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 Court
2 

 

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 district court, “its principal purpose is to 

promote social welfare through informing and educating the public on conservative ideas 

and positions on issues, including national defense, the free enterprise system, belief in 

God, and the family as the basic unit of society.” 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 Citizens United’s in-house unit, Citizens United 

Productions, and occasionally through affiliated entities. They are distributed through 

theatrical release, DVDs, television, and online 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 exchange for a portion of box-office sales; and 

licenses its films to television broadcasters and digital-streaming 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* This order and judgment is not binding precedent, except under the doctrines of law of 

the case, res judicata, and collateral estoppel. It may be cited, however, 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 charge to educational 

institutions and select members of the public and news media. It generally advertises its 

films on television, in newspapers, on billboards, by electronic and regular mail, and on 

the Internet. 

Citizens United recently completed production of a film titled Rocky Mountain 

Heist on the alleged impact of various advocacy 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 production and marketing is $773,975. Like other films produced 

by Citizens United, Rocky Mountain Heist will be distributed through DVD, television 

broadcast, and online digital streaming and downloading, and it will be advertised on 

television, radio, and the Internet. Because the film and some of its advertising will 

unambiguously refer to elected Colorado officials 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 disclosures 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 District Court for the District of Colorado to 

challenge under the First Amendment the disclosure provisions both on their face and as 

applied to Citizens United because it is treated differently from various media that are 
4 

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 challenge 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 Citizens United would likely prevail on the merits and therefore is 

entitled to a preliminary injunction. In light of (1) the Colorado disclosure 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 over 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 “expenditure” 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 October 3; also permitted a brief by the Intervenors Defendants 

Colorado Democratic Party, Garold A. Fornander, Lucía Guzmán, and Dickey Lee 

Hullinghorst; and now grant the motion by Citizens for Responsibility and Ethics in 

Washington, Colorado Common Cause, Colorado Ethics Watch, and Progressive United 

to participate as amici curiae. We held oral argument on October 7 and issued an interim 

order on October 14. This opinion explains the basis of that order and does not consider 

events occurring after October 14. 
5 

the disclosure provisions. But it has not demonstrated that the Secretary would exempt 

advertising placed by the exempted media if the advertisements mentioned a candidate or 

advocated for the election or defeat 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 provisions of Colorado law. 

I. COLORADO DISCLOSURE PROVISIONS 

Under the Colorado Constitution and the state’s Fair Campaign Practices Act 

(FCPA), speakers who engage in “electioneering communications” and “independent 

expenditures” are subject to various reporting and disclosure requirements. See J. App. at 

156. Electioneering communications are statements about candidates made shortly 

before an election. Article XXVIII of the Colorado Constitution and the FCPA define 

electioneering communication as:

any communication broadcasted by television 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 election 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 otherwise distributed to an audience that 

includes members of the electorate 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, loan, advance, deposit, or gift of 

money by any person for the purpose of expressly advocating the election 

or defeat of a candidate or supporting or opposing a ballot issue or ballot 

question. An expenditure is made when the actual spending occurs or when 

there is a contractual agreement requiring 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 candidate or agent of such candidate.” 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 candidates for office in Colorado. See Colo. Const. art. 

XXVIII, § 2(2). 

Under § 6 of Article XXVIII, any person (natural or artificial) expending $1000 or 

more per calendar year on electioneering communications must submit reports to the 

Secretary including the amounts spent on the electioneering communication; the name of 

the candidate referenced in the communication; and the name, address, 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 the 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 (through counsel) informed this court about 

oversight of the disclosure requirements. First, he does not require disclosure of the 

amount spent to produce an electioneering communication because there is no 
7 

communicative aspect to production. 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 production. 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 recipient to use the donation for electioneering 

communications and other purposes, and the entire 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 disclose the donor because all the money could 

be used for purchasing office paper. 

The disclosure requirements for independent expenditures are a bit different. 

Section 5 of Article XXVIII provides that any person making an independent expenditure 

in excess of $1000 per calendar year must file a notice with the Secretary providing a 

detailed description of the use of the independent 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 producing the film must be disclosed. Any 
8 

person making an independent expenditure or accepting a donation for the purpose of 

making an independent expenditure in excess of $1000 per year must create an 

independent expenditure committee, register with the Secretary, and, if the person is a 

corporation, report details of its corporate form and ownership structure within two 

business days of the date on which the expenditure 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 than $1000 per year must 

report to the Secretary the amounts spent and the name, address, occupation, and 

employer of any person who donated more than $250 “for the purpose of making an 

independent expenditure.” Id. § 1-45-107.5(4)(b). And any person making an 

independent expenditure in excess of $1000 is required to disclose any donation in excess 

of $20 given during the reporting 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, except that expenditures in excess of $1000 

made within 30 days of a primary or general election must be reported within 48 hours 

after obligating money for the independent expenditure. See id. § 1-45-107.5(4)(c). Any 

communication that constitutes an independent expenditure must prominently 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-communication context, the Secretary 
9 

requires the disclosure of an independent-expenditure donor only when the donor has 

specifically earmarked the money for independent expenditures. Thus, if Rocky 

Mountain Heist attacks or supports Colorado candidates, the production costs of the film 

must be disclosed, but a donation must be disclosed 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 would Citizens United be required to report a 

donation to be used, at Citizen United’s discretion, for films attacking or supporting 

candidates in states including (but not limited to) Colorado. 

Although the Secretary is responsible for 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 administrative 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 private cause of action in state district court. 

See id. Any person who violates the 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, expenditures, or donations is subject to a civil penalty of up to 
10 

$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 the above disclosure 

provisions. Excluded from the definition of expenditure are: 

(I) Any 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; 

(II) Any editorial endorsements or opinions aired by a broadcast facility not 

owned or controlled by a candidate or political party; 

(III) Spending by persons, other than political parties, political committees 

and small donor committees, in the regular course and scope of their 

business or payments by a membership organization for any 

communication solely to members and their families; 

(IV) Any transfer by a membership organization of a portion of a member’s 

dues to a small donor committee or political committee sponsored by such 

membership organization; or payments made by a corporation or labor 

organization for the costs of establishing, 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. § 1-45-103(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 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; (II) Any editorial endorsements or opinions aired by a broadcast facility not 

owned or controlled by a candidate 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 organization 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 the 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 exclusions to online editions of print newspapers, 

online-only newspapers, all broadcasts, cable shows, and even blogs, regardless of their 

partisan nature. The Secretary 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 exemption under federal law did not apply to a 

group’s one-time “Special Edition” newsletter based on factors distinguishing it from its 

regular publication, such as the use of different 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 the 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 challenge to the state’s refusal to apply to him the disclosure 

exemption for periodical publications. See id. at 91. 
12 

The exemptions do not encompass all possible campaign-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 fundraising and solicitation efforts [to raise money 

for the organization’s pieces], . . . such communications would 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 produced a documentary advocating for a candidate 

that was funded by solicited contributions). Of special interest in this case, the language 

exempting “news articles, editorial endorsements, 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 entity 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 Secretary has told the court as indicating that such an ad would 

be exempt from the disclosure requirements. 

II. THE PRESENT CONTROVERSY

In April 2014, Citizens United filed a Petition for a Declaratory Order with the 

Secretary requesting a ruling stating that Rocky Mountain Heist and related marketing 

activities would not qualify as “electioneering communications” or “expenditures” under 

Colorado law. In support of its request, it pointed out that the Federal Election 
13 

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) issued on June 11, 2010. 

Under the federal statute the definitions of electioneering communication3

 and 

expenditure4

 are similar to Colorado’s definitions. And the statutory exclusions from the 

definition, which the FEC refers to as the “press exemption,” J. App. at 30 (FEC 

Advisory Opinion 2010-08 (June 11, 2010)), are also similar.5

 The FEC construes the 

press exemption to cover a “legitimate press function” conducted by a “press or media 

 

3

 “The term ‘electioneering communication’ means any broadcast, cable, or satellite 

communication which refers to a clearly identified 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 preference election, or a convention or caucus 

of a political party that has authority to nominate 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, distribution, loan, advance, 

deposit, or gift of money or anything of value, made by any person for the purpose of 

influencing any election for Federal office; and a written contract, promise, or agreement 

to make an expenditure.” 52 U.S.C. § 30101(9)(A) (paragraph 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) (paragraph formatting 

omitted). An FEC regulation construes the term broadcasting station to include “any 

broadcast, cable, or satellite television or radio station.” See 11 C.F.R. § 100.29(c)(2). 

 The term expenditure does not include “any news story, commentary, or editorial 

distributed through the facilities of any broadcasting station, newspaper, 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 Opinion determined that Citizens United is a press 

entity and that distribution and production of its films are legitimate press functions. 

Noting that the FEC had read the press exemption “to cover cable television, the Internet, 

satellite broadcasts, and rallies staged and broadcast by a radio talk show,” it said that 

“[i]n fact, the Commission has not limited the press exemption to traditional news outlets, 

but rather has applied it to news stories, 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 “interpret[ed] ‘news story, commentary, or 

editorial’ to include documentaries and educational programming.” Id. at 32. It 

concluded that Citizens United’s costs of producing and distributing its films are entitled 

to the press exemption.6

 

Refusing to follow the FEC’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 Declaratory Order, Office of the Sec’y of State, 

 

6 The FEC also decided that Citizens United’s advertisements for its films are exempt. 

See J. App. at 34 (FEC Advisory Opinion). The FEC noted that “courts have held that 

where the underlying product is covered by the 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 advertising did not fall within 

Colorado’s exemption for print media and that Citizens United is not a broadcast facility. 

It also ruled that the exemption 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 Ethics in Government v. Committee for the American 

Dream, 187 P.3d 1207 (Colo. Ct. App. 2008), the Order stated that the regular-business 

exemption applies only to persons whose business 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 State 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 expenditure (supporting or attacking a candidate) because it 

was unclear whether the film would contain “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, alleging that Colorado’s reporting and disclosure 

requirements violate the First Amendment to the United States Constitution and 

Article II, §10 of the Colorado Constitution. Simultaneously, Citizens United filed a 

motion for a preliminary injunction prohibiting the Secretary from enforcing Colorado’s 

reporting and disclosure requirements against Citizens United and all other Colorado 

speakers. The district court denied Citizens United’s motion for a preliminary injunction 
16 

after determining that Citizens United’s facial and as-applied challenges did not have a 

substantial likelihood of success 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 the 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 alternative, it argues that those provisions are unconstitutional as 

applied to Citizens United and it must be provided the same exemptions as the print and 

broadcast media. 

A. Preliminary-Injunction Standard 

In determining whether to grant a preliminary injunction, a court must weigh 

(1) the likelihood that the movant 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 findings for clear error,”
17 

Att’y Gen. of Okla. v. Tyson Foods, Inc., 565 F.3d 769, 776 (10th Cir. 2009), and “[a] 

district court abuses its discretion by denying a preliminary 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 likelihood of success on the merits. 

B. Likelihood of Success on the Merits

We agree with Citizens United’s as-applied challenge to Colorado’s campaigndisclosure requirements. On the record before 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 media, because a ruling of facial invalidity 

would not grant Citizens United 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 vindicate 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 Colorado’s disclosure requirements, we 

consider whether they satisfy exacting scrutiny. This is the standard generally applied to 

such requirements. See, e.g., Doe v. Reed, 561 U.S. 186, 196 (2010) (“We have a series 

of precedents considering First Amendment challenges to disclosure requirements in the 

electoral context. These precedents have reviewed 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 interest 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 (1958),] we have required 

that the subordinating interests of the State [in compelled disclosure] survive exacting 

scrutiny.”); Sampson v. Buescher, 625 F.3d 1247, 1254‒61 (10th Cir. 2010) (under 

exacting-scrutiny review, Colorado disclosure 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 Colorado law discriminates against speech based on 

the identity of the speaker, we need not address this contention 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 of 
19 

providing the electorate with information 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 deterring or exposing campaign corruption. Next, we address the 

justifications for the media exemptions 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 the 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 justified by the professionalism and objectivity of 

the press. But we accept the Secretary’s contention that the exemptions are justified on 

the ground that familiarity with the media sufficiently enables the electorate to evaluate 

reports and opinions in the media. This justification, however, amounts to saying that 

Colorado has no sufficiently important governmental interest in disclosure by the 

exempted media because the electorate can adequately evaluate their articles and 

opinions anyway. That being the case, Colorado likewise has no sufficiently important

governmental interest in requiring those same disclosures by Citizens United, which—

through its history of producing 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—ensuring that Colorado’s electors are able to 

discern who is attempting to influence their votes, and discouraging corruption by 

making large independent expenditures a matter of public record.” Aplee. Br. at 16. We 
20 

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 (internal quotation marks omitted); see also First Nat’l 

Bank of Bos. v. Bellotti, 435 U.S. 765, 792 n.32 (1978) (“Identification of the source of 

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

evaluate the arguments to which they are being subjected.”). Colorado can rely on this 

informational interest for its disclosure scheme. 

 We reject, however, the Secretary’s assertion of an anticorruption rationale for 

reporting independent expenditures. The Secretary cites Supreme Court authority for the 

proposition, such as McCutcheon v. Federal Election Commission, 134 S. Ct. 1434, 1459 

(2014) (disclosure requirements may “deter actual corruption and avoid the appearance of 

corruption by exposing large contributions and expenditures to the light of publicity”), 

and Buckley, 424 U.S. at 67 (“[D]isclosure requirements deter actual corruption and 

avoid the appearance of corruption by exposing large contributions and expenditures to 

the light of publicity. This exposure may discourage those who would use money for 

improper purposes either before or after the election.” (footnote omitted)). But those 

statements were made in the course of consideration 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 expenditures coordinated with candidates from 

independent expenditures free of any such coordination. It recognizes that expenditures 
21 

and contributions that are not independent present 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 the candidate or his agent not only undermines 

the value of the expenditure to the candidate, 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). The 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 independent expenditures would help deter or 

disclose the quid pro quo corruption of concern to the Court. This he has failed to do. 

 2. Justification for Media Exemptions

 Given the governmental interest in disclosure, why are the media exempted, at 

least in part? 

Because the justification for the exemptions concerns the specifics of the Colorado 

disclosure laws, not press exemptions in the abstract, a brief review of the disclosure 

requirements and exemptions is useful. First, the disclosure requirements are not 
22 

expansive. Although electioneering communications (statements that mention Colorado 

candidates) and expenditures (to support or oppose Colorado candidates) must be 

reported, the requirements to disclose the financial backers of organizations (such as 

corporations) that make electioneering communications or independent expenditures are 

limited. Donors to the general funding of the 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 Colorado 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 editor and op-eds, regardless of whether 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 ideological bias of the newspaper or blog. 

Opinions (again, other than advertisements) aired by a broadcast facility (including cable) 

are also exempt. Although news 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 summarily. First, the Secretary says that “‘a 

valid distinction exists between corporations that are part of the media industry and other 

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

public.’” Aplee. Br. at 41 (brackets omitted) (quoting McConnell, 540 U.S. at 208, which 
23 

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 media corporations and those which are not. We have 

consistently rejected the proposition 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 other speakers. But that distinction has no 

basis in the First Amendment and cannot immunize differential treatment from a First 

Amendment challenge; a difference in treatment 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 advertisements 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 accountability are ideals of “journalism” as a profession. But 

it is a highly questionable proposition that newspapers and broadcast stations (to say 

nothing of blogs) are uniformly transparent, balanced, and accountable. Our nation’s 

founding and history are replete with examples of highly partisan newspapers, and many 

observers would say that some modern media continue the tradition. In any event, the 

Secretary in effect abandoned this contention at oral argument, stating that partisanship is 
24 

not a factor in determining whether the Colorado 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 and 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, balanced, 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 fair, balanced, or avoid express advocacy or solicitations.”). 

The third justification, expressed in a variety of ways in the Secretary’s brief, is 

that the electorate can properly assess a statement by the exempted media because of its 

familiarity with the source. The brief states: 

[T]he exemption of some communications and the inclusion of others 

represents a policy choice not about the viewpoints expressed in those 

communications, but about the heuristic cues that a viewer or reader may be 

able to glean from the medium of expression. Simply put, in adopting 

Amendment 27 [to the Colorado Constitution], Colorado’s citizens 

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

attempting to influence their votes. Communications that qualify for the 

press exemption are not included because such information is often easily 

discernible from the communication itself. 

Aplee. Br. at 22. Later the brief makes the same point: “[T]he line drawn by Colorado’s 

press exemption centers on an audience member’s ability to evaluate the credibility of a 

particular message to determine the weight that it should be given.” Id. at 38. 
25 

The brief distinguishes the media 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 instances 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 standalone film, a single election mailer, or an 

anonymous website[—]organizations engaging in traditional press 

functions publish at regular intervals, which, in turn, provide electors with a 

context for evaluating any given message.

Id. at 40. 

Unlike political advocacy groups, whose 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 for determining who is speaking and, 

therefore, what weight to give the message. 

Id. at 42 (brackets, citations, and internal quotation marks omitted). 

[A]udiences can assess the accuracy of a newspaper’s reporting by looking 

at its practices over time, or determine what weight to give its articles by 

reviewing its masthead or a blog’s list of reporters. In contrast, drop-in 

political advocacy, like Rocky Mountain Heist, does not afford audiences 

the same ability to assess 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 communications, are appropriately 

designed to require disclosure only where a voter’s ability to satisfy the 

informational interest is most lacking. Each category of exempted 
26 

communication, by virtue of its medium, permits viewers or readers to 

assess and evaluate the messaging more easily than a transient 

communication like Rocky Mountain Heist. Viewers can evaluate the 

messaging in written periodicals by looking to the publication’s masthead, 

list of reporters, the angle of news reporting over a period of time, and 

practice of publishing at regular intervals. Many of the same factors would 

apply to editorial endorsements or opinions 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 member’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 fundraising initiatives for 

express advocacy pieces or solicit money from subscribers who wish to earmark their 

funds for a specific message. And, 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 message. Perhaps the paragraph is 

only expressing the proposition 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 exempt from disclosure requirements 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 media companies generally 

to ignore [the federal campaign statute’s] provisions’); Readers Digest, 509 F. Supp. at 

1214 (rejecting assertion that the press exemption would ‘exempt any dissemination or 

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

its press function’); San Juan County v. No New Gas Tax, 157 P.3d 831, 841 (Wash. 

2007) ([stating that ‘[t]]he distinction between “political advertising” and “commentary” 

may be relevant in deciding whether a media 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].’)”). And 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 commentary 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 only 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 issues, 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 speaker belongs to the media, the 

electorate has ample means of making the evaluation. Of course, there may be questions 

about whether a speaker belongs 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 withstand constitutional scrutiny. 

On the other hand, one might be able to read into this cryptic paragraph an 

argument that the media are granted an exemption because they would have nothing to 

disclose anyway. If this is the argument intended, it is not adequately presented to 

preserve the point. Moreover, the argument is flawed. The Secretary cites to no 

legislative or administrative authority or court decision recognizing this justification for 

the press exemption, and, more importantly, he provides no evidentiary support for the 

factual premise. He cites only the following exchange during the testimony of his expert 

witness at the district-court hearing: “[Counsel 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 Shepard:] 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. This testimony establishes nothing relevant. The 

witness limits himself to “any traditional press 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 about earmarked donations, such as whether 

blogs receive them or whether repeat-player 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. Further, if earmarked donations to the exempted 

media are rare (and therefore unexpected), one would think that there would be a 

heightened, rather than a diminished, interest in learning that the unexpected event (a 

donation) had occurred. 
28 

whether it has spoken sufficiently frequently and meaningfully (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 given message”). For example, in Bailey, which the 

Secretary endorsed as setting forth how to distinguish 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 Colorado to provide a media exemption on 

this ground. This ground, however, has an equivalent formulation that is fatal to the 

Secretary’s position in this case. What the Secretary is saying, in essence, is that the 

exemption is justified because the interest supporting the disclosures required by 

Colorado law—to give the electorate the means to evaluate a speaker—does not apply to 

the exempted media’s reports and commentary as that interest is adequately satisfied by 

their history of reporting and 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 exemption [from a ban on honoraria for speeches 

and articles by federal employees] for all unrelated series of speeches undermines 
29 

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 regulation 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 producing 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 lists reported to the Secretary. The dissent 

would have us compare Citizens United to The Denver Post in evaluating the public’s 

interest in disclosure. But that is not the relevant comparison. The disclosure exemptions 

are not limited to major Colorado metropolitan newspapers. They cover small weekly 

papers, quarterly national journals, online newspapers, and blogs originating from 

anywhere in the world. The Secretary has tried to explain why such entities should be 
30 

exempted but not Citizens United, and he has failed.8 The electorate would have far 

more cues to evaluate a documentary by Citizens United than an editorial in a weekly 

newspaper or quarterly magazine that rarely addresses controversial political topics. 

Because Colorado has determined that it does not have a sufficient informational 

interest to impose disclosure burdens on media entities, it does not have a sufficient 

interest to impose those requirements on Citizens 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 interest. In particular, the film Rocky Mountain Heist 

is exempt from treatment as an electioneering communication or an independent 

expenditure. The costs of its production and 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 difference 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 media used to convey political views. See Citizens 

United, 558 U.S. at 326 (“Courts, too, are bound by the First Amendment. We must 

decline to draw, and then redraw, constitutional lines based on the particular media or 

technology used to disseminate political speech 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 disfavored treatment—at least when compared to 

booksellers, cartoonists, and movie producers—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 quotation 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 statutory scheme while still invalidating its 

application in a specific case. See, e.g., MCFL, 479 U.S. 238 (statutory expenditure 

restriction is unconstitutional as applied to specific organization); Sampson, 625 F.3d 

1247 (disclosure requirement is unconstitutional as applied to specific organization). 

Also, we cannot justify shirking our constitutional duty because of the dissent’s 

concerns about determining who qualifies for the media exemptions. To be sure, there 

could be challenging questions about what entities are entitled to the same relief as 

Citizens United. But those challenges are inherent in the exemptions expressed in 

Colorado law. Already the Secretary of State has had to grapple with whether various 

media are included in the exemptions and has decided that online newspapers and blogs 

are “printed,” Colo. Const. art. XXVII, § 2(8)(b)(I); apparently grants broadcast facilities 

the same exemption as print media receive for “articles”; and recognizes the difficulty of 
32 

determining when a publication (hard copy or electronic) is a periodical, see, e.g., Oral 

Arg. 18:14‒19:17.9

 

The above analysis does not apply, however, with respect to advertisements for 

Rocky Mountain Heist that mention a candidate or express support or opposition to 

election of a candidate. Citizens United has not shown that such advertisements come 

within the Colorado exemption for exempted media,10 and thus has not shown that it is 

being treated differently from those media in this respect. Because the only relief sought 

 

9

 JUDGE: And what determines whether a publication is a magazine or a 

newspaper? Could Citizens United just label 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 have the greatest history. The— 

 JUDGE: There are no regulations regarding how that’s determined; is that 

correct? 

 ATTORNEY FOR SECRETARY: Maybe that’s the best answer. Yes. I mean, I 

can tell you—I can certainly tell you what 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 candidate 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 exemption would also apply to a media entity’s 

own advertisements—for example, a newspaper’s advertisement promoting its article 

unambiguously referencing a candidate—because the audience will similarly have 

enough information to evaluate who is speaking. We do not reach this issue because 

Citizens United’s complaint focuses on the differential treatment of media entities. If an 

exempted media entity is subject to disclosure requirements for advertisements that it 

places in other media, then Citizens United may also be subject 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 case is that it benefit from the same exemptions as the 

exempted media, we can grant it no relief from any disclosure requirements applied to its 

advertising.11

C. Remaining Preliminary-Injunction Factors 

Having determined that Citizens 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, unquestionably constitutes 

irreparable injury.” Id. (internal quotation marks omitted). Citizens United is poised to 

distribute its film and would suffer irreparable injury if it were forced 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 interest 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 the First Amendment. Citizens United has 

repeatedly disclaimed any reliance on the Equal Protection 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 determine whether Colorado 

has provided a sufficiently important governmental interest to justify requiring 

disclosures by Citizens United. We examine the reason provided by the Secretary for 

Colorado’s decision that there is no sufficient 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 violation of a party’s constitutional rights.” Id. (internal 

quotation marks omitted). In sum, all preliminary-injunction factors weigh heavily in 

favor of Citizens United.12 And because the district court’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 applied. To provide only two 

examples, in MCFL, 479 U.S. 238, the Supreme Court held 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 could 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 heightened standard applicable to certain 

disfavored injunctions. “Three types of preliminary injunctions are specifically 

disfavored: (1) preliminary injunctions that 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 conclusion 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 heightened burden of 

showing that the traditional four factors weigh heavily and compellingly in its favor 

before obtaining a preliminary injunction.” Id. (internal quotation marks omitted). We 

need not decide whether a heightened 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 denial of a preliminary injunction and 

REMAND with instructions to issue a preliminary injunction consistent with this opinion. 

ENTERED FOR THE COURT 

 Harris L Hartz 

Circuit Judge 
1 

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 advertisements relating to its new film, Rocky 

Mountain Heist. See Maj. Op. at 32–33. I respectfully dissent from the 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 Amendment rights, and that this Court has 

authority under the First Amendment 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. Here, 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 interest, tied to “help[ing] citizens make informed choices in 

the political marketplace,” is sufficient to uphold disclosure requirements against First 

Amendment challenges, even those disclosure 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 preliminary common ground, the majority’s and my paths then 

diverge. Unlike the majority, I approve of the district court’s view of what is required to 

sustain exacting scrutiny here. Rather than focusing on Citizens United and its required 

disclosure, the district court considered “whether 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 Citizens 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 position, the district court remarked that “[i]t 

 1

 The majority contends that I have eliminated the possibility of an as-applied 

challenge by my agreeing with the district court that the proper focus should be on 

“whether there is a substantial relation between 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 Citizens United hasn’t made a traditional asapplied challenge because it admits that the disclosure law would be valid against it if the 

law also applied against the exempted traditional 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 challenge, 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 application to a particular person under particular 

circumstances deprived that person 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 conduct 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 protection argument, and yet you keep telling us, no, 

we’re not.” Dist. Ct. Trans. 19:9–11. The district court’s comment arose from the bases 

upon which Citizens United attacked the disclosure law: “We 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 complained that “the 

burden [of disclosure] . . . however slight, does not, the magnitude of the burden is not as 

important as the fact that the burden is imposed unequally.” Dist. Ct. Trans. at 19:5–8. 

And before us, Citizens United again complained about the “uneven disclosure” of the 

requirements: “there’s no question that the obligation to keep records, to make 

disclosures is a burden and it’s unequally distributed and that makes this statute—this 

statutory regime facially unconstitutional.”2

 Oral Arg. Oct. 7, 2014. 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 government interest in requiring disclosure 

from the traditional media because Colorado 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 “extended history of producing 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 about Citizens United that is at least as 

accessible to the public as donor lists reported to the Secretary.” 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. Along this same line, the majority concludes 

that the First Amendment requires the Secretary to treat Citizens United the same as the 

exempted media. Finding that he has not, the majority reverses the district court and 

orders the Secretary to treat Citizens United the same as the exempted media. This 

reasoning suffers from numerous 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 fall back upon any case decided on the same 

ground. Rather, Citizens United relied upon cases in which regulations discriminated 

against speech based on viewpoint. In response, the district court pointed out the 

undisputed fact that an individual or group with ideological 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 Citizens United is sufficiently media-like by 

producing 25 films, then Colorado voters have no more interest in disclosure from it than 

they would for an exempted media entity like The Denver Post. Maj. Op. at 29. This 

misses the mark. Colorado voters may indeed desire to know the identity of the people or 

groups contributing to the making of Citizens United’s film as opposed to the names of 
5 

The Denver Post’s subscribers, advertisers, or lenders. Colorado voters have determined 

at the ballot box that the identity of Citizens United’s donors who earmark financial 

contributions to produce or advertise a political 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 earmark 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 communications made in limited forms of speech. 

Colorado law does not give those media entities a blanket exemption from disclosure of 

all electioneering communications and independent 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 would have to disclose under the same 

circumstances. For example, if The Denver Post3

 were to solicit and obtain earmarked 

donations to produce a political film, it too would need 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 newspaper serving that town 

and the surrounding rural area), or any other 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 surprise that the district court 

found that the disclosure exemptions are based 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 funding behind the piece. Likewise, if the Denver Post produced 

a film expressly advocating for the reelection of Governor John Hickenlooper, it would 

be forced to comply with the disclosure requirements.” Citizens United v. Gessler, 2014 

WL 4698480, at *8. 

Fourth, the majority undersells the importance of the State’s evidence presented at 

the preliminary injunction hearing that “[t]raditional news organizations typically do not 

engage in fundraising initiatives for express advocacy pieces or solicit money from 

subscribers who wish to earmark their funds for a specific message.” Appellee’s Br. at 

39; see Dist. Ct. Trans. at 88:6–12. This 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 nonsensical” and “clearly at odds with the 

operation of the disclosure laws” that “without 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 interpreting Colorado’s own disclosure 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 individual 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 remedy once it concludes that the Colorado 

disclosure scheme violates the First Amendment. 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 takes a long stride toward lawmaking when it 

instead takes a pen to Colorado’s Constitution and statutes and writes in a nebulous third 

category of entities that the Court believes have a First Amendment right to the same 

exemption because those 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 attention inside Colorado. Under the majority’s approach, court 

battles loom for other “media equivalents” with 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 citizens 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 Colorado citizens to know when they need or do 

not need disclosure to evaluate a speaker’s message. 

Finally, although the majority 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 United’s argument that it should. In 2010, the FEC issued an 

advisory opinion concluding that Citizens United’s costs of producing, distributing, and 

marketing its films were exempt under federal disclosure laws. Fed. Election Comm’n 

Advisory Op. No. 2010-08, 2010 WL 3184266 (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 opinion about the application 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 corresponding authority over Colorado disclosure 

 6

 The FEC’s advisory opinion came five months after the decision in Citizens 

United v. Fed. Election Comm’n, 558 U.S. 310, 371 (2010), meaning that Citizens United 

was not included in the media exception to disclosure under federal law when the Court 

approved the disclaimer and disclosure requirements to Citizens United’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 Colorado’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 exceeded 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 Colorado’s campaign disclosure laws, Citizens 

United is not exempted. First, as a filmmaker, it is not acting as a “newspaper, magazine, 

or other periodical” that is printing a “news articles, editorial endorsements, 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).