SWS v.
COMELEC
April 7, 2015 | Leonen, J. | Speech and the Electoral Process
PETITIONER: Social Weather Stations, Inc.
RESPONDENTS: Commission of Elections
SUMMARY: SWS, Pulse Asia, and several other survey firms conducted
pre-election surveys and published the results of the same. Upon
publicatiom, the COMELEC required the firms to disclose the names of
all subcribers of the election surveys. The petitioners come to the Court
assailing that the disclosure is invalid for being ultra vires. However, the
Court entered into a discussion of the nature of Philippine politics and
the possible effect of an election survey to the election process and to
democracy as a whole. Seeing that an election survey is a formative
document capable of changing the views of people during an election,
the disclosure requirement is then grounded on sufficient ground.
DOCTRINE: Published election surveys partake the nature of eletion
propaganda. It is declarative speech in the context of an electoral
campaign properly subject to regulation.
NOTE: There is a discussion here about the nature of Philippine politics.
While long, it is a necessary discussion for this case.
FACTS:
• SWS and Pulse Asia conducted a pre-election survey on voters’
preferences for senatorial candidates. It thereafter published its findings.
• The Representative of the UNA partylist, Tobias Tiangco, requested that
a copy of the identity of the persons who paid and subscribed for the
pre-election survey. The SWS did not comply with his demand.
• Tiangco reiterated his request before the COMELEC Law Department.
• COMELEC issued a Resolution directing SWS, Pulse Asia, and other
survey firms who conducted pre-election surveys to submit the names of
the commissioners, payors, and subscribers of the published surveys.
The COMELEC cited Article IX-C Section 2(1) aka Powers of the
COMELEC and Sections 5.1 to 5.3 of the Fair Elections Act.
• The petitioners filed the petition. They contend that the Resolution void
for being ultra vires.
ISSUE/s:
1. WoN the Resolution is invalid for requiring the disclosure of the names
of the “subscribers” of election surveys – NO
2. WoN the rights of the petitioners to free speech will be curtailed by the
requirement of disclosure - NO
RULING: SC affirmed the lower courts decision. Pwede rin wherefore.
RATIO:
Background Information – Backdrop of the ruling of the case
• The requirement of disclosure is a valid regulation in the exercise of
police power and effects the constitutional policy of guaranteeing equal
access to opportunities to public service.
• The Fair Elections Act governs published surveys during elections.
Ø 5.1 – Definition of election surveys as “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 elections, including voters’
preference for candidates or publicly discussed issues during the
campaign period.”
Ø 5.2 & 5.3 – Provides regulation that facilitate transparency with
respect to election surveys.
• The inclusion of election surveys in the list of items regulated by the Fair
Elections Act is a recognition that election surveys are not mere
descriptive aggregation of data. Publishing surveys are a means to shape
the preference of voters, inform the strategy of campaign machineries,
and affect the outcome of the elections.
• Effects of election surveys on voter behavior:
Ø Bandwagon effect – Electors rally to support the candidate
leading in the polls.
Ø Underdog effect – Electors rally to support the candidate trailing
in the polls.
Ø Motivating effect – Individuals who had not intended to vote
are persuaded to do so.
Ø Demotivating effect – Voters abstain from out of certainty that
their candidate or party will win.
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 Ø Strategic effect – Voting is influenced by the chances of winning.
Ø Free-will effect – Voters cast their votes to prove the poll wrong. WoN the rights of the petitioners to free speech will be curtailed by the
• Election surveys published during election periods create the politics of requirement of disclosure
expectations.
• A poll’s prediction may come to pass not only because it measures public • Petitioners argue that the Resolution constitutes a prior restraint. They
opinion but also because it may influence public opinion. contend that the Resolution makes the non-disclosure of the names of the
• The bandwagon effect is of particular concern because of the observed subscribers an election offense.
human tendency to conform and because of the false-consensus effect to • According to Chavez v. Gonzales, prior restraint refers to official
the voters. governmental restrictions on the press or other forms of expression in
• Democracy is fundamentally deliberative; thus, free expression is advance of actual publication or dissemination.
indispensable. • The Resokution poses no prohibition or censorship specifically aimed at
election surveys. The disclosure requirement kicks in only upon
WoN the Resolution is invalid for requiring the disclosure of the names of publication, not prior to.
the “subscribers” of election surveys • The requirement of disclosing subscribers is neither burdensome nor
onerous. In fact, the petitioners have been complying with this since
• Election surveys, on their face, are not election propaganda. When 2001.
published, however, the tendency to shape voter preference comes into • Petitioners’ free speech rights must be weighed in relation to the Fair
play. Elections Act’s purpose of ensyring political equality and the speech of
• Published election surveys partake the nature of eletion propaganda. It is others who want to participate in political spaces.
declarative speech in the context of an electoral campaign properly
subject to regulation.
• The text of Section 5.2 of the Fair Elections Act supports the inclusion
of subscribers among those persons who “paid for the survey”.
Specifically, Section 5.2 requires the disclosure of two classes of persons:
those who commissioned or sponsored the survey and those who paid
for the survey.
• The second class makes no distinction between those who pay for a
specific survey and those who pay for election surveys in general.
• A compelling state interest grounds the inclusion of subscribers to
election surveys. The Resolution of the COMELEC passed the test of
scrutiny [Ganito lang siya sa case. This point is not expounded]
• The Resolution addresses the reality that an election survey is a
formative as it is descriptive. It can be a means to shape the preference of
voters and the outcome of elections.
• The Reslution is the least restrictive means possible to regulate
expression.
• While it does indeed regulate the petitioners’ expression, it does no go so
far as to suppress desired expression. There is neither prohibition nor
censorship.
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