL II, supra, 127 S. Ct. at 2666; quoting Buckley, 

supra, 424 U.S. at 43. 

The Ninth Circuit foreshadowed WRTL’s 

“susceptible of no other reasonable interpretion” 

language and suggested three components for the 

analysis. First, the message must be “unmistakable 
17
 

and unambiguous, suggestive of only one plausible 

meaning.” Second, there must be a “clear plea for 

action” rather than a presentation that is “merely 

informative.” Finally, “it must be clear what action is 

advocated.” FEC v. Furgatch, supra, 807 F.2d at 864. 

The Movie does not urge listeners to take action, but 

informs and educates the public about pressing 

current issues and Hillary Clinton’s years as First 

Lady and New York Senator. 

(C)	 A BROADCAST FEATURE-LENGTH 

DOCUMENTARY MOVIE SOLD ON 

DVD, SHOWN IN THEATERS, AND 

ACCOMPANIED BY A BOOK IS NOT A 

“CAMPAIGN AD” SUBJECT TO 

REGULATION AS AN 

“ELECTIONEERING 

COMMUNICATION.” 

When Congress enacted legislation regulating 

“electioneering communications,” its concern focused 

on the use of corporate funds “to finance a virtual 

torrent of televised election-related ads during the 

periods immediately preceding federal elections.” 

McConnell, supra, 540 U.S. at 207, citing 3 1998 

Senate Report 4465, 4474-4481. But the Movie, in 

contrast to these fleeting 30-second to 60-second ads 

that flood the television screen, provides 90 minutes of 

detailed documentation that educates and informs 

voters. McConnell rejected the argument that the law 

was underinclusive because it does not encompass 

print media or the internet. McConnell, supra, 540 

U.S. at 208. But by indiscriminately taking in all 

broadcast media without consideration of content, the 

law is vastly overinclusive and unlawfully regulates 

protected political speech. 
18
 

The Movie differs from TV campaign ads in several 

significant ways. It was produced by a nonprofit group 

that can be deemed a “media corporation” with 

requisite rights to freedom of the press. The film 

reasonably constitutes “issue advocacy” because of its 

in-depth coverage of major public issues. The Movie 

also falls within the First Amendment protection 

granted to artistic and entertainment speech. It is not 

merely an extremely long campaign advertisement, but 

rather a feature film documentary--a category the 

Academy of Motion Picture Arts and Sciences deems 

worthy of nominations and awards. 

(i) THE MOVIE SHOULD ENJOY 

FREEDOM OF THE PRESS BECAUSE 

IT EDUCATES AND INFORMS THE 

PUBLIC. 

This Court has observed that the press has a 

“recognized role...in informing and educating the 

public, offering criticism, and providing a forum for 

discussion and debate” but “does not have a monopoly 

on the First Amendment or the ability to enlighten.” 

Bellotti, supra, 435 U.S. at 781, 782. Past decisions 

have acknowledged the role of “corporations in the 

business of communication or entertainment...in 

affording the public access to discussion, debate, and 

the dissemination of information and ideas.” Id. at 

783. Even Austin, upholding a Michigan law that 

restricted corporate funding of express advocacy, 

recognized that “media corporations” differ from their 

corporate counterparts because “their resources are 

devoted to the collection of information and its 

dissemination to the public.” Austin, supra, 494 U.S. 

at 667. McConnell rejected the argument that the law 

discriminated in favor of media companies, again 
19
 

affirming the distinction for corporations regularly 

engaged in the business of imparting news to the 

public. McConnell, supra, 540 U.S. at 208. 

Citizens United exhibits the core characteristics of 

a “media corporation.” It is primarily and regularly 

engaged in “the collection of information and its 

dissemination to the public.” The Movie is one of nine 

informative feature length films offered to the public 

on DVD and in theatres. 

The Press Clause complements the Free Speech 

Clause but “focuses specifically on the liberty to 

disseminate expression broadly.” Bellotti, supra, 435 

U.S. at 800. It has historical roots in the early British 

efforts to restrain the press, soon after the invention of 

the printing press: 

Official restrictions were the official response to 

the new, disquieting idea that this invention 

would provide a means for mass 

communication. 

Bellotti, supra, 435 U.S. at 800 

In McConnell both the majority and dissent agreed 

that Congress could not regulate contributions to 

political talk show hosts or newspaper editors. 

McConnell, supra, 540 U.S. at 156, n. 51. But 

legislation that targets broadcasting--the twentieth 

century equivalent of the printing press when it was 

first invented--is just as objectionable as those early 

attempts to inhibit the print media when it was a new 

“means of mass communication.” 
20
 

Moreover, this Court has noted the difficulty in 

distinguishing media corporations from other 

companies. Bellotti, 435 U.S. at 796 (Burger, J., 

concurring). As Justice Thomas observed in 

McConnell: “The chilling endpoint of the Court’s 

reasoning is not difficult to foresee: outright regulation 

of the press.” McConnell, supra, 540 U.S. at 283 

(Thomas, J., dissenting). Similarly, regarding the 

Movie as an “electioneering communication” is an 

onimous step in the direction toward outright 

regulation of the press. 

(ii)	 THE MOVIE IS “ISSUE ADVOCACY” 

BECAUSE IT EDUCATES VIEWERS 

ABOUT MANY PRESSING PUBLIC 

ISSUES. 

The Movie can also reasonably be viewed as issue 

advocacy because it “conveys information and 

educates.” WRTL II, supra, 127 S. Ct. at 2667. 

The line between issue advocacy and express 

advocacy is admittedly a thin one. WRTL II, supra, 

127 S. Ct. at 2669; Buckley, supra, 424 U.S. at 42. 

McConnell rejected any constitutionally mandated line 

between the two, observing that the new definition of 

“electioneering communication” covers both. 

McConnell, supra, 540 U.S. at 189, 190. The 

McConnell majority went so far as to conclude that 

there is no constitutional right to issue advocacy as 

compared to express advocacy (id. at 192-193), but at 

the same time, the Court acknowledged that the First 

Amendment protects both campaign and issue speech 

(id. at 205). 
 

21
 

WRTL II reigned in the far-reaching implications of 

McConnell. The earlier decision concluded that 

corporations could simply avoid any specific reference 

to a candidate (perhaps a “magic omission” comparable 

to Buckley’s “magic words”), or use a PAC in doubtful 

cases. McConnell, supra, 540 U.S. at 206. WRTL II 

carved out breathing room for speech that names a 

candidate but is not truly a “campaign ad” because 

there is no clear plea to vote for or against a candidate. 

The Movie names a candidate--Hillary Clinton--but 

leaves all decisions with the voters, depending on their 

individual responses to the documentary information 

and speakers presented on the screen. 

(iii)	 THE MOVIE IS AN ARTISTIC 

ENDEAVOR ENTITLED TO FIRST 

AMENDMENT PROTECTION. 

The Movie also shares characteristics with speech 

in the realm of art and entertainment. First 

Amendment protection extends to artistic and 

entertaining speech. See Joseph Burstyn, Inc. v. 

Wilson, 343 U.S. 495 (1952) (“sacrilegious” motion 

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

(borderline obscene film in movie theatre); Winters v. 

New York, 333 U.S. 507 (1948) (magazines); Board of 

Educ. Island Trees Union Free School Dist. No. 26 v. 

Pico, 457 U.S. 853 (1982) (school library books). 

Motion pictures, like radio and television, are entitled 

to freedom of the press. United States v. Paramount 

Pictures, Inc., 334 U.S. 131, 166 (1948). “Hillary: The 

Movie” and other politically motivated films (W., 

Rendition, Lions for Lambs) should enjoy similar First 

Amendment protection. 
22
 

III.	 THE DISCLOSURE/DISCLAIMER 

REQUIREMENTS CANNOT BE 

CONSTITUTIONALLY APPLIED TO THE 

MOVIE. 

McConnell found that “amended FECA § 304's 

disclosure requirements are constitutional because 

they do not prevent anyone from speaking.” 

McConnell, supra, 540 U.S. at 201. But this Court has 

long recognized that compelled disclosure of political 

associations and beliefs “can seriously infringe on 

privacy of association and belief guaranteed by the 

First Amendment.” Buckley, supra, 424 U.S. at 64; 

Brown v. Socialist Workers ‘74 Campaign Comm. 

(Ohio), 459 U.S. 87, 91 (1982); Davis v. FEC, 128 S. Ct. 

2759, 2774-2775 (2008). 

The required disclaimers are constitutionally 

suspect because they directly regulate the content of 

speech. McIntyre, supra, 514 U.S. at 345-346 (speaker 

identification on documents designed to influence 

voters). McIntyre and a more recent Ninth Circuit 

case both involved “campaign statutes that go beyond 

requiring the reporting of funds used to finance speech 

to affect the content of the communication itself.” 

ACLU of Nev. v. Heller, 378 F.3d 979, 987 (9th Cir. 

2004). Disclaimers would use a substantial portion of 

Citizens United’s proposed ads for the Movie and 

would burden the organization with the cost of 

additional air time in order to run the ads in their 

entirety. 

This Court has recognized as-applied challenges to 

disclosure laws where there are threats of harm or 

retaliation, even if the risk does not extend to all those 

exposed to public scrutiny. Brown v. Socialist Workers 
23
 

‘74 Campaign Comm. (Ohio), supra, 459 U.S. at 97, n. 

14. This is a common situation where the application 

of disclosure laws violates the First Amendment. But 

it is not necessarily the only one. For example, coerced 

disclosure can distort the listener’s receptiveness to a 

message because of preconceived prejudices about the 

speaker. Anonymity would facilitate transmission of 

the speech and protect the speaker’s right to 

disseminate his message without that distortion. 

ACLU of Nev. v. Heller, supra, 378 F.3d at 990. 

The Court is urged to consider the facts of this case. 

The Movie has a wide spectrum of speakers appearing 

on the screen and is anything but anonymous--even 

though anonymous speech is protected under 

McIntyre. Viewers can check out the facts presented 

in the documentary without knowing the identity of 

those who contributed to get the Movie produced. 

Moreover, unlike the typical advertisement, it costs 

money to purchase the DVD, to see the Movie at a 

theatre, or to subscribe to cable TV. The Movie is not 

a campaign ad where disclosure of funding sources 

would enlighten viewers or serve any other important 

governmental interests. 

(A)	 McCONNELL EXPRESSLY LEFT OPEN 

THE POSSIBILITY OF AS-APPLIED 

CHALLENGES TO THE DISCLOSURE 

REQUIREMENTS IMPOSED ON 

“ELECTIONEERING 

COMMUNICATIONS” WHEN IT 

UPHELD THE REQUIREMENTS 

AGAINST FACIAL CHALLENGE--“FOR 

THE ENTIRE RANGE OF 

ELECTIONEERING 

COMMUNICATIONS.” 
24
 

This Court has affirmed the general principle that 

facial validity does not foreclose a later as-applied 

challenge: 

Courts do not resolve unspecified as-applied 

challenges in the course of resolving a facial 

attack, so McConnell could not have settled the 

issue we address today. See Members of City 

Council of Los Angeles v. Taxpayers for Vincent, 

466 U.S. 789, 803, n. 22, 104 S. Ct. 2118, 80 L. 

Ed. 2d 772 (1984) (“The fact that [a law] is 

capable of valid applications does not 

necessarily mean that it is valid as applied to 

these litigants”). Indeed, WRTL I confirmed as 

much. Wisconsin Right to Life v. FEC, 546 U.S. 

410, 411-412 (2006). 

WRTL II, supra, 127 S. Ct. at 2670 

The McConnell court acknowledged that evidence 

of a “reasonable probability” of “threats, harassment, 

and reprisals” could successfully establish an asapplied challenge to the campaign finance law 

disclosure requirements. McConnell, supra, 540 U.S. 

at 198-199; see Brown v. Socialist Workers ‘74 

Campaign Comm. (Ohio), 459 U.S. 87 (1982). But the 

Court did not stop there. Instead, the language 

appears to expressly leave open the potential for later 

as-applied challenges, in spite of upholding the 

disclosure requirements against facial challenge for 

“the entire range of electioneering communications”: 

In this litigation the District Court applied 

Buckley’s evidentiary standard and found--

consistent with our conclusion in Buckley, and 

in contrast to that in Brown--that the evidence 
25
 

did not establish the requisite “reasonable 

probability” of harm to any plaintiff group or its 

members. The District Court noted that some 

parties had expressed such concerns, but it 

found a “lack of specific evidence about the basis 

for these concerns.” 251 F. Supp. 2d, at 247 (per 

curiam). We agree, but we note that, like our 

refusal to recognize a blanket exception for 

minor parties in Buckley, our rejection of 

plaintiffs’ facial challenge to the 

requirement to disclose individual donors 

does not foreclose possible future 

challenges to particular applications of 

that requirement. 

McConnell, supra, 540 U.S. at 199 (emphasis 

added) 

While the particular challenge before the McConnell 

Court related to threats of harm, this language does 

not foreclose the possibility of a different as-applied 

challenge based on other circumstances. 

Additional observations from McConnell support 

this conclusion. The Court observed that Buckley 

upheld the contribution and expenditure disclosure 

requirements against facial attack, but “recognized 

that compelled disclosures may impose an 

unconstitutional burden on the freedom to associate in 

support of a particular cause.” McConnell, supra, 540 

U.S. at 197-198. Facial validity indicates that there 

are constitutional applications of the law, but such a 

ruling does not foreclose the possibility that the same 

law might be unconstitutional as applied to other 

circumstances not before the court. 
26
 

In rejecting claims that FECA § 316(b)(2)’s 

segregated-fund requirement for electioneering 

communications is overbroad, McConnell admits that 

the law may inhibit some constitutionally protected 

corporate and union speech. McConnell, supra, 540 

U.S. at 207. Although that conclusion would not 

justify the prohibition of all enforcement of the law, it 

does appear to leave the door open for as-applied 

challenges. If the disclosure requirements inhibit 

protected speech under particular circumstances, an 

as-applied challenge should be viable. 

Finally, McConnell admits that the line between 

express advocacy and other expression influencing 

elections is a fuzzy, “functionally meaningless” line. 

Consequently, restrictions on independent express 

advocacy do not serve a strong government interest. 

McConnell, supra, 540 U.S. at 217. This observation 

is made in the context of a discussion about the use of 

a nonprofit corporation’s general funds for advocacy--

not disclosure requirements. Nevertheless, the blurry 

line separating regulable campaign speech from other 

political expression should signal the very real 

possibility that a valid as-applied challenge may come 

before the Court under circumstances not considered 

in any of its prior decisions. In this case, Citizens 

United has independently produced a full-length 

documentary film without the assistance, 

authorization, or endorsement of any political party, 

candidate, or campaign. Viewers pay to see it, either 

through the purchase of a DVD, theatre ticket, or cable 

TV subscription. Such independent activity is 

protected expression that is fundamentally different 

from the barrage of TV ads that Congress sought to 

address when it enacted BCRA. 
 

27
 

(B)	 THE DISCLOSURE REQUIREMENTS 

ARE UNCONSTITUTIONAL AS 

APPLIED TO ELECTIONEERING 

COMMUNICATIONS NOT 

PROHIBITED BY WRTL II’S APPEALTO-VOTE TEST. SUCH 

COMMUNICATIONS ARE PROTECTED 

“ POLITICAL SPEECH”--NOT 

REGULABLE “CAMPAIGN SPEECH.” 

In considering this as-applied challenge, the Court 

should apply a high standard of review consistent with 

its past decisions about political expression. 

Compelled disclosure can seriously infringe protected 

rights to both political association and speech. 

Buckley, supra, 424 U.S. at 64; Davis, supra, 128 S. Ct. 

at 2775. It is not enough to merely assert a legitimate 

governmental interest. The statute must survive 

exacting scrutiny, even if rights are burdened 

“indirectly as an unintended but inevitable result of 

the government’s conduct in requiring disclosure.” 

Buckley, supra, 424 U.S. at 65. Similarly, this Court 

applied “exacting scrutiny” in its review of a law that 

prohibited corporate speech “intimately related to the 

process of governing.” Bellotti, supra, 435 U.S. at 786. 

That exacting scrutiny required the government to 

show a compelling interest and means closely drawn to 

achieve it. Id. at 786. A few years later, this Court 

required a compelling state interest to justify 

restrictions on independent expenditures, noting that 

restrictions on expenditures demanded a more 

compelling justification than restrictions on 

contributions. MCFL, supra, 479 U.S. at 251, 259-260. 

Again in Austin, a compelling governmental interest 

and narrow tailoring were needed to infringe the right 

to engage in political expression. Austin, supra, 494 
 

28
 

U.S. at 666. McIntyre applied exacting scrutiny to 

assess restrictions on anonymous speech. McIntyre, 

supra, 514 U.S. at 347. Even McConnell acknowledged 

the need for a compelling interest to curtail political 

expression. McConnell, supra, 540 U.S. at 205. More 

recently, this Court applied strict scrutiny to evaluate 

the application of BCRA § 203 to WRTL’s ads. WRTL 

II, supra, 127 S. Ct. at 2664. 

Even if this Court were to deem the Movie to be an 

“electioneering communication,” the lack of a clear 

plea for action--specifically, an unequivocable appeal 

to vote against Hillary Clinton--renders it protected 

political speech rather than campaign speech that can 

be lawfully restricted. It not only fails to qualify under 

either WRTL II’s appeal-to-vote test or Buckley’s 

unambiguously-related test, but it also fails the 

applicable strict scrutiny test. Moreover, application 

of the “campaign ad” disclosure requirements to the 

Movie would not serve any of the compelling 

government interests that ordinarily justify this type 

of campaign finance regulation, such as anticorruption, informing voters, and preventing 

circumvention of the campaign contribution caps. 

(i) T H E MOVIE IS NOT 

“UNAMBIGUOUSLY RELATED TO THE 

CAMPAIGN OF A PARTICULAR 

FEDERAL CANDIDATE.” See Buckley 

v. Valeo, 424 U.S. 1, 80 (1976). 

Buckley adopted this language to ensure that the 

statutory disclosure requirements were not 

impermissibly broad. The Court easily validated the 

requirements as applied to candidates and political 

committees, because these are “by definition, campaign 
 

 

29
 

related.” Buckley, supra, 424 U.S. at 79. The Court 

continued its analysis with great caution: 

But when the maker of the expenditure is not 

within these categories -- when it is an 

individual other than a candidate or a group 

other than a “political committee” -- the relation 

of the information sought to the purposes of the 

Act may be too remote. 

Id. at 79-80. 

Buckley went on to conclude that independent 

expenditures came within the reach of the statute only 

when funds were used for “communications that 

expressly advocate the election or defeat of a clearly 

identified candidate.” Id. at 80. The Movie differs 

substantially from the typical campaign ad in its 

thorough, extensively documented presentation of 

issues with no clear “appeal-to-vote” for or against a 

candidate. Application of the disclosure requirements 

under these circumstances bears only the most 

tenuous relationship to the governmental interests 

asserted. 

(ii) 	 THE DISCLOSURE 

REQUIREMENTS FAIL STRICT 

SCRUTINY BECAUSE THEIR 

APPLICATION TO THE MOVIE IS 

NOT NARROWLY TAILORED TO 

SERVE ANY OF THE PURPORTED 

GOVERNMENT INTERESTS. 

McConnell expressed concern about corporations 

funding broadcasting advertisements while concealing 

their identities. McConnell, supra, 540 U.S. at 196. 
 

30
 

The Court provided several illustrations of misleading 

names that masked the real powers behind them: 

“The Coalition-Americans Working for Real Change” 

(funded by business organizations opposed to 

organized labor), “Citizens for Better Medicare” 

(funded by the pharmaceutical industry), and 

“Republicans for Clean Air” (funded by brothers 

Charles and Sam Wyly). Id. at 197. The Court 

identified three main governmental interests to 

sustain the “entire range” of electioneering 

communications--informing the electorate about the 

source of speech, preventing corruption (particularly 

“quid pro quo”), and precluding circumvention of the 

political contribution caps. 

The strict standard of review requires that the law 

be narrowly tailored to further these interests. 

Narrow tailoring is particularly crucial here because 

the disclosure laws burden two First Amendment 

rights--core political speech and the freedom to 

associate with others. It is questionable whether the 

disclosure requirements--as applied to the Movie--are 

sufficiently linked to any of the three stated 

governmental interests, let alone narrowly tailored. 

(a)	 THE ELECTORATE DOES NOT 

NEED TO BE INFORMED OF 

FUNDING SOURCES FOR A 

DOCUMENTARY MOVIE FOR 

WHICH THEY HAVE PAID AN 

ADMISSION PRICE. 

One of the government interests asserted is 

providing voters with additional relevant information 

to facilitate their evaluation of speech. However, that 

interest alone is insufficient to justify requiring a 
31
 

speaker to make statements or disclosures that would 

otherwise be omitted. McIntyre, supra, 514 U.S. at 

348. As this Court stated, listeners are able to 

consider anonymity along with content: 

“Don’t underestimate the common man. People 

are intelligent enough to evaluate the source of 

an anonymous writing. They can see it is 

anonymous. They know it is anonymous. They 

can evaluate its anonymity along with its 

message, as long as they are permitted, as they 

must be, to read that message. And then, once 

they have done so, it is for them to decide what 

is ‘responsible,’ what is valuable, and what is 

truth.” New York v. Duryea, 351 N.Y.S.2d 978, 

996 (1974). 

Id. at 348, n. 11 

Coercive disclosure requirements may actually 

inhibit speech and accomplish the very opposite of the 

intended effect. “[I]f anonymous speech is banned, 

some useful speech will go unsaid.” ACLU of Nev. v. 

Heller, supra, 378 F.3d at 993. 

Disclaimer requirements can cut into the limited 

(and costly) time and space available for other speech, 

decreasing the overall content. McConnell held that 

the Sect. 318 disclaimer provisions bear “a sufficient 

relationship to the important governmental interest of 

shed[ding] the light of publicity” on campaign 

financing. McConnell, supra, 540 U.S. at 231. Even if 

that were true as applied to the Movie, a short onscreen statement would be more narrowly tailored to 

that interest than the burdensome requirements that 

eat up a substantial portion of the allotted ad time. 
32
 

The Movie includes a variety of speakers identified 

by name and interviewed on the screen. This serves 

the voters’ interest in having information about who is 

speaking and undermines any argument that the 

statutory disclosure requirements are narrowly 

tailored to serve that interest. 

(b)	 DISCLOSURE OF FUNDING 

SOURCES FOR THIS 

INDEPENDENTLY PRODUCED 

MOVIE WOULD NOT SERVE THE 

GOVERNMENTAL INTEREST IN 

PREVENTING CORRUPTION. 

The government has a legitimate interest in 

preventing corruption--or even the appearance of it--in 

federal elections. Large political contributions have 

the potential to “buy” favors from a candidate who is 

elected to office. Public communications that promote 

or attack a candidate also have an impact on elections 

and directly benefit candidates. Contribution caps are 

closely tied to preventing corruption. McConnell, 

supra, 540 U.S. at 169. However, campaign finance 

restrictions must be narrowly tailored to combat 

corruption without chilling protected speech. Buckley 

struck down limitations on independent expenditures, 

finding the governmental anti-corruption interest 

sufficient to justify the $1,000 contribution cap but 

inadequate to uphold limits on independent 

expenditures. Buckley, supra, 424 U.S. at 26, 47-48. 

This case is not about contributions caps. It is 

about independent expenditures that are far removed 

from any candidate, campaign, or political party. No 

candidate or political entity has authorized, endorsed, 

or in any way financed the production of the Movie. 
33
 

The potential for corruption is too remote to justify 

either banning it at election time or imposing intrusive 

disclosure requirements. 

There is also little risk that Citizens United can 

accumulate sufficient wealth to endanger the integrity 

of the electoral process. McConnell expressed concern 

about the “corrosive and distorting effects of immenses 

aggregations of wealth.” McConnell, supra, 540 U.S. 

at 205; citing Austin, supra, 494 U.S. at 660. However 

real this concern may be in some circumstances, its 

heaviest impact is likely to fall on “budget-strapped 

nonprofit entities.” McConnell, supra, 540 U.S. at 340 

(Thomas, J., dissenting). Citizens United is such an 

entity, financially dependent on many small 

membership fees, non-deductible contributions, and 

sales of products. 

Citizens United is similar to the group involved in 

MCFL, supra, 479 U.S. 238. Such groups pose no 

danger of corruption through mass accumulation of 

funds that can be used to gain improper political 

advantage. Id. at 259. Contributors are aware of and 

support the group’s political purposes. Id. at 260-261. 

MCFL considered three factors the key to its decision. 

Id. at 264. First, MCFL was expressly formed to 

promote political ideas. Second, MCFL had no 

shareholders or other persons with a claim on 

corporate income or assets. Finally, MCFL was not 

formed as a business corporation or labor union and 

did not accept contributions from such entities. 

Citizens United is a nonprofit organization taxexempt under Sect. 501(c)(4) of the Internal Revenue 

Code. 26 U.S.C. § 501(c)(4). Its mission statement, 

reproduced above (Introduction) and displayed on its 
34
 

website, shows that it was formed to promote political 

ideas such as limited government, free enterprise, 

strong families, national sovereignty and security. As 

a non-business nonprofit corporation, it has no 

shareholders or others with a vested financial interest 

in its income or assets. The website offers 

memberships for a contribution of $15.00 or more, and 

the website format is designed solely for individual 

donors. See https://secure.donationreport.com/ 

donation.html?key=ME6AVZNKIFP2. 

MCFL challenged the pre-election ban of its ads 

rather than disclosure requirements. The corporation 

had to make various disclosures. However, MCFL’s 

distinguishing characteristics--formation for political 

purposes, lack of shareholders, and non-business 

status--are also relevant to finding that there is only a 

tenuous link between the disclosure requirements and 

the government’s interest in preventing corruption. 

Citizens United brings private citizens together, not to 

curry political favor but to engage in protected political 

speech that is independently funded and disseminated. 

(c)	 DISCLOSURE OF THE MOVIE’S 

FUNDING SOURCES DOES 

NOTHING TO DETER 

VIOLATIONS OF THE 

POLITICAL CONTRIBUTION 

LIMITS. 

This Court has upheld legislation designed to curb 

“the corrosive and distorting effects of immense 

aggregations of wealth” accumulated by corporations 

but having little correlation to public support for the 

political views funded with that wealth. McConnell, 

supra, 540 U.S. at 205; Austin, supra, 494 U.S. at 660. 
35
 

Even nonprofit advocacy groups can be subjected to 

limitations on direct contributions, which involve 

speech by someone other than the donor and thus are 

“closer to the edges” of the First Amendment. FEC v. 

Beaumont, 539 U.S. 146, 161 (2003). 

But this Court has repeatedly have struck down 

limitations on expenditures “made totally 

independently of the candidate and his campaign.” 

These provide little (if any) assistance to candidates 

and may even be counterproductive. McConnell, 

supra, 540 U.S. at 221; Buckley, supra, 424 U.S. at 47. 

Limits on independent expenditures “impose far 

greater restraints on the freedom of speech and 

association than do limits on contributions and 

coordinated expenditures” without serving the 

governmental interest in stemming corruption. 

McConnell, supra, 540 U.S. at 221; Buckley, supra, 424 

U.S. at 44, 47-48. Justice Blackmun’s concurring 

opinion in Cal. Medical Ass’n v. FEC, 453 U.S. 182, 

203 (1981) stressed that “contributions to a committee 

that makes only independent expenditures...pose no 

threat” of corruption or the appearance thereof. 

Disclosure requirements allegedly serve the 

government’s interest in curbing violations of political 

contribution caps. But contributions to Citizens 

United are not the direct political contributions 

targeted by those caps. The disclosures impose a 

substantial burden on the First Amendment rights of 

the people who have associated with Citizens United 

in order to engage in protected speech. Moreover, the 

cost of producing the Movie is partially offset by 

revenue from DVD and theatre ticket sales. 
 

36
 

Finally, as the late Chief Justice Rehnquist 

cautioned, the alleged “circumvention” interest 

eviscerates the narrow tailoring requirement: 

In allowing Congress to rely on general 

principles such as affecting a federal election or 

prohibiting the circumvention of existing law, 

the Court all but eliminates the “closely drawn” 

tailoring requirement and meaningful judicial 

review. 

McConnell, supra, 540 U.S. at 357 (Rehnquist, 

C.J., dissenting) 

This comment was not made in the context of 

examining disclosure requirements. However, 

requiring disclosure about the independent 

expenditures of a nonprofit advocacy group is far 

removed from the direct political contributions that 

Congress may lawfully regulate. It is unclear how 

disclosing information about Citizens United’s donors 

and expenditures does anything to facilitate 

compliance with laws that limit such contributions. 

CONCLUSION 

Regulation of this type of movie as an 

“electioneering communication,” subject to pre-election 

ban and burdensome disclosures, could ultimately 

inhibit a broad array of protected political speech at 

the time when citizens need it most. The mere 

mention of a candidate’s name during the crucial days 

before an election triggers a host of onerous 

regulations that chill core political speech. Although 

current law extends only to broadcast media, if it is 

applied to an informational documentary so dissimilar 
37
 

to the “virtual torrent” of TV ads that concerned 

Congress, the potential exists to enact laws that 

regulate television shows, books, magazines, and 

newspaper editorials--in short, the entire press. This 

Court, in accord with WRTL II’s narrowing language, 

should construe the Bipartisan Campaign Reform Act 

so that it only reaches that small slice of speech that 

unambiguously constitutes regulable campaign 

advertising. 

Respectfully Submitted, 

DEBORAH J. DEWART,

 Counsel of Record 

620 E. Sabiston Drive 

Swansboro, NC 28584-9674 

(910) 326-4554 

debcpalaw@earthlink.net 

JAMES L. HIRSEN 

505 S. Villa Real Drive, Ste. 208 

Anaheim Hills, CA 92807 

hirsen@earthlink.net 

Counsel for Amicus Curiae