15

DVD. Indeed, this is functionally indistinguishable from
downloading video content from the Internet to watch, which
the District Court in McConnell found to be a “form[] of
media...completely different [from] television and radio
advertising.” McConnell v. FEC, 251 F. Supp. 2d. 176, 571
(D.D.C. 2003).

These are the only means for any viewer to watch the
Movie, for the Movie was only distributed through these
three alternatives -- theater screenings, DVD, and Video on
Demand cable broadcasts. This is quite different from the
viewers of 30 and 60 second political ads on free broadcast
TV or even on standard cable TV. Viewers of those ads do
not choose them for viewing. Rather, the ads interrupt other
broadcasts that the viewers have chosen to watch, and the
viewers generally sit through the ads because they are short
interruptions of the chosen broadcasts. The viewers also
devote no significant time commitment to watch these short
political ads.

Viewers of the Movie through the means described
above hold their own constitutionally protected, freedom of
speech rights to watch and to listen to the Movie and its
speech. U.S. v. Playboy Entertainment Group, Inc., 529 U.S.
803 (2000)(Under First Amendment’s free speech clause, the
citizen is entitled to seek out or reject certain ideas or
influences without government interference or control);
Pacific Gas and Elec. Co. v. Public Utilities Com’n of
California, 475 U.S. 1 (1986)(Constitutional guarantee of
free speech serves significant societal interests wholly apart
from speaker’s interest in self-expression; First Amendment
also protects the public’s interest in receiving information);
Kreimer v. Bureau of Police, 958 F.2d 1242 (3 Cir.
1992)(Speech component of First Amendment includes
freedom to receive speech); Rossignol v. Voorhaar, 316 F.3d
516 (4° Cir.), cert. denied 540 U.S. 822 (2003)(First
Amendment protects both a speaker’s right to communicate


9

ARGUMENT

I. THE BCRA RESTRICTIONS CANNOT APPLY
TO THE MOVIE BECAUSE IT DOES NOT
INVOLVE EXPRESS ADVOCACY OR ITS
FUNCTIONAL EQUIVALENT.

Appellant Citizens United is a non-profit, 501(c)(4)
corporation founded in 1988 by citizens who want to
communicate and advance their ideological viewpoints to the
general public. In 2007, Citizens United financed from its
own corporate treasury the production of the Movie at issue
in this case, a feature-length (90 minutes), documentary film
about a major political figure running for President over
much of the past year — Hillary Clinton.

The Movie includes a mix of facts and opinion
regarding Mrs. Clinton. In particular, the movie primarily
communicates facts regarding the conduct of Mrs. Clinton
during past political campaigns, during the tenure of her
husband as President, and during her service as a U.S.
Senator from New York. The truthfulness of these facts has
not been challenged. The communication of such facts is a
valuable contribution to the political process and the
democratic selection of the leader of our nation, regardless of
one’s opinion about the meaning and significance of such
facts.

The Movie is the cinematic equivalent of a book
presenting a biography of a leading political figure, with both
factual analysis and opinion. The author may openly express
a political ideology or viewpoint, but that does not reduce
constitutional protection for the book.

The Movie was planned for release in January, 2008,
with full standard modern promotional efforts, including a


19

of candidates are integral to the Federal Constitution, and the
First Amendment affords the broadest protection to such
political expression in order to assure the unfettered
interchange of ideas); Arizona Right to Life Political Action
Committee v. Bayless, 320 F.3d 1002 (9" Cir. 2003)(The
First Amendment reflects a profound national commitment to
the principle that debate on public issues should be
uninhibited, robust, and wide-open); Perry v. Bartlett, 231
F.3d 155 (4"" Cir.) cert. denied 532 U.S. 905 (2000)(First
Amendment affords the broadest protection to political
expression to assure unfettered interchange of ideas to bring
about political and social changes desired by he people);
Wiggins, supra (ou Cir.)(Political speech regarding a public
election lies at the core of matters of public concern protected
by the First Amendment); Coral Springs Street Systems,
supra (1 1" Cir.)(Political speech enjoys the highest level of
First Amendment protection); Phelan v. Laramie County
Community College Bd. of Trustees, 235 F.3d 1243 (1 a
Cir.) cert. denied 532 U.S. 1020 (2000)(Under First
Amendment, political speech is entitled to the broadest
protection).

But are these grand statements of principle still even
valid law? In Austin, supra, this Court approved restrictions
on freedom of political speech to promote the chimera of
equality of speech rather than freedom of speech. Promoting
equality as a compelling interest over freedom will result in
more and more severe restrictions on freedom in chasing the
tainbow of equality. Kurt Vonnegut, “Harrison Bergeron,”
Welcome to the Monkey House (New York: Dell Publishing,
1950). That is not what our founders intended in the First
Amendment.

Moreover, the concept of the “functional equivalent”
of express advocacy is also rather slippery, and not a firm
foundation on which to place such a fundamental right as
freedom of speech. Allowing freedom of political speech to


iv
363 F.3d 387 (5 Cir. 2004)... .cccsccccecscseseseeeeteueee 10,19

Willis v. Town of Marshall, 426 F.3d 251 (4"" Cir. 2005)....16

Statutes

Bipartisan Campaign Reform Act of 2002 (BCRA).....passim

Other Authorities

Kurt Vonnegut, “Harrison Bergeron,” Welcome to the
Monkey House (New York: Dell Publishing, 1950). .



16

information and ideas to a broad audience and the intended
recipients’ right to receive that information and those ideas);
Willis v. Town of Marshall, 426 F.3d 251 (Cu Cir. 2005)
(First Amendment protects right to receive speech of others);
de la O v. Housing Authority of City of El Paso, 417 F.3d 495
6" Cir.) cert. denied 126 S. Ct. 808 (2005)(Right to receive
information is as equally protected under the First
Amendment as is right to convey it); Banks v. Wolfe County
Bad. of Educ. 330 F.3d 888 (6" Cir. 2003)(The First
Amendment is concerned not only with a speaker’s interest in
speaking, but also with the public’s interest in receiving
information); Neinast v. Board of Trustees of Columbus
Metropolitan Library, 346 F. 3d 585 (6" Cir.) cert. denied
541 U.S. 990 (2003)(First Amendment protects the right to
receive information); Clement v. California Dept. of
Corrections, 364 F. 3d 1148 co" Cir. 2004)(First Amendment
embraces the right to distribute literature, and necessarily
protects the right to receive it; First Amendment right to
receive publication is a fundamental right); U.S. West, Inc. v.
F.C.C., 182 F.3d 1224 qo" Cir.) cert. denied 530 U.S. 1213
(1999)(The two components of effective speech are a speaker
and an audience, and a restriction on either of these
components is a restriction on speech); Johnson v. County of
Los Angeles Fire Dept., 865 F.Supp. 1430 (C.D.Cal. 1994)
(Freedom of expression includes right to receive as well as
tight to communicate ideas).

There is no compelling interest in restricting the
freedom of speech rights of viewers to watch and to listen to
the Movie and its speech, whether preventing corruption or
the appearance of corruption or anything else. There is no
potential for corruption when individuals seek out, select, pay
for, and commit themselves to watch the Movie, thereby
receiving the information and facts conveyed in the Movie.
These viewers are not buying influence with the Democratic
Presidential primary rivals of Hillary Clinton. They are
merely seeking out and obtaining information they think is


18

real choice by the viewer to watch the ad, but just a toleration
of the interruption.

This is why the BCRA should not be allowed to apply
constitutionally to feature length films, which are the
cinematic equivalent of books, rather than short political ads,
which were the actual focus of the legislation in the first
place.

IV. THE ONLY RESTRICTION THAT IS
SUFFICIENTLY NARROWLY TAILORED TO
PROTECT VITAL CORE POLITICAL SPEECH
IS DISCLOSURE OF CAMPAIGN DONATIONS
AND AMOUNTS.

The core political speech protected by the First
Amendment has long been recognized as a fundamental
foundation of our democracy. This freedom is essential to
our very democracy and self-governance, and self-defining to
our very nature as a free people. That is why such core
political speech is meant to enjoy the maximum possible
protection under our Constitution. Republican Party of
Minnesota, supra (Debate on the qualifications of candidates
is at the core of the electoral process and of the First
Amendment freedoms); Rossignal, supra (4 Cir.)(First
Amendment affords the broadest free speech protection to
political expression in order to assure the unfettered
exchange of ideas, since in a republic where the people are
sovereign, the ability of the citizenry to make informed
choices among candidates for office is essential); Day v.
Holohan, 34 F.3d 1356 (8" Cir.), cert. denied 513 U.S. 1127
(1994)(Discussion of public issues and debate on the
qualifications of political candidates is integral to the
operation of our democratic system of government; the First
Amendment affords the broadest protection to such political
expression); lowa Right to Life Committee, Inc., supra
(Discussion of public issues and debate on the qualifications


13

Citizens United, which financed the production,
promotion and potential broadcast of the Movie at issue in
this case, is a non-profit, non-partisan, ideological
corporation, with funds raised overwhelmingly from
individuals across the country who share and want to advance
the organization’s ideological perspective and message. J.A.
244A, 251a-252a. Only a small portion of its funding comes
from for-profit corporations. Jd. The history of the
corporation and its financing reflects citizens coming
together to communicate their views to the general public,
not commercial, special interests seeking to advance narrow,
self-interested, financial goals.

Individuals and other non-corporate donors
contributed over $1 million to Citizens United specifically
for the Movie. J.A. 244a, 251a-252a. Just two contributions,
totaling $2,000, came from for-profit corporations, less than
0.2% of the total. JA. 252a.

The compelling interest against corruption or the
appearance of corruption does not apply here because the
individual donors overwhelmingly financing the Movie
transparently are not looking for political favors in return.
Rather, they are looking to advance their conservative
viewpoint and message. Mass. Citizens for Life. Moreover,
Hillary Clinton’s Democratic primary Presidential rivals
would not feel obligated in any way to serve the interests of
such conservative individual donors.

These facts are quite the opposite of the facts in
Austin v. Mich. State Chamber of Commerce, 494 U.S. 652
(1990), where the organization was the Michigan Chamber of
Commerce, composed of and financed entirely of for profit
corporations, and precisely looking for political favors, or at
least favorable policies, that would exactly advance their
commercial financial interests.


5

cronies, with the office director fired after 30 years of service
criminally prosecuted by the Clinton Justice Department, but
acquitted in full, J.A. 43a-54a;

--Her role in official retaliation against a woman who
accused President Clinton of sexual harassmen, J.A. 57a;

-- Her role in violations of federal campaign finance laws
during her Senate campaign and her husband’s Presidential
campaigns, J.A. 65a-87a;

--Her sometimes inconsistent record and views on the issues
of health care, job creation, and national security, showing in
regard to the latter her shift from voting to authorize the Iraq
war to opposing the war once the Democrat Presidential
primaries started, J.A. 90a-112a;

--President Clinton’s pardon of a Puerto Rican independence
activist who murdered four people and wounded 50 others in
a 1975 terrorist bombing in New York City, at the same time
that Mrs. Clinton was seeking endorsement from Puerto
Rican community activists for her 2000 Senate campaign,
J.A. 130a-142a.

These are important, substantive matters and communicating
the facts regarding them represents a valuable contribution to
the public debate.

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. J.A. 13a. It does not contain an appeal to
vote for or against Hillary Clinton. Jd.


2
INTRODUCTION

This case involves core political speech protected by
the First Amendment, long recognized as a fundamental
foundation of our democracy. Such core political speech
enjoys the maximum possible protection under our
Constitution. Yet, a federal agency claims the legal authority
to prohibit the broadcast of such core political speech. We
submit that this Court should redouble its vigilance in
protecting the fundamental freedom in this case so essential
to our very democracy and self-governance, and our very
nature as a free people.

At issue in this case is the production, advertising,
display and broadcast of a feature-length (90 minutes),
documentary film about a major political figure running for
President over much of the past year — Hillary Clinton.
Protection of core political speech regarding this subject
consequently could not be more vital during this time.

The movie includes a mix of facts and opinion
regarding Mrs. Clinton, both constitutionally protected. In
particular, the movie primarily communicates facts regarding
the conduct of Mrs. Clinton during past political campaigns,
during the tenure of her husband as President, and during her
service as a U.S. Senator from New York. The truthfulness
of these facts has not been challenged. The communication
of such facts is a valuable contribution to the political process
and the democratic selection of the leader of our nation,
regardless of one’s opinion about the meaning and
significance of such facts.

The movie is the cinematic equivalent of a book
presenting a biography of a leading political figure, with both
factual analysis and opinion. The author may openly express
a political ideology or viewpoint, but that does not reduce
constitutional protection for the book.


INTEREST OF THE AMICUS CURIAE'

The American Civil Rights Union (ACRU) is a
non-partisan, non-profit legal/educational policy organization
dedicated to defending all constitutional rights, not just those
which might be politically correct or fit a particular 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 nationwide.

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; John M. Olin Distinguished Professor of
Economics at George Mason University, Walter E. Williams;
former Harvard University Professor, Dr. James Q. Wilson;
former 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 seek
to ensure that a// constitutional rights are fully protected, not
just those that may advance a particular ideology. Those
tights include Freedom of Speech under the First
Amendment.

All parties consented to the filing of this brief, and
were timely notified.

+ 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.


14

Consequently, there is no compelling interest in this
case that would justify the FEC in prohibiting broadcast of
the Movie at any time, or burdening the speech in the
Movie’s broadcast advertising with BCRA regulation.

Ill. | THE BCRA RESTRICTIONS CANNOT APPLY
TO THE MOVIE BECAUSE IT IS ONLY
BROADCAST TO INDIVIDUALS EXERCISING
THEIR OWN FIRST AMENDMENT RIGHTS
TO CHOOSE TO SEE IT.

To see the Movie, individual viewers would have to
seek it out, separately pay for it, and choose to devote the 90
minutes of time necessary to watch it.

If they were going to watch it in a movie theater, they
would have to research what theaters were showing it and
when, go to the theater, pay to get in, and choose to sit
through it for 90 minutes to get its message.

If they were going to watch it on DVD, they would
have to research where they could buy it, go there, whether
online or in a store, pay for it, and again choose to sit through
it for 90 minutes to get its message.

If they were going to watch it through Video on
Demand on their cable TV service, they would have to search
through the Video on Demand lists of available movies,
select the Movie, pay any additional fee for it in addition to
the fee they are paying for the cable TV service, and again
choose to sit through it for 90 minutes to get its message.

The Movie is only broadcast to an individual viewer’s TV by
electronic signal when the viewer specifically requests the
signal bearing the Movie. This is functionally
indistinguishable from choosing to watch the Movie on


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
want to communicate and advance their viewpoint to the
general public, and they have done so over the years through
movies and other communications.

Funding for the corporation is raised predominantly
from individuals across the country who share and want to
advance the organization’s ideological message. J.A. 244A,
251a-252a. A small portion of its funding comes from for-
profit corporations. Id.

Citizens United has previously produced movies on
the War on Terror, illegal immigration, the United Nations,
and religion in public life. J.A. 1la-12a. Movie theaters
across the country have shown these movies, and national
retail chains have sold the DVD versions. J.A. 12a. One of
these movies, Rediscovering God in America, ranked as the
top selling historical documentary on Amazon.com for a
period. Id.

In 2007, Citizens United produced Hillary: The
Movie (“Movie”), a feature length (90 minutes) documentary.
J.A. 12a-13a. Financing for the production and advertising
budgets was devoted from the corporation’s general treasury.
Individuals and other non-corporate donors contributed over
$1 million specifically for the Movie. J.A. 244a, 251a-252a.
Just two contributions, totaling $2,000, came from for-profit
corporations, less than 0.2% of the total. J.A. 252a.

The Movie focuses primarily on presenting the facts
regarding five prominent episodes in Senator Clinton’s life:

--Her role in the firing of the staff of the White House
Travel Office, apparently to provide contract opportunities to


20

be restricted based on such a malleable concept does not
seem to live up to the grandness of the principles stated in the
cases cited above.

We respectfully submit that implementing those
grand statements of principle requires a renewed focus on
freedom with a standard holding that the only restriction on
core political speech that is sufficiently narrowly tailored to
maintain the central role that such speech is supposed to hold
in our jurisprudence would be a simple requirement that all
political campaign donations be rapidly disclosed as to the
identity of the donor and amount of the contribution. This
requirement would apply to all contributions to political
campaigns, parties, and independent expenditures
coordinated with campaigns or involving express advocacy.
Voters can then decide for themselves what involves
corruption or the appearance of corruption, and vote
accordingly. The BCRA itself would no longer be necessary
or constitutional under this standard. The same would be true
for any contribution limits, which are simply limits on
freedom of speech.

CONCLUSION

For all of the foregoing reasons, amicus curaie
American Civil Rights Union respectfully submits that this
Court should reverse the decision of the court below, and
grant the preliminary injunction requested by 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


No. 08-205

IN THE

Supreme Court of the Anited States

CITIZENS UNITED,
Appellant,

Vv.

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 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

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


7

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. This
Court accepted jurisdiction on

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. Such speech cannot
be subject to any restriction unless the restriction is justified
by a compelling interest and it is narrowly tailored to the
least restrictive means to serve that interest, as required by
the standard of strict scrutiny.

The compelling interest that has been recognized as
justifying the restrictions of the BCRA has been to prevent
corruption or the appearance of corruption. But this Court
has also recognized that to protect core political speech, such
restrictions must be narrowly applied only to express
advocacy or the functional equivalent of express advocacy.
The Movie at issue in this case does not involve such
advocacy.

The Movie does not not expressly advocate the
election or defeat of Hillary Clinton for any office, or urge
viewers to vote for or against her. It primarily recounts the
factual history of critical episodes in Hillary Clinton’s past,
providing important information relevant to the public debate
in an election season.


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. J.A. 13a, 212a-213a. Citizens
United also received an offer to make the Movie available to
households subscribing to digital cable television through a
service called Video on Demand. J.A. 255a. The Movie
would have been listed as one of many movie options on the
service, under an Elections ’08 heading covering political
movies. J.A. 258a. To view the Movie, the cable subscriber
would have to specifically order it, and a compressed data
electronic signal including the Movie would be sent only to
that subscriber’s TV for viewing.

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 broadcast
during the 30-day periods before the primaries, 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 FEC took the position that
broadcast of the Movie was 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. J.A. 18a-19a.


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. The movie
was financed entirely by a non-profit, non-partisan,
ideological corporation, with funds raised overwhelmingly
from individuals across the country who share the
organization’s ideological perspective. The history of the
corporation and its financing reflects citizens coming
together to communicate their views to the general public,
not commercial, special interests seeking to advance narrow
financial goals.

We respectfully submit that this Court cannot allow
the government to prohibit the broadcast of such core
political speech during any election period, or at any other
time, nor excessively burden its promotion by regulatory
requirements. In seeking to prohibit broadcast of the movie
and burden its promotion, the Federal Elections Commission
(FEC) has strayed outside its constitutionally permissible
zone of authority, which is to regulate campaign speech. As
we will discuss below, the justification for allowing FEC
regulation of campaign speech, preventing corruption or the
appearance of corruption, does not apply to the core political
speech at issue in this case. The FEC then has no
constitutional authority to regulate such speech in
contravention of the First Amendment.

To maintain the full constitutional protection that
such core political speech deserves, this Court should reverse
the court below and establish clear bright line standards that
would prevent abuse of such political speech in the future.


17

relevant to the political process and debate, which is
constitutionally protected conduct.

When the broadcast or distribution of the Movie is
limited to these viewers, as through the above means,
prohibiting such broadcast or distribution would violate the
free speech rights of these viewers to watch and to listen,
without justification. Moreover, when the Movie broadcast
is limited to those who are seeking out the message and
information presented by the Movie, the potential for
corruption by the producer of the Movie is sharply
constrained. The producer is then only communicating to
those who are already seeking out the message and
information, rather than the general public, which is not
nearly as likely to win influence or political favors in return.
When the free speech rights of the viewers are weighed in
with the free speech rights of the producers in this situation,
along with the more limited opportunity for corruption, the
balance overwhelmingly favors freedom of speech, rather
than a speculative interest in preventing corruption. The FEC
would then not have the constitutional authority to prohibit
broadcast of the Movie through Video on Demand, or
screening of the Movie in theaters, or distribution for viewing
through DVDs.

But even broadcast on general cable TV or even free
TV ofa feature length documentary film still retains quite
similar self-selection and choice aspects for the viewers as
for the broadcast and distribution of the Movie through the
above means. The viewers still must seek out when the
Movie is going to be broadcast, and choose to devote
themselves to sitting through it for 90 minutes to obtain the
information and hear the message the Movie provides. They
only do not have to pay separately for it. This is still quite
different from short political ads that interrupt broadcasts
that the viewers have chosen to see, which does not involve a


iii

187 F.3d 963 (8" Cir, 1999)...c.ceccccsseceveeeesesessseeeee 10,18
Johnson v. County of Los Angeles Fire Dept.,

865 F.Supp. 1430 (C.D.Cal. 1994)....... 0... ceee center 16
Kreimer v. Bureau of Police,

958 F.2d 1242 ob" Cir. 1992)... 0... cece cece cece eee eee een rece 15
McConnell v. FEC, 540 U.S. 93 (2003)...........0eeceeeeee eee 12

McConnell v. FEC, 251 F. Supp. 2d. 176 (D.D.C. 2003)....15

McIntyre v. Ohio Elections Commission,

514 U.S. 334 (1995)...c.ceceseccesesceseseseseeevscesecareeven 10,11
Neinast v. Board of Trustees of Columbus Metropolitan
Library, 346 F. 3d 585 (6" Cir. 2003).....0..ccesseseseseeees 16
Pacific Gas and Elec. Co. v. Public Utilities Com’n of
California, 475 U.S. 1 (1986)...c.cccccccccscsesescsesestseseen 15
Perry v. Bartlett, 231 F.3d 155 (4" Cir. 2000)......:.0cecee 19

Phelan v. Laramie County Community College Bd. of
Trustees, 235 F.3d 1243 (11" Cir.).... -

Republican Party of Minnesota v. White,

536 U.S. 765 (2002).. +++10,18

Rossignol v. Voorhaar, 316 F.3d 516 (4" Cir. 2003).....15,18

U.S. v. Playboy Entertainment Group, Inc.,
529 U.S. 803 (2000).........ccece ee eeeeee se eeeeseeeeeeeeeeeneeeee 15

U.S. West, Inc. v. F.C.C,, 182 F.3d 1224 (10" Cir, 1999)...16

Wiggins v. Lowndes County,


10

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 to make the Movie available to households subscribing
to digital cable television through a service called Video on
Demand.

The Movie is consequently core political speech fully
protected under the First Amendment. 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. E.g.,
Buckley v. Valeo, 424 U.S. 1 (1976); FEC v. Mass. Citizens
for Life, 479 U.S. 238 (1986); FEC v. Wisconsin Right to
Life, 127 S. Ct. 2652 (2007)(WRILL); Republican Party of
Minnesota v. White, 536 U.S. 765 (2002)(Debate on the
qualifications of candidates is at the core of the electoral
process and of the First Amendment Freedoms); McIntyre v.
Ohio Elections Commission, 514 U.S. 334 (1995); Boos v.
Barry, 485 U.S. 312 (1988); lowa Right to Life Committee,
Inc. v. Williams, 187 F.3d 963 (8" Cir. 1999)(Discussion of
public candidates and debate on the qualifications of
candidates are integral to the Federal Constitution, and the
First Amendment affords the broadest protection to such
political expression in order to assure the unfettered
exchange of ideas); Coral Springs Street Systems, Inc. v. City
of Sunrise, 371 F.3d 1320 ai® Cir. 2004)(Political speech
enjoys the highest level of First Amendment protection);
Wiggins v. Lowndes County, 363 F.3d 387 (5 Cir.
2004)(Political speech regarding a public election lies at the
core of matters of public concern protected by the First
Amendment).

Any restriction on such speech must satisfy the
standard of strict scrutiny, which requires that the restriction
must serve a compelling interest and must be narrowly


12

Moreover, the Movie and the expenditures behind it
are not part of any political campaign, or coordinated in any
way with any political campaign. 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.

Consequently, the FEC cannot prohibit broadcast of
the Movie at any time. Moreover, since the FEC has already
held that the broadcast advertising developed by Citizens
United does not involve express advocacy or its equivalent,
the FEC cannot impose the BCRA’s burdens on that
advertising either.

I. THE BCRA RESTRICTIONS CANNOT APPLY
TO THE MOVIE BECAUSE IT IS FINANCED
BY INDIVIDUAL CONTRIBUTORS SEEKING
TO ADVANCE THEIR VIEWPOINT RATHER
THAN COMMERCIAL INTERESTS.

This Court has found preventing corruption or the
appearance of corruption as a compelling government interest
justifying some restrictions on core political speech.

WRTLI; Buckley; McConnell v. FEC, 540 U.S. 93 (2003).
As the Court said in FEC v. Nat’l Conservative Political
Action Comm., 470 U.S. 480 (1985),

“The only legitimate and compelling government
interests thus far identified for restricting campaign
finances” [are] “preventing corruption or the
appearance of corruption. [The] hallmark [of such
corruption] is the financial guid pro quo: dollars for
political favors.”

470 USS. at 496-497.


ii
Table of Authorities

Cases

Arizona Right to Life Political Action Committee v.

Bayless, 320 F.3d 1002 (9° Cir, 2003).....0ccceeereeseeneee 19
Austin v. Mich. State Chamber of Commerce,

494 U.S. 652 (1990)... 00. cece cee cence ee ee sect e teen eeeee ees 13,19
Banks v. Wolfe County Bd. of Educ.

330 F.3d 888 (6 Cir. 2003)......ccccccsesesesseseseseesesees 16
Boos v. Barry, 485 U.S. 312 (1988).......2..00:cce cee serene LO
Buckley v. Valeo, 424 U.S. 1 (1976).........62.:0sceeee 10,11,12

Clement v. California Dept. of Corrections,
364 F. 3d 1148 (9" Cir, 2004)......ccccececeseseseesteeesetes 16

Coral Springs Street Systems, Inc. v. City of Sunrise,
371 F.3d 1320 (11" Cir. 2004)......cccccsceseseseeeeeeeessee 10,19

Day v. Holohan, 34 F.3d 1356 (8" Cir. 1994).

de la Ov. Housing Authority of City of El Paso,
417 F.3d 495 (5" Cir.)...

FEC vy. Mass. Citizens for Life,
479 U.S. 238 (1986)... 0. ccc cec eee ee cee c eee ee eee eeeesene 10,11,13

FEC v. Nat'l Conservative Political Action Comm.,
470 U.S. 480 (1985)... 0. ccc cee cec eee eet eee ee stents neeeen een eeees 12

FEC vy. Wisconsin Right to Life,
127 S.Ct. 2652 (2007).........ccceccee cece ee eee eee een een ee 10,11,12

Iowa Right to Life Committee, Inc. v. Williams,


Table of Authorities

Table of Contents

Interest of the Amicus Curiae

Il.

Ill.

Iv.

THE BCRA RESTRICTIONS CANNOT
APPLY TO THE MOVIE BECAUSE IT
DOES NOT INVOLVE EXPRESS
ADVOCACY OR ITS FUNCTIONAL
EQUIVALENT ....cecsssssesesesssscsesessencsseneeceeenee

THE BCRA RESTRICTIONS CANNOT
APPLYTO THE MOVIE BECAUSE IT IS
FINANCED BY INDIVIDUAL CONTRI-
BUTORS SEEKING TO ADVANCE
THEIR VIEWPOINT RATHER THAN
COMMERCIAL INTERESTS.............:0:000

THE BCRA RESTRICTIONS CANNOT
APPLY TO THE MOVIE BECAUSE IT IS
ONLY BROADCAST TO INDIVIDUALS
EXERCISING THEIR OWN FIRST
AMENDMENT RIGHTS TO CHOOSE
TO SEE IT......s.sssssssscsssssssnssessenssesnsecnseetscseeeees

THE ONLY RESTRICTION THAT
IS SUFFICIENTLY NARROWLY TAIL-
ORED TO PROTECT VITAL CORE
POLITICAL SPEECH IS DISCLOSURE
OF CAMPAIGN DONATIONS AND
AMOUNTS ........c.cccecescsseceeseeeseseeseeseeeseseseseenes

CONCLUSION .....eeeceececeeceeeeeeeseeeseecseeesseeseessseseeseeseeeee

12

14

18
20


8

Moreover, the Movie does not involve the compelling
interest against corruption because it was overwhelmingly
financed by individual contributions from donors motivated
to advance their ideological views, not commercial interests
seeking a quid pro quo for their financial benefit. None of
Hillary Clinton’s Democratic presidential primary rivals
would feel obligated to reward the ideologically conservative
individual donors to the Movie with any favors because of
the Movie and its broadcast.

In addition, the compelling interest in preventing
corruption does not apply here because the feature length
Movie was distributed and broadcast through DVDs, movie
theater screenings, and Video on Demand broadcasts. The
viewers consequently must individually each select and pay
to see the Movie, and choose to devote the 90 minutes of
time to watch it. These viewers each have their own
constitutionally protected free speech rights in maintaining
the freedom to choose what political communications to see
and hear. There is no corruption interest in preventing these
viewers from exercising their own free speech rights to make
these choices. This is quite different from the broadcast of
short political ads that interrupt other broadcasts that the
viewers have chosen to see, where they are not exercising
their own free speech rights in choosing to endure such brief
interruptions.

Finally, this Court should revisit its precedents
regarding the regulation of core political speech involved in
campaign speech, and conclude that the only restriction that
is sufficiently narrowly tailored to protect the fundamental
interest in the freedom of such speech is to require the
disclosure of the identity of each campaign donor and the
amounts donated.


11

tailored to achieve that interest. WRTLII(‘“‘the Government
must prove that [the restriction] furthers a compelling interest
and is narrowly tailored to achieve that interest,” 127 S. Ct. at
2664)( a court must “ensure that a compelling interest
supports each application of a statute restricting speech,” Jd.
at 2671); Buckley; Mass. Citizens for Life; McIntyre.

In order to uphold the protection to core political
speech that it deserves, this Court has held that the
restrictions of the BCRA could only apply to express
advocacy or the functional equivalent of express advocacy.
WRTLII; Buckley. Chief Justice John Roberts wrote for the
Court in WRTLIL, “[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.” 127 S. Ct.
at 2667.

The Movie at issue in this case does not involve
express advocacy or the functional equivalent of express
advocacy. Again, the Movie does not not expressly advocate
the election or defeat of Hillary Clinton for any office, or
urge viewers to vote for or against her. Contrary to the
decision of the court below, while viewers may find that the
facts presented in the movie about Hillary Clinton’s past
conduct may influence their vote and political support, that is
no basis for imposing restrictions on such valid and vital
discussion of Clinton’s record. Quite to the contrary, that
only shows how important maintaining the protection of such
speech is. As this Court explained in WRTLIJ, such speech is
protected “advocacy [that] conveys information and
educates.” 127 S. Ct. at 2667. If after “voters hear the
information” they “choose—uninvited by the [Movie]—to
factor it into their voting decisions,” that does not transform
it into express advocacy that may be regulated or prohibited.
Id.