Gonzales v.

COMELEC
APRIL 18, 1969
FERNANDO, J.
NOTE: Of the 12 sitting justices, only 7 sided with the majority,
lacking the 2/3 votes needed to declare a statute unconstitutional
(therefore, both provisions were declared NOT
UNCONSTITUTIONAL; see HELD)
PETITIONERS
- Arsenio Gonzales: a private individual, registered voter of
Manila and a political leader of Cabigao
- Felicisimo Cabigao: incumbent councilor in the 4th District of
Manila and the Nacionalista Party official candidate for ViceMayor of Manila to which he was subsequently elected on
November 11, 1967;
FACTS
- Petitioners challenge the validity of two new sections now
included in the Revised Election Code, under Republic Act No.
4880, which was approved and took effect on June 17, 1967
a) prohibiting the too early nomination of
candidates
It shall be unlawful for any political party,
political committee, or political group to
nominate candidates for any elective public
office voted for at large earlier than one hundred
and fifty days immediately preceding an
election, and for any other elective public office
earlier than ninety days immediately preceding
an election.
b) limiting the period of election campaign or
partisan political activity.
It is unlawful for any person whether or not a
voter or candidate, or for any group or
association of persons, whether or not a political
party or political committee, to participate in an
election campaign or partisan political activity
except during the period of one hundred twenty
days immediately preceding an election
involving a public office voted for at large and

ninety days immediately preceding an election

for any other elective public office.
- They claim that the said RA 4880 will prejudice their rights,
such as freedom of speech, freedom of assembly and right to
form associations or societies
- Senator Lorenzo M. Taada was asked to appear as amicus
curiae
o He did justify its enactment however under the clear
and present danger doctrine
The danger: the substantive evil of elections,
whether for national or local officials, being
debased and degraded by unrestricted
campaigning, excess of partisanship, and
undue concentration in politics, with the loss not
only of efficiency in government but of lives as
well.
ISSUES/RATIO
1. Procedural
A. Treated as a petition for prohibition, even if COMELEC is not
sought to be restrained from performing any specific act
- Due to the exceptional character of the situation that confronts
us, the paramount public interest, and the undeniable necessity
for a ruling, the national elections being barely six months
away, reinforce our stand.
B. Even if petitioners have not shown that they have sustained, or will
sustain, direct injury as a result of its enforcement, the petition will
prosper
- Taxpayer suit
3. Freedom of Expression
The primacy, the high estate accorded freedom of expression is of
course a fundamental postulate of our constitutional system.
- No law may be passed abridging the freedom of speech and of
the press.
- From the language of the specific constitutional provision, it
would appear that the right is not susceptible of any limitation.
o The realities of life in a complex society preclude
however a literal interpretation. Freedom of expression

is not an absolute. It would be too much to insist that at

all times and under all circumstances it should remain
unfettered and unrestrained. There are other societal
values that press for recognition.
- Proper tests for limitation: Cabansag v. Fernandez
- Clear and present danger rule and dangerous tendency rule
o Clear and present danger
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 term clear seems to point; to a causal
connection with the danger of the substantive
evil arising from the utterance questioned.
Present refers to the time element. It used to be
identified with imminent and immediate danger
The danger must not only be probable but very
likely inevitable.
o Dangerous tendency
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.
4. Freedom of Assembly
The Bill of Rights likewise prohibits the abridgment of the right of the
people peaceably to assemble.

Assembly means a right on the part of citizens to meet

peaceably for consultation in respect to public affairs]
- All these rights (speech, press, peaceably to assemble, petition
govt for redress of grievances) while not identical. are
inseparable
5. Freedom of Association
The freedom to organize or to be a member of any group or society
exists.
**In these three freedoms, since the constitution prohibits their
abridgment, they may be subject to limitation
- BUT only upon showing of clear and present danger created in
the exercise of said rights
6. Facial challenge
- In effect what we are asked to do is to declare the act void on
its face, no evidence having been introduced as to its actual
operation
- In considering whether it is violative of any of the above rights,
we cannot ignore of course the legislative declaration that its
enactment was in response to a serious substantive evil
affecting the electoral process, not merely in danger of
happening, but actually in existence, and likely to continue
unless curbed or remedied.
o a) Prohibition of too early nomination of candidates
The right of association is affected.
Political parties have less freedom as to
the time during which they may
nominate candidates; the curtailment is
not such, however, as to render
meaningless such a basic right.
Their scope of other legitimate activities
is not unduly narrowed.
Neither is there infringement of their freedom to
assemble.
They can do so, but not for such a
purpose.

Court UNANIMOUSLY sustains the validity

of this provision
o b) Limitation on the period of election campaign or
partisan political activity
If that is all there is to that provision, it suffers
from the fatal constitutional infirmity of
vagueness and may be stricken down
Stricter standards of permissible
vagueness may be applied to a statute
having inhibiting effect on speech
But since there are definitions in the law for
what acts are included in election campaign
and partisan political activity, there is no
immediate conclusion of vagueness in the said
law (NOTE: there were 6 acts defined to fall
under election campaign and partisan
political activity, a-f)
The majority of the Court would vote that
acts contained in c-e are invalid (no clear and
present danger, and overbroad).
HOWEVER, we lack one more vote to call
for declaration of unconstitutionality
In any case, it is the minority opinion that it would be
premature for a judgment of nullity of any provision found in
Republic Act No. 4880. The need for adjudication arises only if
in the implementation of the Act there is in fact an
unconstitutional application of its provisions.

HELD
a) prohibiting the too early nomination of candidates
- Court is unanimous that it is NOT UNCONSTITUTIONAL
b) limiting the period of election campaign or partisan political
activity.
- Majority voted for unconstitutionality, but since one vote is lacking,
said provision is NOT UNCONSTITUTIONAL
PETITION DISMISSED

Mutuc v COMELEC
November 26, 1970; J. Fernando
Facts:
1 Amelito Mutuc of Arayat, Pampanga, was running for the
position of delegate to the Constitutional Convention.
2 He then received a telegram from the Commission on Elections
acknowledging his certificate of candidacy but prohibiting him
from using jingles in his mobile units equipped with sound
systems and loudspeakers.
3 Mutuc then filed a special civil action for prohibition with a
preliminary injunction, arguing that COMELECs order was a
violation of his right to free speech.
4 COMELEC answered:
a The order was premised on a provision of the
Constitutional Convention Act: unlawful for
candidates to purchase, produce, request or
distribute sample ballots or electoral propaganda
gadgets such as pens, lighters, fans, flashlights
athletic goods or materials, wallets, bandanas, shirts,
hats, matches, cigarettes, and the like, whether of
domestic or foreign origin.
b and the like includes the use of the jungle, since it is
recorded or taped and is considered as a tangible
propaganda
5 Because of the urgency of the case (election was a week away),
the Court did not issue a preliminary injunction but issued a
minute resolution granting the prohibition.
6 This is the explanation for the decision arrived by the court.
Issue:
1 WON the use of jingles is an unlawful act under the
Constitutional Convention Act
2 WON COMELECs prohibition infringed Mutucs freedom of
expression
Held/Ratio:

COMELEC is permanently restrained and prohibited from enforcing

or implementing or demanding compliance with its order banning the
use of political taped jungles.
1 WON the use of jingles is an unlawful act under the
Constitutional Convention Act NO
Using the principle of ejusdem generis, the general
words following any enumeration is applicable only to
things of the same kind or class as those specifically
referred to.
The use of jingles is not within the meaning of the word
and the like. What was contemplated in the act was
the distribution of gadgets of the kind referred to as a
means of inducement to obtain a favourable vote for the
candidate responsible for its distribution.
Following this, the prohibition imposed by the
COMELEC has no statutory basis.
2 WON COMELECs prohibition infringed Mutucs freedom of
expression YES
COMELECs act imposed censorship on Mutuc, an evil
which the constitutional right of free speech is directed.
The constitutional right of free speech is not limited to a
speaker having his say, but not perpetuating what is
uttered by him through the tape or other mechanical
contrivances. To rule otherwise would impose a
previous restraint which is unjustified and against the
Constitution
It is a cardinal principle of statutory construction that in
interpreting the laws, it should be in consonance to any
constitutional command or prescription. To rule
otherwise will only make it more complicated for it
would make the provision of the Constitutional
Convention Act unconstitutional.
While COMELEC is vested with the executive charge
of enforcement and administration of all laws relative to
the conduct of elections, COMELECs power is limited
to purely administrative questions and does not include
any authority in conflict with or outside of the law.

Sanidad v COMELEC
January 29, 1990; J. Medialdea
Facts:
1) RA 6766, An Act Providing for an Organic Act for the
Cordillera Autonomous Region, was enacted into law.
2) Pursuant to the said law, a plebiscite for the ratification of the
said Act was to be conducted on December 27, 1989, although
it was rescheduled to January 30, 1990.
3) To govern the conduct of the said plebiscite, COMELEC issued
Resolution No. 2167.
4) Pablito Sanidad, a newspaper columnist of the Overview
for the Baguio Midland Courier, assailed the constitutionality
of Section 19 of Resolution No. 2167.
a. Sec. 19: Prohibition on columnist, commentators or
announcers During the plebiscite campaign
period, on the day before and on plebiscite day, no
mass media columnist, commentator, announcer, or
personality shall use his column or radio or
television times to campaign for or against the
plebiscite issue.
5) Pablito Sanidad argues:
a. It violates the constitutional guarantees of the freedom
of expression and of the press, because as a
columnist, his column contains and reflects his
opinions, views and beliefs on any issue or subject.
b. The COMELEC Resolution constitutes a prior
restraint on his constitutionally-guaranteed freedom of
the press and imposes subsequent punishment
because it contains a penal provision: will be penalized
under the Omnibus Election Code and pertinent
provisions of RA 6646
c. Allowing media to express their views, beliefs and
opinions will in fact help in the government drive and

desire to disseminate information, and hear, as well as

ventilate, all sides of the issue.
6) Comelecs defense:
a. It does not violate the constitutional guarantees of the
freedom of expression and of the press.
b. Rather, it is a valid implementation of the power of
the COMELEC to supervise and regulate media
during election or plebiscite periods under Art. IXC, Sec. 4 of the Constitution
i. Art. IX-C, Sec. 4. The Commission may,
during the election period, supervise or regulate
the enjoyment or utilization of all.media of
communication or information.
c. Moreover, petitioner may still express his views or
campaign for or against the act through Comelec print
space and airtime, under Section 90 and 91 of BP 881
d. Section 11 of RA 6646 (Electoral Reform Law) also
prohibits the use of mass media, except for the
COMELEC print space and airtime, for election
propaganda
Issue:
WON COMELECs resolution constitutes a prior restraint and
infringes upon the constitutional guarantee of freedom of speech and
of the press - YES
Ratio
Neither Art. IX-C nor RA 6646 can be construed to mean that
the COMELEC was granted the right to supervise and regulate
the exercise by media practitioners of their right to expression
during plebiscite periods.
o The evil sought to be avoided by Art. IX-C and RA
6646 is the possibility that a franchise holder may
favour or give any undue advantage to a candidate
in terms of advertising space or radio or television
time.
o There are no candidates involved in a plebiscite. The
public is asked to vote for or against issues, not
candidates in a plebiscite.

The resolution is tantamount to a restriction of petitioners

freedom of expression for no justifiable reason. While the
limitation does not absolutely bar petitioners freedom of
expression, it is still a restriction on his choice of the forum
where he may express his view.
National Press Club v Commission on Elections
207 SCRA 1 (1992)
J. Feliciano

FACTS:
1. Three petitions were filed with the Court raising the
constitutionality of Section 11(b) of the RA 6646, known as
The Electoral Reforms Law of 1987
2. The petitioners were mass media representatives which are
prevented from selling or donating space and time for political
advertisements and individuals running for office in the 1992
elections and taxpayers and voters claiming that they have the
right to be informed of election issues and of credentials of the
candidates is being curtailed
3. Petitioners contend that:
a. Section 11(b) of RA6646 invades and violates the
constitutional guarantees comprising freedom of
expression
b. The prohibition imposed by Section 11(b) amounts to
censorship because it selects and singles out for
suppression and repression with criminal sanctions,
only publication of a particular content, namely, mediabased election or political propaganda during the
election period of 1992
c. The prohibition is in derogation of medias role,
function and duty to provide adequate channels of
public information and public opinion relevant to
election issues
d. Section 11(b) abridges the freedom of speech of
candidates
e. The suppression of media-based campaign would bring
about a substantial reduction in the quantity or volume

of information concerning candidates and issues in the

election, thereby curtailing and limiting the right of
voters to information and opinion
ISSUE:
Whether or not Section 11(b) of RA 6646 is unconstitutional for
repressing freedom of speech and freedom of the press - NO
HELD/RATIO:
Section 11(b) of RA 6646 should be taken together with
Sections 90 and 92 of BP 881 known as the Omnibus Election
Code of the Philippines, requiring COMELEC to procure
Comelec Space in newspapers of general circulation in every
province or city and Comelec time on radio and television
stations.
o COMELEC is mandated to allocate for free and on
equal and impartial basis such Comelec space and
Comelec time among all the candidates
o The objective of Section 11 (b) is the equalizing, as
far as practicable, the situations of rich and poor
candidates by preventing the former from enjoying
the undue advantage offered by huge campaign
war chests
o COMELEC is empowered by the Constitution Article
IX (C)(4)
The provision of Bill of Rights which enshrines freedom of
speech, freedom of expression and freedom of the press
(Article III[4], 1987 Constitution) has to be taken in
conjunction with Article IX (C) (4) which may be seen to be
a special provision applicable during a specific limited
period
o The rights of free speech and free press are not
unlimited rights for they are not the only important and
relevant values even in the most democratic of polities
o The technical effect of Article IX (C) (4) is that no
presumption of invalidity arises in respect of
exercises 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 rights
of free speech and free press
It must be noted, however, that the restrictive impact upon
freedom of speech and freedom of the press is circumscribed
by certain important limitations
o It is limited in the duration of its applicability and
enforceability, only to election period
o It is limited in scope of its application
It only applies to the purchase and sale of
print space and air time for campaign or
other political purposes
It does not in any way purport to restrict
reporting by newspapers or radio or
television stations of news or news-worthy
events relating to candidates, their qualification,
political parties and programs of government
It does not reach commentaries and
expression of belief or opinion by reporters or
broadcasters or editors or commentators or
columnists
It exempts from its prohibition the purchase by
or donation to the COMELEC of print space or
air time, which space and time COMELEC is
then affirmatively required to allocate on a fair
an equal basis, free of charge, among the
individual candidates
Section 11(b) does not cut off the flow of media reporting,
opinion or commentary about candidates, their qualifications
and platforms and promises
o The provision does not authorize any intervention and
much less control on the part of COMELEC in respect
of the content of political advertisements which the
individual candidates are quite free to present within
their respective allocated COMELEC time and
COMELEC space
o There is no censorship, whether disguised or otherwise

What Section 11 (b), viewed in context, in fact

does is to limit paid partisan political
advertisements to fora other than modern
mass media, and to Comelec time and
Comelec space in such mass media.
o Even though Section 11(b) limits the right of free
speech and of access to mass media of the candidates
themselves, the limitation bears a clear and
reasonable connection with the constitutional
objective set out in Article IX (C)(4) and Article
II(26) of the Constitution
o It is true that the provision does not perfectly place all
candidates on complete and perfect equality, its
imperfection cannot be the reason alone to regard it as
constitutionally infirm
What it only requires is that the regulatory
measure under challenge bear a reasonable
nexus with the constitutionally sanctioned
objective
The nature and characteristics of modern mass media,
especially electronic media, cannot be totally disregarded
o Repetitive political commercials when fed into the
electronic media themselves constitute invasions of the
privacy of the general electorate
o Candidates may directly or indirectly own or control the
stations or channels themselves
The reality is that in a very real sense, listeners
and viewers constitute a captive audience
o The right of the general listening and viewing public to
be free from such intrusions and subliminal effects is at
least as important as the right of candidates to advertise
themselves through modern electronic media and the
right of media enterprises to maximize their revenues
from the marketing of packaged candidates

Adiong v. COMELEC
March 31, 1992
GUTIERREZ, JR., J.
DOCTRINE
Clear and present danger rule
- In this case prohibition infringes on citizens fundamental right
of free speech.
- Not only must the danger be patently clear and pressingly
present but the evil sought to be avoided must be so substantive
as to justify a clamp over one's mouth or a writing instrument
to be stilled. used for right of free speech and expression
- Rational connection will not suffice
Overbreadth
- Even though the governmental purpose be legitimate and
substantial, that purpose cannot be pursued by means that
broadly stifle fundamental personal liberties when the end can
be more narrowly achieved. The breadth of legislative
abridgment must be viewed in the light of less drastic means
for achieving the same basic purpose
- A statute is considered void for overbreadth when "it offends
the constitutional principle that a governmental purpose to
control or prevent activities constitutionally subject to state
regulations may not be achieved by means which sweep
unnecessarily broadly and thereby invade the area of protected
freedoms.
Burden of justification in intruding on right to property, when
combined with liberty
- The right to property may be subject to a greater degree of
regulation but when this right is joined by a "liberty" interest,

the burden of justification on the part of the Government must

be exceptionally convincing and irrefutable.
FACTS
- Blo Umpar Adiong, 1992 Senatorial candidate assails whether
or not the Commission on Elections (COMELEC) may prohibit
the posting of decals and stickers on "mobile" places, public or
private, and limit their location or publication to the authorized
posting areas that it fixes.
o Resolution No. 2347 SEC. 21(f) Prohibited forms of
election - propaganda: draw, paint, inscribe, post,
display or publicly exhibit any election propaganda
in any place, whether public or private, mobile or
stationary, except in the COMELEC common
posted areas and/or billboards, at the campaign
headquarters of the candidate or political party,
organization or coalition, or at the candidate's own
residential house or one of his residential houses
HELD
COMELEC's prohibition is null and void
RATIO
1. Prohibition unduly infringes on the citizen's fundamental right of
free speech enshrined in the Constitution (Sec. 4, Article III). There is
no public interest substantial enough to warrant the kind of restriction
involved in this case
Clear and present danger rule
- The posting of decals and stickers in mobile places like cars
and other moving vehicles does not endanger any substantial
government interest.
- Under the clear and present danger rule not only must the
danger be patently clear and pressingly present but the evil
(clear and present danger) sought to be avoided must be so
substantive as to justify a clamp over one's mouth or a writing
instrument to be stilled:
o The rational connection between the remedy provided
and the evil to be curbed, which in other context might
support legislation against attack on due process
grounds, will not suffice. These rights rest on firmer
foundation.

The regulation strikes at the freedom of an individual to

express his preference and, by displaying it on his car, to
convince others to agree with him.
2. Questioned prohibition premised on the statute and as couched in
the resolution is void for overbreadth.
Overbreadth
- Even though the governmental purpose be legitimate and
substantial, that purpose cannot be pursued by means that
broadly stifle fundamental personal liberties when the end can
be more narrowly achieved. The breadth of legislative
abridgment must be viewed in the light of less drastic means
for achieving the same basic purpose
- A statute is considered void for overbreadth when "it offends
the constitutional principle that a governmental purpose to
control or prevent activities constitutionally subject to state
regulations may not be achieved by means which sweep
unnecessarily broadly and thereby invade the area of protected
freedoms.
Burden of justification in intruding on right to liberty and property
- The right to property may be subject to a greater degree of
regulation but when this right is joined by a "liberty" interest,
the burden of justification on the part of the Government must
be exceptionally convincing and irrefutable. The burden is not
met in this case.

Osmena v. COMELEC
March 31, 1998
MENDOZA, J
FACTS
- Petition for prohibition, seeking a reexamination of the validity
of 11(b) of RA 6646, the Electoral Reforms Law of 1987,
which prohibits mass media from selling or giving free of
charge print space or air time for campaign or other political
purposes, except to the COMELEC
- Petitioner Emilio M.R. Osmea is candidate for President of
the Philippines, while petitioner Pablo P. Garcia is governor of
Cebu Province, seeking reelection.
- They contend that events after the ruling in NPC v. COMELEC
(which upheld Sec 11 of RA 6646) have called into question
the validity of the very premises of that decision
RATIO
There Is No Case or Controversy to Decide, Only an Academic
Discussion to Hold
- In urging a reexamination of that ruling, petitioners claim that
experience in the last five years since the decision in that case
has shown the undesirable effects of the law because, the ban
on political advertising has not only failed to level the playing
field, [but] actually worked to the grave disadvantage of the
poor candidates by depriving them of a medium which they can
afford to pay for while their more affluent rivals can always
resort to other means
- Petitioners do not complain of any harm suffered as a result of
the operation of the law.

o They do not complain that they have in any way been

disadvantaged as a result of the ban on media
advertising.
- Stare decisis et non quieta movere.
o Nevertheless, we will revisit the decision in NPC v.
COMELEC to clarify the theory of freedom of speech
No Ad Ban, merely substituted by COMELEC time and COMELEC
space
- The term political ad ban, when used to describe 11(b) of
R.A. No. 6646, is misleading, for even as 11(b) prohibits the
sale or donation of print space and air time to political
candidates, it mandates the COMELEC to procure and itself
allocate to the candidates space and time in the media. There is
no suppression of political ads but only a regulation of the time
and manner of advertising.
- These cases are not in line with the present case:
o Adiong v. COMELEC: prohibition on use of decals and
stickers is so broad that it encompasses even citizens
private property, and there was no substantial govt
interest to justify
o Mutuc v. COMELEC: prohibiting the playing of taped
jingles was an absolute ban
o Sanidad v. COMELEC: ban against newspaper
columnists expressing opinion on an issue in a
plebiscite a content restriction which, unless justified by
compelling reason, is unconstitutional.
- Substantial government interest: Art. IX-C, 4
On the other hand, validity of regulations of time, place and manner,
under well-defined standards, is well-nigh beyond question
- Gonzales v. COMELEC: RA 4880 limiting period of Election
Campaign or Partisan Political Activity is constitutional
- Valmonte v. COMELEC: COMELEC resolution prohibiting
members of citizen groups or associations from entering any
polling place except to vote
- The State can prohibit campaigning outside a certain period as
well as campaigning within a certain place.

o For unlimited expenditure for political advertising in

the mass media skews the political process and subverts
democratic self-government.
- What is bad is if the law prohibits campaigning by certain
candidates because of the views expressed in the ad. Content
regulation cannot be done in the absence of any compelling
reason.
Law Narrowly Drawn to Fit Regulatory Purpose
- The main purpose of 11(b)is regulatory. Any restriction on
speech is only incidental, and it is no more than is necessary to
achieve its purpose of promoting equality of opportunity in the
use of mass media for political advertising. The restriction on
speech, as pointed out in NPC, is limited both as to time and as
to scope.
Reform of the Marketplace of Ideas, in US and RP are different
The notion that the government may restrict the speech of some in
order to enhance the relative voice of others may be foreign to the
American Constitution but it is not to the Philippine Constitution,
being in fact an animating principle of that document
On the Claim that the Reforms Have Been Ineffectual
- It is claimed that people hardly read or watch or listen to them.
- Again, this is a factual assertion without any empirical basis to
support it.
- What is more, it is an assertion concerning the adequacy or
necessity of the law which should be addressed to Congress.
Test for Content-Neutral Restrictions
- In Adiong v. COMELEC this Court quoted the following from
the decision of the US SC, which was formulated in US v.
OBrien
o A government regulation is sufficiently justified if it is
a) within the constitutional power of the Government,
b) furthers an important or substantial governmental
interest;
c) the governmental interest is unrelated to the
suppression of free expression;
d) the incident restriction on alleged First Amendment
freedoms is no greater than is essential to the
furtherance of that interest.

It is an appropriate test for restrictions on speech which, like

11(b), are content-neutral.
- Content-neutral regulations need only a substantial
governmental interest to support them, and a deferential
standard of review will suffice to test their validity.
Clear and Present Danger Test
- The clear-and-present-danger test is not a sovereign remedy for
all free speech problemsit is inappropriate as a test for
determining the constitutional validity of laws which are not
concerned with the content of political ads but only with their
incidents.
o 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
- Difference in the level of justification for the restriction of
speech is that content-based restrictions distort public debate,
have improper motivation, and are usually imposed because of
fear of how people will react to a particular speech.
HELD
Applying the OBrien test in this case, Sec 11 of RA 6646 is a valid
exercise of power of State to regulate media to ensure equal
opportunity, time and space for campaigns; any restriction is only
incidental and no more than necessary to further the State interest
PETITION DISMISSED
ROMERO, J., Dissenting Opinion
- NPC v. COMELEC, insofar as it bestows a presumption of
validity upon a statute authorizing COMELEC to infringe upon
the right of free speech and free press, constitutes a departure
from this Courts previous rulings as to mandate its reexamination
PANGANIBAN, J., Dissenting Opinion
- Media advertising may be the cheapest and most effective
campaign mechanism available.
- Candidates, whether rich or poor, should be given the option of
campaigning through media, instead of being forced to use

other forms of propaganda that could turn out to be less

effective and more expensive.
A political advertisement is relevant only during the campaign
period, not before and not after: properly understood, the
prohibition is not limited in duration but is in fact and in truth
total, complete and exhaustive.

TELEBAP v. COMELEC
G.R. No. 132922, April 21, 1998
MENDOZA, J.
NATURE/FACTS
1. COMELEC Time (from Sec 92 of B.P. Blg. 881 or the Omnibus
Election Code) is part of a regulatory scheme designed to equalize the
opportunity of candidates in an election in regard to the use of mass
media for political campaigns.
2. The law prohibits mass media from selling or donating print space
and air time to the candidates and requires the COMELEC instead to
procure print space and air time for allocation to the candidates FREE
OF CHARGE.
3. Petitioners TELEBAP and GMA Network assail the validity of 92
of B.P. Blg. No. 881 against claims that the requirement that radio and
television time during the election period (to be used for candidates
advertisements) be given free takes property without due process of
law. The Court ruled against petitioners and upheld the
constitutionality of said statute as the equal protection does not
prohibit classification when there is a valid and reasonable .
ISSUE
1. WON petitioners have requisite standing NO for TELEBAP, YES
for GMA
2. WON challenged statute is unconstitutional for taking property
without due process - NO

HELD
Petition dismissed
RATIO
1. Procedural
- TELEBAP has in the past asserted their interest as citizens,
taxpayer and registered voters in previous cases in this Court.
But in this instant case, the Court rules that they have no
standing, for the ff. reasons:
- The issue is not of transcendental importance
(citizens)
- The issue at hand does not involve their right of
suffrage (registered voters)
- It does not involve the exercise by Congress of its
taxing or spending power (taxpayers)
- GMA on the other hand, has standing because it claims of
losses several millions of pesos in providing COMELEC with
free air time for the election advertisements, not to mention
upcoming losses in the next elections.
2. Substantive
A. Airing of COMELEC Time, a Reasonable Condition for Grant of
Petitioners Franchise
Petitioners: 92 of BP Blg. 881 violates the due process clause the
eminent domain provision of the Constitution by taking air time from
radio and television broadcasting stations without payment of just
compensation.
Court: A franchise is a privilege granted to an entity, that any such
franchise or right granted . . . shall be subject to amendment, alteration
or repeal by the Congress when the common good so requires.1
- These radio and television broadcasting companies, do not own
the airwaves and frequencies through which they transmit
broadcast signals and images. They are merely given the
temporary privilege of using them.
1 The idea that broadcast stations may be required to provide
COMELEC Time free of charge is not new. It goes back to the
Election Code of 1971 (R.A. No. 6388). The said provision was
carried over with slight modification by the 1978 Election Code
(P.D. No. 1296) and same provision is now embodied in 92 of
B.P. Blg. 881.

Since a franchise is a mere privilege, the exercise of the

privilege may reasonably be burdened with the performance by
the grantee of some form of public service.
o As radio and television broadcast stations do not own
the airwaves, no private property is taken by the
requirement that they provide air time to the
COMELEC.
B. Giving Free Air Time a Duty Assumed by Petitioner
Petitioner: although 5 of R.A. No. 7252 gives the government the
power to temporarily use and operate the stations of petitioner GMA
Network or to authorize such use and operation, the exercise of this
right must be compensated.
Court: Basic flaw in petitioners argument is that it assumes that the
provision for COMELEC Time constitutes the use and operation of the
stations of the GMA Network, Inc. This is not so. Under 92 of B.P.
Blg. 881, the COMELEC does not take over the operation of radio
and television stations but only the allocation of air time
C. Differential Treatment of Broadcast Media Justified
1. Because of the physical limitations of the broadcast
spectrum, the government must, of necessity, allocate broadcast
frequencies to those wishing to use them. There is no similar
justification for government allocation and regulation of the
print media
2. From another point of view, because of the unique and
pervasive influence of the broadcast media, [n]ecessarily . . .
the freedom of television and radio broadcasting is somewhat
lesser in scope than the freedom accorded to newspaper and
print media
D. Requirement of COMELEC Time, a Reasonable Exercise of the
States Power to Regulate Use of Franchises
Petitioner: The power to supervise or regulate given to the
COMELEC under Art. IX-C, 4 of the Constitution does not include
the power to prohibit
Court: As was already state in Osmena v. COMELEC : There is no
suppression of political ads but only a regulation of the time and
manner of advertising.
- For while broadcast media are not mere common carriers but
entities with free speech rights, they are also public trustees

charged with the duty of ensuring that the people have access
to the diversity of views on political issues.
ROMERO, J., Dissenting Opinion
- Private property shall not be taken for public use without just
compensation
PANGANIBAN, J., Dissenting Opinion
- The State does not own the airwaves and broadcast
frequencies. It merely allocates, supervises and regulates their
proper use. Thus, other
than collecting supervision or regulatory fees which it already does,
it cannot exact any onerous and unreasonable post facto burdens
from the franchise holders, without due process and just
compensation
ABS-CBN v. COMELEC
January 28, 2000
PANGANIBAN, J.
FACTS
- ABS-CBN (Lopez Group) has prepared a project, with PR
groups, to conduct exit survey during the elections for national
officials particularly for President and Vice President, results
of which shall be [broadcast] immediately.
- Upon this information, COMELEC issued a resolution
approving the issuance of a restraining order
o Believed that such project might conflict with the
official Comelec count, as well as the unofficial quick
count of Namfrel
ISSUE
WON COMELEC 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 from
conducting exit polls during the election - NO
HELD
Petition GRANTED. COMELEC orders SET ASIDE
RATIO
Case is not moot and academic
- 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
o SC has duty to formulate guiding and controlling
constitutional principles, precepts, doctrines, or rules
Case of transcendental importance so minor procedural defects do not
defeat the case
- Direct resort to the Supreme Court through a special civil
action for certiorari is justified (what should have been
normally done is move for an MR of COMELEC decision)
Exit poll
- An exit poll is 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.
o The results of the survey are announced to the public,
usually through the mass media, to give an advanced
overview of how, in the opinion of the polling
individuals or organizations, the electorate voted
Freedom of expression
- The freedom of expression is a fundamental of our democratic
government.
- It is a preferred right and, therefore, stands on a higher level
than substantive economic or other liberties
o Freedom of thought and speech is the indispensable
condition of nearly every other form of freedom.
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
Since fundamental right, use the clear and present danger test to
ascertain WON infringement is permissible
- 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.

o It is a question of proximity and degree.

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.
- The power to exercise prior restraint is not to be presumed;
rather the presumption is against its validity.
o It is respondents burden to overthrow such
presumption
Overbreadth
- Even though the governments 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
Freedom of speech and press, in furtherance of right to suffrage
- 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
Absolute prohibition of exit polls unnecessary
- Would 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
- Concern with the possible noncommunicative effect of exit
polls disorder and confusion in the voting centers does not
justify a total ban on them.
o The Omnibus Election Code prohibits disruptive
behavior around the voting centers.
There is no evidence showing, however, that
exit polls or the means to interview voters
cause chaos in voting centers.
- Concern that exit polls indirectly transgress the sanctity and the
secrecy of the ballot is not the real issue
o Petitioner does not seek access to the ballots cast by the
voters. The ballot system of voting is not at issue here.

o 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. (Hence facilitating vote
buying)
o This result cannot, however, be achieved merely
through the conduction of the exit polls
Vitug, dissenting
- Case is moot and academic
Kapunan dissenting
- Case is moot and academic
- If the right to free speech collides with a norm of constitutional
stature, the rule on heavy presumption of invalidity does not
apply
SWS v. COMELEC
May 5, 2001
Mendoza, J.
FACTS
- RA 9006 or the Fair Election Act, Section 5.4, prohibits the
publishing of surveys affecting national candidates 15 days
before an election and local candidates 7 days before an
election.
- SWS, who wishes to conduct, release, and publish election
surveys, and Manila Standard, who wishes to publish the same,
brings this action for prohibition to stop COMELEC from
enforcing said provision.
- Petitioners: prior restraint without any clear and present danger
to justify such, and that no similar restriction is imposed on
politicians from explaining their opinion or on newspapers or
broadcast media from writing and publishing articles
concerning political issues up to the day of the election.
- As defense, COMELEC justifies the restriction by saying that
the law has a rational connection to its objective to prevent
the debasement of the electoral process resulting from
manipulated surveys, bandwagon effect, and absence of reply.
Also, they allege that such impairment is minimal since its
restricted both in duration and in scope.

ISSUE/S:
WON RA 9006, Sec 5.4 is an unconstitutional abridgment of free
speech, expression, and press YES.
RATIO:
1. As a prior restraint on freedom of speech, expression, and the press,
the provision is presumed to be invalid.
While COMELEC is granted supervisory power to regulate the
enjoyment/utilization of franchise for the operation of media of
communication under Article IX-C, Sec 4 of the Constitution, such
power is limited to ensuring equal opportunity, time, space, and the
right to reply as well as uniform and reasonable rates of charges for
the use of such media facilities for public information campaigns and
forums among candidates.
2. OBrien Test:
A government regulation is sufficiently justified if (1) its within the
Governments constitutional power (2) furthers an important and
substantial govt interest (3) govt interest is unrelated to the
suppression of free expression (4) incidental restriction on free speech,
expression, and press is no greater than is essential to the furtherance
of such interest.
- In this case, the provision fails the 3rd and 4th criterion.
3rd criteria: Total Suppression of a Category of Expression:
- Section 5.4 shows a bias for a particular subject
matter/viewpoint by preferring personal opinion to statistical
results by allowing the former but suppressing all forms of the
latter on the very same subject matter. And government has no
power to make content-based restrictions on protected speech,
which election surveys fall under.
- In this case, the prior restraint which Section 5.4 imposes on
protected speech is unjustifiable. The prohibition may be for a
limited time, but the curtailment of the right of expression is
direct, absolute, and substantial.
o It constitutes a total suppression of a category of speech
and is not made less so just because its limited for 15/7
days before an election.
4th criteria Restriction Greater than is Necessary to Further Govt
Interest:

Section 5.4 aims to prevent last-minute pressure on voters, the creation

of bandwagon effect, junking of weak or losing candidates, and resort
to the form of election cheating called dagdag-bawas.
- Such interests can be more narrowly pursued by punishing
unlawful acts rather than speech because of apprehension that
such speech creates the danger of such evils.
o COMELEC has the power under the Administrative
Code of 1987 to stop any illegal activity, or confiscate,
tear down, and stop an unlawful, libelous, misleading,
or false election propaganda, after due notice and
hearing. They can confiscate bogus survey results
calculated to mislead voters, candidates can have their
own surveys conducted, and its doubtful if government
can do anything with the natural tendency of
bandwagon effect.
Ang Ladlad LGBT Party v COMELEC (2010)
Del Castillo
Doctrine:
Equality
Equality, said Aristotle, consists in the same treatment of similar
persons. (Politics VII. 14)
Rational basis test for equal protection
Recent jurisprudence has affirmed that if a law neither burdens a
fundamental right nor targets a suspect class, the Supreme Court will
uphold the classification as long as it bears a rational relationship to
some legitimate government end.
"[i]n our jurisdiction, the standard of analysis of equal protection
challenges x x x have followed the `rational basis' test, coupled with
a deferential attitude to legislative classifications and a reluctance to
invalidate a law unless there is a showing of a clear and unequivocal
breach of the Constitution." (Central Bank Employees v. BSP)
Equal protection
The equal protection clause guarantees that no person or class of
persons shall be deprived of the same protection of laws which is
enjoyed by other persons or other classes in the same place and in like
circumstances.

Laws of general application should apply with equal force to

Lesbian, Gay, Bisexual and Transgender (LGBTs), and they
deserve to participate in the party-list system on the same basis
as other marginalized and under-represented sectors.
The principle of non-discrimination requires that laws of
general application relating to elections be applied equally to
all persons, regardless of sexual orientation.

Puno, concurring opinion

- A classification based on gender or sexual orientation is a
quasi-suspect classification, as to trigger a heightened level of
review
UDHR = Universal Declaration of Human Rights
ICCPR = International Covenant on Civil and Political Rights
Petitioner: Ang Ladlad Party List
Respondent: COMELEC
Nature: Petition of Certiorari + writ of preliminary mandatory
injunction on COMELECs refusal to accredit Ang Ladlad as a party
list organization under RA 7941
Facts:
And Ladlad, organization of LGBTs applied for registration on
2006; was denied on the groud that organization had no
substantial membership base
Petition: LGBT is a marginalized and under-represented sector,
LGBT are victims of exclusion, discrimination and violence,
LGBTs are constrained to hide their sexual orientation; they
complied with the 8-point guidelines enunciated by this court
in the Ang Bagong Bayani case
Comelec dismissed petition on moral grounds:
o Collides with Art. 695 of NCC nuisance: (3) Shocks,
defies or disregards decency or morality
o Art 1306 of NCC: contracting parties may establish
such stipulations, clauses, terms and conditions as they
may deem convenient provided they are not contrary to
law, morals, good customs

o Art 1409 CC- contracts whose cause, object or purpose

is contrary to law, morals, good customs, public order
or public policy are inexistent and void from the
beginning.
o Art. 201 of RPC- immoral doctrines obscene
publications and exhibition and indecent shows. (1)
those who shall publicly expound or proclaim doctrines
openly contrary to public morals
o Petitioner not being truthful when it said that it or any
of its nominees/party-list representatives have not
violated or failed to comply with laws, rules or
regulations relating to the elections.
o Cited Lehman Strauss, famous bible teacher in one
article that says older practicing homosexuals are a
threat to the youth. Saying that it is their duty under
Sec 13 Art II of the constitution to protect the youth.
o Party-list system is a tool for the aspiration of the
marginalized individuals whose interests are also the
nations- until the time comes when Ladlad is able to
justify that having mixed sexual orientation and
transgender identities is beneficial to the nation,
application will not be approved.
o US equal protection doctrine pervades Philippine
jurisprudents do not recognize LGBT as a special
class- they will remain either male or female protected
by the same Bill of Rights that applies to all citizens
alike
o As a society, we cannot ignore more than 500 years of
Muslim and Christian upbringing
Jan 4, 2010 Ang Ladlad filed this petition; this court ordered
the OSG to files its Comment: OSG supported the petitioner,
thus this court ordered Comelec to file their own.
CHR filed a motion to intervene, saying that denial of Ang
Ladlads petition on moral grounds violated the Standards and
principles of the Constitution, the Universal Declaration of
Human Rights and the International Covenant on Civil and
Political Rights
Petitioners Arguments:

Denial of accreditation through exclusion by using religious

dogma, violated the constitutional guarantee against
establishment of religion.
Contravened its constitutional rights to privacy, freedom of
speech and assembly, and equal protection of laws as well as
violations to international obligations against discrimination on
sexual orientation
OSG concurred except on the freedom of speech, expression
and assembly.
Respondents Arguments:
Petitioner does not have concrete and genuine national political
agenda
LGBT sector is not among the sectors enumerated by the
Constitution and RA 7941
Petitioner made untruthful statements in its petition when it
alleged national existence contrary to actual verification reports
by comelecs field personnel.
Held
Petition was granted. The Resolutions of the Commission on Elections
were set aside and the COMELEC was directed to grant petitioners
application for party-list accreditation
Isues
WON only the sectors specifically enumerated in the law or related to
said sectors may be registered under the party-list system? (Labor,
peasants, fisherfolk, urban poor, indigenous cultural communities,
elderly, handicapped, women, youth, veterans, overseas workers and
professionals) - NO
o The enumeration is not exclusive, crucial element is
whether a particular organization complies with the
requirements of the constitution and RA 7941.
WON Ang Ladlad made untruthful statements in its petition being of
nationwide existence - NO
o NO, there was incongruence between the statements of
the COMELEC of the untruthful statements by Ang
Ladlad, and either accusation of untruthfulness are not
grounds for denial of accreditation- the change in
respondents theory is a serious violation of the
petitioners right to procedural due process.

o COMELEC erred in their assessment of the

representation of Ang Ladlad because they searched for
registered Ang Ladlad affiliates, whereas Ang Ladlad
gave their own list of affiliates all throughout the
country.
WON petition can be dismissed on the basis of Religious Morals - NO
o The court cited Article 3 Section 5 No law shall be
made respecting an establishment of religion, or
prohibiting the free exercise thereof. Thus,
COMELEC is of grave violation of the nonestablishment clause when they utilized the Bible and
Koran
WON public morals as used by COMELEC, can be used to deny
petition - NO
o NO, there are no laws in the Philippines criminalizing
homosexual conduct, therefore these generally
accepted public morals have not been convincingly
transplanted into the realm of the law.
o The COMELEC also failed to explain the societal ills
sought to be prevented or why special protection is
required for the youth.
o LGBT have the same interest in participating in the
party-list system on the same basis as other political
parties. Laws of general application should apply with
equal force to LGBTs
WON petitioners violated Art 694 and RPC Art 201 - NO
o No, violations would require proof beyond reasonable
doubt to support a criminal conviction, and mere
allegation of violation is not proof.
o Mere blanket invocation of public morals cannot
replace the institution of civil or criminal proceedings
and judicial determination of liability or culpability.
WON LGBT are a separate class - NO
o No, there are not enough evidence to support the claim
and that the COMELEC made an unwarranted and

impermissible classification not justified by the

circumstances of the case.
WON COMELEC violated Ang Ladlads right to privacy, freedom of
speech and assembly and equal protection of laws - YES
o Freedom of expression constitutes one of the essential
foundations of a democratic society, and this freedom
applies not only to those that are favourably received
but also to those that offend, shock, or disturb.
o Absent of any compelling state interest, it is not for the
COMELEC or the Supreme Court to impose its views
on the populace.
The equal protection clause guarantees that no person or
class of persons shall be deprived of the same protection of
laws which is enjoyed by other persons or other classes in
the same place and in like circumstances.
Laws of general application should apply with equal force
to LGBTs, and they deserve to participate in the party-list
system on the same basis as other marginalized and underrepresented sectors.
o This is in accord with the countrys international
obligations to protect and promote human rights. The
principle of non-discrimination as it relates to the right
to electoral participation, enunciated in the UDHR and
the ICCPR, should be recognized.
o COMELEC's act of differentiating LGBTs from
heterosexuals insofar as the party-list system is
concerned does not imply that any other law
distinguishing between heterosexuals and homosexuals
under different circumstances would similarly fail.
CJ Puno, concurring opinion
A classification based on gender or sexual orientation is a quasisuspect classification, as to trigger a heightened level of review