G.R. No.
133486, 28 January 2000 (Supreme Court of the Philippines)
A number of broadcasting corporations had been banned from conducting exit polls.
Theme: Broadcast regulation
Sub-Issues: Public Service broadcasting
Test:
Penalty:
Decision a ban on exit polls was declared to be in violation of the right to freedom of
expression
Jurisdiction: Philippines (Supreme Court)
Facts:
This is a Petition for Certiorari assailing Commission on Elections (Comelec) en banc Resolution
No. 98-1419 1 dated April 21, 1998. In the said Resolution, the poll body "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 by the Comelec 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 and to make [an] exit survey of the vote during the elections
for national officials particularly for President and Vice President, results of which shall be
[broadcast] immediately." The electoral body 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 ABS-CBN to undertake
the exit survey.
Held:
The Supreme Court grants the petition; the Comelec resolution is nullified.
Freedom of expression a fundamental principle of a democratic government. The freedom of
expression is 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. Our Constitution
clearly mandates that no law shall be passed abridging the freedom of speech or of the press. 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. The freedom of expression is a means of
assuring individual self-fulfillment, of attaining the truth, of securing participation by the people
in social and political decision-making, and of maintaining the balance between stability and
change. It represents a profound commitment to the principle that debates on public issues
should be uninhibited, robust, and wide open. 18 It means more than the right to approve existing
political beliefs or economic arrangements, to lend support to official measures, or to take refuge
in the existing climate of opinion on any matter of public consequence. And paraphrasing the
eminent Justice Oliver Wendell Holmes, we stress that the freedom encompasses the thought we
hate, no less than the thought we agree with.
Freedom of expression; limited by valid exercise of police power. The realities of life in a
complex society, however, preclude an absolute exercise of the freedoms of speech and of the
press. Such freedoms could not remain unfettered and unrestrained at all times and under all
circumstances. They are not immune to regulation by the State in the exercise of its police power.
Theoretical tests in determining the validity of restrictions to freedom of expression. There are
two theoretical tests in determining the validity of restrictions to freedom of expression. These
are the 'clear and present danger' rule and the 'dangerous tendency' rule. The first, as interpreted
in a number of cases, 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. The
'dangerous tendency' rule, on the other hand, may be epitomized as follows: 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.
Supreme Court adheres to the "clear and present danger" test. Unquestionably, this Court adheres
to the "clear and present danger" test. In setting the standard or test for the "clear and present
danger" doctrine, the Court echoed the words of Justice Holmes: "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."
In borderline conflict between freedom of expression and state action to ensure clean and free
elections, the Court leans in favor of freedom. 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, this Court 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.
Exit polls do not constitute clear and present danger of destroying the credibility and integrity of
the electoral process. The Comelec justifies its assailed Resolution as having been issued
pursuant to its constitutional mandate to ensure a free, orderly, honest, credible and peaceful
election. It contends that "an exit poll has the tendency to sow confusion considering the
randomness of selecting interviewees, which further make[s] 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." Such arguments are 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. If at all, the outcome of one can only be indicative of the other.
