10th Cir. Explains Why Citizens United's Film Donors Can Stay Secret

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By Mark Wilson, Esq. on October 29, 2014 2:50 PM

Last week, we reported about a quick, three-paragraph order allowing Citizens United to show the film "Rocky Mountain Heist" without having to disclose the names of the people who donated to the project. The Tenth Circuit promised that it would deliver a substantive opinion on the issue soon, and on Monday it certainly did -- in the form of a 34-page opinion with a nine-page dissent.

So why, exactly, doesn't Citizens United have to disclose the donors of "Rocky Mountain Heist"?

Not So Far, and Yet, Kind of Far

First of all, we're dealing with a preliminary injunction, which isn't per se a ruling on the constitutionality of the statute or anything like that. Preliminary injunctions live in a subjunctive wonderland where the court is deciding whether Citizens United would likely succeed on the merits by -- well, by addressing the merits.

Colorado's state requirement exempts electioneering communications made in newspapers, magazines, or periodicals; editorial statements made by a broadcast facility; communications made by a membership organization in the course of its organization; or communications that mention a candidate's name as part of the name of a bill or statute. The way the statute is worded, any money spent on those types of communications is categorically not an "expenditure" for the statute's purposes.

The Tenth Circuit wasn't willing to go as far as Citizens United wanted -- namely, a facial challenge that would end up treating every political speaker like an exempted entity. Instead, showing more restraint than certain Supreme Court justices, the Tenth Circuit treated this as an as-applied challenge and allowed Citizens United only to be treated as an exempted entity.

Even so, the court said that the law didn't satisfy "exacting scrutiny." It disagreed with the Colorado Secretary of State that "media exemptions can be justified on the ground that the First Amendment provides greater protection for the press than other speakers." Even assuming that the law exempts established press organizations because "the electorate can adequately evaluate" them (because the electorate is familiar with them), the court said Citizens United is the same because of its long-standing history of producing films.

At bottom, in the Tenth Circuit's opinion, disclosure of donations to "Rocky Mountain Heist" is no different from any other independent expenditure disclosure -- a hot topic that the Supreme Court has left open, though the Tenth Circuit concluded that, because independent expenditures don't give rise to corruption (per the earlier Citizens United), it follows that not disclosing independent expenditures don't, either.

Dissent

That's not the end of the majority's analysis, but we need to address the dissent too.

Judge Gregory Phillips said the majority shouldn't have made this about "uneven disclosure" like Citizens United wanted, because it pigeonholed the analysis into a single hypothetical rather than the looking at the overarching goals of the state law. The dissent said, among other things, that Citizens United wasn't like a traditional media outlet, and if it were, everyone acknowledged that if a traditional outlet like The Denver Post made a film like Citizens United did, it would have to disclose the donors. So why the double standard?

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