VI.

(6) SOCIAL WEATHER STATIONS & KAMAHALAN PUBLISHING CORP. v. COMELEC (2001)

DOCTRINE: 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.

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
newsworthy items of information including election surveys.

- Petitioners brought this action for prohibition to enjoin the Commission on Elections from enforcing §5.4 of R.A. 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‘‘Surveys affecting national candidates shall not be published fifteen (15) days before an election and surveys
affecting local candidates shall not be published seven (7) days before an election.’’

§5.1 of R.A. No. 9006 provides that election surveys refer to the measurement of opinions and perception 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").

- 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 the 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.
1aw 1ibrary
- 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, (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 in
scope as it does not prohibit election survey results but only require timeliness. It further claims that National Press
Club v. COMELEC, 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 R.A. No. 9006 is much more limited.

ISSUE: Whether or not §5.4 of R.A. No. 9006 constitutes an unconstitutional abridgment of freedom of speech,
expression, and the press.

HELD: YES. To be sure, §5.4 lays a prior restraint on freedom of speech, expression, and the press by prohibiting
the publication of election survey results affecting candidates within the prescribed periods of fifteen (15) days
immediately preceding a national election and seven (7) days before a local election.
- For as we have pointed out in sustaining the 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 for "public information campaigns and
forums among candidates."

- Mr. Justice Kapunan dissents: 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.
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. The
dissent does not, however, show why, on balance, these considerations should outweigh the value of freedom of
expression. 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.

- 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.

MAIN RULING: What test should then be employed to determine the constitutional validity of §5.4? As 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. 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 suppression of
free expression."

- 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 unrelated 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 makers. In effect, §5.4 shows a bias for a particular subject matter, if not viewpoint, by
preferring personal opinion to statistical results.

- 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. 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 and Osmeña v. COMELEC.

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."

- 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
the suppression of freedom of expression.

(7) SOCIAL WEATHER STATIONS INC & PULSE ASIA INC v. COMELEC (2015)
FACTS: COMELEC Resolution No. 9674 directed Social Weather Stations, Inc. (SWS) and Pulse Asia, Inc. (Pulse
Asia), as well as "other survey firms of similar circumstance" to submit to COMELEC the names of all commissioners
and payors of all surveys published from February 12, 2013 to April 23, 2013, including those of their "subscribers."

- As recounted by SWS and Pulse Asia, on February 15 to February 17, 2013, SWS conducted a pre-election survey
on voters' preferences for senatorial candidates. Thereafter, it published its findings. The following question was
asked in the survey:

Kung ang eleksyon ay gaganapin ngayon, sino ang pinakamalamang ninyong iboboto bilang mga SENADOR ng
PILIPINAS? Narito ang listahan ng mga kandidato. Paki-shade o itiman po ang naaangkop na oval katabi ng
pangalan hg mga taong pinakamalamang ninyong iboboto. Maaari po kayong pumili ng hanggang labindalawang (12)
kandidato.
(LIST OF CANDIDATES OMITTED)

- Representative Tobias M. Tiangco (Tiangco), Secretary-General of the United Nationalist Alliance (UNA), wrote
Atty. Esmeralda Ladra, Director of COMELEC's Law Department to compel the [SWS] to either comply with the
directive in the Fair Election Act and COMELEC Resolution No. 9615 and give the names or identities of the
subscribers who paid for the [pre-election survey conducted from February 15 to February 17, 2013], or be liable for
the violation thereof, an act constitutive of an election offense."

- Tiangco recounted that he wrote SWS, requesting, among others, that he be furnished the identity of persons who
paid for the pre-election survey conducted from February 15- 17, 2013 as well as those who subscribed to it.
Sometime in March 2013, SWS supposedly replied to Tiangco, "furnishing [him] with some particulars about the
survey but [without] disclosing] the identity of the persons who commissioned or subscribed to the survey."

- Acting on Tiangco's letter and on the COMELEC Law Department's recommendation, the COMELEC En Bane
issued the Order dated April 10, 2013 setting the matter for hearing on April 16, 2013. The same Order directed SWS
to submit its Comment within three (3) days of receipt. On April 12, 2013, Pulse Asia received a letter from
COMELEC "requesting its representative to attend the COMELEC hearing. SWS and Pulse Asia recounted that
during the hearing, COMELEC Chairman Sixto S. Brillantes, Jr. (COMELEC Chairman Brillantes) stated that the
proceeding was merely a clarificatory hearing and not a formal hearing or an investigation.

- COMELEC issued the assailed Resolution No. 9674, stating as follows: "Commis[s]ion RESOLVED, as it hereby
RESOLVES, to DIRECT the SWS, Pulse Asia and other survey firms of similar circumstance to submit within three
(3) days from receipt of this Resolution the names of all commissioners and payors of surveys published from
February 12, 2013 to the date of the promulgation of this Resolution for copying and verification by the Commission.
The submission shall include the names of all "subscribers" of those published surveys. Such information/data shall
be for the exclusive and confidential use of the Commission;

RESOLVED FURTHER, that all surveys published subsequent to the promulgation of this Resolution must be
accompanied by all the information required in Republic Act no. 9006, including the names of commissioners, payors
and subscribers."

- SWS and Pulse Asia informed COMELEC Chairman Brillantes that they had not received a copy of Resolution No.
9674. They also articulated their view that Resolution No. 9674 was tainted with irregularities, having been issued
ultra vires and in violation of the non-impairment of contracts clause of the Constitution. They also expressed their
intention to bring the matter before this court on account of these supposed irregularities. Thus, they requested that
COMELEC defer or hold in abeyance Resolution No. 9674's enforcement.

- The COMELEC Law Department issued a Notice to SWS (and also to Pulse Asia) directing it to furnish COMELEC
with a list of the names of all "commissioners, subscribers, and payors of surveys. Thereafter, COMELEC issued a
subpoena notifying SWS and Pulse Asia that a Complaint "for violation of Section 264 par. 1 and 2 of the Omnibus
Election Code in relation to R.A. 9006"31 was filed against them.

- SWS and Pulse Asia maintained that before receiving the Subpoena, they were never informed that a criminal case
had been filed against them. Subsequently, the petitioners filed the present Petition. They assail Resolution No. 9674
as having been issued ultra vires. They are of the position that Resolution No. 9674, in requiring the submission of
information on subscribers, is in excess of what the Fair Election Act requires. Moreover, they claim that it violates the
non-impairment of contracts clause of the Constitution, and was enforced in violation of their right to due process.
Petitioners pray for the issuance of a temporary restraining order and/or writ of preliminary injunction in the interim.
The Court issued a TRO "enjoining the enforcement of COMELEC Resolution No. 9674 with respect to submission of
the names of regular subscribers but not to the submission of (1) the names of specific subscribers and (2) the
names of all commissioners and payors of surveys published within the same period."

ISSUES:

(1) Whether or not Resolution No. 9674 is invalid in that it requires the disclosure of the names of "subscribers" of
election surveys;

(2) Whether or not the rights of petitioners to free speech will be curtailed by the requirement to submit the names of
their subscribers;

(3) Whether or not Resolution No. 9674, insofar as it compels petitioners to submit the names of their subscribers,
violates the constitutional proscription against the impairment of contracts;

(4) Whether or not COMELEC deprived petitioners of due process of law when it:

a) failed to provide them with a copy of Resolution No. 9674 and the criminal complaint for an election
offense; and

b) refused to specify the election offense under which they were being prosecuted.

HELD:

(1) NO. The Court sustained the validity of Resolution 9674 such that the names of those who commission or pay for
election surveys, including subscribers of survey firms, must be disclosed pursuant to Section 5.2(a) of the Fair
Election Act. This requirement is a valid regulation in the exercise of police power and effects the constitutional policy
of "guarantee[ing] equal access to opportunities for public service.

- Petitioners assail Resolution No. 9674's requirement of submission of names of subscribers, including those who
did not commission or pay for a specific survey or cause its publication, for being ultra vires. They maintain that the
Fair Election Act "as it was written by Congress covers only those who commission or pay for a particular election
survey, and requires disclosure of their names only when that particular survey is published."

- COMELEC, on the other hand, insisted on the "wide latitude of discretion" granted to it in the performance of its
constitutional duty to "[e]nforce and administer all laws and regulations relative to the conduct of an election[.]" It adds
that "as the specialized constitutional body charged with the enforcement and administration of election laws," its
contemporaneous construction of Section 5.2(a) of the Fair Election Act is "entitled to great weight and respect."

- Section 5.2 enumerates the information that a person publishing an election survey must publish along with the
survey itself:

5.2 During the election period, any person, natural as well as juridical, candidate or organization who publishes a
survey must likewise publish the following information:chanroblesvirtuallawlibrary

a. The name of the person, candidate, party or. organization who commissioned or paid for the survey;

Section 5.3 facilitates the inspection, copying, and verification not only of an election survey but also of the raw
data used as bases for its conclusions.

- The inclusion of election surveys in the list of items regulated by the Fair Election Act is a recognition that election
surveys are not a mere descriptive aggregation of data. Publishing surveys are a means to shape the preference of
voters, inform the strategy of campaign machineries, and ultimately, affect the outcome of elections. Election surveys
have a similar nature as election propaganda. They are expensive, normally paid for by those interested in the
outcome of elections, and have tremendous consequences on election result.

- Several possible, albeit conflicting, effects of surveys on voter behavior have been postulated:

First, there is the bandwagon effect where "electors rally to support the candidate leading in the polls." This
"assumes that knowledge of a popular 'tide' will likely change voting intentions in [favor] of the frontrunner, that many
electors feel more comfortable supporting a popular choice or that people accept the perceived collective wisdom of
others as being enough reason for supporting a candidate."
Second, there is the underdog effect where "electors rally to support the candidate trailing in the polls." This shift
can be motivated by sympathy for the perceived underdog.

Third, there is the motivating effect where "individuals who had not intended to vote are persuaded to do so," having
been alerted to the fact of an election's imminence.

Fourth, there is also the demotivating effect where "voters abstain from voting out of certainty that their candidate or
party will win[.]"

Fifth, there are reports of a behavior known as strategic voting where "voting is influenced by the chances of
winning[.]"

Lastly, there is also the theory of a free-will effect where "voters cast their ballots to prove the polls wrong[.]"

Election surveys published during election periods create the "politics of expectations." Voters act in accordance with
what is perceived to be an existing or emerging state of affairs with respect to how candidates are faring.

- The bandwagon effect is of particular concern because of the observed human tendency to conform. Three (3)
mechanisms through which survey results may induce conformity have been posited:

(1) normative social influence, or people's desire to adopt the majority position in order to feel liked and accepted or
believe they are on the winning team;

(2) informational social influence, or people learning from the 'wisdom of crowds' via social proof because they
'believe that others' interpretation of an ambiguous situation is more accurate . . . and will help [them] choose an
appropriate course of action'; and

(3) people resolving cognitive dissonance by switching to the side they infer is going to win based on the poll.

- Proponents of the political theory on "deliberative democracy" submit that "substantial, open, [and] ethical dialogue
is a critical, and indeed defining, feature of a good polity." This theory may be considered broad, but it definitely
"includes [a] collective decision making with the participation of all who will be affected by the decision."

(2) NO. Section 5.2(a)'s requirement of disclosing subscribers did not curtail petitioners' free speech rights. Speech
that promotes dialogue on public affairs, or airs out grievances and political discontent, should thus be protected and
encourage. In this jurisdiction, this court held that "[t]he interest of society and the maintenance of good government
demand a full discussion of public affairs." Surveys, far from being a passive "snapshot of many viewpoints held by a
segment of the population at a given time," can warp existing public opinion and can mould public opinion. They are
constitutive. Published election surveys offer valuable insight into public opinion not just because they represent it but
more so because they also tend to make it.

- To reiterate, the inclusion of published election surveys in a statute that regulates election propaganda and other
means through which candidates may shape voter preferences is itself telling of the recognition that published
election surveys, too, may influence voter preferences. This inclusion is similarly telling of a recognition that, left
unregulated, election surveys can undermine the purposes of ensuring "fair" elections. These recognitions are
embedded in the Fair Election Act; they are not judicial constructs. In adjudicating with these' as bases, this court is
merely adhering to the legislative imperative.

MAIN RULING ON ISSUE RE: FREEDOM OF SPEECH- What is involved here is petitioners' freedom of speech and
of expression, that is, to publish their findings. More specifically, what is involved here is their right to political speech,
that which "refers to speech 'both intended and received as a contribution to public deliberation about some issue,'
'foster[ing] informed and civic-minded deliberation."

- The nature of the speech involved, as well as the Fair Election Act's purpose of ensuring political equality, calls into
operation the equality-based approach to weighing liberty to express vis-a-vis equality of opportunities. As explained
in Diocese of Bacolod:

In an equality-based approach, "politically disadvantaged speech prevails over regulation[,] but regulation promoting
political equality prevails over speech." This view allows the government leeway to redistribute or equalize 'speaking
power,' such as protecting, even implicitly subsidizing, unpopular or dissenting voices often systematically subdued
within society's ideological ladder.
- Regulation of election paraphernalia will still be constitutionally valid if it reaches into speech of persons who are not
candidates or who do not speak as members of a political party if they are not candidates, only if what is regulated is
declarative speech that, taken as a whole, has for its principal object the endorsement of a candidate only. The
regulation (a) should be provided by law, (b) reasonable, (c) narrowly tailored to meet the objective of enhancing the
opportunity of all candidates to be heard and considering the primacy of the guarantee of free expression, and (d)
demonstrably the least restrictive means to achieve that object. The regulation must only be with respect to the time,
place, and manner of the rendition of the message. In no situation may the speech be prohibited or censored on the
basis of its content. For this purpose, it will not matter whether the speech is made with or on private property.

- It is settled that constitutionally declared principles are a compelling state interest:

Compelling governmental interest would include constitutionally declared principles. Here, we have established that
the regulation of election surveys effects the constitutional policy, articulated in Article II, Section 26, and reiterated
and affirmed in Article IX-C, Section 4 and Article XIII, Section 26 of the 1987 Constitution, of "guarantee[ing] equal
access to opportunities for public service. Resolution No. 9674 addresses the reality that an election survey is
formative as it is descriptive. It can be a means to shape the preference of voters and, thus, the outcome of elections.

- Lastly, Resolution No. 9674 is "narrowly tailored to meet the objective of enhancing the opportunity of all candidates
to be heard and considering the primacy of the guarantee of free expression" 113 and is "demonstrably the least
restrictive means to achieve that object."

- All Resolution No. 9674 does is articulate a regulation as regards the manner of publication, that is, that the
disclosure of those who commissioned and/or paid for, including those subscribed to, published election surveys
must be made.

- Prior restraint refers to official governmental restrictions on the press or other forms of expression in advance of
actual publication or dissemination. Freedom from prior restraint is largely freedom from government censorship of
publications, whatever the form of censorship, and regardless of whether it is wielded by the executive, legislative or
judicial branch of the government. The very definition of "prior restraint" negates petitioner's assertions. Resolution
No. 9674 poses no prohibition or censorship specifically aimed at election surveys. Apart from regulating the manner
of publication, petitioners remain free to publish election surveys. COMELEC correctly points out that "[t]he disclosure
requirement kicks in only upon, not prior to, publication."

- Petitioners' free speech rights must be weighed in relation to the Fair Election Act's purpose of ensuring political
equality and, therefore, the speech of others who want to participate unencumbered in our political spaces. On one
hand, there are petitioners' right to publish and publications which are attended by the interests of those who can
employ published data to their partisan ends. On the other, there is regulation that may effect equality and, thus,
strengthen the capacity of those on society's margins or those who grope for resources to engage in the democratic
dialogue. The latter fosters the ideals of deliberative democracy. It does not trump the former; rather, it provides the
environment where the survey group's free speech rights should reside.

(3) NO. It does not violate the constitutional proscription against the impairment of contracts.

- COMELEC argues that "[t]he non-impairment clause of the Constitution must yield to the loftier purposes sought to
be achieved by the government."

- This case does not involve a "capricious, whimsical, unjust or unreasonable" 140 regulation. We have demonstrated
that not only an important or substantial state interest, but even a compelling one anchors Resolution No. 9674's
requirement of disclosing subscribers to election surveys. It effects the constitutional policy of "guarantee[ing] equal
access to opportunities for public service"141 and is impelled by the imperative of "fair" elections.

As a valid exercise of COMELEC's regulatory powers, Resolution No. 9674 is correctly deemed written into
petitioners' existing contracts.

(4) YES. It is evident that Resolution No. 9674 was promulgated in violation of the period set by the Fair Election Act.
Petitioners were also not served a copy of Resolution No. 9674 with which they were asked to comply. They were
neither shown nor served copies of the criminal Complaint subject of E.O. Case No. 13-222. Petitioners' right to due
process was, thus, violated.

- Not having been served with copies of Resolution No. 9674 itself, petitioners are right in construing the three-day
period for compliance as not having begun to run. From this, it follows that no violation of the requirement "to submit
within three (3) days from receipt of this Resolution the names of all commissioners and payors of surveys published
from February 12, 2013 to the date of the promulgation of this Resolution[.]"153 could have been committed. Thus,
there was no basis for considering petitioners to have committed an election offense arising from this alleged
violation.

(8) GMA NETWORK v. COMELEC

DOCTRINE: A restriction on the amount of money a person or group can spend on political communication during a
campaign necessarily reduces the quantity of expression by restricting the number of issues discussed, the depth of
their exploration, and the size of the audience reached.

FACTS: Assailed in these petitions are certain regulations promulgated by the Commission on Elections (COMELEC)
relative to the conduct of the 2013 national and local elections dealing with political advertisements. Specifically, the
petitions question the constitutionality of the limitations placed on aggregate airtime allowed to candidates and
political parties, as well as the requirements incident thereto, such as the need to report the same, and the sanctions
imposed for violations.

- The five (5) petitions before the Court put in issue the alleged unconstitutionality of Section 9 (a) of COMELEC
Resolution No. 9615 (Resolution) limiting the broadcast and radio advertisements of candidates and political parties
for national election positions to an aggregate total of one hundred twenty (120) minutes and one hundred eighty
(180) minutes, respectively.

- Petitioners contend that such restrictive regulation on allowable broadcast time violates freedom of the press,
impairs the people’s right to suffrage as well as their right to information relative to the exercise of their right to
choose who to elect during the forthcoming elections.

- The heart of the controversy revolves upon the proper interpretation of the limitation on the number of minutes that
candidates may use for television and radio advertisements, as provided in Section 6 of Republic Act No. 9006 (R.A.
No. 9006), otherwise known as the Fair Election Act, which states that:

‘‘Sec. 6. Equal Access to Media Time and Space. - All registered parties and bona fide candidates shall
have equal access to media time and space. The following guidelines may be amplified on by the
COMELEC:
x x x x

6.2 (a) Each bona fide candidate or registered political party for a nationally elective office shall be entitled
to not more than one hundred twenty (120) minutes of television advertisement and one hundred eighty
(180) minutes of radio advertisement whether by purchase or donation.

b. Each bona fide candidate or registered political party for a locally elective office shall be entitled to not
more than sixty (60) minutes of television advertisement and ninety (90) minutes of radio advertisement
whether by purchase or donation.

For this purpose, the COMELEC shall require any broadcast station or entity to submit to the COMELEC a
copy of its broadcast logs and certificates of performance for the review and verification of the frequency,
date, time and duration of advertisements broadcast for any candidate or political party.’’

- During the previous elections of May 14, 2007 and May 10, 2010, COMELEC issued Resolutions implementing and
interpreting Section 6 of R.A. No. 9006, regarding airtime limitations, to mean that a candidate is entitled to the
aforestated number of minutes “per station.” For the May 2013 elections, however, respondent COMELEC
promulgated Resolution No. 9615 dated January 15, 2013, changing the interpretation of said candidates' and
political parties' airtime limitation for political campaigns or advertisements from a “per station” basis, to a “total
aggregate” basis.

- Petitioners ABSCBN, ABC Devt Corp, GMA Network, Manila Broadcasting Company, Newsounds Broadcasting
Network, Inc and Radio Mindanao Network are owners/operators of radio and television networks in the Philippines,
while petitioner Kapisanan ng mga Brodkaster ng Pilipinas (KBP) is the national organization of broadcasting
companies in the Philippines representing operators of radio and television stations and said stations themselves.
They sent their respective letters to the COMELEC questioning the provisions of the aforementioned Resolution,
thus, the COMELEC held public hearings.
- Thereafter, on February 1, 2013, respondent issued Resolution No. 9631 amending provisions of Resolution No.
9615. Nevertheless, petitioners still found the provisions objectionable and oppressive, hence, the present petitions.

All of the petitioners assail the following provisions of the Resolution:

a) Section 7 (d), which provides for a penalty of suspension or revocation of an offender's franchise or permit,
imposes criminal liability against broadcasting entities and their officers in the event they sell airtime in excess of the
size, duration, or frequency authorized in the new rules;

b) Section 9 (a), which provides for an “aggregate total” airtime instead of the previous “per station” airtime for
political campaigns or advertisements, and also required prior COMELEC approval for candidates' television and
radio guestings and appearances; and

c) Section 14, which provides for a candidate's “right to reply.”

- In addition, petitioner ABC also questions Section 1 (4)11 thereof, which defines the term “political advertisement” or
“election propaganda,” while petitioner GMA further assails Section 35,12 which states that any violation of said Rules
shall constitute an election offense.

- Senator Alan Peter S. Cayetano (Petitioner-Intervenor) filed a Motion for Leave to Intervene and to File and Admit
the Petition-in-Intervention, which assails Section 9 (a) of the Resolution changing the interpretation of candidates'
and political parties' airtime limitation for political campaigns or advertisements from a “per station” basis, to a “total
aggregate” basis.

- Petitioners allege that Resolutions No. 9615 and 9631, amending the earlier Resolution, are unconstitutional and
issued without jurisdiction or with grave abuse of discretion amounting to lack or excess of jurisdiction. Petitioners
posit that Section 9 (a) of the assailed Resolution provides for a very restrictive aggregate airtime limit and a vague
meaning for a proper computation of “aggregate total” airtime, and violates the equal protection guarantee, thereby
defeating the intent and purpose of R.A. No. 9006.

- Petitioners contend that Section 9 (a), which imposes a notice requirement, is vague and infringes on the
constitutionally protected freedom of speech, of the press and of expression, and on the right of people to be
informed on matters of public concern.

- Also, Section 9 (a) is a cruel and oppressive regulation as it imposes an unreasonable and almost impossible
burden on broadcast mass media of monitoring a candidate's or political party's aggregate airtime, otherwise, it may
incur administrative and criminal liability. That, Section 7 (d) is null and void for unlawfully criminalizing acts not
prohibited and penalized as criminal offenses by R.A. No. 9006. Moreover, Section 14 of Resolution No. 9615,
providing for a candidate's or political party's “right to reply,” is likewise assailed to be unconstitutional for being an
improper exercise of the COMELEC's regulatory powers; for constituting prior restraint and infringing petitioners'
freedom of expression, speech and the press; and for being violative of the equal protection guarantee.

- Petitioner GMA further argues that the Resolution was promulgated without public consultations, in violation of
petitioners' right to due process. Petitioner ABC also avers that the Resolution's definition of the terms “political
advertisement” and “election propaganda” suffers from overbreadth, thereby producing a “chilling effect,” constituting
prior restraint.

- Respondent posits in its Comment and Opposition that the petition should be denied, contending that remedies of
certiorari and prohibition are not available to petitioners, because the writ of certiorari is only available against the
COMELEC's adjudicatory or quasi-judicial powers, while the writ of prohibition only lies against the exercise of
judicial, quasi-judicial or ministerial functions. It likewise alleges that petitioners do not have locus standi, as the
constitutional rights and freedoms they enumerate are not personal to them, rather, they belong to candidates,
political parties and the Filipino electorate in general, as the limitations are imposed on candidates, not on media
outlets.

- Respondent maintains that the per candidate rule or total aggregate airtime limit is in accordance with R.A. No.
9006 as this would truly give life to the constitutional objective to equalize access to media during elections.
Moreover, the Comelec’s issuance of the assailed Resolution is pursuant to Section 4, Article IX (C) of the
Constitution which vests on the Comelec the power to supervise and regulate, during election periods, transportation
and other public utilities, as well as mass media. This, being the case, then the Resolutions cannot be said to have
been issued with grave abuse of discretion amounting to lack of jurisdiction.
- Next, respondent claims that the provisions are not vague because the assailed Resolutions have given clear and
adequate mechanisms to protect broadcast stations from potential liability arising from a candidate's or party's
violation of airtime limits.

- Respondent also sees no prior restraint in the provisions requiring notice to the Comelec for appearances or
guestings of candidates in bona fide news broadcasts. It points out that the fact that notice may be given 24 hours
after first broadcast only proves that the mechanism is for monitoring purposes only, not for censorship. Further,
respondent argues, that for there to be prior restraint, official governmental restrictions on the press or other forms of
expression must be done in advance of actual publication or dissemination. Moreover, petitioners are only required
to inform the Comelec of candidates'/parties' guestings, but there is no regulation as to the content of the news or the
expressions in news interviews or news documentaries. Respondent then emphasized that the Supreme Court has
held that freedom of speech and the press may be limited in light of the duty of the Comelec to ensure equal access
to opportunities for public service.

- With regard to the right to reply provision, respondent also does not consider it as restrictive of the airing of bona
fide news broadcasts. More importantly, it stressed, the right to reply is enshrined in the Constitution, and the
assailed Resolutions provide that said right can only be had after going through administrative due process. The
provision was also merely lifted from Section 10 of R.A. No. 9006, hence, petitioner ABC is actually attacking the
constitutionality of R.A. No. 9006, which cannot be done through a collateral attack.

- Next, respondent counters that there is no merit to ABC's claim that the Resolutions' definition of “political
advertisement” or “election propaganda” suffers from overbreadth, as the extent or scope of what falls under said
terms is clearly stated in Section 1 (4) of Resolution No. 9615. It is also respondent's view that the nationwide
aggregate total airtime does not violate the equal protection clause, because it does not make any substantial
distinctions between national and regional and/or local broadcast stations, and even without the aggregate total
airtime rule, candidates and parties are likely to be more inclined to advertise in national broadcast stations.

- Respondent likewise sees no merit in petitioners' claim that the Resolutions amount to taking of private property
without just compensation. Respondent emphasizes that radio and television broadcasting companies do not own
the airwaves and frequencies through which they transmit broadcast signals; they are merely given the temporary
privilege to use the same. Lastly, respondent contends that the public consultation requirement does not apply to
constitutional commissions such as the Comelec.

- Petitioner filed a REPLY, it contended that a petition for certiorari is the proper remedy to question the herein
assailed Resolutions, which should be considered as a “decision, order or ruling of the Commission”. It further
stressed that this case involves national interest, and the urgency of the matter justifies its resort to the remedy of a
petition for certiorari. It further denies that it is making a collateral attack on the Fair Election Act, as it is not attacking
said law.

- Also, then claims that it has legal standing to bring the present suit because first, it has personally suffered a
threatened injury in the form of risk of criminal liability because of the alleged unconstitutional and unlawful conduct of
respondent COMELEC in expanding what was provided for in R.A. No. 9006. Second, the injury is traceable to the
challenged action of respondent COMELEC, that is, the issuance of the assailed Resolutions. Third, the injury is
likely to be redressed by the remedy sought in petitioner GMA's Petition

- On substantive issues, GMA first argues that the questioned Resolutions are contrary to the objective and purpose
of the Fair Election Act. impose an unconstitutional burden on them, because their failure to strictly monitor the
duration of total airtime that each candidate has purchased even from other stations would expose their officials to
criminal liability and risk losing the station's good reputation and goodwill, as well as its franchise. It argues that the
wordings of the Resolutions belie the COMELEC's claim that petitioners would only incur liability if they “knowingly”
sell airtime beyond the limits imposed by the Resolutions, because the element of knowledge is clearly absent from
the provisions thereof. This makes the provisions have the nature of malum prohibitum.

- Next, GMA also says that the application of the aggregate airtime limit constitutes prior restraint and is
unconstitutional, opining that “[t]he reviewing power of respondent COMELEC and its sole judgment of a news event
as a political advertisement are so pervasive under the assailed Resolutions, and provoke the distastes or chilling
effect of prior restraint”16 as even a legitimate exercise of a constitutional right might expose it to legal sanction. There
having been no prior public consultation held, GMA contends that the COMELEC is guilty of depriving petitioners of
its right to due process of law.

- With regard to the attack that the total aggregate airtime limit constitutes prior restraint or undue abridgement of the
freedom of speech and expression, the COMELEC counters that “the Resolutions enjoy constitutional and
congressional imprimatur. It is the Constitution itself that imposes the restriction on the freedoms of speech and
expression, during election period, to promote an important and significant governmental interest, which is to
equalize, as far as practicable, the situation of rich and poor candidates by preventing the former from enjoying the
undue advantage offered by huge campaign 'war chests.” Also, COMELEC also emphasizes that there is no
impairment of the people's right to information on matters of public concern, because in this case, the COMELEC is
not withholding access to any public record.

- As for the right to reply, respondent insists that the right to reply provision cannot be considered a prior restraint on
the freedoms of expression, speech and the press, as it does not in any way restrict the airing of bona fide new
broadcasts. Media entities are free to report any news event, even if it should turn out to be unfavourable to a
candidate or party. The assailed Resolutions merely give the candidate or party the right to reply to such charges
published or aired against them in news broadcasts.

ISSUES:

(1) Whether or not certiorari and prohibition are the proper remedies.

(2) Whether or not the petitioners have locus standi.

(3) Whether or not Section 9 (a) of COMELEC Resolution No 9615 on airtime limits violates freedom of expression, of
speech and of the press.

HELD:

(1) YES. While respondent COMELEC may have a point that such remedies are not the proper ones, the very
important and pivotal issues raised, and the limited time, should not deter the Court from having to make the final and
definitive pronouncement that everyone else depends for enlightenment and guidance. “[T]his Court has in the past
seen fit to step in and resolve petitions despite their being the subject of an improper remedy, in view of the public
importance of the issues raised therein.

(2) YES. For petitioner-intervenor Senator Cayetano, he undoubtedly has standing since he is a candidate whose
ability to reach out to the electorate is impacted by the assailed Resolutions.

For the broadcast companies, they similarly have the standing in view of the direct injury they may suffer relative to
their ability to carry out their tasks of disseminating information because of the burdens imposed on them.

Assuming arguendo that petitioners do not have a relationship with their patrons for the former to assert the rights of
the latter, the overbreadth doctrine comes into play. In overbreadth analysis, challengers to government action are in
effect permitted to raise the rights of third parties. Generally applied to statutes infringing on the freedom of speech,
the overbreadth doctrine applies when a statute needlessly restrains even constitutionally guaranteed rights. In this
case, the petitioners claim that the Ordinance makes a sweeping intrusion into the right to liberty of their clients. We
can see that based on the allegations in the petition, the Ordinance suffers from overbreadth.

(3) YES. Section 9 (a) of COMELEC Resolution No. 9615, with its adoption of the “aggregate-based” airtime limits
unreasonably restricts the guaranteed freedom of speech and of the press. In regard to limitations on political speech
relative to other state interests, an American case observed:

A restriction on the amount of money a person or group can spend on political communication during a campaign
necessarily reduces the quantity of expression by restricting the number of issues discussed, the depth of their
exploration, and the size of the audience reached.

- Section 9 (a) of COMELEC Resolution No. 9615 comes up with what is challenged as being an unreasonable basis
for determining the allowable air time that candidates and political parties may avail of.

The assailed rule on “aggregate-based” airtime limits is unreasonable and arbitrary as it unduly restricts and
constrains the ability of candidates and political parties to reach out and communicate with the people. Here, the
adverted reason for imposing the “aggregate-based” airtime limits – leveling the playing field – does not constitute a
compelling state interest which would justify such a substantial restriction on the freedom of candidates and political
parties to communicate their ideas, philosophies, platforms and programs of government. And, this is specially so in
the absence of a clear-cut basis for the imposition of such a prohibitive measure. In this particular instance, what the
COMELEC has done is analogous to letting a bird fly after one has clipped its wings.

It is also particularly unreasonable and whimsical to adopt the aggregate-based time limits on broadcast time when
we consider that the Philippines is not only composed of so many islands. There are also a lot of languages and
dialects spoken among the citizens across the country. Accordingly, for a national candidate to really reach out to as
many of the electorates as possible, then it might also be necessary that he conveys his message through his
advertisements in languages and dialects that the people may more readily understand and relate to. To add all of
these airtimes in different dialects would greatly hamper the ability of such candidate to express himself – a form of
suppression of his political speech. Respondent itself states that “[t]elevision is arguably the most cost-effective
medium of dissemination.

- Additionally, it is relevant to point out that in the original Resolution No. 9615, the paragraph in issue was worded in
this wise:

Appearance or guesting by a candidate on any bona fide newscast, bona fide news interview, bona fide news
documentary, if the appearance of the candidate is incidental to the presentation of the subject or subjects covered
by the news documentary, or on-the-spot coverage of bona fide news events, including but not limited to events
sanctioned by the Commission on Elections, political conventions, and similar activities, shall not be deemed to be
broadcast election propaganda within the meaning of this provision. To determine whether the appearance or
guesting in a program is bona fide, the broadcast stations or entities must show that (1) prior approval of the
Commission was secured; and (2) candidates and parties were afforded equal opportunities to promote their
candidacy.

- This also violates the people’s rights to suffrage such that fundamental to the idea of a democratic and republican
state is the right of the people to determine their own destiny through the choice of leaders they may have in
government. Thus, the primordial importance of suffrage and the concomitant right of the people to be adequately
informed for the intelligent exercise of such birthright. It was said that:

x x x As long as popular government is an end to be achieved and safeguarded, suffrage, whatever may be the
modality and form devised, must continue to be the means by which the great reservoir of power must be emptied
into the receptacular agencies wrought by the people through their Constitution in the interest of good government
and the common weal.

- In fine, when it comes to election and the exercise of freedom of speech, of expression and of the press, the latter
must be properly viewed in context as being necessarily made to accommodate the imperatives of fairness by giving
teeth and substance to the right to reply requirement.

Additional Info: COMELEC is duty bound to come up with reasonable basis for changing the interpretation
and implementation of the airtime limits.

There is no question that the COMELEC is the office constitutionally and statutorily authorized to enforce election
laws but it cannot exercise its powers without limitations – or reasonable basis. Based on the transcripts of the
hearing conducted by the COMELEC after it had already promulgated the Resolution, the respondent did not fully
explain or justify the change in computing the airtime allowed candidates and political parties, except to make
reference to the need to “level the playing field.” There is something basically wrong with that manner of explaining
changes in administrative rules. For one, it does not really provide a good basis for change. For another, those
affected by such rules must be given a better explanation why the previous rules are no longer good enough. What
the COMELEC came up with does not measure up to that level of requirement and accountability which elevates
administrative rules to the level of respectability and acceptability.

The COMELEC went beyond theauthority granted it by the law in

adopting “aggregate” basis in the determination of allowable airtime.

The law, on its face, does not justify a conclusion that the maximum allowable airtime should be based on the totality
of possible broadcast in all television or radio stations. This is further buttressed by the fact that the Fair Election Act
(R.A. No. 9006) actually repealed the previous provision, Section 11(b) of Republic Act No. 6646, 44 which prohibited
direct political advertisements – the so-called “political ad ban.” If under the previous law, no candidate was allowed
to directly buy or procure on his own his broadcast or print campaign advertisements, and that he must get it through
the COMELEC Time or COMELEC Space, R.A. No. 9006 relieved him or her from that restriction and allowed him or
her to broadcast time or print space subject to the limitations set out in the law.
The legislative history of R.A. 9006 clearly shows that Congress intended to impose the per candidate or political
party aggregate total airtime limits on political advertisements and election propaganda.

House Bill No. 9000: The total airtime available to the candidate and political party, whether by purchase or by
donation, shall be limited to five (5) minutes per day in each television, cable television and radio stations during the
applicable campaign period.

Senate Bill No. 1742:

SEC. 5. Equal Access to Media Space and Time. – All registered parties and bona fide candidates shall have equal
access to media space and time. The following guidelines may be amplified by the COMELEC.

xxx xxx xxx

2. The total airtime available for each registered party and bona fide candidate whether by purchase or donation shall
not exceed a total of one (1) minute per day per television or radio station. (Emphasis supplied.)

As Section 6 of R.A. 9006 is presently worded, it can be clearly seen that the legislature intended the aggregate
airtime limits to be computed on per candidate or party basis.

Clearly, the respondent in this instance went beyond its legal mandate when it provided for rules beyond what was
contemplated by the law it is supposed to implement.