EN BANC

[G.R. No. 133486. January 28, 2000.]

ABS-CBN BROADCASTING CORPORATION , petitioner, vs .

COMMISSION ON ELECTIONS , respondent.

Quiason Makalintal Barot Torres & Ibarra for petitioner.

The Solicitor General for respondent.

SYNOPSIS

This is a petition for certiorari under Rule 65 of the Rules of Court led by ABS-CBN
Broadcasting Corporation assailing the COMELEC En Banc Resolution No. 98-1419 dated
April 21, 1998 approving the issuance of a restraining order to stop petitioner ABS-CBN or
any other groups, its agents or representatives from conducting exit survey and to
authorize the Honorable Chairman to issue the same. Because of the issuance of this
resolution, petitioner led the instant case, and on May 9, 1998, the Court issued the
temporary restraining order prayed for by petitioner. The lone issue to be resolved in this
case is whether or not the respondent COMELEC acted with grave abuse of discretion
amounting to lack or excess of jurisdiction when it approved the issuance of a restraining
order enjoining the petitioner or any other group, its agents or representatives from
conducting exit polls during the May 11, 1998 elections.
The Supreme Court found the petition meritorious. The Court ruled that 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.
Moreover, 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 was too broad, since its application is
without quali cation as to whether the polling is disruptive or not. Concededly, the
Omnibus Election Code prohibits disruptive behaviors around the voting centers. There
was no showing, however, that exit polls or the means to interview voters cause chaos in
voting centers. Neither had any evidence been presented proving that the presence of exit
poll reporters near the election precincts tended to create disorder or confuse the voters.
Accordingly, the petition was granted and the temporary restraining order issued by the
Court was made permanent.

SYLLABUS

1. POLITICAL LAW; CONSTITUTIONAL LAW; BILL OF RIGHTS; FREEDOM OF

SPEECH AND OF THE PRESS; NATURE AND SCOPE THEREOF. — 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. .
. . [T]his 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." Our Constitution clearly mandates that no law shall be passed abridging the
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 freedom of speech or of the press. In the landmark case Gonzales v. COMELEC , this Court
enunciated that 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-ful llment, 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. It means more than the right to approve existing political beliefs or
economic arrangements, to lend support to o cial 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. DTAaCE

2. ID.; ID.; ID.; ID.; LIMITATIONS; CLEAR AND PRESENT DANGER TEST. — This
Court adheres to the "clear and present danger" test. It implicitly did in its earlier decisions
in Primicias v. Fugoso and American Bible Society v. City of Manila ; as well as in later ones,
Vera v. Arca , Navarro v. Villegas , Imbong v. Ferrer , Blo Umpar Adiong v. COMELEC and,
more recently, in Iglesia ni Cristo v. MTRCB . 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." A limitation on the freedom of expression may be justi ed only by a danger of
such substantive character that the state has a right to prevent. 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.
3. ID.; ID.; ID.; ID.; JUSTIFICATION FOR RESTRICTION. — Doctrinally, the Court
has always ruled in favor of the freedom of expression, and any restriction is treated an
exemption. The power to exercise prior restraint is not to be presumed; rather the
presumption is against its validity. And it is respondent's burden to overthrow such
presumption. Any act that restrains speech should be greeted with furrowed brows, so it
has been said. To justify a restriction, the promotion of a substantial government interest
must be clearly shown. Thus: "A government regulation is su ciently justi ed 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 sti e fundamental personal liberties, when the end can be more narrowly
achieved.
4. ID.; ID.; ID.; ID.; TOTAL BAN ON EXIT POLL NOT JUSTIFIED. — 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 quali cation as to
whether the polling is disruptive or not. Concededly, the Omnibus Election Code prohibits
disruptive behavior around the voting centers. There is no showing, however, that exit polls
or the means to interview voters cause chaos in voting centers. Neither has any evidence
been presented proving that the presence of exit poll reporters near an election precinct
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 tends to create disorder or confuse the voters. Moreover, the prohibition incidentally
prevents the collection of exit poll data and their use for any purpose. The valuable
information and ideas that could be derived from them, based on the voters' answers to
the survey questions will forever remain unknown and unexplored. Unless the ban is
restrained, candidates, researchers, social scientists and the electorate in general would
be deprived of studies on the impact of current events and of election-day and other
factors on voters' choices. In Daily Herald Co. vs. Munro, the US Supreme Court held that a
statute, one of the purposes of which was to prevent the broadcasting of early returns,
was unconstitutional because such purpose was impermissible, and the statute was
neither narrowly tailored to advance a state interest nor the least restrictive alternative.
Furthermore, the general interest of the State in insulating voters from outside in uences
is insu cient to justify speech regulation. Just as curtailing election-day broadcasts and
newspaper editorials for the reason that they might indirectly affect the voters' choices is
impermissible, so is regulating speech via an exit poll restriction. The absolute ban
imposed by the COMELEC cannot, therefore, be justi ed. 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 means to
achieve the COMELEC end of avoiding or minimizing disorder and confusion that may be
brought about by exit surveys.
5. ID.; ID.; ID.; ID.; EXIT POLLS DO NOT TRANSGRESS THE SANCTITY AND
SECRECY OF THE BALLOT. — The contention of public respondent that exit polls indirectly
transgress the sanctity and the secrecy of the ballot is off-tangent to the real issue.
Petitioner 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 identi cation. Thus, voters are prohibited from exhibiting the
contents of their o cial ballots to other persons, from making copies thereof, or from
putting distinguishing marks thereon so as to be identi ed. Also proscribed is nding out
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 con dential disclosure to a pollster of whom they
have voted for. In exit polls, the contents of the o cial 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.
VITUG, J., separate opinion:
CONSTITUTIONAL LAW; BILL OF RIGHTS; RIGHT TO FREE SPEECH AND
INFORMATION; NOT ILLIMITABLE AND IMMUNE FROM THE VALID EXERCISE OF AN EVER
DEMANDING AND PERVASIVE POLICE POWER. — While I understand what the ponencia is
saying quite laudably, I also appreciate, upon the other hand, the concern of the
Commission on Elections, i.e., that the conduct of exit polls can have some adverse effects
on the need to preserve the sanctity of the ballot. The Commission 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. Like my colleagues, I greatly prize the freedom of expression
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 but, so also, I cherish no less the right of the people to express their will by means of the
ballot. In any case, I must accept the reality that 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. aDIHCT

KAPUNAN, J., dissenting opinion:

1. POLITICAL LAW; CONSTITUTIONAL LAW; RIGHT TO FREE SPEECH; IF THE
RIGHT TO FREE SPEECH COLLIDES WITH A NORM OF CONSTITUTIONAL STATURE, THE
RULE ON HEAVY PRESUMPTION OF INVALIDITY DOES NOT APPLY. — The majority
opinion cites the general rule that any restrictions to freedom of expression would be
burdened with a presumption of invalidity and should be greeted with "furrowed brows."
While this has been the traditional approach, 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. Thus, Mr. Justice Feliciano in
National Press Club (NPC) v. COMELEC wrote: The technical effect of Article IX (C) (4) of
the Constitution may be seem to be that 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 o ce, 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. The NPC decision holds that if the right to free speech collides with
a norm of constitutional stature, the rule on heavy presumption of invalidity does not apply.
2. ID.; ID.; ID.; IF NO PRESUMPTION OF INVALIDITY ARISES, THERE IS NO
OCCASION FOR THE APPLICATION OF THE CLEAR AND PRESENT DANGER TEST. — Our
Constitution mandates the COMELEC to enforce and administer laws and regulations
relative to the conduct of elections and to secure the secrecy and sanctity of the ballots to
ensure orderly, honest, credible and peaceful elections. This Constitutional provision
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." As this Court, through Mr. Justice Mendoza, succinctly observed: . . .
the clear-and-present danger test is not, however, a sovereign remedy for all free speech
problems. As has been pointed out by a thoughtful student of constitutional law, it was
originally formulated for the criminal law and only later appropriated for free speech cases.
For the criminal law is necessarily concerned with the line at which innocent preparation
ends and guilty conspiracy or attempt begins. Clearly, it is inappropriate as a test for
determining the constitutional validity of law which, like §11(b) of R.A. No. 6646, are not
concerned with the content of political ads but only with their incidents. 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.

DECISION

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 PANGANIBAN , J : p

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- xing 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.
The Case and the Facts
Before us is a Petition for Certiorari under Rule 65 of the Rules of Court 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 o cials particularly for President and Vice President,
results of which shall be [broadcast] immediately." 2 The electoral body believed that such
project might con ict with the o cial COMELEC count, as well as the uno cial 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.
On May 9, 1998, this Court issued the Temporary Restraining Order prayed for by
petitioner. We directed the COMELEC to cease and desist, until further orders, from
implementing the assailed Resolution or the restraining order issued pursuant thereto, if
any. In fact, the exit polls were actually conducted and reported by media without any
difficulty or problem.
The Issues
Petitioner raises this lone issue: "Whether or not the Respondent Commission acted
with grave abuse of discretion amounting to a lack or excess of jurisdiction when it
approved the issuance of a restraining order enjoining the petitioner or any [other group],
its agents or representatives from conducting exit polls during the . . . May 11 elections." 3
In his Memorandum, 4 the solicitor general, in seeking to dismiss the Petition, brings
up additional issues: (1) mootness and (2) prematurity, because of petitioner's failure to
seek a reconsideration of the assailed COMELEC Resolution. LibLex

The Court's Ruling

The Petition 5 is meritorious.
Procedural Issues:
Mootness and Prematurity
The solicitor general contends that the petition is moot and academic, because the
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 May 11, 1998 election has already been held and done with. Allegedly, there is no longer
any actual controversy before us.
The issue is not totally moot. While the assailed Resolution referred speci cally 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. 6
In any event, in Salonga v. Cruz Pano, the Court had occasion to reiterate that it "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." 7 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.
The solicitor general further contends that the Petition should be dismissed for
petitioner's failure to exhaust available remedies before the issuing forum, speci cally the
filing of a motion for reconsideration.
This Court, however, has ruled in the past that this procedural requirement may be
glossed over to prevent a miscarriage of justice, 8 when the issue involves the principle of
social justice or the protection of labor, 9 when the decision or resolution sought to be set
aside is a nullity, 10 or when the need for relief is extremely urgent and certiorari is the only
adequate and speedy remedy available. 11
The instant Petition assails a Resolution issued by the COMELEC en banc on April
21, 1998, only twenty (20) days before the election itself. Besides, the petitioner got hold
of a copy thereof only on May 4, 1998. Under the circumstances, there was hardly enough
opportunity to move for a reconsideration and to obtain a swift resolution in time for the
May 11, 1998 elections. 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
An exit poll is a species of electoral survey conducted by quali ed individuals or
group of individuals for the purpose of determining the probable result of an election by
con dentially asking randomly selected voters whom they have voted for, immediately
after they have o cially 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.
In its Petition, ABS-CBN Broadcasting Corporation 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 fteen
administrative regions."
It argues that the holding of exit polls and the nationwide reporting of their results
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 are valid exercises of the freedoms of speech and of the press. It submits that, in
precipitately and unquali edly restraining the holding and the reporting of exit polls, the
COMELEC gravely abused its discretion and grossly violated the petitioner's constitutional
rights.
Public respondent, on the other hand, vehemently denies that, in issuing the assailed
Resolution, it gravely abused its discretion. It insists that the issuance thereof 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." It contends that "the conduct of exit surveys might unduly
confuse and in uence 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."
Public respondent further argues that "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 Section 2, Article V of the Constitution; 12 and
relevant provisions of the Omnibus Election Code. 13 It submits that the constitutionally
protected freedoms invoked by petitioner "are not immune to regulation by the State in the
legitimate exercise of its police power," such as in the present case.
The solicitor general, in support of the public respondent, adds that 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. He insists that these polls would sow confusion among the
voters and would undermine the o cial tabulation of votes conducted by the Commission,
as well as the quick count undertaken by the Namfrel.
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? In answering this question, we need to review quickly our jurisprudence on
the freedoms of speech and of the press.
Nature and Scope of Freedoms
of Speech and of the Press
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. . . . [T]his 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." 14
Our Constitution clearly mandates that no law shall be passed abridging the
freedom of speech or of the press. 15 In the landmark case Gonzales v. COMELEC, 16 this
Court enunciated that 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. LLpr

The freedom of expression is a means of assuring individual self-ful llment, 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. 17 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 o cial measures, or to take refuge in the
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 existing climate of opinion on any matter of public consequence. And paraphrasing the
eminent Justice Oliver Wendell Holmes, 19 we stress that 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. Such freedoms could not remain unfettered and
unrestrained at all times and under all circumstances. 20 They are not immune to regulation
by the State in the exercise of its police power. 21 While the liberty to think is absolute, the
power to express such thought in words and deeds has limitations.
I n Cabansag v. Fernandez 2 2 this Court had occasion to discuss two theoretical
tests in determining the validity of restrictions to such freedoms, as follows:
"These are the 'clear and present danger' rule and the 'dangerous tendency'
rule. The rst, 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. . . ."
23

"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
de nite or immediate acts of force, violence, or unlawfulness be advocated. It is
su cient 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 su cient if the natural tendency and probable
effect of the utterance be to bring about the substantive evil which the legislative
body seeks to prevent." 2 4

Unquestionably, this Court adheres to the "clear and present danger" test. It
implicitly did in its earlier decisions in Primicias v. Fugoso 2 5 and American Bible Society v.
City of Manila; 2 6 as well as in later ones, Vera v. Arca, 2 7 Navarro v. Villegas, 2 8 Imbong v.
Ferrer, 2 9 Blo Umpar Adiong v. COMELEC 3 0 and, more recently, in Iglesia ni Cristo v.
MTRCB. 3 1 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." 3 2
A limitation on the freedom of expression may be justi ed only by a danger of such
substantive character that the state has a right to prevent. 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. 33
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. 34
Justification for a
Restriction
Doctrinally, the Court has always ruled in favor of the freedom of expression, and any
restriction is treated an exemption. The power to exercise prior restraint is not to be
presumed; rather the presumption is against its validity. 3 5 And it is respondent's burden to
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 overthrow such presumption. Any act that restrains speech should be greeted with
furrowed brows, 3 6 so it has been said. Cdpr

To justify a restriction, the promotion of a substantial government interest must be

clearly shown. 37 Thus:
"A government regulation is su ciently justi ed 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." 38

Hence, even though the government's purposes are legitimate and substantial, they
cannot be pursued by means that broadly sti e fundamental personal liberties, when the
end can be more narrowly achieved. 39
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. 40 We cannot support any ruling or order "the effect of which
would be to nullify so vital a constitutional right as free speech." 41 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. 42
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 in uencing 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. 43
COMELEC Ban on
Exit Polling
In the case at bar, the COMELEC justi es its assailed Resolution as having been
issued pursuant to its constitutional mandate to ensure a free, orderly, honest, credible and
peaceful election. While admitting that "the conduct of an exit poll and the broadcast of the
results thereof [are] . . . an exercise of press freedom," it argues that "[p]ress freedom may
be curtailed if the exercise thereof creates a clear and present danger to the community or
it has a dangerous tendency." It then 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 o cial 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."

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 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 re ective 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 o cial 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 quali cation as to whether the polling is disruptive or not. 44 Concededly, the
Omnibus Election Code prohibits disruptive behavior around the voting centers. 45 There is
no showing, however, that exit polls or the means to interview voters cause chaos in voting
centers. Neither has any evidence been presented proving that the presence of exit poll
reporters near an election precinct tends to create disorder or confuse the voters.
Moreover, the prohibition incidentally prevents the collection of exit poll data and
their use for any purpose. The valuable information and ideas that could be derived from
them, based on the voters' answers to the survey questions will forever remain unknown
and unexplored. Unless the ban is restrained, candidates, researchers, social scientists and
the electorate in general would be deprived of studies on the impact of current events and
of election-day and other factors on voters' choices.
In Daily Herald Co. v. Munro, 46 the US Supreme Court held that a statute, one of the
purposes of which was to prevent the broadcasting of early returns, was unconstitutional
because such purpose was impermissible, and the statute was neither narrowly tailored to
advance a state interest nor the least restrictive alternative. Furthermore, the general
interest of the State in insulating voters from outside in uences is insu cient to justify
speech regulation. Just as curtailing election-day broadcasts and newspaper editorials for
the reason that they might indirectly affect the voters' choices is impermissible, so is
regulating speech via an exit poll restriction. 47
The absolute ban imposed by the COMELEC cannot, therefore, be justi ed. 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 means to achieve the COMELEC end of avoiding or minimizing disorder and confusion
that may be brought about by exit surveys.
For instance, a speci c 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 o cials. 48 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. prcd

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 For its part, Petitioner 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 ngers, 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. 4 9 These precautions, together with the possible measures earlier stated, may
be undertaken to abate the COMELEC's fear, without consequently and unjusti ably stilling
the people's voice.
With the foregoing premises, we conclude that 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- xing,
fraud and other electoral ills.
Violation of Ballot Secrecy
The contention of public respondent that exit polls indirectly transgress the sanctity
and the secrecy of the ballot is off-tangent to the real issue. Petitioner 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 identi cation. Thus, voters are prohibited from exhibiting the contents of their o cial
ballots to other persons, from making copies thereof, or from putting distinguishing marks
thereon so as to be identi ed. Also proscribed is nding 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 o cial 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. cdrep

WHEREFORE, the Petition is GRANTED, and the Temporary Restraining Order issued
by the Court on May 9, 1998 is made PERMANENT. Assailed Minute Resolution No. 98-
1419 issued by the COMELEC en banc on April 21, 1998 is hereby NULLIFIED and SET
ASIDE. No costs.
SO ORDERED.
Davide, Jr., C.J., Bellosillo, Puno, Quisumbing, Purisima, Buena, Gonzaga-Reyes,
Ynares-Santiago, and De Leon, Jr., JJ., concur.
Melo and Mendoza, JJ., join separate opinion of J. Vitug.
Vitug, J., see separate opinion.
Kapunan, J., see dissenting opinion.
Pardo, J ., took no part.
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 Separate Opinions
VITUG, J .:

The instant petition, now technically moot, presents issues so signi cant that a
slight change of circumstances can have a decisive effect on, and possibly spell a
difference in, the nal 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.
While I understand what the ponencia is saying quite laudably, I also appreciate,
upon the other hand, the concern of the Commission on Elections, i.e., that the conduct of
exit polls can have some adverse effects on the need to preserve the sanctity of the ballot.
The Commission 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. Like my colleagues, 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. In any case, I must accept the reality that 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. LibLex

Neither of the advocations proffered by the parties in this instance, I believe, should
be foreclosed by the Court at this time.
I vote, therefore, to dismiss the petition on the foregoing thesis.

KAPUNAN, J ., dissenting :

I share the view of Justice Jose C. Vitug in his Separate Opinion that the case is
technically moot. Since the COMELEC has not declared exit polls to be illegal and neither
did the petitioner present its methodology or system of conducting the exit polls to the
poll body, the nulli cation 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. I wish,
however, to express my thoughts on a few material points.
The majority opinion cites the general rule that any restrictions to freedom of
expression would be burdened with a presumption of invalidity and should be greeted with
"furrowed brows." 1 While this has been the traditional approach, 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. Thus, Mr.
Justice Feliciano in National Press (NPC) v. COMELEC 2 wrote:
The technical effect of Article IX (C) (4) of the Constitution may be seen to
be that 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 o ce, 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
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 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. 3

The NPC decision holds that if the right to free speech collides with a norm of
constitutional stature, 4 the rule on heavy presumption of invalidity does not apply.
Our Constitution mandates the COMELEC to enforce and administer laws and
regulations relative to the conduct of elections and to secure the secrecy and sanctity of
the ballots to ensure orderly, honest, credible and peaceful elections. 5 This Constitutional
provision 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." As this Court, through Mr. Justice Mendoza, succinctly observed: LibLex

. . . the clear-and-present danger test is not, however, a sovereign remedy

for all free speech problems. As has been pointed out by a thoughtful student of
constitutional law, it was originally formulated for the criminal law and only later
appropriated for free speech cases. For the criminal law is necessarily concerned
with the line at which innocent preparation ends and guilty conspiracy or attempt
begins. Clearly, it is inappropriate as a test for determining the constitutional
validity of law which, like §11(b) of R.A. No. 6646, are not concerned with the
content of political ads but only with their incidents. 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. 6

On the matter of methodology in conducting polls, petitioner 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. 7 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.
In view of the foregoing discussion, I believe the COMELEC committed no abuse of
discretion in issuing the assailed temporary restraining order stopping petitioner from
conducting exit polls. I, therefore vote to DENY the petition.

Footnotes
1. Rollo, p. 14.
2. Ibid. Words in parentheses in the original; those in brackets supplied.
3. Petition, p. 4.

4. Rollo, p. 78 et seq.
5. This case was deemed submitted for resolution on January 19, 1999, upon receipt by the
Court of the Memorandum for the Respondent.
6. See Gamboa Jr. v. Aguirre Jr., G.R. No. 134213, July 20, 1999.
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 7. 134 SCRA 438, 463, February 18, 1985; per Gutierrez Jr., J.

8. Solis v. NLRC, 263 SCRA 629, October 28, 1996.

9. Zurbano Sr. v. NLRC, 228 SCRA 556, December 17, 1993.
10. Alfante v. NLRC, 283 SCRA 340, December 15, 1997; Saldana v. Court of Appeals, 190
SCRA 386, October 11, 1990.
11. Republic v. Sandiganbayan, 269 SCRA 316, March 7, 1997; Gelmart Industries Phils.
Inc. v. NLRC, 176 SCRA 295, August 10, 1989; Philippine Air Lines Employees
Association v. Philippine Air Lines, Inc., 111 SCRA 215, January 30, 1982.
12. "Sec. 2. The Congress shall provide a system for securing the secrecy and sanctity
of the ballot . . . ."

13. Citing §§ 195, 196, 207 and 261 (z-5, 7 & 16).

14. Salonga v. Cruz Paño, supra, pp. 458-459. See also Gonzales v. COMELEC, 27 SCRA
835, 849, 856-857, April 18, 1969; Philippine Blooming Mills Employees Organization v.
Philippine Blooming Mills Co., Inc., 51 SCRA 191, June 5, 1973; National Press Club v.
COMELEC, 207 SCRA 1, 9, March 5, 1992; Blo Umpar Adiong v. COMELEC, 207 SCRA
712, 715, March 31, 1992.

15. § 4, Art. III of the Constitution.

16. Supra, p. 856, per Fernando, J. (later CJ ).
17. Ibid., p. 857; citing Emerson, Toward a General Theory of the First Amendment (1966).
18. Ibid., citing New York Times Co. v. Sullivan, 376 US 254, 270 (1964).
19. US v. Schwimmer, 279 US 644 (1929).
20. Ibid., p. 858.
21. Badoy Jr. v. COMELEC, 35 SCRA 285, 289, October 17, 1970.
22. 102 Phil. 152, October 18, 1957, per Bautista-Angelo, J.

23. Ibid., p. 161.

24. Ibid., citing Gitlow v. New York, 268 US 652, 69 L ed. 1138 (1925).
25. 80 Phil. 71 (1948).
26. 101 Phil. 386 (1957).

27. 28 SCRA 351, May 26, 1969.

28. 31 SCRA 731, February 26, 1970.

29. 35 SCRA 28, September 11, 1970.

30. Supra.
31. 259 SCRA 529, July 26, 1996.

32. Cabansag v. Fernandez, supra; citing Schenck v. US , 249 US 47 (1919).

33. Gonzales v. COMELEC, supra, pp. 860-861.
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 34. Adiong v. COMELEC, supra.
35. Iglesia ni Cristo v. Court of Appeals, supra; Gonzales v. Katigbak, 137 SCRA 717, July
22, 1985.
36. Iglesia ni Cristo v. Court of Appeals, supra, pp. 545-546; citing Near v. Minnesota, 283
US 697 (1931); Bantam Books, Inc. v. Sullivan, 372 US 58 (1963); and New York Times
Co. v. Sullivan, supra.
37. Blo Umpar Adiong v. COMELEC, supra. See also National Press Club v. COMELEC,
supra.
38. Adiong v. COMELEC, supra.
39. Gonzales v. COMELEC, supra, p. 871, citing Shelton v. Tucker, 364 US 479, 488.
40. Mutuc v. COMELEC, 36 SCRA 228, 233-34, November 26, 1970; per Fernando, J . (later
CJ).
41. Ibid., p. 236.
42. Adiong v. COMELEC, supra.
43. Exit Polls and the First Amendment, 98 Harvard Law Review 1927 (1985).
44. See CBS v. Smith, 681 F. Supp. 794 (SD Fla. 1988).
45. See § 261 (d, e, f, k & z-11). See also Arts. 148, 149 & 153 of the Revised Penal Code.
46. 838 F 2d 380 (9th Cir. 1988).

47. Ibid., citing Mills v. Alabama, 384 US 214, 218-20, 86 S Ct. 1434, 1436-37, 16 L Ed. 2d
484 (1966); Vanasco v. Schwartz, 401 F Supp. 87, 100 (SDNY 1975), aff'd mem., 423 US
1041, 96 S Ct. 763, 46 L Ed. 2d 630 (1976).

48. Exit Polls and the First Amendment, supra, p. 1935.

49. Petitioner's Memorandum, p. 15.
KAPUNAN, J., dissenting:

1. Iglesia ni Cristo vs. MTRCB, 259 SCRA 529 (1996).

2. 207 SCRA 1 (1992).

3. Ibid., citing as examples: Abbas vs. Commission on Elections, 179 SCRA 287 (1989);
People vs. Dacuycuy, 173 SCRA 90 (1989); Heirs of Ordera vs. Reyes, 125 SCRA 380
(1983) (sic); Peralta vs. Commission on Elections, 82 SCRA 30 (1978); Salas vs.
Jarencio, 46 SCRA 734 (1972).
4. The norm embodied in Article IX (C) (4) of the Constitution in the NPC case aims to
equalize opportunity, time and space, and the right to reply in the use of media for
campaign purposes.
5. CONST. Art V, Sec. 2; Art IX (C), Sec. 2 (1).

6. Osmeña vs. COMELEC, 288 SCRA 447 (1998).

7. BATAS PAMBANSA BLG. 881 (as amended), Secs. 5 & 6 and R.A. No. 7166, Sec. 4.
These situations are replete with cases; see for e.g. Hassan vs. COMELEC, 264 SCRA 125
(1996); Sanchez vs. COMELEC, 145 SCRA 454 (1982); Mangudadatu vs. COMELEC, G.R.
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 No. 86053, May 4, 1989; Barabu vs. COMELEC, G.R. No. 78820, May 17, 1988.

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