November 15, 2018

Tenth Circuit: Politically Active Organization Entitled to Media Exemption from Campaign Disclosure Requirements

The Tenth Circuit Court of Appeals issued its opinion in Citizens United v. Gessler on October 27, 2014, and reissued it as a published opinion on Wednesday, November 12, 2014.

Citizens United is a nonprofit corporation engaged in independent political and religious activity. Since 2004 it has produced and released 24 films on political and religious topics, including Rocky Mountain Heist, which discussed political candidates by name and was set to release just before the 2014 mid-term election. Because the film unambiguously referred to Colorado elected officials by name, it comes under some of Colorado’s election laws regarding “electioneering communications” and “independent expenditures.” In April 2014, Citizens United sought a ruling from the Secretary of State that Rocky Mountain Heist and related advertising would not qualify as “electioneering communications” or “expenditures” under Colorado law. In support of its motion, it cited a similar exemption from the Federal Election Commission under the Federal Election Campaign Act’s disclosure and expenditure rules, which are similar to Colorado’s. The FEC determined Citizen United was entitled to the press exemption. The Secretary denied its request, finding that the film and advertising did not fall under Colorado’s exemption for print media and Citizens United is not a broadcast facility. The Secretary’s order concluded that Rocky Mountain Heist would be an electioneering communication not entitled to any exemption.

After the Secretary denied its motion, Citizens United brought suit against the Colorado Secretary of State in the U.S. District Court for the District of Colorado, alleging Colorado’s reporting and disclosure requirements violate the First Amendment. It sought a preliminary injunction against enforcing the provisions that do not apply to exempted media, which the district court denied, finding that Citizens United’s facial and as-applied challenges were not likely to succeed on the merits. Citizens United appealed.

The Tenth Circuit agreed with Citizens United’s as-applied challenge to Colorado’s campaign disclosure requirements, finding that under an exact scrutiny standard, the First Amendment required the Secretary to treat Citizens United the same as the exempt media. The Tenth Circuit questioned the Secretary’s assertion that journalism seeks to inform the public in a transparent, balanced, and accountable manner, noting that “our nation’s founding and history are replete with examples of highly partisan newspapers, and many observers would say that some modern media continue the tradition.” The Tenth Circuit similarly disposed of the Secretary’s argument that the media should be distinguished from “single-shot speakers,” finding instead that Citizens United was well-established for these purposes so disclosure of its financial backers was unnecessary. The Tenth Circuit found Citizens United entitled to a media exemption from disclosure and expenditure requirements under Colorado law.

The Tenth Circuit did not find that the exemption extended to advertisements for Rocky Mountain Heist, which mention candidates and express support for or opposition to candidates. These politically charged ads require disclosure of financial supporters so the general public can make an informed decision about the legitimacy of the advertisements.

The district court’s denial of the preliminary injunction was reversed, and the case was remanded with instructions to issue the preliminary injunction. Judge Phillips dissented.

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