75.

SOCIAL WEATHER STATIONS, INCORPORATED and KAMAHALAN PETITIONERS ARGUMENTS:

FACTS: 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
1. Section 5.4 of R.A. No. 9006 (Fair Election Act), which provides: days before the election day without causing confusion among the voters and
Surveys affecting national candidates shall not be published fifteen that there is neither empirical nor historical evidence to support the
(15) days before an election and surveys affecting local candidates conclusion that there is an immediate and inevitable danger to the voting
shall not be published seven (7) days before an election. process posed by election surveys.

The term election surveys is defined in Section 5.1 of the law as follows: They point out that no similar restriction is imposed on politicians from
explaining their opinion or on newspapers or broadcast media from writing
Election surveys refer to the measurement of opinions and and publishing articles concerning political issues up to the day of the
perceptions of the voters as regards a candidates popularity, election. Consequently, they contend that there is no reason for ordinary
qualifications, platforms or a matter of public discussion in relation to voters to be denied access to the results of election surveys which are
the election, including voters preference for candidates or publicly relatively objective.
discussed issues during the campaign period (hereafter referred to
as Survey). RESPONDENTS ARGUMENTS:

To implement 5.4, Resolution 3636, 24(h), dated March 1, 2001, of the Respondent Commission on Elections justifies the restrictions in 5.4
COMELEC enjoins Surveys affecting national candidates shall not be of R.A. No. 9006 as necessary to prevent the manipulation and
published fifteen (15) days before an election and surveys affecting local corruption of the electoral process by unscrupulous and erroneous
candidates shall not be published seven (7) days before an election. surveys just before the election.

2. Social Weather Stations, Inc. (SWS), is a private nonstock, nonprofit social It contends that :
research institution conducting surveys in various fields, including (1) the prohibition on the publication of election survey results during the
economics, politics, demography, and social development, and thereafter period proscribed by law bears a rational connection to the objective of the
processing, analyzing, and publicly reporting the results thereof. law, i.e., the prevention of the debasement of the electoral process resulting
Petitioner wishes to conduct an election survey throughout the period of the from manipulated surveys, bandwagon effect, and absence of reply
elections both at the national and local levels and release to the media the (2) it narrowly tailored to meet the evils sought to be prevented and
results of such survey as well as publish them directly.
(3) the impairment of freedom of expression is minimal, the restriction being
On the other hand, petitioner Kamahalan Publishing Corporation publishes limited both in duration, i.e., the last 15 days before the national election and
the Manila Standard, a newspaper of general circulation, which features the last 7 days before a local election, and in scope as it does not prohibit
newsworthy items of information including election surveys. election survey results but only require timeliness. Respondent claims that in
Petitioner Kamahalan Publishing Corporation, on the other hand, states that National Press Club v. COMELEC, 1 a total ban on political advertisements,
it intends to publish election survey results up to the last day of the elections with candidates being merely allocated broadcast time during the socalled
on May 14, 2001. COMELEC space or COMELEC hour, was upheld by this Court. In contrast,
according to respondent, it states that the prohibition in 5.4 of R.A. No. 9006
Petitioners brought this action for prohibition to enjoin the Commission on is much more limited.
Elections from enforcing from enforcing 5.4 of R.A. No. 9006 (Fair Election
Act), ISSUE:
Whether or not Section 5.4 of R.A. No. 9006 constitutes an columnists, radio and TV commentators, armchair theorists, and other
unconstitutional abridgment of freedom of speech, expression, and the opinion makers. In effect, 5.4 shows a bias for a particular subject matter, if
press. not viewpoint, by preferring personal opinion to statistical results. The
constitutional guarantee of freedom of expression means that the
RULING: government has no power to restrict expression because of its message, its
YES. Section 5.4 of R.A. No. 9006 constitutes an unconstitutional ideas, its subject matter, or its content.
abridgment of freedom of speech, expression, and the press. Second. Even if the governmental interest sought to be promoted is
We hold that 5.4 is invalid because (1) it imposes a prior restraint on the unrelated to the suppression of speech and the resulting restriction of free
freedom of expression, (2) it is a direct and total suppression of a category of expression is only incidental, 5.4 nonetheless fails to meet criterion of the
expression even though such suppression is only for a limited period, and (3) OBrien test, namely, that the restriction be not greater than is
the governmental interest sought to be promoted can be achieved by means necessary to further the governmental interest.
other than the suppression of freedom of expression. 5.4 aims at the prevention of lastminute pressure on voters, the creation of
The United States Supreme Court, through Chief Justice Warren, held in bandwagon effect, junking of weak or losing candidates, and resort to the
United States v. OBrien: form of election. cheating called dagdagbawas.

A government regulation is sufficiently justified [1] if it is within the However, they cannot be attained at the sacrifice of the fundamental
constitutional power of the Government [2] if it furthers an important or right of expression, when such aim can be more narrowly pursued by
substantial governmental interest [3] if the governmental interest is punishing unlawful acts, rather than speech because of apprehension
unrelated to the suppression of free expression and [4] if the incidental that such speech creates the danger of such evils. Thus, under the
restriction on alleged First Amendment freedoms [of speech, expression and Administrative Code of 1987, 17 the COMELEC is given the power:
press] is no greater than is essential to the furtherance of that interest. To stop any illegal activity, or confiscate, tear down, and stop any
This is so far the most influential test for distinguishing contentbased from unlawful, libelous, misleading or false election propaganda, after due
contentneutral regulations and is said to have become canonical in the notice and hearing.
review of such laws. This is surely a less restrictive means than the prohibition contained in
Under this test, even if a law furthers an important or substantial 5.4. Pursuant to this power of the COMELEC, it can confiscate bogus
governmental interest, it should be invalidated if such governmental interest survey results calculated to mislead voters. Candidates can have their own
is not unrelated to the suppression of free expression. 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
Moreover, even if the purpose is unrelated to the suppression of free speech, ideas. As for the purpose of the law to prevent bandwagon effects, it is
the law should nevertheless be invalidated if the restriction on freedom of doubtful whether the Government can deal with this naturalenough tendency
expression is greater than is necessary to achieve the governmental purpose of some voters. Some voters want to be identified with the winners. Some
in question. are susceptible to the herd mentality. Can these be legitimately prohibited
by suppressing the publication of survey results which are a form of
First. Sec. 5.4 fails to meet criterion of the OBrien test because the expression? It has been held that [mere] legislative preferences or
causal connection of expression to the asserted governmental interest beliefs respecting matters of public convenience may well support
makes such interest not unrelated to the suppression of free regulation directed at other personal activities, but be insufficient to
expression. justify such as diminishes the exercise of rights so vital to the
By prohibiting the publication of election survey results because of the maintenance of democratic institutions.
possibility that such publication might undermine the integrity of the election, WHEREFORE, the petition for prohibition is GRANTED and 5.4 of R.A. No.
5.4 actually suppresses a whole class of expression, while allowing the 9006 and 24(h) of COMELEC Resolution 3636, dated March 1, 2001, are
expression of opinion concerning the same subject matter by newspaper declared unconstitutional. SO ORDERED.