G.R. No. 132231

G.R. No. 132231, March 31, 1998,
♦ Decision, Romero, [J]
♦ Concurring Opinion, Puno, [J]
♦ Concurring Opinion, Vitug, [J]
♦ Dissenting Opinion, Panganiban, [J]
♦ Dissenting Opinion, Romero, [J]

EMILIO M. R. OSMEÑA and PABLO P. GARCIA, petitioners,
vs.
THE COMMISSION ON ELECTIONS, respondent.

This is a petition for prohibition, seeking a reexamination of the validity of §11(b) of R.A. No. 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 Commission on Elections.1 Petitioners are candidates for public office in the forthcoming elections. Petitioner Emilio M. R. Osmeña 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 National Press Club v. Commission on Elections2 "have called into question the validity of the very premises of that [decision]."3

NPC v. COMELEC upheld the validity of §11(b) of R.A. No. 6646 against claims that it abridged freedom of speech and of the press.4 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 candidate[s]"5 by depriving them of a medium which they can afford to pay while their more affluent rivals can always resort to other means of reaching voters like airplanes, boats, rallies, parades, and handbills.

No empirical data have been presented by petitioners to back up their claim, however. Argumentation is made at the theoretical and not the practical level. Unable to show the "experience" and "subsequent events" which they claim invalidate the major premise of our prior decision, petitioners now say "there is no need for 'empirical data' to determine whether the political ad ban offends the Constitution or not."6 Instead they make arguments from which it is clear that their disagreement is with the opinion of the Court on the constitutionality of §11(b) of R.A. No. 6646 and that what they seek is a reargument on the same issue already decided in that case. What is more, some of the arguments were already considered and rejected in the NPC case.7

Indeed, petitioners do not complain of any harm suffered as a result of the operation of the law. They do not complain that they have in any way been disadvantaged as a result of the ban on media advertising. Their contention that, contrary to the holding in NPC, §11(b) works to the disadvantage of candidates who do not have enough resources to wage a campaign outside of mass media can hardly apply to them. Their financial ability to sustain a long drawn-out campaign, using means other than the mass media to communicate with voters, cannot be doubted. If at all, it is candidates like intervenor Roger Panotes, who is running for mayor of Daet, Camarines Norte, who can complain against §11(b) of R.A. No. 6646. But Panotes is for the law which, he says, has "to some extent, reduced the advantages of moneyed politicians and parties over their rivals who are similarly situated as ROGER PANOTES." He claims that "the elimination of this substantial advantage is one reason why ROGER PANOTES and others similarly situated have dared to seek an elective position this coming elections."8

What petitioners seek is not the adjudication of a case but simply the holding of an academic exercise. And since a majority of the present Court is unpersuaded that its decision in NPC is founded in error, it will suffice for present purposes simply to reaffirm the ruling in that case. Stare decisis et non quieta movere. This is what makes the present case different from the overruling decisions9 invoked by petitioners.

Nevertheless, we have undertaken to revisit the decision in NPC v. COMELEC in order to clarify our own understanding of its reach and set forth a theory of freedom of speech.

No Ad Ban, Only a Substitution of
COMELEC Space and COMELEC
Time for the Advertising Page and
Commercials in Mass Media

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.

On the other hand, the Omnibus Election Code provisions referred to in §11(b) read:

The law's concern is not with the message or content of the ad but with ensuring media equality between candidates with "deep pockets," as Justice Feliciano called them in his opinion of the Court in NPC, and those with less resources.10 The law is part of a package of electoral reforms adopted in 1987. Actually, similar effort was made in 1970 to equalize the opportunity of candidates to advertise themselves and their programs of government by requiring the COMELEC to have a COMELEC space in newspapers, magazines, and periodicals and prohibiting candidates to advertise outside such space, unless the names of all the other candidates in the district in which the candidate is running are mentioned "with equal prominence." The validity of the law was challenged in Badoy, Jr. v. COMELEC.11 The voting was equally divided (5-5), however, with the result that the validity of the law was deemed upheld.

There is a difference in kind and in severity between restrictions such as those imposed by the election law provisions in question in this case and those found to be unconstitutional in the cases cited by both petitioners and the Solicitor General, who has taken the side of petitioners. In Adiong v. COMELEC12 the Court struck down a regulation of the COMELEC which prohibited the use of campaign decals and stickers on mobile units, allowing their location only in the COMELEC common poster area or billboard, at the campaign headquarters of the candidate or his political party, or at his residence. The Court found the restriction "so broad that it encompasses even the citizen's private property, which in this case is a privately-owned car."13 Nor was there a substantial governmental interest justifying the restriction.

Mutuc v. COMELEC15 is of a piece with Adiong. An order of the COMELEC prohibiting the playing of taped campaign jingles through sound systems mounted on mobile units was held to be an invalid prior restraint without any apparent governmental interest to promote, as the restriction did not simply regulate time, place or manner but imposed an absolute ban on the use of the jingles. The prohibition was actually content-based and was for that reason bad as a prior restraint on speech, as inhibiting as prohibiting the candidate himself to use the loudspeaker. So is a ban against newspaper columnists expressing opinion on an issue in a plebiscite a content restriction which, unless justified by compelling reason, is unconstitutional.16

Here, on the other hand, there is no total ban on political ads, much less restriction on the content of the speech. Given the fact that print space and air time can be controlled or dominated by rich candidates to the disadvantage of poor candidates, there is a substantial or legitimate governmental interest justifying exercise of the regulatory power of the COMELEC under Art. IX-C, §4 of the Constitution, which provides:

The provisions in question involve no suppression of political ads. The only prohibit the sale or donation of print space and air time to candidates but require the COMELEC instead to procure space and time in the mass media for allocation, free of charge, to the candidates. In effect, during the election period, the COMELEC takes over the advertising page of newspapers or the commercial time of radio and TV stations and allocates these to the candidates.

Nor can the validity of the COMELEC take-over for such temporary period be doubted.17 In Pruneyard Shopping Center v. Robbins,18 it was held that a court order compelling a private shopping center to permit use of a corner of its courtyard for the purpose of distributing pamphlets or soliciting signatures for a petition opposing a UN resolution was valid. The order neither unreasonably impaired the value or use of private property nor violated the owner's right not to be compelled to express support for any viewpoint since it can always disavow any connection with the message.

On the other hand, the validity of regulations of time, place and manner, under well-defined standards, is well-nigh beyond question.19 What is involved here is simply regulation of this nature. Instead of leaving candidates to advertise freely in the mass media, the law provides for allocation, by the COMELEC, of print space and air time to give all candidates equal time and space for the purpose of ensuring "free, orderly, honest, peaceful, and credible elections."

In Gonzales v. COMELEC,20 the Court sustained the validity of a provision of R.A. No. 4880 which in part reads:

In Valmonte v. COMELEC,21 on the other hand, the Court upheld the validity of a COMELEC resolution prohibiting members of citizen groups or associations from entering any polling place except to vote. Indeed, §261(k) of the Omnibus Election Code makes it unlawful for anyone to solicit votes in the polling place and within a radius of 30 meters thereof.

These decisions come down to this: the State can prohibit campaigning outside a certain period as well as campaigning within a certain place. 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.

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.

Petitioners and the dissenters make little of this on the ground that the regulation, which they call a ban, would be useless any other time than the election period. Petitioners state: "[I]n testing the reasonableness of a ban on mountain-skiing, one cannot conclude that it is limited because it is enforced only during the winter season."22 What makes the regulation reasonable is precisely that it applies only to the election period. Its enforcement outside the period would make it unreasonable. More importantly, it should be noted that a "ban on mountain skiing" would be passive in nature. It is like the statutory cap on campaign expenditures, but is so unlike the real nature of §11(b), as already explained.

Petitioners likewise deny that §11(b) is limited in scope, as they make another quaint argument:

The premise of this argument is that §11(b) imposes a ban on media political advertising. What petitioners seem to miss is that the prohibition against paid or sponsored political advertising is only half of the regulatory framework, the other half being the mandate of the COMELEC to procure print space and air time so that these can be allocated free of charge to the candidates.

Petitioners argue that the reasoning of NPC is flawed, because it rests on a misconception that Art. IX-C, §4 mandates the absolute equality of all candidates regardless of financial status, when what this provision speaks of is "equality of opportunity." In support of this claim, petitioners quote the following from the opinion of the Court written by Justice Feliciano:

The Court meant equalizing media access, as the following sentences which were omitted clearly show:

On the other hand, the dissent of Justice Romero in the present case, in batting for an "uninhibited market place of ideas," quotes the following from Buckley v. Valeo:

But do we really believe in that? That statement was made to justify striking down a limit on campaign expenditure on the theory that money is speech. Do those who endorse the view that government may not restrict the speech of some in order to enhance the relative voice of others also think that the campaign expenditure limitation found in our election laws27 is unconstitutional? How about the principle of one person, one vote,28 is this not based on the political equality of voters? Voting after all is speech. We speak of it as the voice of the people — even of God. 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. It is not to the Philippine Constitution, being in fact an animating principle of that document.

Indeed, Art. IX-C, §4 is not the only provision in the Constitution mandating political equality. Art. XIII, §1 requires Congress to give the "highest priority" to the enactment of measures designed to reduce political inequalities, while Art. II, §26 declares as a fundamental principle of our government "equal access to opportunities for public service." Access to public office will be denied to poor candidates if they cannot even have access to mass media in order to reach the electorate. What fortress principle trumps or overrides these provisions for political equality?

Unless the idealism and hopes which fired the imagination of those who framed the Constitution now appear dim to us, how can the electoral reforms adopted by them to implement the Constitution, of which §11(b) of R.A. No. 6646, in relation to §§90 and 92 are part, be considered infringements on freedom of speech? That the framers contemplated regulation of political propaganda similar to §11(b) is clear from the following portion of the sponsorship speech of Commissioner Vicente B. Foz:

Petitioners contend that §11(b) is not a reasonable means for achieving the purpose for which it was enacted. They claim that instead of levelling the playing field as far as the use of mass media for political campaign is concerned, §11(b) has abolished it. They further claim that §11(b) does not prevent rich candidates from using their superior resources to the disadvantage of poor candidates.

All this is of course mere allegation. As stated in the beginning, what petitioners claim to be the nation's experience with the law is merely argumentation against its validity. The claim will not bear analysis, however. Assuming that rich candidates can spend for parades, rallies, motorcades, airplanes and the like in order to campaign while poor candidates can only afford political ads, the gap between the two will not necessarily be reduced by allowing unlimited mass media advertising because rich candidates can spend for other propaganda in addition to mass media advertising. Moreover, it is not true that §11(b) has abolished the playing field. What it has done, as already stated, is merely to regulate its use through COMELEC-sponsored advertising in place of advertisements paid for by candidates or donated by their supporters.

It is finally argued that COMELEC Space and COMELEC Time are ineffectual.ℒαwρhi৷ 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. Well-settled is the rule that the choice of remedies for an admitted social malady requiring government action belongs to Congress. The remedy prescribed by it, unless clearly shown to be repugnant to fundamental law, must be respected.30 As shown in this case, §11(b) of R.A. 6646 is a permissible restriction on the freedom of speech, of expression and of the press.

Dissenting, Justice Panganiban argues that advertising is the most effective means of reaching voters. He adverts to a manifestation of the COMELEC lawyer that the Commission "is not procuring [Comelec Space] by virtue of the effects of the decision of this Honorable Court in the case of Philippine Press Institute (PPI) vs. Comelec, 244 SCRA 272."31

To be sure, this Court did not hold in PPI v. COMELEC that it should not procure newspaper space for allocation to candidates. What it ruled is that the COMELEC cannot procure print space without paying just compensation. Whether by its manifestation the COMELEC meant it is not going to buy print space or only that it will not require newspapers to donate free of charge print space is not clear from the manifestation. It is to be presumed that the COMELEC, in accordance with its mandate under §11(b) of R.A. No. 6646 and §90 of the Omnibus Election Code, will procure print space for allocation to candidates, paying just compensation to newspapers providing print space.

In any event, the validity of a law cannot be made to depend on the faithful compliance of those charged with its enforcement but by appropriate constitutional provisions. There is a remedy for such lapse if it should happen. In addition, there is the COMELEC Time during which candidates may advertise themselves. Resolution No. 2983-A of the COMELEC provides:

The fact is that efforts have been made to secure the amendment or even repeal of §11(b) of R.A. No. 6646. No less than five bills32 were filed in the Senate in the last session of Congress for this purpose, but they all failed of passage. Petitioners claim it was because Congress adjourned without acting on them. But that is just the point. Congress obviously did not see it fit to act on the bills before it adjourned.

We thus have a situation in which an act of Congress was found by this Court to be valid so that those opposed to the statute resorted to the legislative department.ℒαwρhi৷ The latter reconsidered the question but after doing so apparently found no reason for amending the statute and therefore did not pass any of the bills filed to amend or repeal the statute. Must this Court now grant what Congress denied to them? The legislative silence here certainly bespeak of more than inaction.

In Adiong v. COMELEC34 this Court quoted the following from the decision of the U.S. Supreme Court in a case sustaining a Los Angeles City ordinance which prohibited the posting of campaign signs on public property:

This test was actually formulated in United States v. O'Brien.36 It is an appropriate test for restrictions on speech which, like §11(b), are content-neutral. Unlike content-based restrictions, they are not imposed because of the content of the speech. For this reason, content-neutral restrictions are tests demanding standards. For example, a rule such as that involved in Sanidad v. COMELEC,37 prohibiting columnists, commentators, and announcers from campaigning either for or against an issue in a plebiscite must have a compelling reason to support it, or it will not pass muster under strict scrutiny. These restrictions, it will be seen, are censorial and therefore they bear a heavy presumption of constitutional invalidity. In addition. they will be tested for possible overbreadth and vagueness.

It is apparent that these doctrines have no application to content-neutral regulations which, like §11(b), are not concerned with the content of the speech. These regulations need only a substantial governmental interest to support them.38 A deferential standard of review will suffice to test their validity.

Justice Panganiban's dissent invokes the clear-and-present-danger test and argues that "media ads do not partake of the 'real substantive evil' that the state has a right to prevent and that justifies the curtailment of the people's cardinal right to choose their means of expression and of access to information." 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 a guilty conspiracy or attempt begins.39 Clearly, it is inappropriate as a test for determining the constitutional validity of laws 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.

The reason for this 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. No such reasons underlie content-neutral regulations, like regulations of time, place and manner of holding public assemblies under B.P. Blg. 880, the Public Assembly Act of 1985. Applying the O'Brien test in this case, we find that §11(b) of R.A. No. 6646 is a valid exercise of the power of the State to regulate media of communication or information for the purpose of ensuring equal opportunity, time and space for political campaigns; that the regulation is unrelated to the suppression of speech; that any restriction on freedom of expression is only incidental and no more than is necessary to achieve the purpose of promoting equality.

The Court is just as profoundly aware as anyone else that discussion of public issues and debate on the qualifications of candidates in an election are essential to the proper functioning of the government established by our Constitution. But it is precisely with this awareness that we think democratic efforts at reform should be seen for what they are: genuine efforts to enhance the political process rather than infringements on freedom of expression. The statutory provision involved in this case is part of the reform measures adopted in 1987 in the aftermath of EDSA. A reform-minded Congress passed bills which were consolidated into what is now R.A No. 6646 with near unanimity. The House of Representatives, of which petitioner Pablo P. Garcia was a distinguished member, voted 96 to 1 (Rep. Eduardo Pilapil) in favor, while the Senate approved it 19-0.40

In his recent book. The Irony of Free Speech, Owen Fiss speaks of "a truth that is full of irony and contradiction: that the state can be both an enemy and a friend of speech; that it can do terrible things to undermine democracy but some wonderful things to enhance it as well."41 We hold R.A. No. 6646, §11(b) to be such a democracy-enhancing measure. For Holmes's marketplace of ideas can prove to be nothing but a romantic illusion if the electoral process is badly skewed, if not corrupted, by the unbridled use of money for campaign propaganda.

Narvasa, C.J., Regalado, Davide, Jr., Bellosillo, Kapunan and Martinez, JJ., concur.