ROWARD TUBOG

USJR – School of Law

Subject: Constitutional Law 2
Topic: Restriction on Freedom of Expression
Title: SOCIAL WEATHER STATIONS, INCORPORATED and KAMAHALAN PUBLISHING
CORPORATION, doing business as MANILA STANDARD, petitioners,
vs.
COMMISSION ON ELECTIONS, respondent.
Citation: G.R. No. 147571 May 5, 2001
Facts:
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Surveys affecting national candidates shall not be published fifteen (15) days before an
election and surveys affecting local candidates shall not be published seven (7) days be- fore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.

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.

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.

Issues:
Whether or not COMELEC restriction on survey during the Election period constitute a
violation of the Freedom of Expression.

Ruling:
ROWARD TUBOG
USJR – School of Law
Yes.

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 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 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

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.