Citizens United Brief in 10th Cir

No.
14-1387

IN THE
r p~ ` ^~ q `
________________________________________
CITIZENS UNITED,
Plaintiff-Appellant,
v.
SCOTT GESSLER and SUZANNE STAIERT,
Defendant-Appellees,
and
COLORADO DEMOCRATIC PARTY, GAROLD A. FORNANDER,
LUCA GUZMN, and DICKEY LEE HULLINGHORST,
Intervenor-Defendant-Appellees.

On Appeal From The United States District Court For The District Of Colorado
Honorable R. Brooke Jackson
In No. 1:14-CV-02266-RBJ
Oral Argument Scheduled

BRIEF FOR APPELLANT CITIZENS UNITED

Michael Boos
CITIZENS UNITED
1006 Pennsylvania Avenue, S.E.
Washington, D.C. 20003
(202) 547-5421

Theodore B. Olson
Counsel of Record
Matthew D. McGill
Amir C. Tayrani
Lucas C. Townsend
GIBSON, DUNN & CRUTCHER LLP
1050 Connecticut Avenue, N.W.
(202) 955-8500
[email protected]
Counsel for Appellant Citizens United
Appellate Case: 14-1387 Document: 01019321103 Date Filed: 10/03/2014 Page: 1

CORPORATE DISCLOSURE STATEMENT
Pursuant to Federal Rule of Appellate Procedure 26.1, Citizens United, a
Virginia non-stock corporation, has no parent corporation and there are no publicly
held corporations that own 10% or more of Citizens Uniteds stock.


i
TABLE OF CONTENTS
Page
INTRODUCTION ................................................................................................. 1
STATEMENT OF THE ISSUES........................................................................... 4
STATEMENT OF THE CASE .............................................................................. 5
A. Registration, Reporting, And Disclosure Requirements ................... 5
B. Colorados Media Exemptions ........................................................ 11
C. Citizens Uniteds Political And Media Activities ........................... 12
D. Citizens Uniteds Complaint ........................................................... 15
SUMMARY OF THE ARGUMENT .................................................................. 17
STANDARD OF REVIEW ................................................................................. 22
ARGUMENT ....................................................................................................... 23
I. THE DISTRICT COURT ERRED IN CONCLUDING THAT
CITIZENS UNITED DOES NOT HAVE A SUBSTANTIAL
LIKELIHOOD OF SUCCESS ON THE MERITS. ................................. 23
A. Colorados Discriminatory Burdens On The Political
Speech Of Press Entities Require Strict Scrutiny. .......................... 24
B. Colorados Discriminatory Reporting And Disclosure
Requirements Are Not Narrowly Tailored To Further A
Compelling Government Interest. ................................................... 33
C. The Media Exemptions Cannot Be Severed From The
Reporting And Disclosure Requirements. ....................................... 40
D. If Media Exemptions From Political Speech Restrictions
Are Constitutionally Compelled, They Must Be Construed
To Apply To Citizens United. ......................................................... 44
E. The District Court Misapprehended Core First Amendment
Principles. ........................................................................................ 47
TABLE OF CONTENTS
(continued)
Page

ii
II. THE DISTRICT COURT ERRED IN CONCLUDING THAT
CITIZENS UNITED WOULD SUFFER NO IRREPARABLE
INJURY. ................................................................................................... 54
III. DEFENDANTS AND INTERVENORS WOULD SUFFER NO
COGNIZABLE INJURY FROM A PRELIMINARY INJUNCTION. .. 56
IV. THE PUBLIC INTEREST ALWAYS FAVORS ENJOINING THE
ENFORCEMENT OF UNCONSTITUONAL LAWS. ........................... 58
CONCLUSION .................................................................................................... 60


iii
TABLE OF AUTHORITIES
Page(s)
Cases
ACLU v. Alvarez,
679 F.3d 583 (7th Cir. 2012) ......................................................................... 22
Alaska Airlines, Inc. v. Brock,
480 U.S. 678 (1987) ....................................................................................... 41
Am. Target Adver., Inc. v. Giani,
199 F.3d 1241 (10th Cir. 2000) ..................................................................... 40
Am. Constitutional Law Found., Inc. v. Meyer,
120 F.3d 1092 (10th Cir. 1997) .............................................................. 29, 59
Ark. Writers Project, Inc. v. Ragland,
481 U.S. 221 (1987) ....................................................................................... 46
Brown v. Entmt Merchs. Ass'n,
131 S. Ct. 2729 (2011) ............................................................................ 49, 50
Buckley v. Valeo,
424 U.S. 1 (1976) ........................................................................ 41, 47, 48, 52
Burwell v. Hobby Lobby Stores, Inc.,
134 S. Ct. 2751 (2014) ................................................................................... 23
Chamber of Commerce v. Edmondson,
594 F.3d 742 (10th Cir. 2010) ....................................................................... 56
Chandler v. City of Arvada,
292 F.3d 1236 (10th Cir. 2002) ..................................................................... 29
Citizens for Responsible Govt State Political Action Comm. v. Davidson,
236 F.3d 1174 (10th Cir. 2000) .....................................................................42
Citizens United v. FEC,
558 U.S. 310 (2010) ................... 1, 2, 18, 19, 20, 24-25, 26, 27, 31, 37, 48, 51
City of Ladue v. Gilleo,
512 U.S. 43 (1994) .................................................................................. 26, 31

(continued)
Page(s)

iv
City of Lakewood v. Colfax Unlimited Assn,
634 P.2d 52 (Colo. 1981) ............................................................................... 41
Cohen v. Cowles Media Co.,
501 U.S. 663 (1991) ....................................................................................... 44
Colo. Citizens for Ethics in Govt v. Comm. for Am. Dream,
187 P.3d 1207 (Colo. App. 2008) .................................................................. 11
Cressman v. Thompson,
719 F.3d 1139 (10th Cir. 2013) ..................................................................... 22
CRG Network v. Barland,
--- F. Supp. 2d ---, 2014 WL 4391193 (E.D. Wis. Sept. 5, 2014) ................. 55
Davis v. Wallace,
257 U.S. 478 (1922) ....................................................................................... 42
Deja Vu of Nashville, Inc. v. Metro. Govt of Nashville, 274 F.3d 377 (6th
Cir. 2001) ....................................................................................................... 56
Elrod v. Burns,
427 U.S. 347 (1976) ....................................................................................... 54
First National Bank of Boston v. Bellotti,
435 U.S. 765 (1978) .......................................................................... 26, 39, 53
Grosjean v. Am. Press Co.,
297 U.S. 233 (1936) ......................................................................................... 3
Hobby Lobby Stores, Inc. v. Sebelius,
723 F.3d 1114 (10th Cir. 2013) ........................................................ 22, 54, 58
In re Interrogatories Propounded by Governor Ritter, Jr., Concerning
Effect of Citizens United v. Fed. Election Commn, 558 U.S. ----
(2010) on Certain Provisions of Article XXIII of Constitution of
State, 227 P.3d 892, 894 (Colo. 2010) ....................................................... 9-10

(continued)
Page(s)

v
In re Interrogatories Relating to the Great Outdoors Colo. Trust Fund,
913 P.2d 533 (Colo. 1996) ............................................................................. 43
Independence Inst. v. Gessler,
No. 14-cv-02426-RBJ (D. Colo. Sept. 25, 2014) .......................................... 32
K.A. ex rel. Ayers v. Pocono Mountain Sch. Dist.,
710 F.3d 99 (3d Cir. 2013) ............................................................................. 58
Klein v. City of San Clemente,
584 F.3d 1196 (9th Cir. 2009) ....................................................................... 54
Leathers v. Medlock,
499 U.S. 439 (1991) ....................................................................................... 33
Leavitt v. Jane L.,
518 U.S. 137 (1996) ....................................................................................... 40
McCutcheon v. FEC,
134 S. Ct. 1434 (2014) .......................................................................... 1, 2, 24
Members of City Council of L.A. v. Taxpayers for Vincent,
466 U.S. 789 (1984) ....................................................................................... 26
Minneapolis Star & Tribune Co. v. Minn. Commr of Revenue,
460 U.S. 575 (1983) ........................................................ 19, 25, 26, 32, 46, 53
NAACP v. Button,
371 U.S. 415 (1963) ....................................................................................... 32
O Centro Espirita Beneficiente Uniao Do Vegetal v. Ashcroft,
389 F.3d 973 (10th Cir. 2004) ................................................................. 22-23
Okla. Corr. Profl Assn v. Doerflinger,
521 F. Appx 674 (10th Cir. 2013) ......................................................... 26, 29
Pac. Frontier v. Pleasant Grove City,
414 F.3d 1221 (10th Cir. 2005) ........................................................ 54, 55, 58

(continued)
Page(s)

vi
Pahls v. Thomas,
718 F.3d 1210 (10th Cir. 2013) ..................................................................... 26
People v. Seven Thirty-Five E. Colfax, Inc.,
697 P.2d 348 (Colo. 1985) ............................................................................. 41
Quincy Cable TV, Inc. v. FCC,
768 F.2d 1434 (D.C. Cir. 1985) ..................................................................... 45
Reitman v. Mulkey,
387 U.S. 369 (1967) ....................................................................................... 58
Romer v. Evans,
517 U.S. 620 (1996) ....................................................................................... 58
Rosenberger v. Rector & Visitors of Univ. of Va.,
515 U.S. 819 (1995) ...................................................................... 3, 25, 27, 38
Sampson v. Buescher,
131 S. Ct. 2653 (2011) ............................................................................ 24, 35
Sindicato Puertorriqueo de Trabajadores v. Fortuo,
699 F.3d 1 (1st Cir. 2012) .............................................................................. 53
Sorrell v. IMS Health Inc.,
131 S. Ct. 2653 (2011) ................................................................................... 28
Spraigue v. Thompson,
118 U.S. 90 (1886) ......................................................................................... 42
Susan B. Anthony List v. Driehaus,
134 S. Ct. 2334 (2014) ............................................................................ 34, 53
Turner Broad. Sys., Inc. v. FCC,
512 U.S. 622 (1994) ..................................................................... 32, 46, 52-53
United States v. Jackson,
390 U.S. 570 (1968) ....................................................................................... 41

(continued)
Page(s)

vii
United States v. Virginia,
518 U.S. 515 (1996) ....................................................................................... 35
Winter v. NRDC,
555 U.S. 7 (2008) ........................................................................................... 21
Wisconsin Right to Life, Inc. v. Barland,
751 F.3d 804 (7th Cir. 2014) ......................................................................... 37
Constitutional Provisions
Colo. Const. art. XXVIII, 2(7) ................................................. 6, 12, 30, 34, 39, 40
Colo. Const. art. XXVIII, 2(8) ....................................................... 6, 12, 34, 39, 40
Colo. Const. art. XXVIII, 2(9) ................................................................................ 6
Colo. Const. art. XXVIII, 5(2) ......................................................................... 7, 44
Colo. Const. art. XXVIII, 6(1) ......................................................................... 9, 35
Colo. Const. art. XXVIII, 8 ................................................................................... 10
Colo. Const. art. XXVIII, 9 ................................................................................... 10
Colo. Const. art. XXVIII, 9(1) .............................................................................. 11
Colo. Const. art. XXVIII, 9(2) ....................................................................... 10, 11
Colo. Const. art. XXVIII, 10(2) ............................................................................ 10
Colo. Const. art. XXVIII, 14 ................................................................................. 41

(continued)
Page(s)

viii
Statutes
2 U.S.C. 431(9)(B)(i) ............................................................................................ 45
2 U.S.C. 434(f)(3)(B)(i) ........................................................................................ 13
28 U.S.C. 1292(a)(1) ............................................................................................... 4
28 U.S.C. 1331 ........................................................................................................ 4
Colo. Rev. Stat. 1-45-103(9) ............................................................................ 6, 12
Colo. Rev. Stat. 1-45-103(10) .......................................................................... 6, 12
Colo. Rev. Stat. 1-45-103(11) ................................................................................. 6
Colo. Rev. Stat. 1-45-107.5(3) ................................................................................ 7
Colo. Rev. Stat. 1-45-107.5(4) ................................................................................ 8
Colo. Rev. Stat. 1-45-107.5(5) ................................................................................ 8
Colo. Rev. Stat. 1-45-107.5(7) ................................................................................ 8
Colo. Rev. Stat. 1-45-107.5(8) ................................................................................ 9
Colo. Rev. Stat. 1-45-108(2) ............................................................................ 9, 35
Colo. Rev. Stat. 1-45-111.5 .................................................................................. 10
Colo. Rev. Stat. 1-45-111.5(1.5) .................................................................... 10, 11
Colo. Rev. Stat. 1-45-111.5(2) .............................................................................. 10
Colo. Rev. Stat. 1-45-118 ..................................................................................... 42
Regulations
11 C.F.R. 100.29(c)(2) .......................................................................................... 13

(continued)
Page(s)

ix
8 Colo. Code Regs. 1505-6:5 .................................................................................. 9
8 Colo. Code Regs. 1505-6:11 .............................................................................. 10
8 Colo. Code Regs. 1505-6:11.1 ........................................................................... 36
Other Authorities
Pew Research Center for the People & the Press, Trends in News
Consumption: 1991-2012, In Changing News Landscape, Even
Television Is Vulnerable 1 (2012)
available at http://www.people-press.org/files/legacy-
pdf/2012%20News%20Consumption%20Report.pdf ................................... 51


x
STATEMENT OF RELATED CASES
There are no prior or related appeals.

1
INTRODUCTION
Colorados facially discriminatory registration and disclosure regime for po-
litical speech is plainly unconstitutional.
Citizens United has produced a timely 30-minute documentary describing
politics in Colorado. However, because that documentary contains the names of
candidates who will be on Novembers ballot, and because Citizens United is not a
newspaper, periodical, or broadcaster, it may not distribute its movie without com-
plying with burdensome registration, notice and financial disclosure requirements.
The Supreme Court has enunciated certain core First Amendment principles
that protect against government regulation of information, ideas, and opinions
about government or elections. In fact, the First Amendment has its fullest and
most urgent application in the context of election campaigns. McCutcheon v.
FEC, 134 S. Ct. 1434, 1441 (2014).
Government has no right to regulate political speech except in the narrow
context of protecting against corruption, defined as quid pro quo exchanges, or its
appearance. Citizens United v. FEC, 558 U.S. 310, 359 (2010). Colorado has no
such basis for its discriminatory disclosure scheme, and independent speech such
as that in Citizens Uniteds documentary film presents no risk of corruption. See
id. at 356-57, 360-61. Campaign finance restrictions that pursue other objectives
. . . impermissibly inject the Government into the debate over who should govern.

2
And those who govern should be the last people to help decide who should gov-
ern. McCutcheon, 134 S. Ct. at 1441-42 (citation and internal quotation marks
omitted).
In any context, but particularly elections, the First Amendment most zeal-
ously protects against discrimination based on the speakers identity, status, point
of view, motivation or perspective. The First Amendment [p]rohibit[s] re-
strictions distinguishing among different speakers, allowing speech by some but
not others. Citizens United, 558 U.S. at 340. And it likewise precludes constitu-
tional lines based on the particular media or technology used to disseminate politi-
cal speech from a particular speaker. Id. at 326.
Colorados selective restriction on speech and speakers such as Citizens
United and its documentary film violates every one of these principles.
Citizens United filed this suit to secure its First Amendment right to dissem-
inate its forthcoming documentary film about Colorado politics unencumbered by
the discriminatory reporting and disclosure requirements that Colorado imposes on
political speech by all speakers except those who own or utilize printing presses or
FCC licenses: newspapers, magazines, and broadcasters. Other speakers who
wish to be heard during election periods must register with the State, make intru-
sive public disclosures about the sources of their funding, and endure the threat of
sanctions for regulatory infractions. Although the Supreme Court has instructed

3
that government regulation may not favor one speaker over another, Rosen-
berger v. Rector & Visitors of Univ. of Va., 515 U.S. 819, 828 (1995), Colorado
clearly has taken sidesfavoring speech by the established, institutional, tradi-
tional press and disfavoring upstarts, new media, and others. And because they
have not invested in a printing plant or sought government approval in the form of
a broadcast license, speakers like Citizens United are placed at a severe disad-
vantage in the public debate.
The court below denied Citizens Uniteds motion for a preliminary injunc-
tion to prohibit Colorado from enforcing its discriminatory reporting and disclo-
sure requirements. That ruling, if not reversed, will result in the immediate and
profound impairment of Citizens Uniteds right to speak to Colorado citizensas
well as the rights of all other Colorado speakers who are not part of the favored es-
tablishment. For Citizens United, that injury is imminent and irreparable: It will
be suffered the moment Citizens United begins, next week, to advertise and dis-
tribute its documentary film, Rocky Mountain Heist, when it will be subjected to
regulatory burdens not imposed on speakers in the traditional media.
A preliminary injunction is necessary to enable Citizens United to engage in
core political speech and media activities on equal footing with all other speakers.
At least since Grosjean v. American Press Co., 297 U.S. 233, 251 (1936), equality
of treatment among speakers has been a clarion command of the First Amendment;

4
government discrimination based upon a speakers viewpoint, identity, or means of
communication is prohibited. Yet that is precisely the discrimination that appears
on the face of Colorados reporting and disclosure requirements. That facial dis-
crimination among speakers is incompatible with First Amendment principles and
irreconcilable with Supreme Court precedent. The district courts denial of a pre-
liminary injunction accordingly must be reversed.
JURISDICTIONAL STATEMENT
The district court had subject-matter jurisdiction pursuant to 28 U.S.C.
1331 because Citizens Uniteds claims raise a federal question under the Consti-
tution of the United States. On September 22, 2014, the district court entered an
order denying Citizens Uniteds motion for a preliminary injunction. That order is
final as to the preliminary injunctive relief sought. Citizens United filed its notice
of appeal the next day, on September 23, 2014. This Court has jurisdiction over
this appeal from the district courts denial of Citizens Uniteds motion for a prelim-
inary injunction pursuant to 28 U.S.C. 1292(a)(1).
STATEMENT OF THE ISSUES
Whether Citizens United is entitled to a preliminary injunction prohibiting
enforcement of Colorados discriminatory reporting and disclosure requirements
for electioneering communications and independent expenditures because those

5
requirements violate the First Amendment to the U.S. Constitution and Article II,
Section 10 of the Colorado Constitution.
STATEMENT OF THE CASE
This case presents the question whether Colorados reporting and disclosure
requirements for electioneering communications and independent expenditures
violate the First Amendment by placing facially discriminatory burdens on the po-
litical speech of some speakers while exempting others. Colorados campaign fi-
nance laws are generally contained in Article XXVIII of the Colorado State Con-
stitution, which was enacted by the voters of Colorado through a ballot initiative in
2002, and in Colorados Fair Campaign Practices Act (FCPA), which was enact-
ed by Colorado voters in 1996. The specific reporting and disclosure requirements
at issue here are set forth in Sections 2, 5, and 6 of Article XXVIII of the Colorado
Constitution, and Sections 1-45-103, 1-45-107.5, and 1-45-108 of the Colorado
Revised Statutes.
A. Registration, Reporting, And Disclosure Requirements
Section 2 of Article XXVIII defines the relevant terms. Electioneering
communication is defined as:
[A]ny communication broadcasted by television or radio, printed in a news-
paper or on a billboard, directly mailed or delivered by hand to personal res-
idences or otherwise distributed that:
(I) Unambiguously refers to any candidate; and

6
(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 also Colo. Rev. Stat. 1-45-103(9). An
expenditure is:
[A]ny 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 ques-
tion. An expenditure is made when the actual spending occurs or when there
is a contractual agreement requiring such spending and the amount is deter-
mined.
Colo. Const. art. XXVIII, 2(8)(a); see also Colo. Rev. Stat. 1-45-103(10). An
independent expenditure is an expenditure not controlled by or coordinated
with any candidate or agent of such candidate. Colo. Const. art. XXVIII, 2(9);
see also Colo. Rev. Stat. 1-45-103(11).
1. Independent Expenditures. Section 5 of Article XXVIII sets forth many
of the specific reporting and disclosure requirements that are imposed on speakers
who make independent expenditures for the purpose of expressly advocating the
defeat or election of any candidate. Colo. Const. art. XXVIII, 5(4). Under Sec-
tion 5, any person making independent expenditures in excess of $1,000 per calen-
dar year shall deliver notice in writing to the secretary of state of such independ-
ent expenditure. Id. 5(1). The notice must disclose the amount of the expendi-

7
ture and provide a detailed description of the use of each independent expendi-
ture. Id. In addition, the notice shall specifically state the name of the candidate
whom the independent expenditure is intended to support or oppose. Id. Each
independent expenditure in excess of $1,000 requires the delivery of a new notice.
Id. For independent expenditures made within 30 days of a primary or general
election, the written notice must be delivered within forty-eight hours after obli-
gating funds for such expenditure. Id. The person making the expenditure must
also prominently disclose its identity in the resulting communication. Id. 5(2).
Section 1-45-107.5 of the Colorado Revised Statutes imposes additional reg-
istration, reporting, and disclosure requirements on speakers making independent
expenditures. For example, any speaker expending more than $1,000 per calendar
year on independent expenditures must register as an independent expenditure
committee within two business days of the date on which the expenditure reaches
or exceeds $1,000. Colo. Rev. Stat. 1-45-107.5(3)(a). The same registration re-
quirement applies to speakers who accept donations that are given for the purpose
of making an independent expenditure in excess of $1,000. Id. As part of the reg-
istration process, speakers must also identify their full names, designate an agent
for service of process, disclose the location of the speakers principal place of op-
erations, and report the percentage of foreign ownership of the speakers as of the
date of registration. Id. 1-45-107.5(3)(b)(I)-(IV).

8
In addition to registering with the State, a speaker who makes independent
expenditures totaling more than $1,000 per year must report detailed information
about its donors to the State. For example, the speaker must report the name and
address of any person who donates more than $250 per year to the speaker for the
purpose of making an independent expenditure. Colo. Rev. Stat. 1-45-
107.5(4)(b)(I). If the donor is a natural person, the speaker must also report the
occupation and employer of the donor. Id. 1-45-107.5(4)(b)(II). If the donor is a
corporation, the speaker must report information about the donors business names,
home office, and registered agent. Id. 1-45-107.5(4)(b)(III). Where a speaker
makes independent expenditures in excess of $1,000 within thirty days of a prima-
ry or general election, the speaker must file such reports with the State within for-
ty-eight hours after obligating moneys for the independent expenditure. Id. 1-
45-107.5(4)(c).
In addition to filing reports with the State, a speaker who makes independent
expenditures totaling more than $1,000 per year must include specific disclosures
in any communication that constitutes an independent expenditure. The disclo-
sures must identify the speaker and, if the speaker is not a natural person, its regis-
tered agent. Colo. Rev. Stat. 1-45-107.5(5)(a)(I)-(II). Such speakers must also
establish separate bank accounts for funds used to make independent expenditures.
Id. 1-45-107.5(7). Further, these speakers must report to the Secretary of State

9
any donation in excess of $20 received during the reporting period for purposes of
making an independent expenditure. Id. 1-45-107.5(8). Additional require-
ments for independent expenditures and independent expenditure committees are
contained in Rule 5 of the Secretarys Rules Concerning Campaign and Political
Finance. See 8 Colo. Code Regs. 1505-6:5.
2. Electioneering Communications. Section 6 of Article XXVIII sets forth
many of the specific reporting and disclosure requirements that are imposed on
speakers who engage in electioneering communications. For example, speakers
expending more than $1,000 per calendar year on electioneering communications
must report to the Secretary of State the amount spent on those communications
and the name, address, occupation, and employer of any person that contributed
more than $250 to fund the communications. Colo. Const. art. XXVIII, 6(1).
Section 1-45-108 sets forth additional requirements for the timing and contents of
such reports. In the months before a general election, those reports must be sub-
mitted every two weeks beginning on the first Monday in September. Colo. Rev.
Stat. 1-45-108(2)(a)(I)(D).
1
Additional requirements for electioneering commu-

1
As enacted, Section 6 of Article XXVIII also purported to ban corporations
and labor unions from providing funding for electioneering communications. Co-
lo. Const. art. XXVIII, 6(2). The Supreme Court of Colorado subsequently de-
clared that ban unconstitutional. See In re Interrogatories Propounded by Gover-
nor Ritter, Jr., Concerning Effect of Citizens United v. Fed. Election Commn, 558
[Footnote continued on next page]

10
nications are contained in Rule 11 of the Secretarys Rules Concerning Campaign
and Political Finance. See 8 Colo. Code Regs. 1505-6:11.
3. Enforcement and Penalties. The Secretary is responsible for enforcing
Colorados reporting and disclosure requirements and promulgating regulations
that implement Colorados campaign finance laws. Colo. Const. art. XXVIII,
8-9; Colo. Rev. Stat. 1-45-111.5; see also App. at A159. In addition, Colora-
dos Constitution authorizes private plaintiffs to enforce the campaign finance
laws. Any person who believes that a speaker has violated the reporting and dis-
closure requirements may file a complaint with the Secretary, who in turn refers
the matter to an administrative law judge for adjudication. Colo. Const. art.
XXVIII, 9(2)(a). The administrative law judge is empowered to issue any ap-
propriate order, sanction, or relief authorized under Article XXVIII. Id.
Speakers face the threat of litigation and harsh penalties for failing to com-
ply with these reporting and disclosure requirements. Civil penalties for infrac-
tions range from fifty dollars per day (Colo. Const. art. XXVIII, 10(2)(a)) to as
much as one thousand dollars per day (Colo. Rev. Stat. 1-45-111.5(1.5)(c)) for
each day a report or disclosure is overdue. Judgments are enforceable either by

[Footnote continued from previous page]
U.S. ---- (2010) on Certain Provisions of Article XXIII of Constitution of State, 227
P.3d 892, 894 (Colo. 2010) (en banc) (per curiam).


11
public enforcement action or private lawsuit. Colo. Const. art. XXVIII, 9(1)-
(2); see also, e.g., Colo. Citizens for Ethics in Govt v. Comm. for Am. Dream, 187
P.3d 1207, 1212 (Colo. App. 2008) (affirming penalty of $1,000 against political
committee based on a complaint filed with Secretary by private citizen group).
Under certain circumstances, speakers who violate Colorados reporting and dis-
closure requirements may also be liable for attorney fees and costs, and may be re-
quired to post notice of the judgment on their publicly accessible web site for 180
days. Colo. Rev. Stat. 1-45-111.5(1.5)(f), (2).
B. Colorados Media Exemptions
These burdens and penalties do not apply evenhandedly to all speakers.
Quite the contrary, Colorado law expressly privileges the traditional print and
broadcast media and certain other speakers with exemptions from these burden-
some reporting and disclosure requirements.
Specifically, Colorado excludes from the definition of electioneering com-
munication:
(I) Any news articles, editorial endorsements, opinion or commentary writ-
ings, or letters to the editor printed in a newspaper, magazine or other peri-
odical 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;

12
(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 also Colo. Rev. Stat. 1-45-103(9). The
media exemption from the definition of expenditure similarly excludes:
(I) Any news articles, editorial endorsements, opinion or commentary writ-
ings, or letters to the editor printed in a newspaper, magazine or other peri-
odical 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 busi-
ness 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 members
dues to a small donor committee or political committee sponsored by such
membership organization; or payments made by a corporation or labor or-
ganization 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 also Colo. Rev. Stat. 1-45-103(10).
C. Citizens Uniteds Political And Media Activities
Citizens United is a non-profit membership organization under Section
501(c)(4) of the Internal Revenue Code. App. at A11 ( 9). It engages in educa-
tion, advocacy, and grassroots activities, including regular political speech and
media and press communications. See id.; App. at A16 ( 24), A54, A78 ( 4).
Among its activities, Citizens United produces, markets, and distributes documen-
tary films, including films that explore controversial political organizations, per-

13
sonalities, and policies in the United States and abroad. App. at A16 ( 24), A78 (
4). Since 2004, Citizens United has produced and released twenty-four documen-
tary films, some of which are award-winning. App. at A16 ( 24), A78 ( 4).
Citizens United distributes its films through a variety of formats including
theatrical release, DVDs, television, and online digital streaming and downloading.
App. at A16 ( 25), A78 ( 5). To promote the sale of its films, Citizens United
advertises them on television, on billboards, in newspapers, via direct and electron-
ic mail, and on the Internet. App. at A16 ( 25), A78 ( 5).
The Federal Election Commission has recognized that Citizens Uniteds
films constitute a legitimate press function. App. at A34. Accordingly, Citizens
Uniteds films and advertising promoting its films are exempt from the reporting
and disclosure requirements imposed by federal campaign finance law. See App.
at A28-35; see also 2 U.S.C. 434(f)(3)(B)(i); 11 C.F.R. 100.29(c)(2).
Citizens Uniteds latest documentary film, Rocky Mountain Heist, explores
the impact of various advocacy groups on Colorado government and public policy.
App. at A17 ( 27), A78 ( 6). The Film will be approximately thirty minutes in
length and has a budget of $773,975, including $548,975 for production and
$225,000 for marketing. App. at A17 ( 27-29), A78-79 ( 7-9). Production is
complete, and the Film is scheduled to be marketed and distributed across the
United States, including in Colorado, beginning in the first week of October 2014.

14
App. at A17-18 ( 30), A78 ( 6). Distribution of the Film will be through DVD
sales, television broadcast, and online digital streaming and downloading; advertis-
ing will include television, radio, and Internet ads. App. at A17-18 ( 30), A78-79
( 6, 10).
The Film and some of its advertising will include unambiguous references to
elected Colorado officials running for office in this years general election, as well
as video footage that meets the statutory definition of express advocacy. App. at
A17 ( 27), A55-56, A78-79 ( 7). Thus, unless exempted, Rocky Mountain Heist
will constitute both an electioneering communication and an independent expendi-
ture under Colorado law.
On April 18, 2014, Citizens United filed a Petition for Declaratory Order
with the Colorado Secretary of State seeking clarification as to whether Citizens
Uniteds distribution and advertising of Rocky Mountain Heist qualified for the
media exemptions from Colorados reporting and disclosure requirements as they
do under applicable law. App. at A18 ( 32). The Secretary concluded that the
Film and related advertising did not fall within Colorados media exemption. App.
at A41-47. Specifically, the Secretary concluded that Citizens United is not enti-
tled to the exemption for print media because the forthcoming documentary is a
film, which cannot be printed in a newspaper, magazine, or other periodical.
App. at A41. Citizens United also is not entitled to the exemption for broadcasters,

15
the Secretary concluded, because Citizens United is not a broadcast facility and,
as such, does not fall within this exemption. App. at A42. In rejecting Citizens
Uniteds argument that the First Amendment to the U.S. Constitution compels an
exemption for its press activities that parallels the media exemption under federal
law, the Order explained that the Secretary lacks the authority to apply well-
reasoned, settled First Amendment law to Colorado. App. at A45 (italics omit-
ted).
D. Citizens Uniteds Complaint
Citizens United thereafter filed this suit for declaratory and injunctive relief
alleging that Colorados facially discriminatory reporting and disclosure require-
ments violate the First Amendment to the U.S. Constitution and Article II, Section
10 of the Colorado Constitution. See App. at A8-47. Simultaneously, Citizens
United filed a motion for a preliminary injunction prohibiting the Secretary from
enforcing Colorados discriminatory reporting and disclosure requirements, both as
applied to Citizens United and to all other Colorado speakers ineligible for the me-
dia exemptions. See App. at A48-80.
The Secretary opposed Citizens Uniteds motion, as did the Colorado Dem-
ocratic Party and several individuals who were granted leave to intervene as de-
fendants in the case. Neither the Secretary nor the Intervenors disputed that Colo-
rados reporting and disclosure requirements impose a burden on Citizens Uniteds

16
speech. Nor did they dispute that Colorado law imposes those burdens in a facially
discriminatory manner that privileges traditional media outlets over other media
outlets and other speakers. Nevertheless, after holding a hearing on the motion
(see App. A176-295), the district court denied preliminary injunctive relief. See
App. at A154-75.
At the outset, the district court determined that it must more closely scruti-
nize Citizens Uniteds motion than a typical request for a preliminary injunction
because it sought to significantly alter the status quo. App. at A163. The district
court then reasoned that Colorados reporting and disclosure requirements distin-
guis[h] based on the form of speech, not on the identity of the speaker, even
though the effect of the law is commonly to exempt press entities from Colora-
dos reporting requirements. App. at A165. Finding nothing to sugges[t] that
the intent (or effect) is to discriminate on the basis of content or viewpoint (id.),
the district court determined that Colorados reporting and disclosure requirements
were not subject to strict scrutiny, but rather an intermediate, exacting scrutiny
standard (App. at A165-66).
According to the district court, the Secretary was required to show only a
reasonable fit (App. at A169) between Colorados proffered interest in ensuring
its electorate is informed (App. at A167) and Colorados disclosure regime, in-
cluding its exemptions for traditional media entities. In the district courts view,

17
that fit was satisfied by the Secretarys argument that the the justifications for re-
quiring disclosure apply more strongly to isolated instances of political advocacy
than they do to speech by institutionalized and longstanding press entities. Id.
(quoting App. at A96). In contrast, it was not clear to the district court exactly
what type of information newspapers and broadcast facilities would be required to
disclose if these exemptions did not exist. App. at A168.
Finding no reason to conclude that the scope of the disclosure scheme, in-
cluding its exemptions, is not in proportion to the interest of informing the elec-
torate (App. at A169), the district court concluded that Citizens Uniteds facial
and as-applied challenges did not have a substantial likelihood of success on the
merits. App. at A170-172. Absent a law that actually infringes a constitutional
right (App. at A173), the district court also concluded that the remaining require-
ments for a preliminary injunction were not satisfied. App. at A172-74.
SUMMARY OF THE ARGUMENT
The district courts order denying Citizens Uniteds motion for a preliminary
injunction is predicated on several errors of law, each of which must be reviewed
without deference and, once corrected, dictate reversal of the decision below. The
district court applied the wrong standard of First Amendment scrutiny, erroneously
concluded that it is acceptable for Colorado to give the institutional press preferen-
tial treatment over all other media entities and political speakers, and incorrectly

18
evaluated the remaining equitable factors for preliminary injunctive relief. Those
errors require reversal and the entry of a preliminary injunction prohibiting en-
forcement of Colorados discriminatory reporting and disclosure requirements.
1. The district court erred in viewing this case as presenting a broad chal-
lenge to the constitutionality of all reporting and disclosure requirements for politi-
cal speech. It does not. The Supreme Court rejected such a challenge in Citizens
United v. FEC, 558 U.S. 310, 366-67 (2010), and Citizens United does not seek to
revisit that issue here. This case instead presents a separate question not raised or
decided in Citizens United: whether Colorado may apply its reporting and disclo-
sure requirements to Citizens United and other speakers that do not own a printing
press or broadcast station while expressly exempting the institutional press from
those burdensome requirements. Under settled First Amendment principles, Colo-
rado may not engage in such blatant discrimination based on speakers status, iden-
tity, and message.
Laws that discriminate against speakers based on their identity are subject to
strict scrutiny, which requires the government to show that the restriction fur-
thers a compelling interest and is narrowly tailored to achieve that interest. Citi-
zens United, 310 U.S. at 340. If Colorados reporting and disclosure requirements
applied to all speakers in equal measure, then those laws would be subject to less
demanding, exacting scrutiny, id. at 366, just as laws of general applicability that

19
place incidental burdens on the medias press activities also are not subject to
heightened scrutiny. See Minneapolis Star & Tribune Co. v. Minn. Commr of
Revenue, 460 U.S. 575, 583 (1983). But Colorados reporting and disclosure re-
gime is not a law of general applicability; it is discriminatory on its face, exempt-
ing favored speakers in the traditional medianewspapers, magazines, and
broadcasterswhile subjecting new media voices to its onerous burdens. The
First Amendment requires that such discrimination in the governments regulation
of speech be subjected to strictnot merely exactingscrutiny. Citizens United,
558 U.S. at 340; Minneapolis Star, 460 U.S. at 583.
Colorados discriminatory reporting and disclosure regime does not come
close to satisfying that standard. Assuming Colorados professed interest in pro-
moting an informed electorate constitutes a compelling state interest, the schemes
burdens and selective exemptions are not in any way narrowly tailored to that ob-
jective. Indeed, if Colorado were truly interested in providing the public with ac-
cess to information about the funding of political speech, it would apply its report-
ing and disclosure requirements in an evenhanded manner to all speakers
including the print media and broadcasters. Instead, the State carves out those
privileged media entities from the onerous reporting and disclosure obligations that
apply to anyone who lacks the resources to purchase a printing press or broadcast

20
station. The First Amendment does not countenance such discrimination among
speakers.
This unconstitutional, identity-based discrimination cannot be remedied by
severing the media exemptions from the reporting and disclosure requirements.
No party disputes that the media exemptions are integral to Colorados reporting
and disclosure regime, and there is no indication that Colorados voters would have
enacted a reporting and disclosure framework without the media exemptions. And
while it is doubtful that the First Amendment compels an exemption for the media,
Citizens United plainly would be entitled to enjoy such an exemption. The Su-
preme Court already has recognized that Citizens Uniteds documentary films per-
form a press function. See Citizens United, 558 U.S. at 372. And the Federal Elec-
tion Commission accordingly has determined that Citizens United is entitled to the
media exemption that exists under federal law. Citizens Uniteds documentary
films are entitled to no lesser protection under the First Amendment than other
forms of journalistic endeavor.
None of the district courts justifications for disregarding these First
Amendment principles can withstand scrutiny. Because this case is about discrim-
ination among speakersand not, as the district court apparently believed, about
the constitutionality of disclosure requirementsColorados informational interest
cannot sustain its discriminatory reporting and disclosure requirements. Nor does

21
viewing those discriminatory reporting and disclosure requirements as a regulation
of the form of speech (App. at A165) cure their unconstitutionality. When a
state favors a form of speech limited to speakers who own printing presses and
broadcast facilities, it discriminates among speakers based on their identity, and the
law is presumptively prohibited.
For these reasons, Citizens United has a substantial likelihood of success on
the merits and the district court erred in concluding otherwise.
2. The district courts error in evaluating the likelihood-of-success prong in-
fected its consideration of each of the remaining factors governing the availability
of preliminary injunctive relief. The deprivation of Citizens Uniteds First
Amendment right to engage in political discourse on the same terms as all other
speakers is an irreparable injury that warrants immediate relief; in contrast, Colo-
rado would suffer no injury at all if it were unable to enforce its unconstitutional
reporting and disclosure requirements. Indeed, the balance of the equities invaria-
bly favors enjoining laws that impose unconstitutional burdens on protected
speech. Moreover, the public interest always favors enjoining the enforcement of
laws that impermissibly burden the exercise of fundamental rights. The principles
at stake are vitally important to the right of all speakers to participate in the mar-
ketplace of ideas on equal terms and free from discriminatory burdens imposed by
the government.

22
STANDARD OF REVIEW
This Court reviews the denial of a preliminary injunction for abuse of discre-
tion. Hobby Lobby Stores, Inc. v. Sebelius, 723 F.3d 1114, 1128 (10th Cir. 2013)
(en banc), affd, Burwell v. Hobby Lobby Stores, Inc., 134 S. Ct. 2751 (2014). It is
an abuse of a district courts discretion to deny a preliminary injunction based on
an error of law. Id. Accordingly, where a district courts denial of a preliminary
injunction rests on a legal determination, this Court reviews that determination
de novo. Cressman v. Thompson, 719 F.3d 1139, 1144 n.7 (10th Cir. 2013).
The traditional requirements for a preliminary injunction are well estab-
lished. A moving party must show: (1) a likelihood of success on the merits; (2) a
likely threat of irreparable harm to the movant; (3) that the harm alleged by the
movant outweighs any harm to the non-moving party; and (4) that an injunction
serves the public interest. Hobby Lobby, 723 F.3d at 1128; accord Winter v.
NRDC, 555 U.S. 7, 20 (2008). In cases involving laws that burden fundamental
First Amendment rights, the likelihood of success on the merits will often be the
determinative factor. Hobby Lobby, 723 F.3d at 1145 (quoting ACLU v. Alvarez,
679 F.3d 583, 589 (7th Cir.), cert. denied, 133 S. Ct. 651 (2012)).
2

2
This Court sometimes had required a heightened showing for preliminary
injunctions that alter the status quo or afford the movant all the relief that it
could recover at the conclusion of a full trial on the merits. O Centro Espirita

23
ARGUMENT
The government may not create classes of favored and disfavored speakers.
But Colorados discriminatory reporting and disclosure requirements do just that
by imposing onerous burdens on the political speech of all speakers except the in-
stitutional media, which is granted an exemption based on the States assessment
of its trustworthiness, credibility, and message. Because such discrimination based
on the status, identity, class, and ideology of a speaker is flatly prohibited by the
First Amendment, the district courts order should be reversed and a preliminary
injunction prohibiting the Secretary from enforcing Colorados discriminatory re-
porting and disclosure requirements should be enforced.
I. THE DISTRICT COURT ERRED IN CONCLUDING THAT
CITIZENS UNITED DOES NOT HAVE A SUBSTANTIAL
LIKELIHOOD OF SUCCESS ON THE MERITS.
As the Secretary concedes, the parties are in agreement on many of the
facts. App. at A86. There is fundamentally no dispute that speakers subject to
Colorados reporting and disclosure requirements may not engage in electioneering

Beneficiente Uniao Do Vegetal v. Ashcroft, 389 F.3d 973, 975 (10th Cir. 2004) (en
banc) (per curiam), affd, 546 U.S. 418 (2006). Neither is the case here. An un-
constitutional law is not a valid status quo; if it were, then this heightened stand-
ard would apply to any constitutional challenge to a statute in effect. But that is
not the law. See Burwell v. Hobby Lobby Stores, Inc., 134 S. Ct. 2751, 2766
(2014). And granting Citizens United preliminary relief would not finally invali-
date Colorados discriminatory media exemption.

24
communications and independent expenditures without first registering with the
State, filing detailed bi-weekly reports about their sources of funding, and exposing
themselves to the threat of lawsuits and administrative sanctions for regulatory in-
fractions. App. at A12-14 ( 15-20), A50-53. This Court has already determined
that these regulatory requirements impose significant burdens on those who wish to
engage in political speech. Sampson v. Buescher, 625 F.3d 1247, 1259 (10th Cir.
2010). And it is undisputed that these burdens do not apply to speakers who ex-
press political views in a newspaper or magazine or through a radio or television
broadcastthe institutionalized and longstanding press entities that, according to
the Secretary, inform the public in a transparent, balanced, and accountable man-
ner. App. at A14-15 ( 21-22), A53-54, A96; Secy Br. 38. Finally, the Secre-
tary has conclusively determined that Citizens Uniteds forthcoming film does not
qualify for any enumerated exemption to the definition of electioneering commu-
nication under Colorado lawincluding Colorados exemptions for print media
and broadcast facilities. App. at A18-20 ( 32-38), A37-47, A56-58. Under set-
tled First Amendment principles, these undisputed facts establish Citizens Uniteds
strong likelihood of success on the merits.
A. Colorados Discriminatory Burdens On The Political Speech Of
Press Entities Require Strict Scrutiny.
1. [R]estrictions distinguishing among different speakers, allowing speech
by some but not others, are presumptively [p]rohibited. Citizens United v.

25
FEC, 558 U.S. 310, 340 (2010). Such discriminatory restrictions on speech are
therefore subject to strict scrutiny, which places on the government the heavy bur-
den to prove that the restriction furthers a compelling interest and is narrowly tai-
lored to achieve that interest. Id. at 340.
The Supreme Court has left no doubt that strict scrutiny applies where a fa-
cially discriminatory law single[s] out the press for special treatment. Minneap-
olis Star & Tribune Co. v. Minn. Commr of Revenue, 460 U.S. 575, 582 (1983).
In Minneapolis Star, the Court held that such a law place[s] a heavier burden of
justification on the State because it suggests that the goal of the regulation is not
unrelated to the suppression of expression, and therefore is presumptively un-
constitutional. Id. at 583, 585. A generally applicable tax gives little cause for
concern, the Court explained, because [w]e need not fear that a government will
destroy a selected group of taxpayers by burdensome taxation if it must impose the
same burden on the rest of its constituency. Id. at 585. In contrast, the power to
tax differentially . . . gives a government a powerful weapon against the taxpayer
selected. Id. (emphasis added).
Strict scrutiny is therefore required because restrictions based on a speakers
identity often facilitate viewpoint discrimination, an especially disfavored form of
speech regulation that is presumed to be unconstitutional. Rosenberger v. Rector
& Visitors of Univ. of Va., 515 U.S. 819, 828 (1995); see also Citizens United, 558

26
U.S. at 340 (Speech restrictions based on the identity of the speaker are all too of-
ten simply a means to control content.); Members of City Council of L.A. v. Tax-
payers for Vincent, 466 U.S. 789, 816 (1984) (similar); Minneapolis Star, 460 U.S.
at 588 ([T]he very selection of the press for special treatment threatens the press
not only with the current differential treatment, but with the possibility of subse-
quent differentially more burdensome treatment.) (emphasis in original). Indeed,
this Court has recognized that any distinction between speaker-based discrimina-
tion and viewpoint discrimination may as a practical matter be illusory. Okla.
Corr. Profl Assn v. Doerflinger, 521 F. Appx 674, 679 (10th Cir. 2013) (un-
published). These concerns about viewpoint discrimination are triggered whenever
a law or policy, though facially legitimate, is selectively enforced or subject to
exceptions. Pahls v. Thomas, 718 F.3d 1210, 1238 (10th Cir. 2013) (emphasis
added). Moreover, even apart from the risk of impermissible viewpoint and con-
tent discrimination, [e]xemptions from an otherwise legitimate regulation of a
medium of speech . . . may diminish the credibility of the governments rationale
for restricting speech in the first place. City of Ladue v. Gilleo, 512 U.S. 43, 52
(1994).
The Supreme Court has applied these First Amendment principles in numer-
ous contexts. In First National Bank of Boston v. Bellotti, 435 U.S. 765 (1978), for
example, the Court invalidated a statute that prohibited corporationsbut no other

27
speakersfrom making political expenditures in support of, or in opposition to,
ballot initiatives. Id. at 784-85. The Court explained that [t]he inherent worth of
the speech in terms of its capacity for informing the public does not depend upon
the identity of its source. Id. at 777. Thus, the First Amendment is plainly of-
fended when government attempts to give one speaker an advantage in express-
ing its views to the people over another. Id. at 785-86.
Similarly, in Rosenberger, the Supreme Court struck down a state universi-
tys policy of denying student activity funds for a student newsletter that, in the
schools judgment, promote[d] or manifest[ed] a particular belie[f] in or about a
deity or an ultimate reality. 515 U.S. at 827 (internal quotation marks omitted;
alterations in original). That policy had the effect of excluding a perspective
from the forum of student speech by selecting for disfavored treatment speech
with religious editorial viewpoints. Id. at 831. The universitys policy therefore
violated the principle that, [i]n the realm of private speech or expression, govern-
ment regulation may not favor one speaker over another. Id. at 828.
The Supreme Court applied this same nondiscrimination principle in Citi-
zens United, where it struck down a federal prohibition on independent expendi-
tures by corporations because, among other reasons, that prohibition imposed a
burden solely on certain disfavored speakers. 558 U.S. at 341. Even if the ex-
penditure ban were otherwise constitutional, the Court held, it would impermissi-

28
bly discriminate among speakers, allowing some to spend unlimited amounts on
independent expenditures, while others are penalized for engaging in the same
political speech. Id. at 356. Such discrimination is unconstitutional, the Court
concluded, because the government may not, through regulation, dictate what dis-
trusted source [the public] may not hear. Id.
Most recently, the Supreme Court struck down a commercial-speech re-
striction that, on its face, imposed a burden based on the content of speech and
the identity of the speaker. Sorrell v. IMS Health Inc., 131 S. Ct. 2653, 2665
(2011). The Vermont law in question provided that pharmacy records showing the
prescribing practices of individual doctors could not be sold or disclosed by phar-
macies for marketing purposes, and could not be used by pharmaceutical manufac-
turers for marketing, without the prescribers consent. Id. at 2659, 2660. It did not
matter to the Court that direct restrictions on commercial speech are subject only to
a less than strict, intermediate First Amendment test. Id. at 2674 (Breyer, J.,
dissenting). Nor did it matter that the States interests behind the law were signif-
icant or that its stated policy goals may [have] be[en] proper. Id. at 2659, 2670
(majority opinion). The law was still unconstitutional because it imposed discrim-
inatory burdens aimed at particular speakers and directed at certain content.
Id. at 2664, 2665.

29
This Courts precedent is to similar effect. In American Constitutional Law
Foundation, Inc. v. Meyer, 120 F.3d 1092 (10th Cir. 1997), for example, this Court
struck down a Colorado law that had a discriminatory effect by requiring that pe-
tition circulators be registered voters and wear a badge. Id. at 1100. The law dis-
criminated against other speakers because it bar[red] persons who are not regis-
tered voters from circulating petitions, thereby excluding that group of persons
from participating in core political speech. Id. The Court concluded that the
State had identified no compelling interest to which the law was narrowly tailored,
despite its legitimate interest in preserving the integrity of its elections and pre-
vent[ing] fraud. Id. at 1100, 1102, 1104; accord Doerflinger, 521 F. Appx at
678-79 & n.4 (noting that the Supreme Court has applied heightened scrutiny for
burdens on speech in a variety of contexts); Chandler v. City of Arvada, 292
F.3d 1236, 1241 (10th Cir. 2002) (applying strict scrutiny to strike down an ordi-
nance that prohibited nonresidents from circulating petitions despite citys compel-
ling interest in policing the integrity of its petition process).
2. Under this settled line of precedent, Colorados reporting and disclosure
requirements are subject to strict scrutiny because they discriminate among speak-
ers in the State, allowing privileged speakers who own or utilize printing presses or
broadcast facilities to exercise their constitutional right to engage in electioneering
communications or independent expenditures without inhibition while subjecting

30
other speakers to a variety of state-imposed burdens on their speech. Because Citi-
zens United is not one of the privileged speakers exempted from the States bur-
densome regulatory requirements, it will be required to make disclosures regarding
the funding, and other financial details, of Rocky Mountain Heist, while a media
entity that engages in the same examination of public candidates in a newspaper,
magazine or other periodical, or airs exactly the same film via a broadcast facili-
ty, would be exempt from those reporting and disclosure requirements. Colo.
Const. art. XXVIII, 2(7)(b)(I), (II). Indeed, as the Secretarys own expert admit-
ted, the media are not subject to the same rules as other speakers under Colorado
law. App. at A226. Colorado must therefore demonstrate that it has a compelling
basis for distinguishing between speakers like Citizens United who express politi-
cal views through documentary films but do not own a printing press or broadcast
facility, and those who engage in political discourse in print and other formats cov-
ered by a statutory exemption.
Attempting to reframe the issue and obscure this unmistakable discrimina-
tion, the Secretary repeatedly insists that this case involves disclosure, and disclo-
sure alone. App. at A81; see also App. at A270. But this case is not about dis-
closure alone, but rather about the application of registration and disclosure re-
quirements in a manner that facially discriminates based on the identity and status
of the speaker. It is thus irrelevant that disclosure requirements alone have been

31
upheld where they provid[e] the electorate with information about the sources of
election-related spending. Citizens United, 558 U.S. at 367 (internal quotation
marks omitted). The Supreme Court has never accepted the argument that a bur-
den, if permissible when imposed on all speakers, is necessarily permissible when
imposed only on a disfavored few. Disclosure requirements of general application
may be subject only to exacting scrutiny, but facial discrimination in the applica-
tion of those requirements is not. Such discrimination is subject to heightened
scrutiny.
Indeed, the notion that a regulation of speech may be impermissibly under-
inclusive is firmly grounded in basic First Amendment principles. City of Ladue,
512 U.S. at 51. Thus, whatever the benefits disclosure requirements may serve in
the abstract, Colorados reporting and disclosure requirements must be reviewed
under strict scrutiny because they apply only to certain disfavored speakersthose
without access to a printing press or a broadcast facility. In this regard, Colorados
discriminatory reporting and disclosure requirements are no different than Minne-
sotas attempt, in Minneapolis Star, to impose a differential tax burden on a select
few disfavored speakers. There, the Court recognized that such discriminatory
burdensand the attendant threat of sanctions for noncompliancehave censori-
al effects on speech and are a proxy for content discrimination, for [t]he threat
of sanctions may deter [the] exercise [of First Amendment rights] almost as potent-

32
ly as the actual application of sanctions. 460 U.S. at 588 (quoting NAACP v.
Button, 371 U.S. 415, 433 (1963)) (alterations in original).
Colorados discriminatory reporting and disclosure requirements cannot be
justified by some special characteristic of the particular medium being regulat-
ed. Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622, 660-61 (1994) (quoting Min-
neapolis Star, 460 U.S. at 585). There is no characteristic of the political speech
disseminated via Citizens Uniteds documentary film that separates it from the
speech of newspapers, radio, and broadcast television favored by Colorados re-
gime that is unrelated to the content of the speech if the respective speakers. In
fact, the Secretary himself now seeks to justify the distinction among the favored
traditional media and the unfavored non-traditional media on the transparently
content-based ground that traditional media outlets supposedly inform or educate
the public . . . in a transparent, balanced, and accountable manner. Secy Br. 38.
Yet, government discrimination among speakers based on the governments belief
that favored speakers are balanced, is not discrimination based on a special char-
acteristic of the medium; it is quite explicitly based on the speechs content and
viewpoint (i.e., balanced v. less balanced). And it is axiomatic that this brand

33
of viewpoint-based discrimination is the First Amendments cardinal sin and is
subject to strict scrutiny.
3

B. Colorados Discriminatory Reporting And Disclosure
Requirements Are Not Narrowly Tailored To Further A
Compelling Government Interest.
Colorado lacks even a legitimatelet alone compellinginterest in apply-
ing its reporting and disclosure requirements in a discriminatory manner to some
speakers but not others. Those requirements force Citizens United and other disfa-
vored speakers to make an unconstitutional choice. They can either refrain from
core political speech prior to the general election, or submit to burdensome state
regulationsand the attendant threat of administrative enforcement and penal-
tiesthat are inapplicable to Colorados privileged class of speakers: the tradi-
tional print and broadcast media. Just last Term, the Supreme Court reiterated that
prompt judicial review is necessary when a State forces speakers to choose be-

3
Leathers v. Medlock, 499 U.S. 439 (1991), provides no support for the Sec-
retarys position. In Leathers, the Court upheld a state sales tax that applied gener-
ally to the sales of all tangible personal property and specified services, but did not
apply to certain over-the-counter newspaper sales and subscription magazine sales.
Id. at 441-42, 453. Because nothing in the states broad-based, content-neutral
sales tax is likely to stifle the free exchange of ideas, the Court concluded that the
tax did not violate the First Amendment. Id. at 453. Here, in contrast, Colorados
reporting and disclosure requirements apply only to the political expression of
speakers who do not qualify as the institutional pressa discriminatory burden
that, on its face, threatens to suppress particular ideas or viewpoints and there-
fore is constitutionally suspect. Id. at 447.

34
tween refraining from core political speech on the one hand, or engaging in that
speech and risking costly [administrative] proceedings and criminal prosecution on
the other. Susan B. Anthony List v. Driehaus, 134 S. Ct. 2334, 2347 (2014).
Colorados reporting and disclosure requirements are facially discriminatory
because they apply only to certain speakers (including Citizens United) who, in the
words of the Secretary, lack a sufficient track record of trustworthiness to en-
joy unfettered freedom of political expression. App. at A96. For institutionalized
and longstanding press entities (id.), on the other hand, Colorado imposes no such
burdens. Speakers with access to a printing press or their own broadcast facility
are categorically exempt from Colorados regulation of electioneering communica-
tions and independent expenditures. Colo. Const. art. XXVIII, 2(7)(b), (8)(b).
This is discrimination in its most blatant and pernicious form. If a broad-
caster were to create and air Rocky Mountain Heist, it would not be required to reg-
ister as an independent expenditure committee or establish a dedicated bank ac-
count. If a newspaper were to publish a transcript of the documentary film, it
would not be required to disclose its sources of funding or file detailed reports with
the State. If a magazine were to publish an investigative article substantively iden-
tical to Rocky Mountain Heist, it would not face the chilling threat of liability, ad-
ministrative penalties, and attorney fees. But when Citizens United engages in ex-
actly the same speech, it is subject to all of these burdens.

35
The Secretarys various attempts to justify these discriminatory burdens are
uniformly unpersuasive. A state must proffer a justification that is genuine, not
hypothesized or invented post hoc in response to litigation, United States v. Vir-
ginia, 518 U.S. 515, 533 (1996); but the Secretary has not done so here. For ex-
ample, the Secretary has suggested that the burdens of Colorados reporting and
disclosure requirements are modest (App. at A92)an argument that misses the
point entirely. All speakers are entitled to participate on equal terms in the free in-
terchange of ideas about what kind of government We the People wish to have.
The First Amendment forbids government from erecting barriershowever mod-
estthat make it more costly, risky, and onerous for a disfavored class of speak-
ers to participate in that political discussion.
In any event, the burdens of Colorados reporting and disclosure scheme are
anything but modest. See Sampson v. Buescher, 625 F.3d 1247, 1259 (10th Cir.
2010) (observing that the burdens [of Colorados registration and reporting re-
quirements] are substantial). For electioneering communications, Citizens United
would be required to file detailed, bi-weekly reports disclosing the amount spent
on those communications and the name, address, occupation, and employer of any
person that contributed more than $250 to fund the communications. Colo. Const.
art. XXVIII, 6(1); Colo. Rev. Stat. 1-45-108(2)(a)(I)(D). Moreover, as the Sec-
retary recently admitted, independent expenditure committees are subject to more

36
extensive regulations than the disclosure requirements for electioneering commu-
nications. Secy Br. Opp. Mot. Preliminary Injunction at 10, Independence Inst. v.
Gessler, No. 14-cv-02426-RBJ (D. Colo. Sept. 25, 2014). In particular:
These groups must, unlike those that seek only to engage in non-
express electioneering, register with the Secretary and report details of
their corporate form and ownership structure. Colo. Rev. Stat. 1-45-
107.5(3)(4). They must maintain a separate bank account and must
use that account exclusively for their advocacy efforts. Id. 1-45-
107.5(7). And they are required to report information regarding the
business structure of any corporate donors that contribute more than
$250. Id. 1-45-107.5(4)(b). Like political committees, independent
expenditure committees must register with the Secretary and may
terminate, and avoid further disclosure obligations, only if they satisfy
specific conditions. 8 Colo. Code of Regulations 1505-6, Campaign
Finance Rule 12.3.
Id. And, of course, any violation of these requirements would expose Citizens
United to the risk of an enforcement action and penalties. See supra at 10-11.
The Secretary has argued that the disclosure requirements for electioneering
communications apply only for funds that contributors earmarked for electioneer-
ing communications. See App. at A278 (arguing that for disclosure to be required
in the case of an electioneering communication, it would have to be somebody
who wrote a check and on the bottom of it wrote, this is for Rocky Mountain
Heist.); see also 8 Colo. Code Regs. 1505-6:11.1 (providing that disclosure shall
only be required if the money is specifically earmarked for electioneering commu-
nications). Even if the requirements for electioneering communications are lim-
ited to earmarked funds, however, the need to separate out and identify earmarked

37
funds creates significant administrative and compliance burdens for speakers. In-
stitutional press entities, in contrast, are not required to bear those burdens.
In Citizens United, the Supreme Court struck down a law that similarly
would have required corporate speakersexcept for entities that qualified for the
federal media exemptionto form political action committees just to speak. 558
U.S. at 338. That law, like Colorados reporting and disclosure requirements, im-
posed expensive and onerous restrictions on some speakers, but not others, and
required the disfavored speakers to make detailed monthly reports as a condition
for engaging in protected political speechburdens that the Supreme Court held
were unconstitutional. Id. at 337-39. More recently, in Wisconsin Right to Life,
Inc. v. Barland, 751 F.3d 804 (7th Cir. 2014), the Seventh Circuit struck down
Wisconsins registration and reporting requirements for groups that undertake oc-
casional independent expenditures. Id. at 840-42. The court held that those re-
quirementswhich closely resemble Colorados registration, reporting, and dis-
closure requirements for independent expenditure committees, supra at 5-9failed
even exacting scrutiny because requiring all issue-advocacy groups to comply
with burdensome PAC requirements was not a closely tailored means of achiev-
ing the publics informational interest. Id. at 842; see also id. at 814 (explaining
that the law required groups to file detailed reports disclosing the name and ad-
dress of the contributor and name and address of the donors place of employ-

38
ment). The financial, administrative, and efficiency burdens that Colorados re-
porting and disclosure requirements would impose on Citizens Unitedbut not on
members of the print and broadcast mediaare equally onerous.
The Secretary also argues that Colorados reporting and disclosure require-
ments serve the States interest in an informed electorate and that this interest
appl[ies] more strongly to speakers who engage in isolated instances of political
advocacy than . . . institutionalized and longstanding press entities, which have a
sufficient track record of trustworthiness. App. at A96. But when government
imposes additional burdens and restrictions on the speech of those whom it deems
to be untrustworthy or not credible, it engages in unconstitutional identity and
viewpoint discrimination. See Rosenberger, 515 U.S. at 831. If voters have a right
to know who is speaking when a documentary filmmaker engages in political
discourse, then they also have the same right when a broadcaster airs a documen-
tary or a magazine profiles a political candidate; the State may not favor one
speaker over another simply because the broadcaster or publisher may have a long-
er journalistic pedigree than the documentary filmmaker. The First Amendment

39
does not protect established, entrenched speakers at the expense of upstarts and in-
novators who push the bounds of communication and expand the realm of ideas.
4

The same is true of Colorados other exemptions from its reporting and dis-
closure requirements. For example, Colorado exempts speakers whose communi-
cations are in the regular course and scope of their business (Colo. Const. art.
XXVIII, 2(7)(b)(III), (8)(b)(III))an exemption effectively limited to distribu-
tors of content who have no editorial control, such as UPS, FedEx and the U.S.
Postal Service. See App. at A43.
5
But the Supreme Court long ago rejected calls
to limit speech protections to those corporations for which the speech is connect-
ed to the corporations business almost by definition. Bellotti, 435 U.S. at 781.
Colorados exemption for professional speakers who confine themselves to the
regular course of their business therefore underscores the degree to which Colora-

4
For this reason, the Secretarys reliance on the testimony of its experts is
misplaced. See Secy Br. 20, 36-42. Colorado lacks a compelling interest in dis-
criminating against speakers on the basis of identity as a matter of law.

5
Despite Citizens Uniteds history of producing twenty-five documentary
films since 2004, the Secretary determined that Rocky Mountain Heist was not in
the regular course and scope of Citizens Uniteds business. App. at A42. In the
Secretarys view, the exemption for speakers whose communications are within the
regular course of their business is limited to speakers who are not seeking to in-
fluence the election. App. at A43.

40
do is singling out non-traditional media entitiessuch as documentary filmmakers,
bloggers, and pamphleteersfor disfavored status.
6

C. The Media Exemptions Cannot Be Severed From The Reporting
And Disclosure Requirements.
The unconstitutional discrimination wrought by the media exemptions is fa-
tal to Colorados entire reporting and disclosure regime. Indeed, neither the Secre-
tary nor the Intervenors dispute that those discriminatory media exemptions cannot
be severed from the remainder of the reporting and disclosure requirements. See
App. at A65-67. The media exemptions are an integral part of Colorados cam-
paign-finance framework, and severing them from the other aspects of the report-
ing and disclosure regime would lead to absurd results not contemplated by the
Colorado legislature. The reporting and disclosure requirements therefore must be
invalidated in their entirety.
Severability is an issue of state law. Am. Target Adver., Inc. v. Giani, 199
F.3d 1241, 1250 (10th Cir. 2000) (citing Leavitt v. Jane L., 518 U.S. 137, 139

6
Colorados exemption for communications made solely from a membership
organization to its members exacerbates this discrimination. Colo. Const. art.
XXVIII, 2(7)(b)(III), (8)(b)(III). The Secretary determined that Citizens United
did not qualify for this exemption, despite being a membership organization, be-
cause it plans to distribute the film to people outside of Petitioners membership.
App. at A44. But this exemption plainly discriminates against those, like Citizens
United, who wish to speak in the public forum of political debate and not merely
internally. Colorado has no legitimate or compelling interest in channeling politi-
cal speech to a speakers members and away from the public at large.

41
(1996) (per curiam)). Under Colorado law, severability depends on two factors:
(1) the autonomy of the portions remaining after the defective provisions have
been deleted and (2) the intent of the enacting legislative body. City of Lakewood
v. Colfax Unlimited Assn, 634 P.2d 52, 70 (Colo. 1981) (en banc). If a statute
contains a severability clause, such a clause creates a presumption that the legisla-
ture would have been satisfied with the portions of the statute that remain after the
offending provisions are stricken as being unconstitutional. People v. Seven Thir-
ty-Five E. Colfax, Inc., 697 P.2d 348, 371 (Colo. 1985) (en banc).
7
But see United
States v. Jackson, 390 U.S. 570, 585 n.27 (1968) (noting that the ultimate deter-
mination of severability will rarely turn on the presence or absence of such a
clause). That presumption of severability is rebutted, however, if what remains
is so incomplete or riddled with omissions that it cannot be salvaged as a meaning-
ful legislative enactment. Colfax Unlimited Assn, 634 P.2d at 70 (internal quota-
tion marks and alterations omitted).

7
Although the standard for evaluating severability is a question of state law,
Colorado applies a standard that is essentially equivalent to the standard under fed-
eral law. See Alaska Airlines, Inc. v. Brock, 480 U.S. 678, 684 (1987) (The stand-
ard for determining the severability of an unconstitutional provision is well estab-
lished: Unless it is evident that the Legislature would not have enacted those pro-
visions which are within its power, independently of that which is not, the invalid
part may be dropped if what is left is fully operative as a law.) (quoting Buckley
v. Valeo, 424 U.S. 1, 108 (1976) (per curiam)).

42
A provision should not be severed if it will compromise the integrity or co-
herence of the statute in any way. Citizens for Responsible Govt State Political
Action Comm. v. Davidson, 236 F.3d 1174, 1196 (10th Cir. 2000). As a general
matter, provisions containing exceptions from a statutory scheme are not severable
because the remaining provisions would not serve the intent of the legislature. See
Davis v. Wallace, 257 U.S. 478, 484 (1922) (striking down a state tax scheme that
contained an unconstitutional exception because the excepting provision was in
the statute when it was enacted, and there can be no doubt that the legislature in-
tended that the meaning of the other provisions should be taken as restricted ac-
cordingly); Spraigue v. Thompson, 118 U.S. 90, 95 (1886) (refusing to sever inva-
lid provisions because, by rejecting the exceptions intended by the legislature . . .
the statute is made to enact what confessedly the legislature never meant and
confers upon the statute a positive operation beyond the legislative intent).
The Colorado Constitution and the FCPA contain severability clauses, which
provide that if any portion is deemed invalid, the invalidity of those provisions will
not affect the validity of other provisions of Article XXVIII or the FCPA. See Co-
lo. Const. art. XXVIII, 14; Colo. Rev. Stat. 1-45-118. That presumption of
severability, however, is readily rebutted with respect to the media exemptions be-
cause the exemptions are integral to Colorados reporting and disclosure regime.
See Davidson, 236 F.3d at 1197 (refusing to sever unconstitutional twenty-four

43
hour notice requirement in the FCPA because it was integral to the statutory
scheme). Eliminating the exemptionswhile leaving the remainder of the report-
ing and disclosure framework intactwould extend the reporting and disclosure
requirements on a nondiscriminatory basis to all speakers, including the print me-
dia and broadcast facilities. While that is the constitutionally compelled approach
that the Colorado legislature, or the Colorado voters, must take if they apply re-
porting and disclosure requirements to any speaker, it is far different from the ex-
emption-riddled regime that was actually enacted. There is no indication that Col-
orados voters would have enacted a reporting and disclosure framework without
the media exemptions. See In re Interrogatories Relating to the Great Outdoors
Colo. Trust Fund, 913 P.2d 533, 540 (Colo. 1996) (en banc) (When courts con-
strue a constitutional amendment that has been adopted through a ballot initiative,
any intent of the proponents that is not adequately expressed in the language of the
measure will not govern the courts construction of the amendment.).
Without the media exemptions, any newspaper, magazine, or television or
radio station disseminating content that qualifies as an electioneering communica-
tion or independent expenditure would be required to file regular reports with the
State disclosing the amount spent and the sources of their funding. Moreover, if a
communication qualifies as an independent expenditure and more than $1,000 has
been spent on it, the newspaper, magazine, or broadcast facility would have to

44
prominently featur[e] the name of the person making the expenditure and a
statement that the expenditure is not authorized by any candidate. Colo. Const.
art. XXVIII, 5(2). Because Colorados voters never would have enacted such a
disruptive campaign-finance regime, the reporting and disclosure requirements
must be invalidated in their entirety.
D. If Media Exemptions From Political Speech Restrictions Are
Constitutionally Compelled, They Must Be Construed To Apply
To Citizens United.
It is doubtful that the First Amendment compels an exemption for the media.
As the Supreme Court held in Cohen v. Cowles Media Co., 501 U.S. 663 (1991),
generally applicable laws do not offend the First Amendment simply because
their enforcement against the press has incidental effects on its ability to gather and
report the news. Id. at 669. Even if some form of media exemption were consti-
tutionally compelled to protect the freedom of the press, however, Citizens Unit-
edan organization devoted to disseminating information about issues of public
importance, including candidates for political officewould be entitled to the
same constitutional protections as the media entities encompassed by the Secre-
tarys interpretation of the exemptions.
Citizens United regularly engages in media activities that are substantially
similar to the activities of the print-media organizations and broadcast facilities en-
titled to invoke Colorados media exemptions. Like newspapers, magazines, and

45
radio and television stations, Citizens United critically examines matters of public
importanceincluding candidates for office, elected officials, and the role of ad-
vocacy groups in elections and governmentin order to inform the public debate
on issues with both local and national significance. The only difference is that Cit-
izens United generally communicates its message through documentary films and
does not operate its own broadcast facility to disseminate those films.
In light of these activities, the FEC has construed the parallel media exemp-
tion in federal law to apply to Citizens United. By its terms, that exemption ex-
cludes from the definition of electioneering communication and expenditure any
news story, commentary, or editorial distributed through the facilities of any
broadcasting station, newspaper, magazine, or other periodical publication. 2
U.S.C. 431(9)(B)(i). According to the FEC, the federal media exemption is not
limited to traditional publishing outlets, but instead extends to news stories, com-
mentaries, and editorials no matter in what medium they are published. App. at
A31 (citation and emphasis omitted). The federal exemption therefore extends to
cable television, the Internet, satellite broadcasts, and rallies staged and broadcast
by a radio talk show. Id. (footnotes omitted).
Courts have likewise recognized that the core values of the First Amend-
ment clearly transcend the particular details of the various vehicles through which
messages are conveyed. Quincy Cable TV, Inc. v. FCC, 768 F.2d 1434, 1448

46
(D.C. Cir. 1985). As a result, [r]egulations that discriminate among media, or
among different speakers within a single medium, often present serious First
Amendment concerns. Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622, 659
(1994). In Minneapolis Star, for example, the Court invalidated a tax on the use of
paper and ink because, among other reasons, it applies only to certain publications
protected by the First Amendment. 460 U.S. at 581. And in Arkansas Writers
Project, Inc. v. Ragland, 481 U.S. 221 (1987), for example, the Court struck down
a tax exemption that applied only to religious, professional, trade, and sports
publications, but not others, because it was both overinclusive and underinclu-
sive. Id. at 232.
There is no constitutional basis for distinguishing between the media activi-
ties of Citizens United and the activities of those media entities covered by the
Secretarys interpretation of Colorados media exemptions. If those exemptions
are compelled by the First Amendments protections for freedom of the press, then
they must be construed to extend to Citizens United because its media activities are
no less vital to the public discourse than those of the print media and broadcast fa-
cilities. Excluding Citizens United from the media exemption disregards its status

47
as a media entity and draws an unconstitutional distinction between different clas-
ses of media organizations.
8

E. The District Court Misapprehended Core First Amendment
Principles.
The First Amendment principles that require government to maintain strict
neutrality as to speakers status, identity, message, and viewpointand that render
Colorados discriminatory reporting and disclosure requirements unconstitution-
alare long settled. Yet the district court repeatedly resisted these principles,
mischaracterizing Citizens Uniteds arguments or dismissing them as nonsensi-
cal. App. at A168. The district courts stated reasons for denying a preliminary
injunction are flatly inconsistent with First Amendment principles.
The district court erroneously framed the legal issue as concerning only
whether disclosure requirements are constitutional because they serve a govern-
mental interest in transparency. App. at A163 (internal quotation marks omit-
ted). In its concluding paragraph, for example, the district court extolled the sen-
timent of Buckley v. Valeo, 424 U.S. 1 (1976) (per curiam), that disclosure re-

8
The district court disagreed, noting that the press entity status . . . does not
exist in Colorado. App. at A170. But that rationale entirely misses the point of
Citizens Uniteds argument that it is entitled to the same protections under First
Amendment to the U.S. Constitution as other media entities. That argument does
not rest on whether Colorado itself defines a distinct class of press entity for
state-law purposes.

48
quirements are the least restrictive means of curbing the evils of campaign ig-
norance and corruption, and chided Citizens United for hoping to unravel forty
years of precedent. App. at A174 (quoting Buckley, 424 U.S. at 68). But this
case is not about the general constitutionality of disclosure requirements any more
than Sorrell was about the general constitutionality of regulations on commercial
speech. This case is only about whether Colorado can impose burdens on certain
speakers but not others based on their identitywithout regard to whether those
requirements would be constitutional if applied evenhandedly. In particular, it is
about whether the First Amendment can tolerate Colorados preferential exemp-
tions for institutional media, such as newspapers and broadcasters, and its deci-
sion to deny that favored status to all other speakers in the public forum. The Su-
preme Court has made clear that there is no basis for the proposition that, in the
context of political speech, the Government may impose restrictions on certain dis-
favored speakers. Citizens United, 558 U.S. at 341.
While the district court acknowledged in passing that laws distinguishing
among speakers are highly disfavored under the First Amendment, it viewed as
paramount the publics interest in knowing who is speaking. App. at A164 (in-
ternal quotation marks omitted). But that interest cannot justify imposing a burden
on political speech only when it is uttered by certain speakers. If Colorado were
truly interested in providing information to the public about speakers identities, it

49
would apply its disclosure requirements evenhandedly to all speakers, rather than
specifically carving out newspapers, magazines, and broadcasters.
Similarly, in deeming Colorados discriminatory reporting and disclosure
requirements to have a reasonable fit with a sufficiently important interest in an
informed electorate, the district court embraced the Secretarys purported distinc-
tion between speakers who engage in isolated instances of political advocacy and
speech by institutionalized and longstanding press entities. App. at A166-67.
Under the First Amendment, however, even speakers who lack a track record of
political expression but who are stirred by a particular issue or candidate are enti-
tled to speak on the same footing as newspapers, magazines, and broadcasters. By
erecting a barrier for speakers who are not institutionalized and longstanding
press entities (App. at A96), Colorados reporting and disclosure requirements
blatantly discriminate against and discourage new entrants to the political debate.
See App. at A292.
The district court also applied a relaxed form of First Amendment scrutiny
of Colorados reporting and disclosure requirements because, in the courts view,
they regulate electioneering communications and independent expenditures based
on the form of speech. App. at A165. But the First Amendment recognizes no
such safe-harbor for government discrimination among speakers based on the form
of speech. In Brown v. Entertainment Merchants Association, 131 S. Ct. 2729

50
(2011), for example, the Supreme Court struck down Californias attempt to regu-
late content (violence) expressed through a particular form of speech (video
games). Id. at 2741-42. There, as here, the state attempted to justify its regulation
of content on the basis of the form of expressionthe interactive nature of video
gamesbut the Court concluded that the state had failed to distinguish video
games from other forms of protected speech. See id. at 2737-38. Crudely violent
video games, tawdry TV shows, and cheap novels and magazines are no less forms
of speech than The Divine Comedy, the Court explained, and restrictions upon
them must survive strict scrutiny. Id. at 2737 n.4. Similarly, under the district
courts logic, Colorados discriminatory reporting and disclosure requirements
regulate content (political speech) expressed through a particular form of speech
(non-print and non-broadcast media). Consistent with Brown, a law like Colora-
dos that places greater burdens on political speech in a documentary film than on
the same political speech disseminated from a broadcast tower or on the pages of
the Denver Post also must survive strict scrutiny.
The district courts metaphysical distinction between form and speaker fails
in any event. When a law favors a form of speech that is expressly limited to
certain speakersmembers of the traditional media who own a printing press or
who have successfully navigated the lengthy process of securing one of the limited
number of broadcast licenses made available by the FCCthen the distinction is

51
one based on identity because only members of the favored class have access to the
preferred form of communication.
Citizens Uniteds form of speech is through documentary filma medium
no less deserving of First Amendment protection than newspapers or broadcast fa-
cilities. Indeed, before the advent of broadcast television, news was routinely dis-
tributed on film newsreels and viewed by the public at the local movie
ter. Thus, film was an established means of news dissemination well before the
emergence of television. Moreover, the traditional print and broadcast media are
no longer the dominant source of news, as more Americans now receive their news
from Internet-based sources than from the institutional media.
9
The First
Amendment, of course, was certainly not understood to condone the suppression
of political speech in societys most salient media. Citizens United, 558 U.S. at
353.
10

9
See Pew Research Center for the People & the Press, Trends in News Con-
sumption: 1991-2012, In Changing News Landscape, Even Television Is Vulnera-
ble 1 (2012) (showing that 39% of those polled received news from online or mo-
bile sources, compared to 33% from radio broadcasts and 29% from printed news-
papers), available at http://www.people-press.org/files/legacy-
pdf/2012%20News%20Consumption%20Report.pdf.

10
The Secretary unpersuasively likens Colorados reporting and disclosure re-
quirements to time, place, and manner regulations of speech. Secy Br. 28-30.
True time, place, and manner regulations, however, do not discriminate among
speakers or ideas and must serve an important governmental interest unrelated to

52
While acknowledging that the effect of the law is commonly to exempt
press entities from Colorados reporting requirements, the district court failed to
perceive any intent (or effect) to discriminate on the basis of content or view-
point. App. at A165. But the intent and effect is found in the Secretarys own
justifications for Colorados discriminatory burdens. According to the Secretary,
institutionalized and longstanding press entities enjoy a presumption of trust-
worthiness among the public that documentary filmmakers, bloggers, pamphlet-
eers, and other relative newcomers to the political debate have not earned. App. at
A96, A167. The Secretary reiterates this theme in its brief on appeal, arguing that
Colorados reporting and disclosure requirements distinguish between the trans-
parent, balanced, and accountable press and those speakers whose drop-in ad-
vocacy appeal[s] to the emotions of viewers or readers with the goal of pure per-
suasion. Secy Br. 38. The Secretarys arguments lay bare the fact that Colora-
dos media exemptions reflect the States content-based preference for the sub-
stance of what the favored speakers have to say (or aversion to what the disfavored
speakers have to say) and therefore are subject to strict scrutiny. Turner, 512 U.S.

the restriction of communication. Buckley, 424 U.S. at 18. Not only do Colora-
dos reporting and disclosure requirements discriminate among speakers and ideas,
but the laws ostensible purpose of protecting voters from isolated instances of
anonymous express advocacy (Secy Br. 34) is plainly related to the restriction of
communication.

53
at 658. The government may not pick winners and losers: The public forum of po-
litical debate is open to all comers on equal terms. That is why the Supreme Court
long ago rejected calls to confer greater protection for the speech of press entities
than for other speakers. [T]he press, the Supreme Court explained, does not
have a monopoly on either the First Amendment or the ability to enlighten. Bel-
lotti, 435 U.S. at 782.
These bedrock principles do not turn on any need for further factual devel-
opment, as the district court mistakenly believed. See, e.g., App. at A168, A192,
A272. The Supreme Court has made clear that whether a law constitutes an im-
permissible burden on core political speech is a purely legal question that will
not be clarified by further factual development. Susan B. Anthony List, 134 S. Ct.
at 2347 (internal quotation marks omitted); see also Minneapolis Star, 460 U.S. at
588 (threat of sanctions is burden on First Amendment rights). The district courts
speculation about what newspapers and broadcasters would have to disclose if the
media exemptions did not exist (App. at A168), and what type of funding ar-
rangements might violate journalists professional ethical standards (id.), simply
has no relevance to the legal question of whether Colorados reporting and disclo-
sure requirements place an impermissible burden on disfavored speakers. See Sin-
dicato Puertorriqueo de Trabajadores v. Fortuo, 699 F.3d 1, 11 (1st Cir. 2012)
(per curiam).

54
II. THE DISTRICT COURT ERRED IN CONCLUDING THAT
CITIZENS UNITED WOULD SUFFER NO IRREPARABLE INJURY.
For the reasons stated above, Colorados discriminatory reporting and dis-
closure requirements violate the First Amendment, and Citizens United will suffer
irreparable harm absent an injunction. The district court erred in concluding oth-
erwise.
The loss of First Amendment freedoms, for even minimal periods of time,
unquestionably constitutes irreparable injury. Elrod v. Burns, 427 U.S. 347, 373
(1976) (plurality opinion); Hobby Lobby Stores, Inc. v. Sebelius,
723 F.3d 1114, 1145 (10th Cir. 2013). There is no question that if the challenged
statutes are unconstitutional, Citizens United will suffer irreparable harm. The dis-
trict court recognized that a presumption of irreparable harm would apply (App. at
A172), and the Secretary has also conceded this point (App. at A106 n.10). See
also Pac. Frontier v. Pleasant Grove City, 414 F.3d 1221, 1235 (10th Cir. 2005)
([W]e therefore assume that plaintiffs have suffered irreparable injury when a
government deprives plaintiffs of their commercial speech rights.).
The irreparable harm is particularly acute in this case because the November
4 general election is just four weeks away. See Klein v. City of San Clemente, 584
F.3d 1196, 1208 (9th Cir. 2009) (The harm is particularly irreparable where, as
here, a plaintiff seeks to engage in political speech, as timing is of the essence in
politics and a delay of even a day or two may be intolerable.) (internal quotation

55
marks and alteration omitted); CRG Network v. Barland, --- F. Supp. 2d ---, 2014
WL 4391193, at *4 (E.D. Wis. Sept. 5, 2014) (Indeed, the clock is ticking towards
election day, making preliminary injunctive relief all the more appropriate.). Cit-
izens United is poised to distribute its film, but its speech will be heavily burdened
by Colorados discriminatory regulations and the attendant threat of private and
civil enforcement. See supra 5-11. At the same time, over the next four weeks,
speakers that publish in traditional print media or own broadcast facilities will en-
gage in political speech free from any such burdens.
The district court compounded its error by requiring Citizens United to pre-
sent evidence that it would suffer irreparable harm. App. at A172. Upon a
showing of a deprivation of First Amendment rights, no further evidence of ir-
reparable harm is required. See Pac. Frontier, 414 F.3d at 1235. The district court
acknowledged that [o]f course, [Citizens United] would be required to file reports
disclosing its independent expenditures and electioneering communications along
with the contributors (if any) who earmarked funds for such speech in excess of the
statutorily prescribed amount. App. at A172-73. Therefore, if it is substantially
likely that those discriminatory burdens violate the First Amendment, then irrepa-
rable harm is conclusively established.
That is the very purpose of the presumption of irreparable harm. Citizens
United need not submit evidence of any particular burdens imposed by Colorados

56
discriminatory regime (although those burdens are patently obvious). Accordingly,
the district courts conclusion that the Citizens United Court has already found
that these types of reporting and disclosure requirements are not unduly burden-
some under the First Amendment (App. at A173), is not only incorrect, it is irrel-
evant to the irreparable harm inquiry. The question is not whether reporting and
disclosure requirements in the abstract are so unduly burdensome as to violate the
First Amendment, but whether Colorados discriminatory requirements impose
costs and administrative obligations on Citizens United that the print and broadcast
media are not required to bear. Those discriminatorily imposed burdens are plain
and unmistakable.
III. DEFENDANTS AND INTERVENORS WOULD SUFFER NO
COGNIZABLE INJURY FROM A PRELIMINARY INJUNCTION.
The district court also erred in concluding that the balance of equities favors
allowing political speech to be unconstitutionally burdened on the eve of an im-
portant statewide election. See App. at A173-74. It is axiomatic that neither Colo-
rado nor its citizens have an interest in enforcing a law that is likely constitution-
ally infirm. Chamber of Commerce v. Edmondson, 594 F.3d 742, 771 (10th Cir.
2010). Thus, where a plaintiff shows a substantial likelihood that the challenged
law is unconstitutional, no substantial harm to others can be said to inhere in its en-
joinment. Deja Vu of Nashville, Inc. v. Metro. Govt of Nashville, 274 F.3d 377,
400 (6th Cir. 2001).

57
Brushing aside the concrete and irreparable harms that will be suffered by
Citizens United and similarly situated speakers, the district court focused instead
on an imagined harm to the entire electorate of Colorado, who may not be able to
make informed choices come election day. App. at A173. But the district court
cites no evidence that preliminarily enjoining the discriminatory reporting and dis-
closure requirements would have any such effect on the electorate. Id.
Moreover, the claim that a preliminary injunction would inflict harm on
Colorados voters because they would be forced to vote without pertinent infor-
mation on which to base their decisions is undercut by the exemption-riddled na-
ture of Colorados reporting and disclosure requirements. As it stands, Colorados
voters are forced to vote without pertinent information from speakers engaging
in political speech that is identical to Citizens Uniteds speech, so long as those
speakers publish in traditional print media or own a broadcast facility. Even if
there were a cognizable injury to the State or to the electorate, there is no plausible
explanation as to why the wholesale exemptions from Colorados reporting and
disclosure requirements for the institutional print and broadcast media do not in-
flict a similar injury.
In sum, the injuries that the State claims will befall the electorate if an in-
junction is granted are speculative and entirely undercut by the gaping exemptions
in Colorados reporting and disclosure scheme.

58
IV. THE PUBLIC INTEREST ALWAYS FAVORS ENJOINING THE
ENFORCEMENT OF UNCONSTITUONAL LAWS.
Finally, the public interest will be served by enjoining Colorados discrimi-
natory reporting and disclosure requirements. The district court again erred in this
respect by focusing on the speculative reasons that the disclosure and reporting re-
quirements were enacted, instead of on the tangible public interest in enforcing the
constitutionality of state laws. See App. at A173-74.
Vindicating First Amendment freedoms is clearly in the public interest.
Pac. Frontier, 414 F.3d at 1237. Regardless of the publics motivations in passing
a challenged law, the purported benefits associated with the law, or the margin of
the laws passage in the legislature or in a referendum, enforcement of an unconsti-
tutional law will not serve the public interest. Id.; Hobby Lobby, 723 F.3d at 1145.
Indeed, the enforcement of an unconstitutional law vindicates no public interest.
K.A. ex rel. Ayers v. Pocono Mountain Sch. Dist., 710 F.3d 99, 114 (3d Cir. 2013).
It is no answer that Colorado voters must have seen a significant benefit in en-
acting the existing disclosure regime. App. at A173-74. Popular referenda may
never be used to deprive citizens of fundamental constitutional guarantees. See,
e.g., Romer v. Evans, 517 U.S. 620, 625-26, 635 (1996); Reitman v. Mulkey, 387
U.S. 369, 374-75, 380-81 (1967). The voters may no more violate the United
States Constitution by enacting a ballot issue than the general assembly may by en-

59
acting legislation. Am. Constitutional Law Found., Inc. v. Meyer,
120 F.3d 1092, 1100 (10th Cir. 1997).
Accordingly, regardless of the reasons for the enactment of the discriminato-
ry reporting and disclosure regime, the public interest is only served by a prelimi-
nary injunction that will allow Citizens United and similarly situated speakers to
engage in core political speech on the eve of a critical statewide election.

60
CONCLUSION
The district courts order denying Citizens Uniteds motion for a preliminary
injunction should be reversed.
Respectfully submitted this 3rd day of October, 2014.

MICHAEL BOOS
[email protected]
CITIZENS UNITED
1006 Pennsylvania Avenue, S.E.
Telephone: (202) 547-5420
Fax: (202) 547-5421
s/ Theodore B. Olson
THEODORE B. OLSON
[email protected]
MATTHEW D. MCGILL
[email protected]
AMIR C. TAYRANI
[email protected]
LUCAS C. TOWNSEND
[email protected]
GIBSON, DUNN & CRUTCHER LLP
1050 Connecticut Avenue, N.W.
Telephone: (202) 955-8500
Fax: (202) 467-0539

Counsel for Appellant Citizens United

ATTACHMENT
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
J udge R. Brooke J ackson

Civil Action No 14-cv-002266-RBJ

CITIZENS UNITED, a Virginia Non-Stock Corporation,

Plaintiff,

v.

SCOTT GESSLER, in his official capacity as Secretary of State of the State of Colorado; and
SUZANNE STAIERT, in her official capacity as Deputy Secretary of State of the State of
Colorado,

Defendants,

and

COLORADO DEMOCRATIC PARTY,
GAROLD A. FORNANDER,
LUCA GUZMN, and
DICKEY LEE HULLINGHORST,

Intervenor-Defendants.

ORDER

The case presented today is rather straightforward. Citizens United argues that its free
speech rights are violated when the law requires it to disclose its donors while effectively
exempting traditional print media and broadcasters from the same requirement. It contends that
Colorados reporting and disclosure exemptions are a form of content- or viewpoint-based
discrimination compelling the invalidation of the entire disclosure scheme. I am not convinced
and therefore deny plaintiffs motion for a preliminary injunction.
1

Case 1:14-cv-02266-RBJ Document 26 Filed 09/22/14 USDC Colorado Page 1 of 22
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BACKGROUND
The plaintiff, Citizens United, is a Virginia non-stock corporation that regularly engages
in political speech and media activities. 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. See Federal Election Commission Advisory Opinion 2010-8 [ECF No. 1-1] at
1. Citizens United produces, markets, and distributes films on various political topics as part of
its effort to advocate, recruit members, and disseminate information. One of those films, Rocky
Mountain Heist (hereinafter the Film), is set to be completed by September 24, 2014 and to be
released and distributed in the first week of October. The Film concerns various Colorado
advocacy groups and their impact on Colorado government and public policy. Complaint [ECF
No. 1] at 27. It will include unambiguous references to elected Colorado officials who are
candidates for office in this years general elections . . . . Id. Although the Film will not
editorially endorse specific candidates, it will likely include events where participants expressly
advocate the election or defeat of one or more candidates in the November 4, 2014 elections.
Id. In total, $548,975 has been dedicated to the production of the Film, and $225,000 has been
set aside for marketing. Id. at 29.
In 2002, Colorados voters overwhelmingly approved Amendment 27 to the state
constitution, which has been incorporated as Article XXVIII. Section 1, entitled Purposes and
findings, states:
The people of the state of Colorado hereby find and declare that large campaign
contributions to political candidates create the potential for corruption and the appearance
of corruption; that large campaign contributions made to influence election outcomes
2

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allow wealthy individuals, corporations, and special interest groups to exercise a
disproportionate level of influence over the political process; that the rising costs of
campaigning for political office prevent qualified citizens from running for political
office; that because of the use of early voting in Colorado timely notice of independent
expenditures is essential for informing the electorate; that in recent years the advent of
significant spending on electioneering communications, as defined herein, has frustrated
the purpose of existing campaign finance requirements; that independent research has
demonstrated that the vast majority of televised electioneering communications goes
beyond issue discussion to express electoral advocacy; that political contributions from
corporate treasuries are not an indication of popular support for the corporations political
ideas and can unfairly influence the outcome of Colorado elections; and that the interests
of the public are best served by limiting campaign contributions, establishing campaign
spending limits, providing for full and timely disclosure of campaign contributions,
independent expenditures, and funding of electioneering communications, and strong
enforcement of campaign finance requirements.

Colo. Const. art. XXVIII, 1. Colorado has also enacted the Fair Campaign Practices Act
(FCPA), which declares:
The people of the state of Colorado hereby find and declare that large campaign
contributions to political candidates allow wealthy contributors and special interest
groups to exercise a disproportionate level of influence over the political process; that
large campaign contributions create the potential for corruption and the appearance of
corruption; that the rising costs of campaigning for political office prevent qualified
citizens from running for political office; and that the interests of the public are best
served by limiting campaign contributions, establishing campaign spending limits, full
and timely disclosure of campaign contributions, and strong enforcement of campaign
laws.

C.R.S. 1-45-102. These constitutional and statutory provisions impose various reporting and
disclosure requirements on speakers engaged in electioneering communications and independent
expenditures.
Article XXVIII and the FCPA define an electioneering communication as:
3

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[A]ny 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); C.R.S. 1-45-103(9). 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); C.R.S. 1-45-103(9).
Article XXVIII and the FCPA define an expenditure as:
[A]ny 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); C.R.S. 1-45-103(10). The term expenditure does not
include:
4

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(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 members 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); C.R.S. 1-45-103(10). Article XXVIII and the FCPA
define an 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); C.R.S. 1-45-
103(11).
Section 6 of Article XXVIII provides that any person expending $1000 or more per
calendar year on electioneering communications must submit reports to the Colorado Secretary
of State, which include spending on the electioneering communication as well as the name,
address, occupation, and employer of any person that contributed more than $250 to fund the
communication. Colo. Const. art. XXVIII, 6(1). Section 1-45-108 of the Colorado Revised
Statutes governs the timing and contents of such reports.
Section 5 provides that any person making an independent expenditure in excess of
$1000 per calendar year must file a notice with the Secretary of State describing the independent
expenditure and disclosing the candidate who it is intended to support or oppose. Colo. Const.
art. XXVIII, 5(1). The person making the independent expenditure must also prominently
5

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disclose its identity in the resulting communication. Id. 5(2). C.R.S. 1-45-107.5 governs the
timing and contents of such notice. J ust as in the case of electioneering communications, any
person expending more than $1000 on an independent expenditure must report to the Secretary
of State the amounts spent and the name, address, occupation, and employer of any person that
contributed more than $250 to fund it. C.R.S. 1-45-107.5(4)(b). The person is also required to
disclose any donation in excess of $20 received during the reporting period for purposes of
making an independent expenditure. C.R.S. 1-45-107.5(8).
The Colorado Secretary of State is responsible for enforcing and promulgating rules in
furtherance of these campaign finance provisions. See Colo. Const. art. XXVIII, 89. In
addition, any person, private or public, who believes that there has been a violation of these
provisions may file a written complaint with the Secretary of State, who shall promptly refer the
complaint to an administrative law judge for a hearing on the matter. Id. 9(2)(a). Any person
found to have violated the disclosure provisions of Sections 5, 6, or 7 will be liable for fifty
dollars per day for each day the required information fails to be filed. Id. 10(2)(a); see also
C.R.S. 1-45-111.5(c).
1
Any person who fails to file three or more successive reports
concerning contributions, expenditures, or donations will be subject to a civil penalty of up to
five hundred dollars for each day the reports are not filed. C.R.S. 1-45-111.5(c). Lastly, any
person who knowingly and intentionally fails to file three or more reports will be subject to a
civil penalty of up to one thousand dollars for each day the reports are not filed. Id.
1
The plaintiff claims that it would also be subject to civil penalties of at least double and up to five times
the amount contributed, received, or spent in violation of the applicable provision pursuant to Article
XXVIII, 10(1). See Motion for Preliminary Injunction [ECF No. 4] at 7. However, Section 10(1)
concerns penalties for persons who exceed contribution or voluntary spending limits under Sections 3 and
4 of Article XXVIII. Citizens United has put forward no claim that it is subject to either of these
spending limits.
6

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On April 18, 2014 Citizens United filed a Petition for Declaratory Order with the
Colorado Secretary of State, one of the defendants in this action, seeking clarification as to
whether its communications and expenditures related to the Film qualified as exceptions to the
definitions of electioneering communication and independent expenditure, thereby obviating
the need for Citizens United to comply with the various reporting and disclosure requirements.
The Secretary published notice of a hearing and collected written comments from the public. A
public hearing was held on J une 3, 2014. On J une 5, 2014 the Deputy Secretary, the other
defendant in this action, issued a Declaratory Order concluding that the Film and related
activities did not fall within any of the enumerated exemptions to the definition of
electioneering communication. Declaratory Order [ECF No. 1-2] at 58. Since the Film had
not yet been made, Deputy Secretary Staiert was unable to determine whether the distribution
and marketing of the Film qualified as expenditures, and as such did not address whether the
exemptions would apply. Id. at 10. The declaratory order constituted a final agency decision,
which Citizens United chose not to appeal. Citizens United now brings this suit to challenge the
constitutionality of Colorados reporting and disclosure requirements.
The matter currently before the Court is the plaintiffs Motion for Preliminary Injunction
[ECF No. 4]. A hearing was held on the motion during the morning of September 16, 2014 and
included counsel for the plaintiff, defendants, and intervenor-defendants. Argument was heard
from all parties, with the defendants also choosing to put on evidence in the form of witness
testimony.

7

A160
LEGAL STANDARD
It is well settled that a preliminary injunction is an extraordinary remedy, and that it
should not be issued unless the movants right to relief is clear and unequivocal. Heideman v.
S. Salt Lake City, 348 F.3d 1182, 1188 (10th Cir. 2003) (quoting Kikumura v. Hurley, 242 F.3d
950, 955 (10th Cir. 2001)). To succeed on a motion for a preliminary injunction, the movant
must demonstrate (1) a substantial likelihood of success on the merits of the case; (2)
irreparable injury to the movant if the preliminary injunction is denied; (3) the threatened injury
to the movant outweighs the injury to the other party under the preliminary injunction; and (4)
the injunction is not adverse to the public interest. Kikumura, 242 at 955. In First Amendment
cases the likelihood of success on the merits will often be the determinative factor. Hobby
Lobby Stores, Inc. v. Sebelius, 723 F.3d 1114, 1128 (10th Cir. 2013) (en banc) (quoting ACLU of
Illinois v. Alvarez, 679 F.3d 583, 589 (7th Cir. 2012), cert. denied, 133 S. Ct. 651 (2012)).
Where the last three factors tip strongly in favor of granting the injunction, courts in the
Tenth Circuit apply a modified test in lieu of proof of likelihood of success on the merits. Davis
v. Mineta, 302 F.3d 1104, 1111 (10th Cir. 2002). This modified test requires the movant to
demonstrate only that questions going to the merits are so serious, substantial, difficult, and
doubtful as to make the issue ripe for litigation and deserving of more deliberative
investigation. Id. (quotation marks omitted). Put another way, [p]laintiffs may carry their
burden of demonstrating likelihood of success on the merits . . . by demonstrating a fair ground
for litigation of one or more of their claims. Colo. Wild Inc. v. U.S. Forest Serv., 523 F. Supp.
2d 1213, 1223 (D. Colo. 2007) (quoting Heideman, 348 F.3d at 1189). However, [w]here . . . a
preliminary injunction seeks to stay governmental action taken in the public interest pursuant to a
8

A161
statutory or regulatory scheme, the less rigorous fair-ground-for-litigation standard should not be
applied. Heideman, 348 F.3d at 1189 (internal quotation marks omitted). Here, the plaintiff
seeks to enjoin governmental action taken in the public interest pursuant to Colorados campaign
finance laws. Therefore, the fair-ground-for-litigation standard does not apply. Citizens United
maintains the burden of showing a substantial likelihood of success on the merits.
Three types of injunctions are specifically disfavored by the Tenth Circuit: (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. See, e.g., O Centro Espirita Beneficiente Uniao Do Vegetal v.
Ashcroft, 389 F.3d 973, 975 (10th Cir. 2004) (en banc) aff'd and remanded sub nom. Gonzales v.
O Centro Espirita Beneficente Uniao do Vegetal, 546 U.S. 418 (2006) (citation omitted). A
request for a preliminary injunction falling within one of these three categories must be more
closely scrutinized to assure that the exigencies of the case support the granting of a remedy that
is extraordinary even in the normal course. Id. Furthermore, even if the fair-ground-for-
litigation standard would otherwise apply, movants seeking one of these three types of
injunctions may not rely on the modified standard and must instead make a strong showing both
with regard to the likelihood of success on the merits and with regard to the balance of harms . . .
. Id. at 976.
[T]he status quo is the last uncontested status between the parties which preceded the
controversy until the outcome of the final hearing. Dominion Video Satellite, Inc. v. EchoStar
Satellite Corp., 269 F.3d 1149, 1155 (10th Cir. 2001) (citation and internal quotation marks
omitted). In determining the status quo for preliminary injunctions, this court looks to the
9

A162
reality of the existing status and relationship between the parties and not solely to the parties
legal rights. Id. Currently, Citizens United is bound to comply with the reporting and
disclosure laws whose constitutionality has been called into question in this suit. In requesting
that the Court enjoin Colorado from enforcing these laws, the plaintiff seeks to significantly alter
the status quo. Furthermore, granting the injunction would afford Citizens United all the relief
that it could recover at the conclusion of a full trial on the merits. For these reasons, the Court
must more closely scrutinize the motion to assure that the exigencies of the case support the
granting of a remedy that is extraordinary even in the normal course.
ANALYSIS
The Supreme Court was forced to balance two interests when it decided the pivotal case
Citizens United v. Federal Election Commission, 558 U.S. 310 (2010): the interest of political
speakers and the interest of their audience, the electorate. As relevant to the present case, the
Court came to the conclusion that while [t]he First Amendment protects political speech,
disclosure permits citizens and shareholders to react to the speech of corporate entities in a
proper way. 558 U.S. at 371. This transparency enables the electorate to make informed
decisions and give proper weight to different speakers and messages. Id. In Citizens United,
the Court found no constitutional impediment to the application of disclaimer and disclosure
requirements to Citizens Uniteds advertisements of the movie Hillary or to the movie itself. See
id. And yet, Citizens United is here today asking this Court to find such an impediment with
regard to its new film, Rocky Mountain Heist.

10

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A. Level of Scrutiny.
The First Amendment provides that Congress shall make no law . . . abridging the
freedom of speech. U.S. Const. amend. I. Laws that burden political speech are subject to
strict scrutiny, which requires the Government to prove that the restriction furthers a
compelling interest and is narrowly tailored to achieve that interest. Citizens United, 558 U.S.
at 340 (quoting Fed. Election Commn v. Wisconsin Right To Life, Inc., 551 U.S. 449, 464 (2007)
(WRTL)). Restrictions that distinguish among different speakers, allowing speech by some but
not others, are highly disfavored under the First Amendment because they are all too often
simply a means to control content. Id. However, [a] regulation that serves purposes unrelated
to the content of expression is deemed neutral, even if it has an incidental effect on some
speakers or messages but not others. Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989).
The principal inquiry in determining content neutrality . . . is whether the government has
adopted a regulation of speech because of disagreement with the message it conveys. Id. (citing
Clark v. Cmty. for Creative Non-Violance, 468 U.S. 288, 295 (1984) (emphasis added).
Beyond doubt, disparate impact alone is not enough to render a speech restriction content- or
viewpoint-based. Pahls v. Thomas, 718 F.3d 1210, 123536 (10th Cir. 2013). The
governments purpose is the controlling consideration. Ward, 491 U.S. at 791.
[I]t is inherent in the nature of the political process that voters must be free to obtain
information from diverse sources in order to determine how to cast their votes. Citizens United,
558 U.S. at 341. The publics interest in determining how to cast their votes naturally extends to
an interest in knowing who is speaking. See, e.g., id. at 368; First Nat. Bank of Boston v.
Bellotti, 435 U.S. 765, 792 n.32 (1978) (Identification of the source of advertising may be
11

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required as a means of disclosure, so that the people will be able to evaluate the arguments to
which they are being subjected.); Buckley v. Valeo, 424 U.S. 1, 6667 (1976). Because
disclosure is a less restrictive alternative to more comprehensive regulations of speech,
Citizens United, 558 U.S. at 369, the Supreme Court has subjected these requirements to
exacting scrutiny, which requires a substantial relation between the disclosure requirement
and a sufficiently important governmental interest, id. at 36667 (quoting Buckley, 424 U.S. at
64, 66).
Citizens United frames its argument as a challenge to laws burdening speech on the basis
of the speakers identity, claiming that the State is effectively picking winners and losers in the
battle of ideas. The State is doing no such thing. First, the disclosure regime distinguishes based
on the form of speech, not on the identity of the speaker. Second, even acknowledging that the
effect of the law is commonly to exempt press entities from Colorados reporting requirements,
nothing suggests that the intent (or effect) is to discriminate on the basis of content or viewpoint.
In fact, Citizens United complains time and again that the law is unfair because it would allow
for newspapers and broadcast facilities to publish the exact same information it seeks to
distribute without subjecting those entities to the disclosure requirements.
2
The plaintiff hopes
that using the words identity-based discrimination will transform this claim into one
demanding strict scrutiny review. However the words, without more, are not enough. The
2
For example, the introduction to the plaintiffs Reply protests, There is no dispute that Citizens United
would be required to make extensive disclosures regarding the funding and other aspects of its
forthcoming Film . . . yet a traditional media entity engaging in exactly the same speech in a newspaper,
magazine or other periodical or aired by a broadcast facility would be exempt from those
requirements. [ECF No. 20 at 1] (emphasis in original).
12

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claim, which in earnest challenges the disclosure rules because they are underinclusive, is subject
to review under the exacting scrutiny framework.
3

B. Application.
The plaintiff asks that the Court enjoin enforcement of Colorados discriminatory
reporting and disclosure requirements for electioneering communications and independent
expenditures. [ECF No. 4 at 1]. The Court denies the motion on the grounds that the plaintiff
has failed to meet its burden of showing a substantial likelihood of success on the merits, that it
will suffer irreparable injury if an injunction does not issue, that the balance of harms falls in its
favor, and that such an injunction would not be adverse to the public interest.
1. Substantial Likelihood of Success
Citizens United has not shown that it is likely to succeed on the merits under exacting
scrutiny review. To reiterate, exacting scrutiny requires a substantial relation between the
disclosure requirements and a sufficiently important governmental interest. Citizens United,
558 U.S. at 36667 (quoting Buckley, 424 U.S. at 64, 66). In the First Amendment context, this
standard entails a fit that is not necessarily perfect, but reasonable; that represents not
necessarily the single best disposition but one whose scope is in proportion to the interest
served. McCutcheon v. Fed. Election Commn, 134 S. Ct. 1434, 1456 (2014) (citation and
internal quotation marks omitted).

3
At least one circuit court has held that even where a disclosure exemption can be said to be content- or
viewpoint-based, it remains subject to exacting scrutiny review. See Ctr. for Individual Freedom, Inc. v.
Tennant, 706 F.3d 270, 287 (4th Cir. 2013). The Court need not address this question as the plaintiffs
contention that the exemptions are content-based has proven unavailing.
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a. Facial Challenge
Campaign disclosure laws vindicate three important interests: providing the electorate
with relevant information about the candidates and their supporters; deterring actual corruption
and discouraging the use of money for improper purposes; and facilitating enforcement of the
prohibitions in the Act. McConnell v. Fed. Election Commn, 540 U.S. 93, 121 (2003) (citing
Buckley, 424 U.S. at 6668); see also Republican Party of New Mexico v. King, 741 F.3d 1089,
1095 n.3 (10th Cir. 2013) (The Court upheld disclosure requirements at issue in Citizens United
because they provided the electorate with information about the identity of the speaker and did
not impose a chill on political speech, even for independent expenditures.). The defendants
argue that the disclosure regime is necessary to Colorados interest in ensuring its electorate is
informed, and that the disclosure laws are substantially related to this objective.
According to the defendants, the justifications for requiring disclosure apply more
strongly to isolated instances of political advocacy than they do to speech by institutionalized
and longstanding press entities. Defendants Response [ECF No. 12 at 16]. The long-term,
repeat nature of newspapers, periodicals, and recurring television broadcasts allows voters to,
over time, gauge the trustworthiness of a particular source based on their perception of its
ideology and [its] track record. Id. This informational advantage of periodic press sources does
not apply to the viewer or reader of drop-in political advocacy like a standalone film, a single
election mailer, or an anonymous website that appears for only a few weeks before an election.
Id. Without identifying the speaker, these isolated incidents leave voters without the means to
evaluate the integrity or credibility of the message.
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Citizens United challenges that this depiction of traditional media shows that the State
prefers one speaker over another, that it finds the traditional press more credible than other
sources of information. But the plaintiff considerably mischaracterizes the defendants position.
Whats more, it isnt clear to me exactly what type of information newspapers and broadcast
facilities would be required to disclose if these exemptions did not exist. In Colorado, the only
contributors that speakers must disclose are those who earmark their donations for the purpose of
funding the independent expenditure or the electioneering communication. During the hearing,
plaintiffs counsel tried to convince the Court that without the exemptions newspapers would be
obligated to disclose the names of individual subscribers, advertisers, and financial lenders. Of
course, no showing was made that any of these contributorsif they can be called such
earmark their funds for the purpose of making independent expenditures or electioneering
communications. Frankly put, the position was rather nonsensical, and it is clearly at odds with
the operation of the disclosure laws.
Citizens United also insists that if the public has a right to know who funds its films, it
likewise has a right to know whether a political candidate, public-advocacy group, or political
party funded an investigative journalists news story. [ECF No. 4 at 16]. Again, no showing has
been made that this type of arrangement exists between journalists and political advocates. If
anything, I would imagine the funding of advocacy pieces would violate journalists professional
ethical standards. Since there is no reason to suspect, based on this statement alone, that political
groups fund news stories by paying off journalists, the Court disregards this contention as
unfounded.
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Next, Citizens United argues that there is no substantial relation between Colorados
interest in informing its electorate and its requiring disclosures from an established
documentary filmmaker while in theory exempting a new press entity that suddenly began
distributing a periodical newsletter in Colorado. Plaintiffs Reply [ECF No. 20 at 7]. First and
foremost, this position undermines the primary argument plaintiffs counsel put forward during
the hearing, that through the use of exemptions the State is preferring and promoting traditional
press entities over upstarts.
4
Furthermore, the argument ignores the real issue, which is whether
there is a substantial relation between the States interest and the disclosure scheme as a whole,
not a single hypothetical. As noted above, the test requires only a reasonable fit, one whose
scope is in proportion to the interest served. The provision of this one hypothetical has not
persuaded the Court that the scope of the disclosure scheme, including its exemptions, is not in
proportion to the interest of informing the electorate.
The plaintiffs final argument was relegated to a footnote in its original motion: Even if
the reporting and disclosure requirements do not violate the First Amendment, they violate
Article II, Section 10 of the Colorado Constitution, which provides equal, if not greater,
protections against speaker-based discrimination. [ECF No. 4 at 18 n.1]. The statement is
followed by a citation to two Colorado Supreme Court cases. The first, Lewis v. Colorado
Rockies Baseball Club, Ltd., 941 P.2d 266 (Colo. 1997), explicitly limits its analysis to the
federal constitution. 941 P.2d at 27172. The second, Colorado Education Association v. Rutt,
184 P.3d 65 (Colo. 2008), says nothing more about the Colorado Constitution than it being
bound to give at least equivalent protection to expressive freedoms as that which is mandated
4
This contradictory assertionthat the Secretary of State prefers institutionalized and longstanding
press entities over all othersis also found earlier in the Reply brief. [ECF No. 20 at 3].
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by the United States Constitution. 184 P.3d at 7677. Neither citation provides independent
support for the plaintiffs position, that disclosure requirements that differentiate based on the
form of speech constitute an unconstitutional abridgement of speech. In addition, if the plaintiff
found this argument necessary to its case, it should not have entrusted it to one generic sentence
in a footnote. The Court cannot serve as plaintiffs advocate. Counsel for Citizens United
focuses its entire likelihood-of-success section on First Amendment jurisprudence. As such, the
Court will make no findings as to whether the plaintiff could make a showing that it is likely to
succeed on any other legal basis, including the Colorado Constitution.
The Supreme Court has ruled time and again that there is a sufficiently important
government interest supporting disclosure regimes. The plaintiff does not argue otherwise. The
question comes down to whether Citizens United has met its burden of showing that there is no
substantial relation between the disclosure regime as a whole and the governments interest in
maintaining an informed electorate. The Court finds that it has not.
b. As-Applied Challenge
Citizens United argues that, in the alternative, it should be entitled to the disclosure
exemptions. In particular, the plaintiff contends that it engages in media activities substantially
similar to the activities of traditional press entities such that there is no constitutional basis for
distinguishing between the two. By making a distinction, it argues, the law disregards Citizens
Uniteds status as a press entity.
The press entity status that the plaintiff seeks does not exist in Colorado. As the
defendants and defendant-intervenors discuss, the disclosure exemptions are not premised on the
type of entity but on the form of speech. In fact, Citizens United admits that such is the case,
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noting that Colorados media exemptions turn primarily on the medium of transmissioni.e.,
whether speakers express their views via a print publication or speaker-owned broadcast
facility. [ECF No. 20 at 8] (emphasis added). Because the exemptions are based on the form of
speech, not on the speaker, it is possible for a press entity to create content not subject to an
exemption. In those cases, the press entity must disclose its contributors just like anyone else.
See [ECF No. 12 at 19 n.8] (citing Readers Digest Assn. v. Fed. Election Commn, 509 F.
Supp. 1210, 1214 (S.D.N.Y. 1981); Fed. Election Commn v. Massachusetts Citizens for Life,
Inc., 479 U.S. 238, 25051 (1986) (MCFL)). For 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 J ohn
Hickenlooper, it would be forced to comply with the disclosure requirements.
Citizens United looks to an advisory opinion issued by the Federal Election Commission
in 2010 in support of its position. Advisory Opinion 2010-8 [ECF No. 1-1]. However, this
advisory opinion only concerns whether Citizens United is eligible for exempt status under the
Federal Election Campaign Act of 1971 (FECA), not whether it is exempt under the First
Amendment. Moreover, while the FEC has construed the federal statute as creating a press
entity statuswhich it admits is a term not used or defined in FECA, id. at 6Deputy
Secretary Staiert declined to create a similar status based on a plain-language reading of
Colorados disclosure regime, Declaratory Order [ECF No. 1-2] at 810.
5

5
While the plaintiff is free to argue that a proper analysis of the statute mandates the recognition of a
press entity status, it has not done so in its motion. It is possible that such an argument would have had
to have been made through appellate review of the Declaratory Order, though the Court has not
researched this procedural question.
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Refocusing the argument on the First Amendment, the plaintiff argues that if the
disclosure exemptions are compelled by the First Amendment protections for freedom of the
press, they must be construed to extend to Citizens United. See [ECF No. 4 at 21, 23]. Yet this
case has nothing to do with whether the exemptions are in any way compelled by the First
Amendment, and the Court has made no finding, or even a suggestion, that such is the case. It
has only found that the plaintiff has not carried its burden in showing there exists no substantial
relation between the disclosure regime (as a whole) and the sufficiently important government
interest of informing the electorate.
Citizens United has not persuaded this Court to declare it a press entity exempt from
Colorados disclosure requirements, and it has not put forward any argument that there is a
substantial likelihood that it would be able to convince the Colorado Supreme Court to read such
a status into the law.
2. Irreparable Harm
There is a presumption of irreparable harm when First Amendment rights have been
infringed. See Oklahoma Corr. Profl Assn Inc. v. Doerflinger, 521 Fed. Appx. 674, 677 (10th
Cir. 2013) (citing Pac. Frontier v. Pleasant Grove City, 414 F.3d 1221, 1235 (10th Cir. 2005)).
The plaintiff relies on this presumption to make a showing of irreparable harm. However,
because the Court found that the plaintiff failed to demonstrate a likelihood of success on the
merits, the presumption does not apply. Moreover, the plaintiff has put forth no evidence that it
would suffer irreparable harm if it had to comply with the disclosure requirements. Of course,
the plaintiff would be required to file reports disclosing its independent expenditures and
electioneering communications along with the contributors (if any) who earmarked funds for
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such speech in excess of the statutorily prescribed amount. But, as discussed earlier, the Citizens
United Court has already found that these types of reporting and disclosure requirements are not
unduly burdensome under the First Amendment. In putting forth no other evidence of
irreparable harm, the plaintiff has not met its burden of proof.
3. Balance of Equities & Public Interest
The defendants suggest, and I agree, that in this case the balance of equities and public
interest prongs should be considered together. Citizens United contends that the balance of
equities falls in its favor because [i]t is axiomatic that a State does not have an interest in
enforcing a law that is likely constitutionally infirm. [ECF No. 4 at 25] (quoting Chamber of
Commerce of U.S. v. Edmondson, 594 F.3d 742, 771 (10th Cir. 2010)). However, as Citizens
United points out, the balance only tips in its favor once it shows a substantial likelihood that the
challenged law is unconstitutional, a showing which the plaintiff has not made. It also argues
that a preliminary injunction vindicating constitutional rights is always in the public interest.
Id. at 26. Once again, such a contention is only true if the law actually infringes a constitutional
right, a presumption which the plaintiff incorrectly relies upon.
The defendants, on the other hand, focus on the purpose behind the disclosure scheme
and the effect of enjoining its enforcement. In particular, the defendants point out that the law
was enacted to further a public interesttransparency in political speechand that enjoining the
enforcement of the scheme would harm the entire electorate of Colorado, who may not be able to
make informed choices come election day. The plaintiff would like the Court to ignore the
publics motivations in passing the disclosure laws and the benefits they entail, but I cannot do
that. Amendment 27 was passed by a 2-1 margin in 2002. Voters must have seen a significant
20

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benefit, not only in having a disclosure regime, but also in memorializing it in the State
constitution. The Court likewise cannot ignore the potential for irreparable harm that will befall
the voters of Colorado come election day should they be forced to vote without pertinent
information on which to base their decisions.
Four prongs have to be met in order to win a motion for preliminary injunction. Citizens
United relies on winning its first prong in order to show that it would succeed on the other three
prongs. Thus, failing to persuade the Court of its likelihood of success makes denial of the
motion all but inevitable. In any event, the Court has considered the four requirements for the
issuance of a preliminary injunction and concludes that they have not been established. In short,
the defendants have persuaded the Court that the plaintiff is unlikely to succeed on the merits,
that the balance of harms falls in their favor, and that the issuance of an injunction would be
adverse to the public interest.
CONCLUSION
The marketplace of ideas does not function as well if listeners are unable to discern the
private interests behind speech when determining how much weight to afford it. Aware of this
problem, in 1976 the Supreme Court declared that disclosure requirements certainly in most
applications appear to be the least restrictive means of curbing the evils of campaign ignorance
and corruption that Congress found to exist. Buckley, 424 U.S. at 68. Thirty-four years later
the Citizens United Court reaffirmed this sentiment by a vote of eight to one. See 558 U.S. at
36671. Today, Citizens United comes before this Court hoping to unravel forty years of
precedent by reframing the issue as one of content and viewpoint discrimination. The Court is
not persuaded.
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ORDER
For the foregoing reasons, Plaintiffs Motion for Preliminary Injunction [ECF No. 4] is
DENIED.
DATED this 22
nd
day of September, 2014.

BY THE COURT:

___________________________________
R. Brooke J ackson
United States District J udge

22

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CERTIFICATE OF COMPLIANCE
Undersigned counsel hereby certifies that this brief complies with the type-
volume limitation set forth in Fed. R. App. P. 32(a)(7)(B), because it contains
13,520 words, excluding the parts of the brief exempted by Fed. R. App. P.
32(A)(7)(B)(iii). This brief complies with the typeface requirements of Fed. R.
App. P. 32(a)(5) and the type-style requirements of Fed. R. App. P. 32(a)(6) be-
cause it has been prepared in a proportionally spaced typeface using Microsoft
Word 2010 in Times New Roman in 14-point font.
CERTIFICATION OF DIGITAL SUBMISSION AND ANTI-VIRUS SCAN
I hereby certify that I have scanned for viruses the Portable Document For-
mat version of the attached document, using Microsoft Forefront (version
4.5.216.0, updated October 3, 2014), and according to that program, the document
was free of viruses. I further certify that I have not made any privacy redactions in
the attached document. Thus, with the exception of the electronic signatures, the
Portable Document Format version that was submitted to the court is an exact copy
of the written document filed with the Clerk.
s/ Theodore B. Olson
THEODORE B. OLSON


CERTIFICATE OF SERVICE
I hereby certify that on October 3, 2014, I filed the foregoing with the Clerk
of the Court for the United States Court of Appeals for the Tenth Circuit via the
CM/ECF e-filing system, which will send notification to the following participants:

Daniel D. Domenico
Matthew D. Grove
LeeAnn Morrill
Kathryn Starnella
Colorado Attorney Generals Office
Ralph L. Carr Colorado Judicial Center
1300 Broadway, 6th Floor
Denver, Colorado 80203
[email protected]
[email protected]
[email protected]

Attorneys for Appellees

Martha M. Tierney
Edward T. Ramey
Heizer Paul, LLP
2401 15th Street, Suite 300
Denver, Colorado 80202
[email protected]
[email protected]

Attorneys for Intervenor-Appellees

Us/ Theodore B. Olson
THEODORE B. OLSON


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