ABS-CBN vs.

COMELEC | Erika
January 28, 2000
ABS-CBN BROADCASTING CORPORATION, petitioner, vs. COMMISSION ON ELECTIONS, respondent.
PANGANIBAN, J.
SUMMARY: Comelec en banc issued a Resolution restraining ABS-CBN from conducting exit polls/surveys after the May 11, 1998
elections. ABS filed the present R65 petition assailing such resolution. SC annulled the Resolution, for being too broad.
DOCTRINE: The holding of exit polls and the dissemination of their results through mass media constitute an essential part of the
freedoms of speech and of the press. Hence, the Comelec cannot ban them totally in the guise of promoting clean, honest, orderly and
credible elections. Quite the contrary, exit polls -- properly conducted and publicized -- can be vital tools in eliminating the evils of
election-fixing and fraud. Narrowly tailored countermeasures may be prescribed by the Comelec so as to minimize or suppress the
incidental problems in the conduct of exit polls, without transgressing in any manner the fundamental rights of our people.
o

Re: Ballot Secrecy: Clearly, what is forbidden is the association of voters with their respective votes, for the purpose of
assuring that the votes have been cast in accordance with the instructions of a third party. This result cannot, however, be
achieved merely through the voters' verbal and confidential disclosure to a pollster of whom they have voted for.

NATURE: Petition for Certiorari under Rule 65

Comelec en bac (Apr 21, 1998): issued a Resolution:

"RESOLVED to approve the issuance of a restraining order to stop ABS-CBN or any other groups, its agents or
representatives from conducting such exit survey and to authorize the Honorable Chairman to issue the same."

The Resolution was issued allegedly upon "information from [a] reliable source that ABS-CBN (Lopez Group) has prepared a
project, with PR groups, to conduct radio-TV coverage of the elections x x x and to make [an] exit survey of the x x x vote
during the elections for national officials particularly for President and Vice President, results of which shall be [broadcast]
immediately."

Comelec believed that such project might conflict with the official Comelec count, as well as the unofficial quick
count of the National Movement for Free Elections (Namfrel). It also noted that it had not authorized or deputized
petitioner ABS-CBN to undertake the exit survey.

SC (May 9, 1998): issued TRO (as prayed for by ABS); in fact, the exit polls were actually conducted and reported by media
without any difficulty or problem.

OSG: seeks to dismiss petition:

(1) mootness: the May 11, 1998 election has already been held and done with

(2) prematurity: ABS-CBN failed to seek a reconsideration of the assailed Comelec Resolution (failure to exhaust
admin remedies)

ISSUE: W/N COMELEC acted with GAD amounting to a lack or excess of jurisdiction when it approved the issuance of a restraining
order enjoining ABS-CBN or any other group, its agents or representatives from conducting exit polls during the May 11 elections (YES)
RATIO:
Not Moot

The issue is not totally moot. While Resolution referred specifically to the May 11, 1998 election, its implications on the
people's fundamental freedom of expression transcend the past election. The holding of periodic elections is a basic feature of
our democratic government. By its very nature, exit polling is tied up with elections. To set aside the resolution of the issue now
will only postpone a task that could well crop up again in future elections.

Salonga v. Cruz Pano: the Court "also has the duty to formulate guiding and controlling constitutional principles, precepts,
doctrines, or rules. It has the symbolic function of educating bench and bar on the extent of protection given by constitutional
guarantees." Since the fundamental freedoms of speech and of the press are being invoked here, we have resolved to settle,
for the guidance of posterity, whether they likewise protect the holding of exit polls and the dissemination of data derived
therefrom.

Not Premature

The procedural requirement (of moving for reconsideration) may be glossed over to prevent a miscarriage of justice, when the
issue involves the principle of social justice or the protection of labor, when the decision or resolution sought to be set aside is
a nullity, or when the need for relief is extremely urgent and certiorari is the only adequate and speedy remedy available.

The Resolution was issued on April 21, 1998, only 20 days before the election. Besides, ABS-CBN got hold of a copy thereof
only on May 4, 1998.

Moreover, not only is time of the essence; the Petition involves transcendental constitutional issues. Direct resort to this Court
through a special civil action for certiorari is therefore justified.

Main Issue: Validity of Conducting Exit Polls

EXIT POLL: a species of electoral survey conducted by qualified individuals or groups of individuals for the purpose of
determining the probable result of an election by confidentially asking randomly selected voters whom they have voted for,
immediately after they have officially cast their ballots. The results of the survey are announced to the public, usually through
the mass media, to give an advance overview of how, in the opinion of the polling individuals or organizations, the electorate
voted. In our electoral history, exit polls had not been resorted to until the recent May 11, 1998 elections.

ABS-CBN: maintains that it is a responsible member of the mass media, committed to report balanced election-related data,
including "the exclusive results of Social Weather Station (SWS) surveys conducted in 15 administrative regions."
o

the holding of exit polls and the nationwide reporting of their results are valid exercises of the freedoms of speech
and of the press.

COMELEC: the issuance was "pursuant to its constitutional and statutory powers to promote a clean, honest, orderly and
credible May 11, 1998 elections"; and "to protect, preserve and maintain the secrecy and sanctity of the ballot."
o

"the conduct of exit surveys might unduly confuse and influence the voters," and that the surveys were designed "to
condition the minds of people and cause confusion as to who are the winners and the [losers] in the election," which
in turn may result in "violence and anarchy."

"exit surveys indirectly violate the constitutional principle to preserve the sanctity of the ballots," as the "voters are
lured to reveal the contents of ballots," in violation of Sec. 2, Art. V of the Constitution; and relevant provisions of the
Omnibus Election Code.

the constitutionally protected freedoms invoked by ABS-CBN "are not immune to regulation by the State in the
legitimate exercise of its police power"

OSG: the exit polls pose a "clear and present danger of destroying the credibility and integrity of the electoral process,"
considering that they are not supervised by any government agency and can in general be manipulated easily. These polls

would sow confusion among the voters and would undermine the official tabulation of votes conducted by the Commission, as
well as the quick count undertaken by the Namfrel.

SC: Admittedly, no law prohibits the holding and the reporting of exit polls. The question can thus be more narrowly defined:
May the Comelec, in the exercise of its powers, totally ban exit polls? NO.

Nature and Scope of Freedoms of Speech and of the Press

FREEDOM OF EXPRESSION: a fundamental principle of our democratic government. It "is a 'preferred' right and, therefore,
stands on a higher level than substantive economic or other liberties. This must be so because the lessons of history, both
political and legal, illustrate that freedom of thought and speech is the indispensable condition of nearly every other form of
freedom.

CONSTI: no law shall be passed abridging the freedDom of speech or of the press.

Gonzales v. Comelec: at the very least, free speech and a free press consist of the liberty to discuss publicly and truthfully any
matter of public interest without prior restraint.

Paraphrasing Oliver Wendell Holmes: the freedom encompasses the thought we hate, no less than the thought we agree with.

Limitations

The realities of life in a complex society, however, preclude an absolute exercise of the freedoms of speech and of the
press. They are not immune to regulation by the State in the exercise of its police power. While the liberty to think is absolute,
the power to express such thought in words and deeds has limitations.

Cabansag v. Fernandez: 2 theoretical tests in determining the validity of restrictions to such freedoms
o

1) clear and present danger rule: means that the evil consequence of the comment or utterance must be 'extremely
serious and the degree of imminence extremely high' before the utterance can be punished. The danger to be
guarded against is the 'substantive evil' sought to be prevented.

2) dangerous tendency rule: If the words uttered create a dangerous tendency which the state has a right to
prevent, then such words are punishable. It is not necessary that some definite or immediate acts of force, violence,
or unlawfulness be advocated. It is sufficient that such acts be advocated in general terms. Nor is it necessary that
the language used be reasonably calculated to incite persons to acts of force, violence, or unlawfulness. It is
sufficient if the natural tendency and probable effect of the utterance be to bring about the substantive evil which the
legislative body seeks to prevent.

SC adheres to the "clear and present danger" test1: The question in every case is whether the words used are used in such
circumstances and are of such a nature as to create a clear and present danger that they will bring about the
substantive evils that Congress has a right to prevent. It is a question of proximity and degree.

Unlike in the "dangerous tendency" doctrine, the danger must not only be clear but also present. "Present" refers to the time
element; the danger must not only be probable but very likely to be inevitable. The evil sought to be avoided must be so
substantive as to justify a clamp over one's mouth or a restraint of a writing instrument.

1 Primicias v. Fugoso, American Bible Society v. City of Manila, Vera v. Arca, Navarro v. Villegas, Imbong v. Ferrer, Blo Umpar Adiong v. Comelec and, more recently,
in Iglesia ni Cristo v. MTRCB

Justification for a Restriction

Doctrinally, SC has always ruled in favor of the freedom of expression, and any restriction is treated an exemption.

To justify a restriction, the promotion of a substantial government interest must be clearly shown: "A government
regulation is sufficiently justified if it is within the constitutional power of the government, if it furthers an important or
substantial government interest; if the governmental interest is unrelated to the suppression of free expression; and if the
incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest.

Hence, even though the government's purposes are legitimate and substantial, they cannot be pursued by means
that broadly, stifle fundamental personal liberties, when the end can be more narrowly achieved.

The freedoms of speech and of the press should all the more be upheld when what is sought to be curtailed is the
dissemination of information meant to add meaning to the equally vital right of suffrage.

When faced with borderline situations in which the freedom of a candidate or a party to speak or the freedom of the electorate
to know is invoked against actions allegedly made to assure clean and free elections, SC shall lean in favor of freedom.

For in the ultimate analysis, the freedom of the citizen and the State's power to regulate should not be antagonistic.
There can be no free and honest elections if, in the efforts to maintain them, the freedom to speak and the right to know are
unduly curtailed.

True, the government has a stake in protecting the fundamental right to vote by providing voting places that are safe
and accessible. It has the duty to secure the secrecy of the ballot and to preserve the sanctity and the integrity of the
electoral process. However, in order to justify a restriction of the people's freedoms of speech and of the press, the
state's responsibility of ensuring orderly voting must far outweigh them.

These freedoms have additional importance, because exit polls generate important research data which may be used
to study influencing factors and trends in voting behavior. An absolute prohibition would thus be unreasonably restrictive,
because it effectively prevents the use of exit poll data not only for election-day projections, but also for long-term research.

CASE AT BAR: Comelec Ban on Exit Polling

COMELEC: press freedom may be curtailed if the exercise thereof creates a clear and present danger to the community or it
has a dangerous tendency
o

an exit poll has the tendency to sow confusion considering the randomness of selecting interviewees, which further
makes the exit poll highly unreliable

The probability that the results of such exit poll may not be in harmony with the official count made by the Comelec is
ever present. In other words, the exit poll has a clear and present danger of destroying the credibility and
integrity of the electoral process.

SC: purely speculative and clearly untenable.

First, by the very nature of a survey, the interviewees or participants are selected at random, so that the results will as much as
possible be representative or reflective of the general sentiment or view of the community or group polled.

Second, the survey result is not meant to replace or be at par with the official Comelec count. It consists merely of
the opinion of the polling group as to who the electorate in general has probably voted for, based on the limited data gathered
from polled individuals.

Finally, not at stake here are the credibility and the integrity of the elections, which are exercises that are separate and
independent from the exit polls. The holding and the reporting of the results of exit polls cannot undermine those of the
elections, since the former is only part of the latter. If at all, the outcome of one can only be indicative of the other.

The Comelec's concern with the possible noncommunicative effect of exit polls -- disorder and confusion in the
voting centers -- does not justify a total ban on them. Undoubtedly, the assailed Comelec Resolution is too broad, since
its application is without qualification as to whether the polling is disruptive or not.

The Omnibus Election Code prohibits disruptive behavior around the voting centers. No showing of chaos in voting centers,
disorder, or confusion

Moreover, the prohibition incidentally prevents the collection of exit poll data and their use for any purpose.
Candidates, researchers, social scientists and the electorate would be deprived of studies on the impact of current events and
of election-day and other factors on voters' choices.

The absolute ban cannot, therefore, be justified. It does not leave open any alternative channel of communication to
gather the type of information obtained through exit polling. On the other hand, there are other valid and reasonable
ways and means2 to achieve the Comelec end of avoiding or minimizing disorder and confusion that may be brought
about by exit surveys.

The interest of the state in reducing disruption is outweighed by the drastic abridgment of the constitutionally guaranteed rights
of the media and the electorate. Quite the contrary, instead of disrupting elections, exit polls -- properly conducted and
publicized -- can be vital tools for the holding of honest, orderly, peaceful and credible elections; and for the
elimination of election-fixing, fraud and other electoral ills.

No Violation of Ballot Secrecy

Comelecs contention is off-tangent. ABS-CBN does not seek access to the ballots cast by the voters. The ballot system of
voting is not at issue here.

The reason behind the principle of ballot secrecy is to avoid vote buying through voter identification. Thus, voters are
prohibited from exhibiting the contents of their official ballots to other persons, from making copies thereof, or from putting
distinguishing marks thereon so as to be identified. Also proscribed is finding out the contents of the ballots cast by particular
voters or disclosing those of disabled or illiterate voters who have been assisted. Clearly, what is forbidden is the
association of voters with their respective votes, for the purpose of assuring that the votes have been cast in
accordance with the instructions of a third party. This result cannot, however, be achieved merely through the voters'
verbal and confidential disclosure to a pollster of whom they have voted for.

In exit polls, the contents of the official ballot are not actually exposed. Furthermore, the revelation of whom an elector has
voted for is not compulsory, but voluntary. Voters may also choose not to reveal their identities. Indeed, narrowly tailored
countermeasures may be prescribed by the Comelec, so as to minimize or suppress incidental problems in the conduct of exit
polls, without transgressing the fundamental rights of our people.

DISPOSITION: Petition granted.

2 For instance, a specific limited area for conducting exit polls may be designated. Only professional survey groups may be allowed to conduct the same. Pollsters may be
kept at a reasonable distance from the voting center. They may be required to explain to voters that the latter may refuse to be interviewed, and that the interview is not part of
the official balloting process. The pollsters may further be required to wear distinctive clothing that would show they are not election officials. Additionally, they may be required
to undertake an information campaign on the nature of the exercise and the results to be obtained therefrom. These measures, together with a general prohibition of disruptive
behavior, could ensure a clean, safe and orderly election.
ABS-CBN explains its survey methodology as follows: (1) communities are randomly selected in each province; (2) residences to be polled in such communities are also
chosen at random; (3) only individuals who have already voted, as shown by the indelible ink on their fingers, are interviewed; (4) the interviewers use no cameras of any sort;
(5) the poll results are released to the public only on the day after the elections.

VITUG, J., separate opinion:

The instant petition, now technically moot, presents issues so significant that a slight change of circumstances can have a
decisive effect on, and possibly spell a difference in, the final outcome of the case. I am not inclined to take the case
in an academic fashion and pass upon the views expressed by either party in preemptive judgment.

Re: sanctity of the ballot: COMELEC performs an indispensable task of ensuring free, honest, and orderly elections and of
guarding against any frustration of the true will of the people. Expectedly, it utilizes all means available within its power and
authority to prevent the electoral process from being manipulated and rendered an absurdity. I greatly prize the freedom of
expression but, so also, I cherish no less the right of the people to express their will by means of the ballot.

The right to information and free speech is not illimitable and immune from the valid exercise of an ever demanding and
pervasive police power. Whether any kind of restraint should be upheld or declared invalid in the proper balancing of interest is
one that must be resolved at any given moment, not on perceived circumstances, but on prevailing facts.

I vote to dismiss the petition

MOOT. Since the Comelec has not declared exit polls to be illegal and neither did ABS-CBN present its methodology or
system of conducting the exit polls to the poll body, the nullification of the Comelec's questioned resolution is bereft of
empirical basis. The decision of this Court constitutes a mere academic exercise in view of the premature nature of the
issues and the lack of "concreteness" of the controversy.

As to presumption of invalidity of any restrictions to freedom of expression: this rule does not apply where, as in this
case, the Comelec exercised its Constitutional functions of securing the secrecy and sanctity of the ballots and ensuring the
integrity of the elections
o National Press (NPC) v. Comelec, J. Feliciano: no presumption of invalidity arises in respect of supervisory or
regulatory authority on the part of the COMELEC for the purpose of securing equal opportunity among candidates for
political office, although such supervision or regulation may result in some limitation of the right of free speech and
free press. For supervision or regulation of the operations of media enterprises is scarcely conceivable without such
accompanying limitation. Thus, the applicable rule is the general, time honored one - that a statute is presumed
to be constitutional and that the party asserting its unconstitutionality must discharge the burden of clearly
and convincingly proving that assertion.
o If the right to free speech collides with a norm of constitutional stature, the rule on heavy presumption of invalidity
does not apply.
o Comelecs constitutional mandate effectively displaces the general presumption of invalidity in favor of the
presumption that Comelec acted in the exercise of its constitutionally mandated powers. If no presumption of
invalidity arises, I see no occasion for the application of the "clear and present danger test."
o The clear-and-present danger test is not a sovereign remedy for all free speech problems. It was originally formulated
for the criminal law and only later appropriated for free speech cases. To apply the clear-and-present danger test to
such regulatory measures would be like using a sledgehammer to drive a nail when a regular hammer is all that is
needed.
As to the methodology in conducting polls: ABS-CBN gave assurance that the exit poll results will only be made public a
day after the elections, in order to allay fears of "trending," "bandwagon-effect" or disruption. This offers little comfort
considering the state of our country's electoral system. Unlike in other countries where voting and counting are computerized,
our elections are characterized by snail-paced counting. It is not infrequent that postponement, failure or annulment of
elections occur in some areas designated as election hot spots. Such being the case, exit poll results made public after the
day of voting in the regular elections but before the conduct of special elections in these areas may potentially pose the
danger of "trending," "bandwagon- effect" and disruption of elections.
I vote to DENY the petition.