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CONCURRING OPINION

PUNO, J.:

Petitioners seek to declare as unconstitutional Section 5.4 of R.A. No. 9006, otherwise known as the Fair Election Act, which states:

Sec. 5.4. Surveys affecting national candidates shall not be published fifteen (15) days before an election and surveys affecting local candidates shall not be published seven (7) days before an election.¹cräläwvirtualibräry

Surveys refer to the measurement of opinions and perceptions of the voters as regards a candidates popularity, qualifications, platforms or a matter of public discussion in relation to the election, including voters preference for candidates or publicly discussed issues during the campaign period xxx. ² Violation of the prohibition is punishable as an election offense under section 264 of B.P. 881, otherwise known as the Omnibus Election Code. ³cräläwvirtualibräry

Petitioners assail the law as constitutionally infirmed on the ground that it is an abridgment of their freedom of speech and of the press. ⁴ I concur with the majority opinion penned by Mr. Justice Mendoza which is protective of speech and file this separate opinion by way of supplement.

It is now deeply embedded in our jurisprudence that freedom of speech and of the press enjoys a preferred status in our hierarchy of rights. ⁵ The rationale is that the preservation of other rights depend on how well we protect our freedom of speech and of the press. In view of the preferred status of freedom of speech and of the press, several tests have been enunciated to protect it. We have the dangerous tendency test which now commands little following. We have the clear and present danger test, the most libertarian test, formulated by Justice Holmes in Schenk v. United States, ⁶ viz: 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 evil that the State has a right to prevent. In Gonzales v. COMELEC, ⁷ Mr. Chief Justice Fernando explained that 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. We have the various balancing tests typified by the Obrien test, ⁸ to wit:

[A] government regulation is sufficiently justified [1] if it is within the constitutional power of the Government; [2] if it furthers an important or substantial governmental interest; [3] if the governmental interest is unrelated to the suppression of free expression; and [4] if the incidental restriction on alleged First Amendment freedoms [of speech, expression and press] is no greater than is essential to the furtherance of that interest.

All of these tests have their own criticisms but I need not express any preference for any of these tests to resolve the case at bar, for regardless of the test used, the assailed provision is void on its face and patently unconstitutional.

The provision in question is unconstitutional because it constitutes a clear prior restraint on petitioners freedom of speech and of the press. I like to stress on the prohibition against prior restraint for two reasons: (1) a historical study of human rights will show that it is prior restraint that gave rise to freedom of speech and of the press; and (2) there is a growing tendency, as noted by legal observers, for governments to manipulate the free market of ideas in the guise of merely regulating the time, manner and place of exercising freedom of speech and of the press. The tendency appears in various masks. One of them is thru prior restraint or thru subsequent punishment of acts regulating the exercise of freedom of speech and of the press.

The invention of printing in the fifteenth century revolutionized the communication of ideas. Soon it dawned on the temporal and spiritual authorities that printing should be controlled and thus prior restraint on freedom of speech and of the press was born. ⁹ In 1501, Pope Alexander VI issued a Bull banning unlicensed printing. In England, printing became a monopoly and was strictly dispensed and controlled by the Crown. It was only in 1695 that the House of Commons declined to reenact its licensing statute. ¹⁰ In the 18^th century, however, the right of the press against prior licensing gained the important status of a natural right in England. ¹¹ In 1791, The First Amendment to the US Constitution, prohibiting the abridgement of freedom of speech and of the press, was ratified by the States. Undoubtedly, the First Amendment is a bar against any prior restraint, especially the classic form of licensing by government authorities. Thus, in the United States, the prohibition was elevated to a constitutional principle. In 1931, in the leading case of Near v. Minnessota, ¹² the US Supreme Court, speaking thru Mr. Chief Justice Hughes expressly ruled that xxx liberty of the press, historically considered and taken up by the Federal Constitution, has meant, principally although not exclusively, immunity from previous restraints or censorship. Our Constitutions of 1935, 1973, and 1987 guaranteed freedom of speech and of the press and undeniably, we adopted the US model and its rationale. I therefore emphasize that prior restraints on freedom of speech and of the press should be given the strictest of scrutiny in light of their inherent and invasive impact.

In the case at bar, the law bans publication of surveys affecting national candidates 15 days before an election and surveys affecting local candidates 7 days before an election. Violation of the ban carries a criminal sanction. This is pure and simple prior restraint on the communication and free flow of ideas which should be made available to voters before they exercise their right of suffrage, the core of their political sovereignty. Prior restraint can be justified only on the narrowest of ground like national security. The prior restraint in the case at bar is not based on compelling reasons in the category of national security and hence is intolerable for government should not be encouraged to take any step to control the subject matter of speech, otherwise it will have the dangerous power to manipulate the form and shape of thoughts that will compete in the market of ideas. In the free market of ideas, government is bound to follow the laissez faire policy to the maximum and not the paternalistic policy of government knows best.

The provision in question is also void for its overbreadth. The overbreadth doctrine prohibits government from achieving its purpose by means that sweep unnecessarily broadly, reaching constitutionally protected as well as unprotected activity. ¹³ Stated otherwise, the esence of overbreadth is that government has gone too far: its legitimate interest can be satisfied without reaching so broadly in to the area of protected freedom. ¹⁴cräläwvirtualibräry

In the case at bar, the prohibited surveys are all inclusive. They include measurement of opinions and perceptions of the voters as regards a candidates popularity, qualification, platforms or a matter of public discussion in relation to the election, including voters preference for candidates or publicly discussed issues during the campaign period xxx. Clearly, the provision bans not only popularity surveys which show the winning and losing candidates but all measurement of opinions and perceptions of the voters as regards a candidates xxx qualifications, platforms or a matter of public discussion in relation to the election xxx. The inhibitory effect of this ban on free speech and the free flow of information which voters need to guide their choice of candidates is too much. Indeed, the ban does not distinguish between biased and unbiased surveys or between surveys conducted with scientific accuracy and surveys done sloppily or between surveys that help enlighten voters in exercising their right of suffrage and surveys that mislead. Petitioner Social Weather Stations, Inc. is one of our more reliable private non-stock, nonprofit social research institutions with a no-nonsense record. Yet, the provision in question, because of its overbreadth, will bar petitioner from making its useful pre-election surveys. Certainly, there are less drastic means which government can utilize to achieve its objective of protecting voters from false, misleading and unfair surveys.

I vote to grant the petition.

¹ See also section 24 (H) of COMELEC Resolution No. 3636 implementing R.A. No. 9006.

² Ibid., section 1 (9) (e).

³ See Section 13 of R.A. No. 9006.

⁴ See section 4 of Article III of the 1987 Constitution.

⁵ Philippine Blooming Mills Employees Organization v. Philippine Blooming Mills, 51 SCRA 189 (1973).

⁶ 249 US 47 (1919).

⁷ 27 SCRA 835 (1969).

⁸ See US v. Obrien, 391 US 367, 20 L. Ed. 672 (1968).

⁹ Press Control and