ABS-CBN BROADCASTING CORPORATION, petitioner, vs. COMMISSION ON ELECTIONS, respondent.

ABS-CBN Broadcasting versus Commission on Elections

The Case

This is a petition for certiorari filed by ABS-CBN Broadcasting Corporation against the Commission on Elections, assailing the poll body's minute resolution that sought to stop the network and any other group from conducting exit polls during the May 1998 national elections. The case matters because it is the first time the Supreme Court squarely ruled on whether the holding of exit polls and the broadcast of their results are protected by the constitutional freedoms of speech and of the press, and on how far the Comelec may go in regulating them in the name of clean and honest elections.

Procedural History

The controversy began before the Comelec itself, which issued the assailed minute resolution on April 21, 1998, approving a restraining order against ABS-CBN and authorizing its Chairman to issue the same. ABS-CBN went directly to the Supreme Court by petition for certiorari, without first filing a motion for reconsideration with the Comelec. On May 9, 1998, the Court issued a temporary restraining order directing the Comelec to cease and desist from implementing the assailed resolution. The case was deemed submitted for resolution upon receipt of the respondent's memorandum, and the Court then rendered judgment.

Facts

Ahead of the May 11, 1998 elections, the Comelec received information from a reliable source that ABS-CBN, together with public relations groups, had prepared a project to conduct radio and television coverage of the elections and to make an exit survey of the vote for national officials, particularly for President and Vice President, with the results to be broadcast immediately. The Comelec believed this project might conflict with its own official count as well as with the unofficial quick count of the National Movement for Free Elections, and it noted that it had not authorized or deputized ABS-CBN to undertake the survey.

Acting on this, the Comelec en banc issued its assailed resolution on April 21, 1998, resolving 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 authorizing the Chairman to issue the same.

ABS-CBN promptly challenged the resolution before the Supreme Court, which issued a temporary restraining order on May 9, 1998. As it turned out, the exit polls were actually conducted and reported by media without any difficulty or problem. The Comelec defended its action as an exercise of its constitutional and statutory powers to promote clean, honest, orderly and credible elections and to protect the secrecy and sanctity of the ballot, while the Solicitor General added that the petition was moot and premature.

Issues

• Whether or not the petition is moot and academic because the May 11, 1998 elections had already been held.
• Whether or not the petition should be dismissed for prematurity, the petitioner having failed to seek reconsideration of the assailed Comelec resolution.
• Whether or not the Comelec acted with grave abuse of discretion amounting to lack or excess of jurisdiction in totally banning exit polls and the dissemination of their results.

Applicable Provisions

Section 4, Article III of the Constitution provides:

No law shall be passed abridging the freedom of speech, or of the press, or the right of the people peaceably to assemble and petition the government for redress of grievances.

This is the fundamental guarantee on which the entire ruling rests, since the Court held that exit polls and their broadcast fall within its protection.

Section 2, Article V of the Constitution provides:

The Congress shall provide a system for securing the secrecy and sanctity of the ballot as well as a system for absentee voting by qualified Filipinos abroad.

The Comelec invoked this provision to argue that exit polls indirectly violate ballot secrecy, a contention the Court rejected.

Ruling

On the first issue, the Court held that the case is not totally moot. Although the assailed resolution referred specifically to the May 11, 1998 election, its implications on the people's fundamental freedom of expression transcend that election, and exit polling is by its very nature tied up with elections, so the issue could well crop up again in future elections. The Court also invoked its duty to formulate guiding and controlling constitutional principles for the guidance of posterity.

On the second issue, the Court held that the failure to move for reconsideration may be glossed over. The resolution was issued only twenty days before the election, the petitioner obtained a copy only on May 4, 1998, time was of the essence, and the petition involved transcendental constitutional issues, so direct resort to the Court was justified.

On the main issue, the Court ruled that the Comelec gravely abused its discretion. It adhered to the clear and present danger test, under which the evil consequence must be extremely serious and the degree of imminence extremely high before speech may be punished, and it held that the Comelec's arguments were purely speculative. The Court reasoned that survey participants are selected at random, that survey results are not meant to replace the official count, and that the credibility of elections is separate from exit polls. It found the ban too broad because it applied without qualification as to whether the polling is disruptive or not, and it noted that no evidence showed exit polls cause chaos in voting centers. The Court also held that the ban was not narrowly tailored, since less restrictive measures were available, such as designating a limited area for polling, allowing only professional survey groups, keeping pollsters at a reasonable distance, requiring them to wear distinctive clothing, and requiring an information campaign.

On ballot secrecy, the Court held that exit polls do not transgress it, because the contents of the official ballot are not exposed, and the revelation of whom an elector voted for is not compulsory but voluntary.

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, and the Comelec cannot ban them totally in the guise of promoting clean, honest, orderly and credible elections. Any restriction of speech is treated as an exemption, the presumption is against the validity of prior restraint, and the State bears the burden of showing that the regulation furthers a substantial government interest and is narrowly tailored, leaving open alternative channels of communication. 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. Finally, exit polls do not violate the constitutional guarantee of the secrecy and sanctity of the ballot, since the contents of the official ballot are not exposed and disclosure of one's vote is voluntary.

Disposition

The petition was granted, the temporary restraining order was made permanent, and the assailed Comelec minute resolution was nullified and set aside, with no costs.

Remember This

Memorize the line that exit polls and the dissemination of their results are an essential part of the freedoms of speech and of the press, which the Comelec cannot totally ban. Examiners use this case to test the clear and present danger test, the narrow tailoring requirement for restrictions on speech, and the scope of ballot secrecy under the Constitution.