UNITED STATES COURT OF APPEALS
TENTH CIRCUIT

CITIZENS UNITED, a Virginia NonStock corporation, Plaintiff - Appellant,

v. SCOTT GESSLER, in his official capacity as Secretary of State of the State of Colorado; SUZANNE STAIERT, in her official capacity as Deputy Secretary of State of the State of Colorado, Defendants - Appellees,
and COLORADO DEMOCRATIC PARTY; GAROLD A. FORNANDER; LUCIA GUZMAN; DICKEY LEE HULLINGHORST,
Intervenors Defendants.

_____________ ______________ CITIZENS FOR RESPONSIBILITY AND ETHICS IN WASHINGTON; COLORADO COMMON CAUSE; COLORADO ETHICS WATCH; PROGRESSIVE UNITED,
Amici Curiae. No. 14-1387 (D. Colorado) (D.C. No. 1:14-CV-02266-RBJ) FILED United States Court of Appeals Tenth Circuit 

### October 27, 2014
Elisabeth A. Shumaker Clerk of Court2 ORDER AND JUDGMENT *

Before HARTZ , TYMKOVICH , and PHILLIPS , Circuit Judges.

Citizens United is a nonprofit corporation that has made a name for itself through independent political activity. As noted by the di strict court, “its principal purpose is to promote social welfare through informing and educating the public on conservative ideas and positions on issues, includi ng national defense, the free en terprise system, belief in God, and the family as the basic unit of societ y.” J. App. at 155 (internal quotation marks omitted). Since 2004 it has produced and released 24 films on various political and religious topics. Films are produced by C itizens United’s in-house unit, Citizens United Productions, and occasionally through affiliate d entities. They are distributed through theatrical release, DVDs, television, and onl ine digital streaming and downloading. Citizens United sells its films as DVDs for retail and wholesale bulk purchase; arranges for film showings at movie theaters in exch ange for a portion of box-office sales; and licenses its films to television broadcasters and digital-stre aming companies in exchange for fees or royalties. In a few instances Citizens United has provided free DVDs inserted

* This order and judgment is not binding precedent, except un der the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, howe ver, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.3 in newspapers and allowed its films to be screened free of ch arge to educational institutions and select members of the public a nd news media. It generally advertises its films on television, in newspa pers, on billboards, by electroni c and regular mail, and on the Internet. Citizens United recently complete d production of a film titled Rocky Mountain
Heist on the alleged impact of various advoc acy groups on Colorado government and public policy. The film is scheduled to be marketed and distributed in Colorado and throughout the United States beginning this month. It is approximately 30 minutes in length. The budget for productio n and marketing is $773,975. Like other films produced by Citizens United, Rocky Mountain Heist will be distributed through DVD, television broadcast, and online digita l streaming and downloading, and it will be advertised on television, radio, and the Internet. Becaus e the film and some of its advertising will unambiguously refer to elected Colorado official s running for office in this year’s general election and include footage of events where participants advocate the election or defeat of Colorado candidates, Rocky Mountain Heist comes under provisions of Colorado’s campaign-practices laws that require certain di sclosures with respect to what are termed “electioneering communications” and “independent expenditures.” Citizens United brought the present action against the Colorado Secretary of State (the Secretary) in the United States Distri ct Court for the Dist rict of Colorado to challenge under the First Ame ndment the disclosure provisi ons both on their face and as applied to Citizens United because it is trea ted differently from various media that are4 exempted from the provisions (the exempted media). It sought a preliminary injunction against enforcing the provisions that do not apply to exempted media. The district court denied relief, and Citizens United appeals. 1 Although we agree with much of what the district court said, we must reverse. We do not address the facial cha llenge to the disclosure provisions, because we afford Citizens United the relief it requested through its as-applied challenge. We hold that on the record before us Citizen s United would likely prevail on the merits and therefore is entitled to a preliminary injunction. In light of (1) the Colorado di sclosure exemptions for printed periodicals, cable and over-the-air broadcasters, and Internet periodicals and blogs, (2) the rationale presented for these exemptions, and (3) Citizen United’s history of producing and distributing two dozen documentary films ove r the course of a decade, the Secretary has not shown a substantial relation between a sufficiently important governmental interest and the disclosure requirements that follow from treating Rocky
Mountain Heist as an “electioneering communication” or treating the costs of producing and distributing the film as an “expenditu re” under Colorado’s campaign laws. Citizens United has also sought to have its advertising for Rocky Mountain Heist exempted from

1 Citizens United filed its appeal on September 23, 2014. We ordered the parties to file simultaneous briefs on Octobe r 3; also permitted a brief by the Intervenors Defendants Colorado Democratic Party, Garold A. Fornander, Lucía Guzm án, and Dickey Lee Hullinghorst; and now grant th e motion by Citizens for Resp onsibility and Ethics in Washington, Colorado Common Cause, Colorado Ethics Watch, and Progressive United to participate as amici curiae. We held or al argument on October 7 and issued an interim order on October 14. This opinion explains th e basis of that order and does not consider events occurring after October 14.5 the disclosure provisions. But it has not de monstrated that the Secretary would exempt advertising placed by the exempted media if the advertisements men tioned a candidate or advocated for the election or de feat of a candidate. Having failed to show that in this respect it would be treated differently from the exempted media, Citizens United is not entitled to relief regarding advertising. To explain our holding, we begin by describing the pertinent disclosure prov isions of Colorado law. I. COLORADO DISCLO SURE PROVISIONS Under the Colorado Constitu tion and the state’s Fair Campaign Practices Act (FCPA), speakers who engage in “electione ering communications” and “independent expenditures” are subject to various re porting and disclosure requirements. See J. App. at 156. Electioneering communications are st atements about candidates made shortly before an election. Article XXVIII of the Colorado Constitution and the FCPA define electioneering communication as: any communication broadcasted by tele vision or radio, printed in a newspaper or on a billboard, directly mailed or delivered by hand to personal residences or otherwise distributed that: (I) Unambiguously refers to any candidate; and (II) Is broadcasted, printed, mailed, delivered, or distributed within thirty days before a primary electi on or sixty days before a general election; and (III) Is broadcasted to, printed in a newspaper distributed to, mailed to, delivered by hand to, or otherwis e distributed to an audience that includes members of the electora te for such public office. Colo. Const. art. XXVIII, § 2(7)(a); see Colo. Rev. Stat. § 1-45-103(9) (2011). Expenditures include money spent to endorse or oppose a candidate. An expenditure is:6 any purchase, payment, distribution, lo an, advance, deposit, or gift of money by any person for the purpose of expressly advocating the election or defeat of a candidate or supporti ng or opposing a ballot issue or ballot question. An expenditure is made when the actual spendi ng occurs or when there is a contractual agreement requiri ng such spending and the amount is determined. Colo. Const. art. XXVIII, § 2(8)(a); see Colo. Rev. Stat. § 1-45-103(10). Article XXVIII and the FCPA define independent expenditure as “an expenditure that is not controlled by or coordinated with any candida te or agent of such candidat e.” Colo. Const. art. XXVIII, § 2(9); see Colo. Rev. Stat. § 1-45-103(11). When Colorado election law uses the term
candidate , it is referring only to candida tes for office in Colorado. See Colo. Const. art. XXVIII, § 2(2). Under § 6 of Article XXVIII, any person (n atural or artificial ) expending $1000 or more per calendar year on electioneering co mmunications must submit reports to the Secretary including the amounts spent on the electioneering communication; the name of the candidate referenced in the communicati on; and the name, addr ess, occupation, and employer of anyone donating more than $250 per year to the person for the communication. See id. § 6(1); 8 Colo. Code Regs. § 1505-6:11.5 (2012). Reports are due biweekly in the two months before th e general election, with a final report due 30 days after the election. See Colo. Rev. Stat. § 1-45-108(2)(a)(I)(D)

‒ (E) (2012). At oral argument the Secretary (throu gh counsel) informed this court about oversight of the disclosure requirements. Fi rst, he does not require disclosure of the amount spent to produce an electioneer ing communication because there is no7 communicative aspect to producti on. For example, even if Rocky Mountain Heist is an electioneering communication, the regulations governing electioneering communications would not require Citizens United to report the cost of producing it or the identities of those who donated to the prod uction. Also, a donor must be disclosed only if the donation was earmarked for an electioneering communication. See Colo. Code Regs. 1505-6:11-1. The Secretary emphasized the precision with which the earmarking must be made. If a donor permits the recipien t to use the donation for electioneering communications and other purposes, and the en tire donation could be used for the other purposes, the donor need not be disclosed. Thus, if a donor told Citizens United that the donation could be used for producing Rocky Mountain Heist or covering office overhead, Citizens United would not be required to disc lose the donor because all the money could be used for purchasing office paper. The disclosure requirements for independ ent expenditures are a bit different. Section 5 of Article XXVIII prov ides that any person making an independent expenditure in excess of $1000 per calendar year must fi le a notice with the Secretary providing a detailed description of the use of the inde pendent expenditure, specifying the amount of the expenditure, and naming the candidate whom the expenditure is intended to support
or oppose. See Colo. Const. art. XXVIII, § 5(1). The definition of expenditure, not surprisingly, focuses on expenditures ( unlike the definition of electioneering communication, which focuses on the communication itself); so if Rocky Mountain Heist attacks or supports a candidate, the cost of pr oducing the film must be disclosed. Any8 person making an independent expenditure or accepting a donation for the purpose of making an independent expenditure in ex cess of $1000 per year must create an independent expenditure committee, register w ith the Secretary, and, if the person is a corporation, report details of its corporat e form and ownership structure within two business days of the date on which the e xpenditure reaches or exceeds $1000. See Colo. Rev. Stat. § 1-45-107.5(3)–(4 ) (2010); 8 Colo. Code Regs. 1505-6:5.2. The person must also maintain a separate bank account and use it exclusively for receiving donations for and making independent expenditures. See Colo. Rev. Stat. § 1-45-107.5(7). Any person making independent expenditures of more th an $1000 per year must report to the Secretary the amounts spent and the name, address, occupation, and employer of any person who donated more th an $250 “for the purpose of making an independent expenditure.” Id. § 1-45-107.5(4)(b). A nd any person making an independent expenditure in excess of $1000 is required to disclose any donation in excess of $20 given during the re porting period for the purpose of making an independent expenditure. See id. § 1-45-107.5(8). Independent expenditures have the same filing schedule as electioneering communications, ex cept that expenditures in excess of $1000 made within 30 days of a primary or gene ral election must be reported within 48 hours after obligating money for th e independent expenditure. See id. § 1-45-107.5(4)(c). Any communication that constitutes an independent expenditure must prom inently identify the person making the expenditure. See Colo. Const. art. XXVIII, § 5(2); Colo. Rev. Stat. § 1-45-107.5(5)(a). As in the electioneering-communi cation context, the Secretary9 requires the disclosure of an independent -expenditure donor only when the donor has specifically earmarked the money for i ndependent expenditures. Thus, if Rocky
Mountain Heist attacks or supports Colo rado candidates, the pro duction costs of the film must be disclosed, but a donation must be di sclosed only if it was directed to be used solely to attack or support Colorado candidates. Money donated to Citizens United for general use need not be disclosed, nor woul d Citizens United be re quired to report a donation to be used, at Citizen United’s di scretion, for films attacking or supporting candidates in states including ( but not limited to) Colorado. Although the Secretary is responsible fo r promulgating and enforcing rules in furtherance of these reporting and disclosure provisions, see Colo. Const. art. XXVIII, §§ 8–9; Colo. Rev. Stat. § 1-45 -111.5, others can also pursue enforcement. Any person who believes that there has been a violation of the law may file a written complaint with the Secretary, who refers the complaint to an administrative law judge for a hearing. See Colo. Const. art. XXVIII, § 9(2)(a). If the ad ministrative law judge finds a violation and the Secretary does not file an enforcement action within 30 days of the decision, the person who filed the complaint may bring a privat e cause of action in state district court.
See id. Any person who violates th e disclosure provisions will be fined $50 per day for each day the information is not filed as required. See id. § 10(2)(a); see also Colo. Rev. Stat. § 1-45-111.5(c). Any person who fails to file three or more successive reports concerning contributions, expendi tures, or donations is subjec t to a civil penalty of up to10 $500 for each day the reports are not filed. See Colo. Rev. Stat. § 1-45-111.5(c). The penalty can be doubled if the failure is intentional. See id. Critically important to this litigation are the exemptions to th e above disclosure provisions. Excluded from the definition of expenditure are: (I) Any news articles, editorial en dorsements, opinion or commentary writings, or letters to the editor printe d in a newspaper, magazine or other periodical not owned or controlled by a candidate or political party; (II) Any editorial endorsements or opini ons aired by a broadcast facility not owned or controlled by a ca ndidate or political party; (III) Spending by persons, other than political parties, political committees and small donor committees, in the re gular course and scope of their business or payments by a membership organization for any communication solely to me mbers and their families; (IV) Any transfer by a membership orga nization of a portion of a member’s dues to a small donor committee or po litical committee sponsored by such membership organization; or paymen ts made by a corporation or labor organization for the costs of establishi ng, administering, or soliciting funds from its own employees or members for a political committee or small donor committee. Colo. Const. art. XXVIII, § 2(8)(b); see Colo. Rev. Stat. § 1-45-1 03(10). There are also four exclusions from the definition of electioneering communication , the first three of which are essentially the same as for expenditures. 2

2 The term electioneering communication does not include “(I) Any news ar ticles, editorial endorsements, opinion or comm entary writings, or letters to the editor printed in a newspaper, magazine or other periodical not owned or controlled by a candidate or political party; (II) Any editor ial endorsements or opinions aire d by a broadcast facility not owned or controlled by a candi date or political party; ( III) Any communication by persons made in the regular course and scope of their business or any communication made by a membership organization solely to members of such organi zation and their families; (IV) Any communication that refers to any candidate only as part of the popular name of a bill or statute.” Colo. Const. art. XXVIII, § 2(7)(b); see Colo. Rev. Stat. § 1-45-103(9).11 The Secretary has broadly interpreted th e first two exemptions, which concern material printed in periodicals and aired by a broadcast facility. He informed this court at oral argument that he applies the exclusio ns to online editions of print newspapers, online-only newspapers, all broa dcasts, cable shows, and even blogs, regardless of their partisan nature. The Secretar y acknowledged that there may be questions at the margins regarding whether, say, a blog is a periodical, but he referred to court decisions as guides in making that determination. He cited two cases as examples. In Federal Election Commission v. Massachusetts Citizens for Life, Inc. , 479 U.S. 238, 250 (1986) ( MCFL ), the Supreme Court held that the press exem ption under federal law did not apply to a group’s one-time “Special Edition” newsletter based on factors dist inguishing it from its regular publication, such as the use of di fferent publishing staff, the distribution to a group 20 times the size of the usual audience , and the absence of the usual masthead and volume and issue numbers. In Bailey v. Maine Commission on Governmental Ethics &
Election Practices , 900 F. Supp. 2d 75, 91 (D. Me. 2012 ), the court considered a website called “the Cutler Files,” which advocated th e defeat of gubernatorial candidate Eliot Cutler. The operator of the website was a paid consultant for an opposing candidate. See id. at 90. The website was updated six times between August 30 and September 29, 2010, but was taken down after two months. See id. The court rejected the website operator’s equal-protection challe nge to the state’s refusal to apply to him the disclosure exemption for periodical publications. See id. at 91.12 The exemptions do not en compass all possible campai gn-related activity by the exempted media. For example, the Secretary’s brief in this court states that if a news organization “were to engage in such fundra ising and solicitation efforts [to raise money for the organization’s pieces], . . . such communications woul d not qualify as press,” and cites cases saying that not all uses of the press entity’s resources would be exempt. Aplee. Br. at 40; see also Aplee. Br. at 22 (indicating that The Denver Post would not be able to rely on the exemption if it produc ed a documentary advocating for a candidate that was funded by solicited contributions). Of special interest in th is case, the language exempting “news articles, editorial endorse ments, opinion or commentary writings, or letters to the editor,” Colo. Const. art. XXVIII, § 2(8)(b), 7(b), does not on its face include an advertisement placed by a media en tity on a television or radio broadcast to increase the number of its readers or viewers. Thus, if the advertisement mentions a candidate or expressly advocates the election or defeat of a candidate, it may have to be treated as an electioneering communication or independent expenditure. We do not understand anything the Secretar y has told the court as indicating that such an ad would be exempt from the disclo sure requirements. II. THE PRESENT CONTROVERSY In April 2014, Citizens United filed a Pe tition for a Declaratory Order with the Secretary requesting a ruling stating that Rocky Mountain Heist and related marketing activities would not qualify as “electioneer ing communications” or “expenditures” under Colorado law. In support of its request, it pointed out that the Federal Election13 Commission (FEC) had granted it an exemption from the disclosure provisions of the Federal Election Campaign Act of 1971, as amended, 52 U.S. C. § 30101 et seq. (the federal statute) in an advisory opinion (the Advisory Opinion) issu ed on June 11, 2010. Under the federal statute the definitions of electioneering communication 3 and expenditure 4 are similar to Colorado’s definitions. And the statutory exclusions from the definition, which the FEC refers to as th e “press exemption,” J. App. at 30 (FEC Advisory Opinion 2010-08 (Jun e 11, 2010)), are also similar. 5 The FEC construes the press exemption to cover a “legitimate pres s function” conducted by a “press or media

3 “T he term ‘electioneering communication’ m eans any broadcast, cable, or satellite communication which refers to a clearly identif ied candidate for Federal office; is made within 60 days before a general, special, or runoff election for the office sought by the candidate; or 30 days before a primary or pr eference election, or a convention or caucus of a political party that has authority to nomi nate a candidate, for the office sought by the candidate; and in the case of a communication which refers to a candidate for an office other than President or Vice President, is targeted to the relevant electorate.” 52 U.S.C. § 30104(f)(3)(A) (paragraph formatting omitted).

4 “The term ‘expenditure’ includes any purchase, payment, dist ribution, loan, advance, deposit, or gift of money or anything of value, made by any pers on for the purpose of influencing any election for Federal office; a nd a written contract, pr omise, or agreement to make an expenditure.” 52 U.S.C. § 30101(9)(A) (parag raph formatting omitted).

5 “The term ‘electioneering communication’ does not include a communication appearing in a news story, commentary, or editorial distributed through the facilities of any broadcasting station, unless such facilities are owned or controlled by any political party, political committee, or candidate.” 52 U. S.C. § 30104(f)(3)(B) (p aragraph formatting omitted). An FEC regula tion construes the term broadcasting station to include “any broadcast, cable, or satellite te levision or radio station.” See 11 C.F.R. § 100.29(c)(2). The term expenditure does not include “any news stor y, commentary, or editorial distributed through the facilities of any br oadcasting station, ne wspaper, magazine, or other periodical publication, unless such facilities are owned or controlled by any political party, political committee or candidate.” 52 U.S.C. § 30101(9)(B)(i).14 entity.” Id. at 31

‒ 32. The Advisory Opin ion determined that C itizens United is a press entity and that distribution an d production of its films are legitimate press functions. Noting that the FEC had read th e press exemption “to cover cable television, the Internet, satellite broadcasts, and rallies staged and broadcast by a radi o talk show,” it said that “[i]n fact, the Commission has not limited the press exemption to tr aditional news outlets, but rather has applied it to news st ories, commentaries, and editorials no matter in what medium they are published .” Id. at 31 (brackets and internal quotation marks omitted). To determine whether an entity is a press entity, the FEC “has focused on whether the entity in question produces on a regular basis a program that disseminates news stories, commentary and/or editorials,” and it has “int erpret[ed] ‘news story, commentary, or editorial’ to include documentarie s and educational programming.” Id. at 32. It concluded that Citizens United’s costs of pr oducing and dist ributing its films are entitled to the press exemption. 6 Refusing to follow the FE C’s lead, the Secretary’s Declaratory Order denied Citizens United’s request for an exemption. See J. App. at 37, 44

‒ 45 (Declaratory Order, In the Matter of Citizens United’s Pet. for Decl aratory Order, Office of the Sec’y of State,

6 The FEC also decided that C itizens United’s advertisements for its films are exempt. See J. App. at 34 (FEC Advisory Opinion). The FEC noted th at “courts have held that where the underlying product is covered by th e press exemption, so are advertisements to promote that underlying product.” Id. (citing Fed. Election Comm’n v. Phillips Pub., Inc. , 517 F. Supp. 1308, 1313 (D.D.C. 1981) and Reader’s Digest Ass’n, Inc. v. Fed. Election Comm’n , 509 F. Supp. 1210, 1215 (S.D.N.Y. 1981)).15 State of Colo. (June 5, 2014)). It ruled that the film and its advertis ing did not fall within Colorado’s exemption fo r print media and that Citizens Un ited is not a broadcast facility. It also ruled that the exemp tion for communications made in the regular course and scope of a business was inapplicable. Relying on the decision by the Colorado Court of Appeals in Colorado Citizens for Ethi cs in Government v. Co mmittee for the American
Dream , 187 P.3d 1207 (Colo. Ct. App. 2008), th e Order stated that the regular-business exemption applies only to persons whose busine ss is primarily to distribute content as a service. Finally, it stated that it could not adopt the FEC’s reasoning for exempting Citizens United’s films because the Colorado Secretary of St ate lacks the authority to read a general “press exemption” into the plain language of Colorado law. Accordingly, the Order concluded that Rocky Mountain Heist would be an electioneering communication not within any exemption. It did not determine whether the film would constitute an independent expe nditure (supporting or attacking a candidate) because it was unclear whether the film would contai n “express advocacy” under Colorado law. Citizens United did not seek review of the Declaratory Order in Colorado court. Instead, it filed suit in federal court, allegi ng that Colorado’s reporting and disclosure requirements violate the First Amendmen t to the United States Constitution and Article II, §10 of the Colora do Constitution. Simultaneousl y, Citizens United filed a motion for a preliminary inju nction prohibiting the Secretar y from enforcing Colorado’s reporting and disclosure requirements against Citizens United and all other Colorado speakers. The district cour t denied Citizens United’s motio n for a preliminary injunction16 after determining that Citizens United’s faci al and as-applied challenges did not have a substantial likelihood of succe ss on the merits. We have jurisdiction under 28 U.S.C. § 1292(a) to consider Citizens United’s appeal of that denial. Citizens United no longer relies on Article II, §10 of th e Colorado Constitution. III. ANALYSIS Citizen United’s complaint in federal court attacks the Colorado disclosure exemptions for print and broadcast media. It argues that because the exemptions discriminate among speakers on the basis of identity, the Colorado constitutional and statutory disclosure provisions are facially invalid under the First Amendment and must be voided. In the alterna tive, it argues that those prov isions are unconstitutional as applied to Citizens United and it must be provi ded the same exemptions as the print and broadcast media. A. Preliminary-Injunction Standard In determining whether to grant a pre liminary injunction, a court must weigh (1) the likelihood that the mova nt will succeed on the merits; (2) the threat of irreparable harm to the movant; (3) the relative weight of the harm alleged by the movant and the harm to the nonmoving party; and (4) the public interest. See Hobby Lobby Stores, Inc. v. Sebelius , 723 F.3d 1114, 1128 (10th Cir. 2013), aff’d sub nom. Burwell v. Hobby Lobby Stores, Inc. , 134 S. Ct. 2751 (2014). Our review of a district-court denial of a preliminary injunction is for abuse of discretion. See id. But “we examine the district court’s legal determinations de novo, and its underlying factual fi ndings for clear error,”17 Att’y Gen. of Okla. v. Tyson Foods, Inc. , 565 F.3d 769, 77 6 (10th Cir. 2009), and “[a] district court abuses its di scretion by denying a preliminar y injunction based on an error of law,” Hobby Lobby , 723 F.3d at 1128. We begin (and, in essence, end) our review by analyzing Citizens United’s likelih ood of success on the merits. B. Likelihood of Success on the Merits We agree with Citizens United’s as-app lied challenge to Colorado’s campaigndisclosure requirements. On the record be fore us, we hold that the First Amendment requires the Secretary to treat Citizens United the same as the exempted media. We need not address Citizen United’s facial challenge, which would provide all speakers with the same exemptions provided to the exempt me dia, because a ruling of facial invalidity would not grant Citizens Un ited any additional relief. See United States v. Nat’l Treasury Emps. Union , 513 U.S. 454, 477–78 (1995) (“[ A]lthough the occasional case requires us to entertain a facial challenge in order to vi ndicate a party’s right not to be bound by an unconstitutional statute, we neither want nor need to provide relief to nonparties when a narrower remedy will fully protect the litigants.” (citation omitted)). In assessing the constitutionality of Co lorado’s disclosure requirements, we consider whether they satisfy ex acting scrutiny. This is the standard generally applied to such requirements. See, e.g. , Doe v. Reed , 561 U.S. 186, 196 (20 10) (“We have a series of precedents considering Firs t Amendment challenges to disc losure requirements in the electoral context. These precedents have re viewed such challenges under what has been termed ‘exacting scrutiny.’”); Citizens United v. Fed. Election Comm’n , 558 U.S. 310,18 366 (2010) (“The Court has subjected [disclaimer and disclosure] requirements to exacting scrutiny” (internal quotation marks omitted)); Davis v. Fed. Election Comm’n , 554 U.S. 724, 744 (2008) (governmental in terest in disclosure requirements “must survive exacting scrutiny” (internal quotation marks omitted)); Buckley v. Valeo , 424 U.S. 1, 64 (1976) (“Since NAACP v. Alabama [357 U.S. 449 (19 58),] we have required that the subordinating intere sts of the State [in compelle d disclosure] survive exacting scrutiny.”); Sampson v. Buescher , 625 F.3d 1247, 1254

‒ 61 (10th Cir. 2010) (under exacting-scrutiny review, Colorado disclosu re requirements were unconstitutional as applied to a neighborhood organization opposing ballot measure to annex the neighborhood to adjacent town). For the law to pass muster there must be “a substantial relation between the disclosure requirement and a sufficiently important governmental interest.” Citizens United , 558 U.S. at 366–67 (internal quotation marks omitted). “That is, the strength of the governmental interest must reflect the seriousness of the actual burden on First Amendment rights.” Reed , 561 U.S. at 196 (internal quotation marks omitted). Although Citizens United contends that we should apply the more stringent standard of strict scrutiny because Colora do law discriminates against speech based on the identity of the speaker, we need not address this cont ention because Citizens United’s challenge prevails under the exacting-scrutiny standard. Our analysis proceeds as follows: First, we discuss the purpose of disclosures relating to electioneering communications and independent expenditures (those not coordinated with a candidate). We agree with the Secretary that they serve the purpose of19 providing the electorate with in formation about the source of election-related spending. In light of the Supreme Court’s analysis in Citizens United , however, we do not agree that they play a role in de terring or exposing campaign corr uption. Next, we address the justifications for the media ex emptions under Colorado law. We reject the Secretary’s contention that the media exemptions can be justified on the ground that the First Amendment provides greater protection for th e press than other speakers. The Supreme Court rejected that proposition in Citizens United . And we reject the suggestion in the Secretary’s brief that the exemption is jus tified by the professionalism and objectivity of the press. But we accept the Secretary’s c ontention that the exemptions are justified on the ground that familiarity with the media sufficiently enable s the electorate to evaluate reports and opinions in the medi a. This justification, howe ver, amounts to saying that Colorado has no sufficiently im portant governmental intere st in disclosure by the exempted media because the electorate can adequately evaluate their articles and opinions anyway. That being the case, Co lorado likewise has no sufficiently important governmental interest in requiring those same disclosures by Citizens United, which— through its history of pr oducing films—can just as easily be evaluated by the electorate. 1. Governmental Interests in Disclosure The Secretary’s brief states: “Colorado’ s disclosure laws are narrowly tailored to serve two compelling government interests—en suring that Colorado’s electors are able to discern who is attempting to influence their votes, and disc ouraging corruption by making large independent expenditures a matter of public record.” Aplee. Br. at 16. We20 agree in part. In Citizens United the Supreme Court recognized that disclosures related to independent expenditures can “help citizens make informed choices in the political marketplace.” 558 U.S. at 368 (int ernal quotation marks omitted); see also First Nat’l Bank of Bos. v. Bellotti, 435 U.S. 765, 792 n.32 (1978) (“Id entification of the source of advertising may be required as a means of di sclosure, so that the people will be able to evaluate the arguments to which they are bei ng subjected.”). Colorado can rely on this informational interest fo r its disclosure scheme. We reject, however, the Secretary’s asse rtion of an anticorruption rationale for reporting independent expenditure s. The Secretary cites Supr eme Court authority for the proposition, such as McCutcheon v. Federa l Election Commission , 134 S. Ct. 1434, 1459 (2014) (disclosure requirements may “deter actual corruption and avoid the appearance of corruption by exposing large contributions a nd expenditures to the light of publicity”), and Buckley , 424 U.S. at 67 (“[D]isclosure requi rements deter actual corruption and avoid the appearance of corrupt ion by exposing large contri butions and expenditures to the light of publicity. This exposure may discourage th ose who would use money for improper purposes either before or after the election.” (footnote omitted)). But those statements were made in the course of c onsideration of disclosure requirements that applied to much more than just independent expenditures—in particular, disclosure of direct contributions to candidates. The Court’s present doctrine sharply distinguishes contributions to candidates or expenditu res coordinated with candidates from independent expenditures free of any such coor dination. It recognizes that expenditures21 and contributions that are not independent pr esent a risk of quid pro quo corruption. See Citizens United , 310 U.S. at 356

‒ 57. But the Court has emphatically stated that independent expenditures are not tied to corruption: “[W]e now conclude that independent expenditures, including those made by corporations, do not give rise to corruption or the appearance of corruption.” Id. at 357. “The absence of prearrangement and coordination of an expenditure with th e candidate or his agent not only undermines the value of the expenditure to the candida te, but also alleviates the danger that expenditures will be given as a quid pro quo for improper commitments from the candidate.” Id. (internal quotation marks omitted). Th e Court noted that the voluminous record in McConnell v. Federal Election Commission , 251 F. Supp. 2d 176, 209 (D.D.C. 2003), aff’d in part, rev’d in part , 540 U.S. 93 (2003), did not contain any examples of votes by elected officials being exchanged for expenditures. See Citizens United , 558 U.S. at 360. In light of what the Supreme Court has said, the Secretary must explain (and support with evidence) how disclosures of in dependent expenditures would help deter or disclose the quid pro quo corrup tion of concern to the Court. This he has failed to do.
2. Justification for Media Exemptions Given the governmental interest in di sclosure, why are the media exempted, at least in part? Because the justification for the exemptions concerns th e specifics of the Colorado disclosure laws, not press exemptions in the abstract, a brief review of the disclosure requirements and exemptions is useful. Fi rst, the disclosure requirements are not22 expansive. Although electioneering communi cations (statements that mention Colorado candidates) and expenditures (to support or oppose Colorado candidates) must be reported, the requirements to disclose the fi nancial backers of organizations (such as corporations) that make electioneering comm unications or independent expenditures are limited. Donors to the general funding of th e organization need not be disclosed. The only donors who must be disclosed (by name and occupation) are those who earmark contributions for the specific, exclusive purpose of electioneering communications or expenditures regarding Co lorado candidates. As for the media exemptions, no reporting is required for any news or opinion piece (not including advertising) appearing in a printed periodical. The exemption extends to letters to the edito r and op-eds, regardless of whet her the letters or op-eds have been instigated or funded by an organization. And the “printed” press includes online newspapers and blogs, regardless of the ideo logical bias of the newspaper or blog. Opinions (again, other than ad vertisements) aired by a broadcast facility (including cable) are also exempt. Although ne ws reports by broadcast media are not explicitly exempted, the Secretary apparently treats them the same as news reports in the print media. So how does the Secretary explain the media exemptions ? Two of the Secretary’s proffered justifications can be disposed of su mmarily. First, the Secretary says that “‘a valid distinction exists between corporations th at are part of the media industry and other corporations that are not in volved in the regular busine ss of imparting news to the public.’” Aplee. Br. at 41 (brackets omitted) (quoting McConnell , 540 U.S. at 208, which23 was overruled by Citizens United on that point). That reason, at least as a constitutional proposition, can no longer stand after Citizens United . The Supreme Court wrote: “There is no precedent supporting laws that attempt to distinguish between corporations which are deemed to be exempt as medi a corporations and those which are not. We have consistently rejected the pr oposition that the institutional press has any constitutional privilege beyond that of other speakers .” Citizens United, 558 U.S. at 352 (emphasis added, internal quotation marks omitted). This is not to say that a statute can never properly distinguish the news media from ot her speakers. But that distinction has no basis in the First Amendment and cannot im munize differential treatment from a First Amendment challenge; a difference in treatm ent would have to be defended on other grounds. Second, the Secretary’s brief contends that “whereas journalism seeks to inform or educate the public and expose ideas at regular intervals in a transparent, balanced, and accountable manner, drop-in political advertisemen ts appeal to the emotions of viewers or readers with the goal of pure persuasion.” Aplee. Br. at 38. One can hope that transparency, balance, and acc ountability are ideals of “journa lism” as a profession. But it is a highly questionable proposition that ne wspapers and broadcas t stations (to say nothing of blogs) are uniformly tran sparent, balanced, and accountable. Our nation’s founding and history are replete with examples of highly partisan newspapers, and many observers would say that some m odern media continue the tradition. In any event, the Secretary in effect abandoned th is contention at oral argument, stating that partisanship is24 not a factor in determining whether the Colo rado media exemptions apply. Speaking of blogs, he said: “[I]t doesn’t matter whether they take an ideological point of view. The whole blog could be devoted an d many are to promoting the Republicans, promoting the Democrats, the Green Party, the Libertarians, whoever. That’s not the issue. It’s not the viewpoint or the content that makes a difference.” Oral Arg. 23:02

‒ 23:17. The abandonment of the “transparent, bala nced, and accountable” contention was welladvised. Cf. San Juan Cnty. v. No New Gas Tax , 157 P.3d 831, 841 (Wash. 2007) (“We agree with the Federal Election Commission that for the media exemption to apply, the publication need not be fai r, balanced, or avoid express advocacy or solicitations.”). The third justification, expressed in a vari ety of ways in the Secretary’s brief, is that the electorate can properly assess a stat ement by the exempted media because of its familiarity with the sour ce. The brief states: [T]he exemption of some communicati ons and the inclusion of others represents a policy choice not about the viewpoints expressed in those communications, but about the heuristic cu es that a viewer or reader may be able to glean from the medium of e xpression. Simply put, in adopting Amendment 27 [to the Colorado Constitution], Colo rado’s citizens determined that voters shou ld be armed with the ab ility to find out who is attempting to influence their votes. Communications that qualify for the press exemption are not in cluded because such info rmation is often easily discernible from the communication itself. Aplee. Br. at 22. Later the brief makes the same point: “[T]he line drawn by Colorado’s press exemption centers on an audience membe r’s ability to evaluate the credibility of a particular message to determine th e weight that it should be given.” Id . at 38.25 The brief distinguishes the medi a from single-shot speakers who have no track record and can use a misleading name (say, Voters for a Better World) to make assessment of their purposes difficult, if not impossible. In contrast to communications by the exempted media, asserts the brief, “isolated instance s of anonymous express advocacy leave voters adrift, without the context necessary to appropriately evaluate the message.” Id. at 34. The point is repeated several times later in the brief: [U]nlike advocacy groups such as Citizens United—which often engage in drop-in advocacy like a st andalone film, a single election mailer, or an anonymous website[—]organizations engaging in traditional press functions publish at regular intervals, wh ich, in turn, provid e electors with a context for evaluatin g any given message.
Id. at 40. Unlike political advocacy groups, whos e names often do not provide any useful cue or meaningful information to help a voter evaluate . . . that message, communications that qualify for the press exemption generally provide viewers with various means fo r determining who is speaking and, therefore, what weight to give the message.
Id. at 42 (brackets, citations, and inte rnal quotation marks omitted). [A]udiences can assess th e accuracy of a newspa per’s reporting by looking at its practices over time, or determine what weight to give its articles by reviewing its masthead or a blog’s lis t of reporters. In contrast, drop-in political advocacy, like Rocky Mountain Heist , does not afford audiences the same ability to asse ss the message’s reliability or determine what weight to give it.
Id. at 42

‒ 43 (citations omitted). The brief sums up: [T]he exemptions at issue in this case, which apply to both independent expenditures and electioneering co mmunications, are appropriately designed to require disclosure only where a voter’s ability to satisfy the informational interest is most lacking. Each category of exempted26 communication, by virtue of its medi um, permits viewers or readers to assess and evaluate the messagi ng more easily than a transient communication like Rocky Mountain Heist . Viewers can evaluate the messaging in written periodicals by looki ng to the publication’s masthead, list of reporters, the angle of news reporting over a period of time, and practice of publishing at regular interv als. Many of the same factors would apply to editorial endorsements or opi nions aired by a broadcast facility.
Id. at 45–46 (citations omitted). 7

7 In supporting the proposition that “the line drawn by Colorado’s press exemption centers on an audience membe r’s ability to evaluate the credibility of a particular message,” Aplee. Br. at 38, the Secretary’s brief includes the following paragraph: “Second, in contrast to advocacy groups who often engage in specific fundraising appeals in order to engage in a particular initiative or to champion a particular political message, traditional news organizations typically do not engage in fundra ising initiatives for express advocacy pieces or so licit money from subscribers who wish to earmark their funds for a specific message. An d, even if they were to engage in such fundraising and solicitation efforts, . . . such communications would not qualify as press.” Aplee. Br. at 39–40 (citations omitted). We are not sure what to make of this. The brief does not tie the paragraph to the ability of a reader to evaluate the messa ge. Perhaps the paragraph is only expressing the propositio n that certain types of communications—such as solicitations for money to fund a specific message by the entity—are not traditional press functions and would not be exem pt from disclosure requiremen ts even if engaged in by an exempted media entity. This proposition is suggested by the three case citations supporting the second sentence. See id. at 40 (“ see also McConnell v. FEC , 540 U.S. 93, 208 (2003) (press exemption ‘does not afford carte blanche to medi a companies generally to ignore [the federal campaign statute’s] provisions’); Readers Digest , 509 F. Supp. at 1214 (rejecting assertion that the press ex emption would ‘exempt any dissemination or distribution using the press entity’s personne l or equipment, no ma tter how unrelated to its press function’); San Juan County v. No New Gas Tax , 157 P.3d 831, 841 (Wash. 2007) ([stating that ‘[t]]he di stinction between “political a dvertising” and “commentary” may be relevant in deciding whether a me dia entity is performing a legitimate press function [and providing as an illustration, a radio station’s giving a campaign free air time for which it usually charges].’)”). A nd the proposition is consistent with the language of the Colorado media exemptions, which limit them to no more than “news articles, editorial endorsements, opinion or co mmentary writings, or letters to the editor.” Colo. Const. art. XXVIII, § 2(7)(b); see id. § 2(8)(b). Certainly, solicitations are neither articles nor opinion pieces. Read in this light, the paragraph is not providing a justification for a media exemption, but on ly for limiting the scope of the exemption Continued . . .27 We get the message. And it has weight. When a speaker “drops in” on an election and starts talking about candidates and issu es, the electorate wants to know who the speaker is to better enable it to evaluate the message. Knowing who is financing the speaker can be helpful in this regard. But when the speake r belongs to the media, the electorate has ample means of making the eval uation. Of course, there may be questions about whether a speaker belong s to the exempted media; but major factors are obviously

granted to the exempted media. Because Citizens United has not presented any argument that it should be treated more leniently than other media, we do not concern ourselves with whether these limitations on the exemptions can with stand constitutional scrutiny. On the other hand, one might be able to read into this cryptic paragraph an argument that the media are granted an exem ption because they wo uld have nothing to disclose anyway. If this is the argument intended, it is not adequately presented to preserve the point. Moreover, the argumen t is flawed. The Secretary cites to no legislative or administrative au thority or court decision recogn izing this justification for the press exemption, and, more importantly, he provides no eviden tiary support for the factual premise. He cites only the following exchange during the testimony of his expert witness at the district-court hearing: “[Couns el for Secretary:] Have you ever heard of an organization like The Denver Post or The New York Times raising money specifically to put on an ideological —strike that—a film that contains express advocacy for or against a candidate? [Professor Shepar d:] I am not aware of any traditional press organization that would spend this kind of money for a one-time express-advocacy piece in the weeks before an election.” J. App. at 263. Th is testimony establishes nothing relevant. The witness limits himself to “any traditional pr ess organization,” which would likely exclude many of the online media that qualify for the Colorado media exemptions. He discusses only “one-time” pieces, which is an undefined term that may not include repeat players like Citizens United. And he says nothing ab out earmarked donations, such as whether blogs receive them or whether repeat-playe r film makers would have any reportable donations. Consequently, this one sentence of testimony is too slim a reed on which to rest the no-need-to-disclose argument. Furt her, if earmarked donati ons to the exempted media are rare (and therefore unexpected), one would think that there would be a heightened, rather than a dimi nished, interest in learning that the unexpected event (a donation) had occurred.28 whether it has spoken sufficiently frequently and meaningf ully (not in 30-second sound bites) over an extended period of time—factors that closely correlate with the opportunity of the public to evaluate the speaker. See Aplee. Br. at 40 (“organizations engaging in traditional press functions publish at regular intervals, which, in turn, provide electors with a context for evaluating any gi ven message”). For example, in Bailey , which the Secretary endorsed as setting forth how to disti nguish a blog that is eligible for the media exemption from one that is not, the court wrote that “[t]his case could well have come out differently if the Cutler Files had any sort of track record before it appeared on August 30, 2010, or if it had extended beyond its two month run.” 900 F. Supp. 2d at 91. At the very least, it is reasonable for Co lorado to provide a media exemption on this ground. This ground, however, has an e quivalent formulation that is fatal to the Secretary’s position in this case. What the Se cretary is saying, in essence, is that the exemption is justified beca use the interest supporting the disclosures required by Colorado law—to give the electorate the means to evalua te a speaker—does not apply to the exempted media’s reports and commentary as that interest is adequately satisfied by their history of reporting a nd offering opinions. And once that proposition is accepted, the Secretary must explain why the interest in those disclosures nevertheless applies to films by Citizens United. In our view, the Secretary has not supplied an adequate explanation. See United States v. Nat’l Treasury Emps. Union , 513 U.S. 454, 474 (1995) (“Congress’ decision to provide a total exem ption [from a ban on ho noraria for speeches and articles by federal employees] for all unrelated series of speeches undermines29 application of the ban to individual speeches and articles with no nexus to Government employment.” (emphasis added)); City of Ladue v. Gilleo , 512 U.S. 43, 52 (1944) (“Exemptions from an otherwise legitimate re gulation of a medium of speech . . . may diminish the credibility of the government’s rationale for restricting speech in the first place.”). The Secretary refers to Citizens United as a “drop-in” advocate, but in the relevant sense of that adjective, it is anything but. In terms of providing the requisite context for its messages, it is similar to exempted blogs and opinion shows on radio and cable television. Citizens United has an extended history of producin g substantial work, comparable to magazines or TV special news reports rather than advertisement sound bites. Rocky Mountain Heist is its 25th film on political and religious topics over the course of 10 years. This history provides information about Citizens United that is at least as accessible to the public as donor lis ts reported to the Secretary. The dissent would have us compar e Citizens United to The Denver Post in evaluating the public’s interest in disclosure. But th at is not the relevant comparison. The disclosure exemptions are not limited to major Colorado metropolita n newspapers. They cover small weekly papers, quarterly national journals, onlin e newspapers, and bl ogs originating from anywhere in the world. The Secretary has tried to explain why such entities should be30 exempted but not Citizens United, and he has failed. 8 The electorate would have far more cues to evaluate a doc umentary by Citizens United than an editorial in a weekly newspaper or quarterly magazine that rarely addresses controversial political topics. Because Colorado has determin ed that it does not have a sufficient informational interest to impose disclosure burdens on me dia entities, it does not have a sufficient interest to impose those requirements on Citizen s United. There cannot be “a substantial relation between the disclosure requirement and a sufficiently important governmental interest,” Citizens United , 558 U.S. at 366

‒ 67 (internal quotation marks omitted), when there is no important governmental in terest. In particular, the film Rocky Mountain Heist is exempt from treatment as an electi oneering communication or an independent expenditure. The costs of its production a nd distribution, and donations earmarked for those purposes, need not be disclosed.

8 The dissent at pages 4

‒ 5 also seems to suggest that there is something unique about films (as a distinct “form of . . . speech”) that justifies distinguishing Citizens United from other media. But the Secretary has made no such argument, and we would reject it anyway. We fail to see any material diffe rence between a documentary as a DVD and a documentary broadcast on TV. The Supreme Court has said that the First Amendment does not recognize distinctions among medi a used to convey political views. See Citizens United , 558 U.S. at 326 (“Courts, too, are bou nd by the First Amendment. We must decline to draw, and then re draw, constitutional lines based on the particular media or technology used to disseminate political sp eech from a particular speaker.”). And in striking down a state statute restricting sales of violent video games to minors, the Court noted the absence of restrictions on violence in other media. See Brown v. Entm’t Merchs. Ass’n , 131 S. Ct. 2729, 2736

‒ 39; id. at 2740 (“Here, California has singled out the purveyors of video games for disfavor ed treatment—at least when compared to booksellers, cartoonists, and movie produ cers—and has given no persuasive reason why.”).31 The dissent suggests that we should not “focus[] on Citizens United and its required disclosure” but rather “whether there is a substantial relation between the State’s interest and the disclosure scheme as a whole , not a single hypothetical .” Op. (Phillips, J. dissenting) at 2 (internal quota tion marks omitted). But that cannot be correct. Such an approach eliminates the possibility of as-applied review. Courts can, and often do, recognize the overall propriety of a stat utory scheme while still invalidating its application in a specific case. See, e.g. , MCFL , 479 U.S. 238 (statutory expenditure restriction is unconstitutional as a pplied to specific organization); Sampson , 625 F.3d 1247 (disclosure requirement is unconstitutiona l as applied to specific organization). Also, we cannot justify shirking our cons titutional duty becaus e of the dissent’s concerns about determining wh o qualifies for the media exem ptions. To be sure, there could be challenging questi ons about what entities are en titled to the same relief as Citizens United. But those challenges are in herent in the exemptions expressed in Colorado law. Already the Secretary of St ate has had to grapple with whether various media are included in the ex emptions and has decided that online newspapers and blogs are “printed,” Colo. Const. art. XXVII, § 2(8 )(b)(I); apparently gran ts broadcast facilities the same exemption as print media receive for “articles”; and recognizes the difficulty of32 determining when a publication (hard c opy or electronic) is a periodical, see, e.g. , Oral Arg. 18:14

‒ 19:17. 9 The above analysis does not apply, howe ver, with respect to advertisements for Rocky Mountain Heist that mention a candidate or e xpress support or opposition to election of a candidate. Citizens United has not shown that such advertisements come within the Colora do exemption for exempted media, 10 and thus has not shown that it is being treated differently from those media in th is respect. Because the only relief sought

9 JUDGE: And what determ ines whether a publication is a magazine or a newspaper? Could Citizens United just labe l a flyer “Citizens United Gazette” and—and avoid the disclosure requirements? ATTORNEY FOR SECRETARY: It—I want to say I know it when I see it, but, you know, that doesn’t—that doesn’t ha ve the greatest history. The— JUDGE: There are no regulations rega rding how that’s de termined; is that correct? ATTORNEY FOR SECRETARY: Maybe that’s the best answer. Yes. I mean, I can tell you—I can certainly tell you wh at is and wouldn’t be. Clearly The New York Times is a newspaper or periodical. Clearly a glossy mailer that appears in my mail box or is taped to my door that is one page and is focused solely on a ca ndidate for office is not. Is there—is there a lot of middle ground there? Yes. But I think the best line to draw is—is it—well, let me just leave it there.

10 Perhaps the rationale for the media exemp tion would also apply to a media entity’s own advertisements—for exam ple, a newspaper’s advertisement promoting its article unambiguously referencing a candidate—beca use the audience will similarly have enough information to evaluate who is spea king. We do not reac h this issue because Citizens United’s complain t focuses on the differential treatm ent of media entities. If an exempted media entity is subj ect to disclosure requirement s for advertisements that it places in other media, then C itizens United may also be subj ect to those requirements for advertisements of Rocky Mountain Heist. Of course, if the Secretary determines on reconsideration that a media entity need not disclose spending on its own advertisements that unambiguously reference a candidate or expressly support or oppose a candidate, then this requirement cannot be imposed on Citizens United.33 by Citizens United in this cas e is that it benefit from th e same exemptions as the exempted media, we can grant it no relief from any disclosure requirem ents applied to its advertising. 11 C. Remaining Preliminar y-Injunction Factors Having determined that Citiz ens United’s First Amendment argument is valid, the remaining preliminary- injunction factors present little difficulty. See Hobby Lobby , 723 F.3d at 1145 (“[I]n First Amendment cases, the likelihood of success on the merits will often be the determinative factor.” (internal quotation marks omitted)). First, “the loss of First Amendment freedoms, for even minimal periods of time, unque stionably constitutes irreparable injury.” Id. (internal quotation marks omitted). Citizens United is poised to distribute its film and would suffer irreparable injury if it were forc ed to comply with disclosure provisions that are unconstitutional as applied to it. Second, “when a law . . . is likely unconstitutional, the interests of those the government represents, such as voters[,] do not outweigh a plaintiff’s inte rest in having its constitutional rights

11 We are puzzled by the dissent’s contention that we are deciding this case on equalprotection grounds rather than under th e First Amendment. Citizens United has repeatedly disclaimed any reliance on the Equal Protecti on Clause and our analysis follows settled First Amendment law. Yes, we compare the treatment of Citizens United to the treatment of the exempted media. But that is solely to dete rmine whether Colorado has provided a sufficiently important gove rnmental interest to justify requiring disclosures by Citizens United. We examin e the reason provided by the Secretary for Colorado’s decision that there is no sufficien t governmental interest in disclosures by the exempted media, determine that the reason applies equally to Citizen United’s films, and conclude that Colorado has not identified a sufficiently important interest to justify requiring disclosure by Citizens United.34 protected.” Id. (brackets and internal quotation marks omitted). Finally, “it is always in the public interest to prevent the viol ation of a party’s constitutional rights.” Id. (internal quotation marks omitted). In sum, all prel iminary-injunction fact ors weigh heavily in favor of Citizens United. 12 And because the district c ourt’s denial of a preliminary injunction rested on what we hold to be an error of law, we must reverse the denial. By forbidding enforcement of portions of Colorado law against Citizens United at this stage of the litigation, we are no more rewriting Colorado law than a court does whenever it holds a statutory provision unconstitutional as a pplied. To provide only two examples, in MCFL , 479 U.S. 238, the Supreme Court he ld that a provision of federal election law could not apply to a specific party, and in Sampson , 625 F.3d 1247, we held that Colorado disclosure requirements c ould not be imposed on a neighborhood organization opposing annexation to an adjacent town.

12 The district court held that Citizens United’s showing on the four preliminaryinjunction factors was required to meet a he ightened standard applicable to certain disfavored injunctions. “Three types of preliminary injunctions are specifically disfavored: (1) preliminary injunctions th at alter the status quo; (2) mandatory preliminary injunctions; and (3 ) preliminary injunctions that afford the movant all the relief that it could recover at the conc lusion of a full trial on the merits.” Fundamentalist Church of Jesus Christ of Latter-Day Saints v. Horne , 698 F.3d 1295, 1301 (10th Cir. 2012). The district court ruled that this case implicated the first and third categories. For these disfavored preliminary injunctions, “the movant has a he ightened burden of showing that the traditional four factors weigh heavily and compellingly in its favor before obtaining a pre liminary injunction.” Id. (internal quotation marks omitted). We need not decide whether a hei ghtened standard applies here, however, because all four of the preliminary-injunction factors weigh compellingly in Citizens United’s favor.35 IV. CONCLUSION We REVERSE the district court’s deni al of a preliminary injunction and REMAND with instructions to issue a prelimin ary injunction consistent with this opinion.
ENTERED FOR THE COURT

Harris L Hartz Circuit Judge1 No. 14-1387, Citizens United v. Gessler et al. PHILLIPS , Circuit Judge, concurring in part and dissenting in part: I concur with the majority that Citizens United must comply with Colorado’s campaign disclosure requirements for adve rtisements relating to its new film, Rocky
Mountain Heist

. See Maj. Op. at 32–33. I re spectfully dissent from th e majority’s reversal of the district court’s decision requiring that Citizens United comply with all other disclosure requirements. I disagree with the majority’s conclusion that the disclosure requirements violate Citizens United’s First Am endment rights, and that this Court has authority under the First Ame ndment to rewrite additional exemptions into Colorado’s Constitution and statutes. I agree with the majority that we use exacting scrutiny to evaluate campaign disclosure requirements. Citizens United v. Fed. Election Comm’n , 558 U.S. 310, 366–67 (2010); Buckley v. Valeo , 424 U.S. 1, 64 (1976). To satisfy this level of review, disclosure requirements must have a “relevant correlation” or a “substantial relation” to a sufficiently important governmental interest. Buckley , 424 U.S. at 64; Citizens United , 558 U.S. at 366–67. He re, one important government interest is the need to “ensur[e] that Colorado’s electors are able to discern who is attempting to influence their votes.” Maj. Op. at 19. This important inte rest, tied to “help[ing] citizen s make informed choices in the political marketplace,” is sufficient to uphold disclosu re requirements against First Amendment challenges, even those disclo sure requirements that include media exemptions. Citizens United , 558 U.S. at 367, 369; Human Life of Wash., Inc. v.2 Brumsickle , 624 F.3d 990, 1011–12 (9th Cir. 2010). Despite this preliminar y common ground, the majority’s and my paths then diverge. Unlike the majority, I a pprove of the district court’s view of what is required to sustain exacting scrutiny here. Rather than focusi ng on Citizens Unite d and its required disclosure, the district court considered “whe ther there is a substantial relation between the State’s interest and the disclosure scheme as a whole, not a single hypothetical .” Citizens United v. Gessler et al. , -- F. Supp. 3d --, 2014 WL 4698480 at *7 (D. Colo. Sept. 22, 2014) (emphasis added ). I agree with that approach. 1 In contrast, the majority adopts Citizen s United’s position on exacting scrutiny and considers whether requiring Citizens United to disclose becomes unlawful if traditional media need not disclose. After hearing that pos ition, the district court remarked that “[i]t

1 The majority contends that I have e liminated the possibility of an as-applied challenge by my agreeing with the district court that th e proper focus should be on “whether there is a substantial relation betw een the State’s interest and the disclosure scheme as a whole, not a single hypothetical .” Maj. Op. at 31. This contention misunderstands my position. I say that Citi zens United hasn’t made a traditional asapplied challenge because it admits that the di sclosure law would be valid against it if the law also applied against the exempted trad itional media. By then arguing that the disclosure law becomes unconstitutional by treating traditional media differently, Citizens United, in my view, veers to an equal protection challe nge, not an as-applied challenge under the First Amendment. See United States v. Huet , 665 F.3d 588, 600–01 (3d Cir. 2012) (stating that “an as-applied challenge does not contend that a law is unconstitutional as written but that its applica tion to a particular pe rson under particular circumstances deprived that pe rson of a constitutional right.”). See also Fed. Elec. Comm’n v. MCFL , 479 U.S. 238, 250-51, 263 (1986). (finding federal disclosure statute unconstitutional as applied to plaintiff’s particular conduc t rather than unconstitutional because it applied to plaintiff’s conduct and not to entities covered by statute’s press exemption) (emphasis added).3 sounds like you’re making an equal protec tion argument, and yet yo u keep telling us, no, we’re not.” Dist. Ct. Trans. 19:9–11. The di strict court’s comment arose from the bases upon which Citizens United atta cked the disclosure law: “W e are here because [Citizens United does] not want to have obligations imposed upon them that are not imposed upon other speakers.” Dist. Ct. Trans. at 7:21–23. Citizens United further co mplained that “the burden [of disclosure] . . . howe ver slight, does not, the magnitu de of the burden is not as important as the fact that the burden is im posed unequally.” Dist. Ct. Trans. at 19:5–8. And before us, Citizens United again complain ed about the “uneven disclosure” of the requirements: “there’s no question that th e obligation to keep records, to make disclosures is a burden and it’s unequally dist ributed and that makes this statute—this statutory regime facially unconstitutional.” 2 Oral Arg. Oct. 7, 20 14. Despite its argument, Citizens United admitted that Colorado could require it to disclose if there were no exemptions at all. The majority elects to analyze the issue under Citizens United’s approach. It first determines that Colorado has no important go vernment interest in requiring disclosure from the traditional media because Colo rado exempts the traditional media from disclosure. The majority then makes a case for why Citizens United is akin to traditional media, emphasizing that it has an “extende d history of produci ng substantial work,”

2 The majority decides the case on an as -applied basis, not reaching the facial challenge. I would reject the facial challenge too. Citizens United supports that challenge by arguing that the disclosure law discriminates on a speaker’s viewpoint; like the district court did, I too find no basis in Citizens United’s argument.4 which provides Colorado voters “information ab out Citizens United that is at least as accessible to the public as donor lists reported to the Secret ary.” Maj. Op. at 29. From this, the majority then makes a leap: it says that because Citizens United has the attributes of traditional media, Colorado must not have an important government interest in requiring disclosure from Citizens United. Al ong this same line, th e majority concludes that the First Amendment requires the Secretar y to treat Citizens United the same as the exempted media. Finding that he has not, the majority reve rses the district court and orders the Secretary to treat Citizens Unite d the same as the exempted media. This reasoning suffers from num erous fatal flaws. First, the majority cites no cases to support its First Amendment/Equal Protection legal theory. When the district court told Citizens United that this legal theory sounded in Equal Protection, Citizens United did not fa ll back upon any case decided on the same ground. Rather, Citizens Unite d relied upon cases in whic h regulations discriminated against speech based on viewpo int. In response, the dist rict court pointed out the undisputed fact that an indi vidual or group with ideologi cal views contrary to Citizens United would also have to satisfy the disclosure requirements. Dist. Ct. Trans. at 19, 21. Second, the majority assumes that if C itizens United is sufficiently media-like by producing 25 films, then Colorado voters have no more intere st in disclosure from it than they would for an exem pted media entity like The Denver Post . Maj. Op. at 29. This misses the mark. Colorado voters may indeed de sire to know the iden tity of the people or groups contributing to the making of Citizens United’s film as opposed to the names of5 The Denver Post ’s subscribers, advertisers, or lende rs. Colorado voters have determined at the ballot box that the id entity of Citizens United’s do nors who earmark financial contributions to produce or advertise a politic al film helps them evaluate the film’s
message. See Colo. Const. art. XXVIII, § 1; 8 Colo. Code. Reg. 1505-6:11 (requiring disclosure of donors who specifically earmar k donations above $250). I do not believe this Court acts within its proper sphere by second-guessing Colorado voters about the information they need to evaluate express advocacy such as made in Rocky Mountain
Heist

. Third, I believe that the majority errs in supposing that Citizens United is, in fact, not being treated equally with the exempted media. We must remember that “exempted media” are exempted only for certain communi cations made in limited forms of speech. Colorado law does not give those media entitie s a blanket exemption from disclosure of all electioneering communications and independ ent expenditures. In fact, the Secretary has said that, just as Citizens United must disclose donors who gave earmarked funds for its political film, the exempted media wo uld have to disclose under the same circumstances. For example, if The Denver Post 3 were to solicit an d obtain earmarked donations to produce a political film, it too would ne ed to disclose the donors earmarking

3 The result of this example—required disclosure—would be the same whether The Denver Post , The Wellington Weekly (a small, weekly news paper serving that town and the surrounding rural area), or any ot her normally-exempt entity obtained earmarked donations to produce a similar political film.6 their contributions for that film. 4 In view of this, it is no su rprise that the district court found that the disclosure exemptions are ba sed on the form of the speech, meaning that, “[f]or example, if Citizens United publishes an op-ed in a newspaper, it will not be required to disclose the fundin g behind the piece. Likewise, if the Denver Post produced a film expressly advocating for the reelecti on of Governor John Hickenlooper, it would be forced to comp ly with the disclo sure requirements.” Citizens United v. Gessler , 2014 WL 4698480, at *8. Fourth, the majority underse lls the importance of the Stat e’s evidence presented at the preliminary injunction hearin g that “[t]raditional news or ganizations typically do not engage in fundraising initiativ es for express advocacy pi eces or solicit money from subscribers who wish to earmark their funds for a specific message.” Appellee’s Br. at 39; see Dist. Ct. Trans. at 88:6–12. Th is provided some of the basis for the district court’s denial of the preliminary injunction. In fact , the district court addressed Citizens United’s argument to the contrary, finding it “rather no nsensical” and “clearly at odds with the operation of the disclosure laws” that “wit hout the exemptions newspapers would be

4 At oral argument, the Secretary noted that online editions of newspapers (i.e. The Denver Post ) and online political blogs would be exempt from disclosure. I see nothing wrong with the Secretary inte rpreting Colorado’s own disclosu re laws to determine that some blogging posts might qualify as “[a] ny news articles, editorial endorsements, opinion or commentary writings, or letters to the editor printed in a newspaper, magazine or other periodical not owned or controlled by a candidate or political party.” Colo. Const. art. XXVIII, § 2(7)(b)(I). And it is important to remember that the Secretary would still require the exempted bloggers to disclose their donors who fund a political film like Rocky Mountain Heist with money earmarked for that sole purpose.7 obligated to disclose the names of individua l subscribers, advertisers, and financial lenders.” Citizens United v. Gessler , 2014 WL 4698480, at *7. I agree with the district

court. Fifth, I disagree with the majority’s re medy once it concludes that the Colorado disclosure scheme violates the First Amendmen t. At that point, it should either sever the traditional media’s exemption from disclosure or strike the entire disclosure scheme. See Citizens for Resp. Gov’t State Pol. Action Comm. v. Davidson , 236 F.3d 1174, 1197 (10th Cir. 2000). But in my view, the majority ta kes a long stride toward lawmaking when it instead takes a pen to Colora do’s Constitution and statutes and writes in a nebulous third category of entities that the Court believes ha ve a First Amendment right to the same exemption because thos e entities supposedly are sufficiently similar to traditional media. Here, the majority concludes that an entity that has made 24 political films nationwide qualifies, even though Rocky Mountain Heist is its first film to focus on Colorado politics and draw particular attenti on inside Colorado. Under the majority’s approach, court battles loom for other “media equivalents” w ith less national presence or fewer films or other speech in their record. Will the Court later say that someone like Michael Moore, 5 a filmmaker with a contrary ideological view but fewer films, has a sufficient “extended history” so that Colorado c itizens can evaluate his message without knowing whether any

5 The district court used Michael Moore as the example to ask whether Colorado’s disclosure requirements would apply to someone of the contrary view. See Dist. Ct. Trans. at 5, 15.8 donors gave earmarked money toward his film? If not, will he have to disclose donors making earmarked donations for his films while Citizens United does not? Under the majority’s approach, no one can know without filing suit and then learning the answer on a case-by-case basis. I would rather trust Colora do citizens to know wh en they need or do not need disclosure to ev aluate a speaker’s message. Finally, although the major ity recounts, but does not rely upon, the Federal Election Commission’s (FEC) advisory opinion to support its result, I do wish to state my disagreement with Citizens Unite d’s argument that it should. In 2010, the FEC issued an advisory opinion concluding th at Citizens United’s costs of producing, dist ributing, and marketing its films were exempt under federal disclosure laws. Fed. Election Comm’n Advisory Op. No. 2010-08, 2010 WL 31 84266 (June 11, 2010). 6 Importantly, the FEC granted Citizens United exempt status not under the First Amendment, but under the federal disclosure exemption provision. See id. at *3-4 (citing 52 U.S.C. § 30104(f)(3)(B)). The FEC has authority to render its opinio n about the app lication of the Federal Election Campaign Act. See 52 U.S.C. § 30108. In my view, neither the Colorado Secretary of State nor this Court has corre sponding authority over Colorado disclosure

6 The FEC’s advisory opinion came fi ve months after the decision in Citizens United v. Fed. Election Comm’n , 558 U.S. 310, 37 1 (2010), meaning that Citizens United was not included in the media exception to di sclosure under federal law when the Court approved the disclaimer and disclosure requir ements to Citizens Un ited’s film at issue there, Hillary , under the Bipartisan Campaign Reform Act of 2002.9 exemptions as did the FEC over federal disclosure requirements. 7 See Citizens United v. Gessler , No. 1:14-CV-02266, Doc No. 1-2, at 8-10 (Secretary of State’s declaratory order denying Citizens United an exemption from Co lorado’s disclosure requirements) (citing Colorado Common Cause v. Gessler , -- P.3d --, 2012 WL 3755615, at *5 (Colo. Ct. App. Aug. 30, 2012) (holding that Secretary exc eeded his authority when he promulgated a rule based on federal law)). For the foregoing reasons, and remembering that it is Citizens United’s burden to prove its entitlement to a preliminary injunction, see Kikumura v. Hurley , 242 F.3d 950, 955 (10th Cir. 2001), I respectfully dissent.

7 Under the plain language of Colora do’s campaign disclosure laws, Citizens United is not exempted. First, as a filmmake r, it is not acting as a “newspaper, magazine, or other periodical” that is printing a “news articles, editorial endo rsements, opinion or commentary writings, or a letters to the editor.” See Colo. Const. art. XXVIII, § 2(7)(b)(I). Second, Citizens United is not a “broadcast facility.” Id. § 2(7)(b)(II).