EN BANC[G.R. No. 133486. January 28, 2000] ABS-CBN BROADCASTING CORORATION,, Petitioner, v. CO!!ISSION ON "#"CTIONS, respondent. D " C I S I O N ANGANIBAN, J.$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 pollsproperly conducted and publici!edcan be "ital tools in eliminating the e"ils of electionfixing and fraud. Narro#ly tailored countermeasures may be prescribed by the Comelec so as to minimi!e or suppress the incidentalproblems in the conduct of exit polls, #ithout transgressing in any manner the fundamental rights of our people.T%& Ca'& an( )%& *a+)'Before us is a $etition for Certiorari under %ule &' of the %ules of Court assailing Commission on Elections (Comelec) en banc %esolution No. *+,-,*., dated April /,, ,**+. 0n the said %esolution, the poll body1%E2345E6 to appro"e the issuance of a restraining order to stop AB2CBN or any other groups, its agents or representati"es from conducting such exit sur"ey and to authori!e the Honorable Chairman to issue the same.1The %esolution #as issued by the Comelec allegedly upon 1information from .a7 reliable source that AB2CBN (4ope! 8roup) has prepared a pro9ect, #ith $% groups, to conduct radioT5 co"erage of the elections x x x and to ma:e .an7 exit sur"ey of the x x x "ote during the elections for national officials particularly for $resident and 5ice $resident, results of #hich shall be .broadcast7 immediately.1./ The electoral body belie"ed that such pro9ect might conflict #ith the official Comelec count, as #ell as the unofficial ;uic: count of the National 2) sur"eys conducted in fifteen administrati"e regions.10t argues that the holding of exit polls andthe nation#ide reporting of their results are "alid exercises of the freedoms of speech and of the press. 0t submits that, in precipitately and un;ualifiedly restraining the holding and the reporting of exit polls, the Comelec gra"ely abused its discretion and grossly "iolated the petitionerAs constitutional rights.$ublic respondent, on the other hand, "ehemently denies that, in issuing the assailed %esolution, it gra"ely abused its discretion. 0t insists that the issuance thereof #as 1pursuant to its constitutional and statutory po#ers to promote a clean, honest, orderly and credible hile the liberty to thin: is absolute, the po#er to express such thoughtin #ords and deeds has limitations.0n Cabansag v. Fernandez.// this Court had occasion to discuss t#o theoretical tests in determining the "alidity of restrictions to such freedoms, as follo#s?1These are the Aclear and present dangerA rule and the Adangerous tendencyA rule. The first, as interpreted in a number of cases, means that the e"il conse;uence of the comment or utterance must be Aextremely serious andthe degree of imminence extremely highA before the utterance can be punished. The danger to be guarded against is the Asubstanti"e e"ilA sought to be pre"ented. x x x1./@1The Adangerous tendencyA rule, on the other hand, x x x may be epitomi!ed as follo#s? 0f the #ords uttered create a dangerous tendency #hich the state has a right to pre"ent, then such #ords are punishable. 0t is not necessary that some definite or immediate acts of force, "iolence, or unla#fulness be ad"ocated. 0t is sufficient that such acts be ad"ocated in general terms. Nor is it necessary that the language used be reasonably calculated to incite persons to acts of force, "iolence, or unla#fulness. 0t is sufficient if the natural tendency and probable effect of the utterance be to bring about the substanti"e e"il #hich the legislati"e body see:s to pre"ent.1./- Dn;uestionably, this Court adheres to the 1clear and present danger1 test. 0t implicitly did in its earlier decisions in Primicias v. Fugoso/' and American Bible Society v. City of ManilaE./& as #ell as in later ones, Vera v. Arca,./B avarro v. Villegas,./+ !mbong v.Ferrer,./* Blo "m#ar Adiong v. Comelec.@C and, more recently, in !glesia ni Cristo v. M$%CB..@, 0n setting the standard or test for the 1clear and present danger1 doctrine, the Court echoed the #ords of 9ustice Holmes? 1The ;uestion in e"ery case is #hether the #ords used are used in such circumstances and are of such a nature as to create a clear and present danger that they #ill bring about the substanti"e e"ils that Congress has a right to pre"ent. 0t is a ;uestion of proximity and degree.1@/ A limitation on the freedom of expression may be 9ustified only by a danger of suchsubstanti"echaracter that thestate has a right to pre"ent. Dnli:e in the 1dangerous tendency1 doctrine, the danger must not only be clear but also present. 1$resent1 refers to the time elementE the danger must not only be probable but "ery li:ely to be ine"itable..@@ The e"il sought to be a"oided must be so substanti"e as to 9ustify a clamp o"er oneAs mouth or a restraint of a #riting instrument..@- Justification for a estriction6octrinally, the Court has al#ays ruled in fa"or of the freedom of expression, and any restriction is treated an exemption. The po#er to exercise prior restraint is not to be presumedE rather the presumption is against its "alidity..@' And it is respondentAs burden to o"erthro# such presumption. Any act that restrains speech should be greeted #ith furro#ed bro#s,.@& so it has been said.To 9ustify a restriction, the promotion of a substantial go"ernment interest must be clearly sho#n..@B Thus?1A go"ernment regulation is sufficiently 9ustified if it is #ithin the constitutional po#er of the go"ernment, if it furthers an important or substantial go"ernment interestE if the go"ernmental interest is unrelated to the suppression of free expressionE and if the incidental restriction on alleged =irst Amendment freedoms is no greater than is essential to the furtherance of that interest.1.@+ Hence, e"en though the go"ernmentAs purposes are legitimate and substantial, they cannot be pursued by means that broadly, stiflefundamental personal liberties, #hen the end can be more narro#ly achie"ed..@* The freedoms of speech and of the press should all the more be upheld #hen #hat is sought to be curtailed is the dissemination of information meant to add meaning to the e;ually "ital right of suffrage..-C >e cannot support any ruling or order 1the effect of #hich #ould be to nullify so "ital a constitutional right as free speech.1.-, >hen faced #ith borderline situationsin #hich the freedom of a candidate or a party to spea: or the freedom of the electorate to :no# is in"o:ed against actions allegedly made to assure clean and free elections, this Court shall lean in fa"or of freedom. =or in the ultimate analysis, the freedom of the citi!en and the 2tateAs po#er to regulate should not be antagonistic. There can be no free and honest elections if, in the efforts to maintain them, the freedom to spea: and the right to :no# are unduly curtailed..-/ True, the go"ernment has a sta:e in protecting the fundamental right to "ote by pro"iding "oting places that are safe and accessible.0t has the duty to secure the secrecy of the ballot and to preser"e the sanctity and the integrity of the electoral process. Ho#e"er, in order to 9ustify a restriction of the peopleAs freedoms of speech and of the press, the stateAs responsibility of ensuring orderly "oting must far out#eigh them.These freedoms ha"e additional importance, because exit polls generate important research data#hich may be used tostudy influencing factors and trends in "oting beha"ior. An absolute prohibition #ould thus be unreasonably restricti"e, because it effecti"ely pre"ents the use of exit poll data not only for electionday pro9ections, but also for longterm research..-@ Comelec !an on Exit Polling 0n the case at bar, the Comelec 9ustifies its assailed %esolution as ha"ing been issued pursuant to its constitutional mandate to ensure a free, orderly, honest, credible and peaceful election. >hile admitting that 1the conduct of an exit poll and the broadcast of the results thereof .are7 x x x an exercise of press freedom,1 it argues that 1.p7ress freedom may be curtailed if the exercise thereof creates a clear and present danger to the community or it has a dangerous tendency.1 0t then contends that 1an exit poll has the tendency to so# confusion considering the randomness of selecting inter"ie#ees, #hich further ma:e.s7 the exit poll highly unreliable. The probability that the results of such exit poll may not be in harmony #ith the official count made by the Comelec x x x is e"er present. 0n other #ords, the exit poll has a clear and present danger of destroying the credibility and integrity of the electoral process.12uch arguments are purely speculati"e and clearly untenable. =irst, by the "ery nature of a sur"ey, the inter"ie#ees or participants are selected at random, so that the results #ill as much as possible be representati"e or reflecti"e of the general sentiment or "ie# of the community or group polled. Second, the sur"ey result is not meant to replace or be at par #ith the official Comelec count. 0t consists merely of the o#inion of the polling group as to #ho the electorate in general has probably "oted for, based on the limited data gathered from polled indi"iduals. =inally, not at sta:e here are the credibility and the integrity of the elections, #hich 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. 0f at all, the outcome of one can only be indicati"e of the other.The ComelecAs concern #ith the possible noncommunicati"e effect of exit pollsdisorder and confusion in the "oting centersdoes not 9ustify a total ban on them. Dndoubtedly, the assailed Comelec %esolution is too broad, since its application is#ithout ;ualification as to #hether the polling is disrupti"e or not..-- Concededly, the 3mnibus Election Code prohibits disrupti"e beha"ior around the "oting centers.-' There is no sho#ing, ho#e"er, that exit polls or the means to inter"ie# "oters cause chaos in "oting centers. Neither has any e"idence been presented pro"ing that the presence of exit poll reporters near an election precinct tends to create disorder or confuse the "oters.