SOCIAL WEATHER STATIONS, INC. AND PULSE ASIA, INC.
versus
COMMISSION ON ELECTIONS
G.R. No. 208062, April 07, 2015
FACTS:
SWS and Pulse Asia are social research and public polling firms which among
their activities is the conduct of pre-election surveys. On February 15 to February
17, 2013, SWS conducted a pre-election survey on voters' preferences for
senatorial candidates. In the said survey, 12 candidates had been the choices.
Thereafter, it published its findings.
A month thereafter, following his request with the SWS to be furnished the
identity of the persons who paid the pre-election survey for the said period,
Representative Tobias M. Tiangco (Tiangco), Secretary-General of the United
Nationalist Alliance (UNA), wrote the Director of COMELEC's Law Department asking
the COMELEC to compel [SWS] to either comply with the directive in the Fair
Election Act and COMELEC Resolution No. 9[6]1[5] 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.
Following a hearing conducted on 16 April 2013, COMELEC issued the
assailed Resolution No. 9674 directing the SWS, Pulse Asia and other survey firms
of similar circumstance to submit the names of all commissioners and payors of all
surveys published from February 12, 2013 to April 23, 2013, including those of
their "subscribers.” The COMELEC likewise 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" was filed against them.
Aggrieved, petitioners SWS and Pulse Asia filed a Petition for certiorari and
prohibition under Rule 64, in relation to Rule 65, of the 1997 Rules of Civil
Procedure praying that respondent Commission on Elections' Resolution No.
9674 dated April 23, 2013 be nullified and set aside and that the Commission on
Elections be permanently enjoined from enforcing the same Resolution, as well as
prosecuting Social Weather Stations, Inc. and Pulse Asia, Inc. for violating it or
otherwise compelling compliance with it. Petitioners likewise alleged that following
the issuance of Resolution No. 9674 and as of their filing before this court of the
present Petition, they had not been furnished copies of Resolution No. 9674. They
had likewise informed the COMELEC on this matter.
ISSUE:
WHETHER THE RIGHTS OF PETITIONERS TO FREE SPEECH AND ACADEMIC
FREEDOM WILL BE CURTAILED BY THE REQUIREMENT TO SUBMIT THE
NAMES OF THEIR SUBSCRIBERS.
RULING:
No.
We thus proceed to evaluate Resolution No. 9674's requirement of disclosing
the names of subscribers to election surveys in light of the requisites for valid
regulation of declarative speech by private entities in the context of an election
campaign:
1. First, the text of Section 5.2(a) of the Fair Election Act supports the
inclusion of subscribers among those persons who "paid for the
survey[.]" Thus, Resolution No. 9674 is a regulation finding basis in
statute.
COMELEC correctly points out that in Section 5.2(a) of the Fair Election
Act, those who "commissioned" and those who "paid for" the published
survey are separated by the disjunctive term "or." This disassociates
those who "commissioned" from those who "paid for" and identifies them
as alternatives to each other. Section 5.2(a) thus requires the disclosure
of two (2) classes of persons: "[first,] those who commissioned or
sponsored the survey; and [second,] 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. Indeed,
subscribers do not escape the burden of paying for the component articles
comprising a subscription. They may pay for them in aggregate, but they
pay for them just the same. From the text of Section 5.2(a), the
legislative intent or regulatory concern is clear: "those who have financed,
one way or another, the [published] survey” must be disclosed.
2. Second, not only an important or substantial state interest but even a
compelling one reasonably grounds Resolution No. 9674's inclusion of
subscribers to election surveys. Thus, regardless of whether an
intermediate or a strict standard is used, Resolution No. 9674 passes
scrutiny.
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. In the hands of those
whose end is to get a candidate elected, it is a means for such end and
partakes of the nature of election propaganda. Accordingly, the
imperative of "fair" elections impels their regulation.
3. 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" and is "demonstrably the
least restrictive means to achieve that object."
While it does regulate expression (i.e., petitioners' publication of
election surveys), it does not go so far as to suppress desired expression.
There is neither prohibition nor censorship specifically aimed at election
surveys. The freedom to publish election surveys remains. 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 [Link]
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
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