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147571

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SECOND DIVISION

G.R. No. 147571       May 5, 2001

SOCIAL WEATHER STATIONS, INCORPORATED and KAMAHALAN PUBLISHING CORPORATION, doing

MENDOZA, J.:

Petitioner, Social Weather Stations, Inc. (SWS), is a private non-stock, non-profit social research institution
conducting surveys in various fields, including economics, politics, demography, and social development, and
thereafter processing, analyzing, and publicly reporting the results thereof. On the other hand, petitioner Kamahalan
Publishing Corporation publishes the Manila Standard, a newspaper of general circulation, which features news-
worthy items of information including election surveys. 1âwphi1.nêt

Petitioners brought this action for prohibition to enjoin the Commission on Elections from enforcing §5.4 of RA.
No.9006 (Fair Election Act), which provides:

Surveys affecting national candidates shall not be published fifteen (15) days before an election and surveys
affecting local candidates shall not be published seven (7) days be- fore an election.

The term "election surveys" is defined in §5.1 of the law as follows:

Election surveys refer to the measurement of opinions and perceptions of the voters as regards a candidate's
popularity, qualifications, platforms or a matter of public discussion in relation to the election, including voters
preference for candidates or publicly discussed issues during the campaign period (hereafter referred to as
"Survey").

The implement §5.4, Resolution 3636, §24(h), dated March I, 2001, of the COMELEC enjoins –

Surveys affecting national candidates shall not be published fifteen (15) days before an election and surveys
affecting local candidates shall not be published seven (7) days be- fore an election.

Petitioner SWS states that it wishes to conduct an election survey throughout the period of the elections both at the
national and local levels and release to the media the results of such survey as well as publish them directly.
Petitioner Kamahalan Publishing Corporation, on the other hand, states that it intends to publish election survey
results up to the last day of the elections on May 14,2001.

Petitioners argue that the restriction on the publication of election survey results constitutes a prior restraint on the
exercise of freedom of speech without any clear and present danger to justify such restraint. They claim that SWS
and other pollsters conducted and published the results of surveys prior to the 1992, 1995, and 1998 elections up to
as close as two days before the election day without causing confusion among the voters and that there is neither
empirical nor historical evidence to support the conclusion that there is an immediate and inevitable danger to tile
voting process posed by election surveys. They point out that no similar restriction is imposed on politicians from
explaining their opinion or on newspapers or broadcast media from writing and publishing articles concerning
political issues up to the day of the election. Consequently, they contend that there is no reason for ordinary voters
to be denied access to the results of election surveys, which are relatively objective. 1âwphi1.nêt

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Respondent Commission on Elections justifies the restrictions in §5.4 of R.A. No. 9006 as necessary to prevent the
manipulation and corruption of the electoral process by unscrupulous and erroneous surveys just before the
election. It contends that (1) the prohibition on the publication of election survey results during the period proscribed
by law bears a rational connection to the objective of the law, i.e., the prevention of the debasement of the electoral
process resulting from manipulated surveys, bandwagon effect, and absence of reply; (2) it is narrowly tailored to
meet the "evils" sought to be prevented; and (3) the impairment of freedom of expression is minimal, the restriction
being limited both in duration, i.e., the last 15 days before the national election and the last 7 days before a local
election, and in scope as it does not prohibit election survey results but only require timeliness. Respondent claims
that in National Press Club v. COMELEC,1 a total ban on political advertisements, with candidates being merely
allocated broadcast time during the so-called COMELEC space or COMELEC hour, was upheld by this Court. In
contrast, according to respondent, it states that the prohibition in §5.4 of RA. No. 9006 is much more limited.

For reasons hereunder given, we hold that §5.4 of R.A. No. 9006 constitutes an unconstitutional abridgment of
freedom of speech, expression, and the press.

To be sure, §5.4Iays a prior restraint on freedom of speech, expression, and the press prohibiting the publication of
election survey results affecting candidates within the prescribed periods of fifteen (15) days immediately preceding
a national election seven (7) days before a local election. Because of tile preferred status of tile constitutional rights
of speech, expression, and he press, such a measure is vitiated by a weighty presumption of invalidity.2 Indeed, any
system of prior restraints of expression comes to this Court bearing a heavy Presumption against its constitutional
validity. ...The Government thus carries a heavy burden of showing justification for in enforcement of such restraint.
"'3 There, thus a reversal of the normal presumption of validity that inheres in every legislation.

Nor may it be argued that because of Art. IX-C, §4 of the Constitution, which gives the COMELEC supervisory
power to regulate the enjoyment or utilization of franchise for the operation of media of communication, no
presumption of invalidity attaches to a measure like §5.4. For as we have pointed out in sustaining tile ban on media
political advertisements, the grant of power to the COMELEC under Art. IX-C, §4 is limited to ensuring "equal
opportunity, time, space, and the right to reply" as well as uniform and reasonable rates of charges for the use of
such media facilities "public information campaigns and forums among candidates."4 This Court stated:

The technical effect of Article IX (C) (4) of the Constitution may be seen to be that no presumption of invalidity
arises in respect of exercises of supervisory or regulatory authority on the part of the Comelec for the
Purpose of securing equal opportunity among candidates for political office, although such supervision or
regulation may result in some limitation of the rights of free speech and free press.5

MR JUSTICE KAPUNAN dissents. He rejects as inappropriate the test of clear and present danger for determining
the validity of §5.4. Indeed, as has been pointed out in Osmeña v. COMELEC,6 this test was originally formulated
for the criminal law and only later appropriated for free speech cases. Hence, while it may be useful for determining
the validity of laws dealing with inciting to sedition or incendiary speech, it may not be adequate for such regulations
as the one in question. For such a test is concerned with questions of the gravity and imminence of the danger as
basis for curtailing free speech, which is not the case of §5.4 and similar regulations.

Instead, MR JUSTICE KAPUNAN purports to engage in a form of balancing by "weighing and balancing the
circumstances to determine whether public interest [in free, orderly, honest, peaceful and credible elections] is
served by the regulation of the free enjoyment of the rights" (page 7). After canvassing the reasons for the
prohibition, i.e., to prevent last-minute pressure on voters, the creation of bandwagon effect to favor candidates,
misinformation, the junking" of weak and "losing" candidates by their parties, and the form of election cheating called
"dagdag-bawas" and invoking the State's power to supervise media of information during the election period (pages
11-16), the dissenting opinion simply concludes:

Viewed in the light of the legitimate and significant objectives of Section 5.4, It may be seen that its limiting
impact on the rights of free speech and of the press is not unduly repressive or unreasonable. In Indeed, it is
a mere restriction, not an absolute prohibition, on the publication of election surveys. It is limited in duration; it
applies only during the period when the voters are presumably contemplating whom they should elect and
when they are most susceptible to such unwarranted persuasion. These surveys may be published thereafter.
(Pages 17-18)

The dissent does not, however, show why, on balance, these considerations should outweigh the value of freedom
of expression. Instead, reliance is placed on Art. IX-C, §4. As already stated, the purpose of Art. IX-C, §4 is to
"ensure equal opportunity, time, and space and the right of reply, including reasonable, equal rates therefor for
public information campaigns and forums among candidates. " Hence the validity of the ban on media advertising. It
is noteworthy that R.A. No. 9006, § 14 has lifted the ban and now allows candidates to advertise their candidacies in
print and broadcast media. Indeed, to sustain the ban on the publication of survey results would sanction the
censorship of all speaking by candidates in an election on the ground that the usual bombasts and hyperbolic claims
made during the campaigns can confuse voters and thus debase the electoral process.

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In sum, the dissent has engaged only in a balancing at the margin. This form of ad hoc balancing predictably results
in sustaining the challenged legislation and leaves freedom of speech, expression, and the press with little
protection. For anyone who can bring a plausible justification forward can easily show a rational connection between
the statute and a legitimate governmental purpose. In contrast, the balancing of interest undertaken by then Justice
Castro in Gonzales v. COMELEC,7 from which the dissent in this case takes its cue, was a strong one resulting in
his conclusion that , §50-B of R.A. No. 4880, which limited the period of election campaign and partisan political
activity, was an unconstitutional abridgment of freedom of expression.

Nor can the ban on election surveys be justified on the ground that there are other countries - 78, according to the
Solicitor General, while the dissent cites 28 - which similarly impose restrictions on the publication of election
surveys. At best this survey is inconclusive. It is note worthy that in the United States no restriction on the
publication of election survey results exists. It cannot be argued that this is because the United States is a mature
democracy. Neither are there laws imposing an embargo on survey results, even for a limited period, in other
countries. As pointed out by petitioners, the United Kingdom, Austria, Belgium, Denmark, Estonia, Finland, Iceland,
Ireland, Latvia, Malta, Macedonia, the Netherlands, Norway, Sweden, and Ukraine, some of which are no older nor
more mature than the Philippines in political development, do not restrict the publication of election survey results.

What test should then be employed to determine the constitutional validity of §5.4? The United States Supreme
Court, through Chief Justice Warren, held in United States v. O 'Brien:

[A] Government regulation is sufficiently justified [1] if it is within the constitutional power of the Government;
[2] if it furthers an important or substantial governmental interest; [3] if the governmental interest is unrelated
to the suppression of free expression; and [4] if the incidental restriction on alleged First Amendment
freedoms [of speech, expression and press] is no greater than is essential to the furtherance of that interest.8

This is so far the most influential test for distinguishing content-based from content neutral regulations and is said to
have "become canonical in the review of such laws."9 is noteworthy that the O 'Brien test has been applied by this
Court in at least two cases.10

Under this test, even if a law furthers an important or substantial governmental interest, it should be invalidated if
such governmental interest is "not unrelated to the Expression of free expression." Moreover, even if the purpose is
unrelated to the suppression of free speech, the law should nevertheless be invalidated if the restriction on freedom
of expression is greater than is necessary to achieve the governmental purpose in question.

Our inquiry should accordingly focus on these two considerations as applied to §5.4.

>First. Sec. 5.4 fails to meet criterion [3] of the O 'Brien test because the causal connection of expression to the
asserted governmental interest makes such interest "not related to the suppression of free expression." By
prohibiting the publication of election survey results because of the possibility that such publication might undermine
the integrity of the election, §5.4 actually suppresses a whole class of expression, while allowing the expression of
opinion concerning the same subject matter by newspaper columnists, radio and TV commentators, armchair
theorists, and other opinion takers. In effect, §5.4 shows a bias for a particular subject matter, if not viewpoint, by
referring personal opinion to statistical results. The constitutional guarantee of freedom of expression means that
"the government has no power to restrict expression because of its message, its ideas, its subject matter, or its
content."11 The inhibition of speech should be upheld only if the expression falls within one of the few unprotected
categories dealt with in Chaplinsky v. New Hampshire, 12 thus:

There are certain well-defined and narrowly limited classes of speech, the prevention and punishment of
which have never been thought to raise any Constitutional problem. These include the lewd and obscene, the
profane, the libelous, and the insulting or 'fighting' words - those which by their very utterance inflict injury or
tend to incite an immediate breach of the peace. [S]uch utterances are no essential part of any exposition of
ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is
clearly outweighed by the social interest in order and morality

Nor is there justification for the prior restraint which §5.4Iays on protected speech. Near v. Minnesota,13 it was held:

[The] protection even as to previous restraint is not absolutely unlimited. But the limitation has been
recognized only in exceptional cases…. No one would question but that a government might prevent actual
obstruction to its recruiting service or the publication of the sailing dates transports or the number and location
of troops. On similar grounds, the primary requirements of decency may be enforced against obscene
publications. The security of the community life may be protected against incitements to acts of violence and
overthrow by force of orderly government…

Thus, contrary to the claim of the Solicitor General, the prohibition imposed by §5.4 cannot be justified on the
ground that it is only for a limited period and is only incidental. The prohibition may be for a limited time, but the

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curtailment of the right of expression is direct, absolute, and substantial. It constitutes a total suppression of a
category of speech and is not made less so because it is only for a period of fifteen (15) days immediately before a
national election and seven (7) days immediately before a local election. ..

This sufficiently distinguishes §5.4 from R.A. No. 6646, §11(b), which this Court found to be valid in National Press
Club v. COMELEC,14 and Osmeña v. COMELEC.15 For the ban imposed by R.A. No. 6646, §11(b) is not only
authorized by a specific constitutional provision,16 but it also provided an alternative so that, as this Court pointed
out in Osmeña, there was actually no ban but only a substitution of media advertisements by the COMELEC space
and COMELEC hour.

Second. Even if the governmental interest sought to be promoted is unrelated to the suppression of speech and the
resulting restriction of free expression is only incidental, §5.4 nonetheless fails to meet criterion [4] of the O 'Brien
test, namely, that the restriction be not greater than is necessary to further the governmental interest. As already
stated, §5.4 aims at the prevention of last-minute pressure on voters, the creation of bandwagon effect, "junking" of
weak or "losing" candidates, and resort to the form of election cheating called "dagdag-bawas." Praiseworthy as
these aims of the regulation might be, they cannot be attained at the sacrifice of the fundamental right of expression,
when such aim can be more narrowly pursued by punishing unlawful acts, rather than speech because of
apprehension that such speech creates the danger of such evils. Thus, under the Administrative Code of 1987,17
the COMELEC is given the power:

To stop any illegal activity, or confiscate, tear down, and stop any unlawful, libelous, misleading or false
election propaganda, after due notice and hearing.

This is surely a less restrictive means than the prohibition contained in §5.4. Pursuant to this power of the
COMELEC, it can confiscate bogus survey results calculated to mislead voters. Candidates can have their own
surveys conducted. No right of reply can be invoked by others. No principle of equality is involved. It is a free market
to which each candidate brings his ideas. As for the purpose of the law to prevent bandwagon effects, it is doubtful
whether the Government can deal with this natural-enough tendency of some voters. Some voters want to be
identified with the "winners." Some are susceptible to the herd mentality. Can these be legitimately prohibited by
suppressing the publication of survey results, which are a form of expression? It has been held that "[mere]
legislative preferences or beliefs respecting matters of public convenience may well support regulation directed at
other personal activities, but be insufficient to justify such as diminishes the exercise of rights so vital to the
maintenance of democratic institutions."18

To summarize then, we hold that §5.4 is invalid because (1) it imposes a prior restraint on the freedom of
expression, (2) it is a direct and total suppression of a category of expression even though such suppression is only
for a limited period, and (3) the governmental interest sought to be promoted can be achieved by means other than
suppression of freedom of expression.

On the other hand, the COMELEC contends that under Art. IX-A, §7 of the Constitution, its decisions, orders, or
resolution may be reviewed by this Court only certiorari. The flaws in this argument is that it assumes that its
Resolution 3636, March 1, 2001 is a "decision, order, or resolution" within the meaning of Art. IX-A, §7. Indeed,
counsel for COMELEC maintain that Resolution 3636 was "rendered" by the Commission. However, the Resolution
does not purport to adjudicate the right of any party. It is not an exercise by the COMELEC of its adjudicatory power
to settle the claims of parties. To the contrary, Resolution 3636 clearly states that it is promulgated to implement the
provisions of R.A. No. 9006. Hence, there is no basis for COMELEC's claim that this petition for prohibition is
inappropriate. Prohibition has been fund appropriate for testing the constitutionality of various election laws, rules,
and regulations.19

WHEREFORE, the petition for prohibited GRANTED and §5.4 of R.A. No. 9006 §24(h) of COMELEC Resolution
3636, March 1, 2001, are declared unconstitutional. 1âwphi1.nêt

SO ORDERED. 1âwphi1.nêt

Davide, JI:, C.J., Vitug, and Gonzaga-Reyes, JJ., concur.

Footnotes:

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1207 SCRA 1 (1992).

2 Ayer Productions Pty. Ltd. v. Capulong, 160 SCRA 861, 873 (1988).

3 New York Times v. United States, 403 U.S. 713, 714, 29 L. Ed. 2d 822, 824 (1971).

4 National Press Club v. COMELEC, 207 SCRA 1 (1992); Osmeña v. COMELEC, 288 SCRA 447 (1998).

5 National Press Club v. COMELEC, supra at 9.

6 288 SCRA 447 (1998).

727 SCRA 835, 888 (1969) (Castro, J., concurring and dissenting).

8 391 U.S. 367, 377, 20 L. Ed. 2d 672, 680 (1968) (bracketed numbers added).

9 G. GUNTHER & K. SULLIVAN, CONSTITUTIONAL LAW 1217 (13th ed. 1997).

10 Adiong v. COMELEC, 207 SCRA 712 (1992); Osmeña v. COMELEC, supra.

11 Police Dept. v. Moshley, 408 U.S. 92, 95, 33 L. Ed. 2d 212, 216 (l972).

12 315 U.S. 568, 571-572, 86 L. Ed. 1031, 1035 (1942). See John Hart Ely, Flag Desecration: A Case Study
in the Roles of Categorization and Balancing in First Amendment Analysis, 88 HARV. L. REV. 1482, 1497
(1975).

13 U.S. 697, 715-16, 75 L. Ed. 1357, 1367 (1931); See also New York Times v. United States, 403 U.S. 7.13.
29 L. Ed. 2d 822 (197l).

14 Supra.

15 Supra.

16 Art. IX-C, §4..

17 Bk. V, Tit. I. Subtit. C, Ch. I, §3 (I) (emphasis added).

18 Schneider v. Irvington, 308 U.S. 147, 161, 84 L. Ed. 155 (1939).

19 See, e.g., Mutuc v. COMELEC, 36 SCRA 228 (1970); Gonzalez v. COMELEC, 27 SCRA 835 (1969).

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