Citizens United v. Gessler et al

Filing 26

ORDER denying 4 Motion for Preliminary Injunction, by Judge R. Brooke Jackson on 9/22/2014.(trlee, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge R. Brooke Jackson
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,
LUCÍA GUZMÁN, 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
Colorado’s 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 plaintiff’s motion for a preliminary injunction.
1

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 year’s 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, Colorado’s 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
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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 corporation’s 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

[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:
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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 member’s dues to a
small donor committee or political committee sponsored by such membership
organization; or payments made by a corporation or labor organization for the costs of
establishing, administering, or soliciting funds from its own employees or members for a
political committee or small donor committee.
Colo. Const. art. XXVIII, § 2(8)(b); 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. § 1-45103(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
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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. Just 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, §§ 8–9. 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.
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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 June 3, 2014. On June 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 5–8. 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 Colorado’s reporting and disclosure requirements.
The matter currently before the Court is the plaintiff’s 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

LEGAL STANDARD
“It is well settled that a preliminary injunction is an extraordinary remedy, and that it
should not be issued unless the movant’s 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

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 Colorado’s 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-forlitigation 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

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 United’s 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.

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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 Comm’n 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, 1235–36 (10th Cir. 2013). “The
government’s 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 public’s 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

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, 66–67 (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 366–67 (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 speaker’s 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 Colorado’s 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 plaintiff’s 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

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 Colorado’s 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 366–67 (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 Comm’n, 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 plaintiff’s
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 Comm’n, 540 U.S. 93, 121 (2003) (citing
Buckley, 424 U.S. at 66–68); 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 Colorado’s 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.

14

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.
What’s more, it isn’t 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,
plaintiff’s 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 “contributors”—if 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 journalist’s 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 Colorado’s
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.’” Plaintiff’s Reply [ECF No. 20 at 7]. First and
foremost, this position undermines the primary argument plaintiff’s 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 State’s 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 plaintiff’s 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 271–72. 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 assertion—that the Secretary of State prefers “institutionalized and longstanding
press entities” over all others—is also found earlier in the Reply brief. [ECF No. 20 at 3].
16

by the United States Constitution. 184 P.3d at 76–77. Neither citation provides independent
support for the plaintiff’s 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 plaintiff’s 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 government’s 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
United’s 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,

17

noting that “Colorado’s media exemptions turn primarily on the medium of transmission—i.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 Reader’s Digest Ass’n. v. Fed. Election Comm’n, 509 F.
Supp. 1210, 1214 (S.D.N.Y. 1981); Fed. Election Comm’n v. Massachusetts Citizens for Life,
Inc., 479 U.S. 238, 250–51 (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 John
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 status”—which it admits is a term not used or defined in FECA, id. at 6—Deputy
Secretary Staiert declined to create a similar status based on a plain-language reading of
Colorado’s disclosure regime, Declaratory Order [ECF No. 1-2] at 8–10. 5

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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
Colorado’s 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. Prof’l Ass’n Inc. v. Doerflinger, 521 Fed. App’x. 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 interest—transparency in political speech—and 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
public’s 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

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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
366–71. 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, Plaintiff’s Motion for Preliminary Injunction [ECF No. 4] is
DENIED.
DATED this 22nd day of September, 2014.
BY THE COURT:

___________________________________
R. Brooke Jackson
United States District Judge

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