Sws V Comelec GR No. 147571 May 5, 2001 Mendoza, J: Whether or Not

SWS v COMELEC
GR No. 147571
May 5, 2001
Mendoza, J
FACTS
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
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 No.9006 (Fair Election Act), which provides: Surveys affecting national candidates shall not be
published fifteen (15) days before an election and surveys affecting local candidates shall not be
published seven (7) days before an election.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
ISSUE
Whether or not Section 5.4 of R.A. No. 9006 constitutes an unconstitutional abridgment of
freedom of speech, expression, and the press.
RULING
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. 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." is noteworthy that the O
'Brien test has been applied by this Court in at least two cases 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 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 speechbecause of
apprehension that such speech creates the danger of such evils 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.

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