By Eric WangBefore challenging the Colorado law, Citizens United first approached state regulators to see whether it too could avail itself of the media exemption. But officials rebuffed its request, pointing to the state’s antiquated laws, which only exempt newspapers, magazines, “other periodical[s],” and “broadcast facilit[ies]” from the disclaimer and reporting requirements, thus excluding more recent forms of media, such as internet streaming and even DVDs, which have only been around for twenty years. Moreover, while Citizens United intends to license its films to certain broadcast outlets, it also could not qualify as a broadcaster because it did not own the broadcast facilities.The Colorado officials cannot be faulted, however, for their unfortunate application of the state’s inherently discriminatory laws. Working with the media exemption is like wrestling with a pig; even when the doctrine is used to reach the right results, it is impossible to walk away with clean hands.For example, when the Federal Election Commission granted the media exemption to Citizens United in 2010 under the federal law, the agency was forced to distinguish its contrary decision six years earlier. While Citizens United had only produced two documentaries in 2004, the FEC explained, “the volume and frequency of [its] film production have [since] increased substantially.” The agency then proceeded to deny, disingenuously, that it was effectively “impos[ing] a requirement that an entity seeking to avail itself of the press exemption first demonstrate that it has a track record of engaging in media activities” because, otherwise, the FEC would have needed to acknowledge that the law discriminates against newcomers.
