GMA Network Inc. v. COMELEC, G.R. No. 205357 September 2, 2014

Peralta, J.:

Facts: Assailed in these petitions are certain regulations promulgated by the Commission on Elections (COMELEC) relative to the conduct of the 2013 national and local elections dealing with political advertisements. Specifically, the petitions question the constitutionality of the limitations placed on aggregate airtime allowed to candidates and political parties, as well as the requirements incident thereto, such as the need to report the same, and the sanctions imposed for violations.

The five (5) petitions before the Court put in issue the alleged unconstitutionality of Section 9 (a) of COMELEC Resolution No. 9615 (Resolution) limiting the broadcast and radio advertisements of candidates and political parties for national election positions to an aggregate total of one hundred twenty (120) minutes and one hundred eighty (180) minutes, respectively. They contend that such restrictive regulation on allowable broadcast time violates freedom of the press, impairs the people's right to suffrage as well as their right to information relative to the exercise of their right to choose who to elect during the forth coming elections.

During the previous elections of May 14, 2007 and May 10, 2010, COMELEC issued Resolutions implementing and interpreting Section 6 of R.A. No. 9006, regarding airtime limitations, to mean that a candidate is entitled to the aforestated number of minutes "per station." For the May 2013 elections, however, respondent COMELEC promulgated Resolution No. 9615 dated January 15, 2013, changing the interpretation of said candidates' and political parties' airtime limitation for political campaigns or advertisements from a "per station" basis, to a "total aggregate" basis.

Petitioners ABS-CBN Corporation (ABS-CBN), ABC Development Corporation (ABC), GMA Network, Incorporated ( GMA), Manila Broadcasting Company, Inc. (MBC), Newsounds Broadcasting Network, Inc. (NBN), and Radio Mindanao Network, Inc. (RMN) are owners/operators of radio and television networks in the Philippines, while petitioner Kapisanan ng mga Brodkaster ng Pilipinas (KBP) is the national organization of broadcasting companies in the Philippines representing operators of radio and television stations and said stations themselves. They sent their respective letters to the COMELEC questioning the provisions of the aforementioned Resolution, thus, the COMELEC held public hearings.

All of the petitioners assail the following provisions of the Resolution:

a) Section 7 (d),8 which provides for a penalty of suspension or revocation of an offender's franchise or permit, imposes criminal liability against broadcasting entities and their officers in the event they sell airtime in excess of the size, duration, or frequency authorized in the new rules;

b) Section 9 (a),9 which provides for an "aggregate total" airtime instead of the previous "per station" airtime for political campaigns or advertisements, and also required prior COMELEC approval for candidates' television and radio guestings and appearances; and

c) Section 14,10 which provides for a candidate's "right to reply."

In addition, petitioner ABC also questions Section 1 (4) 11 thereof, which defines the term "political advertisement" or "election propaganda," while petitioner GMA further assails Section 35, 12 which states that any violation of said Rules shall constitute an election offense.

On March 15, 2013, Senator Alan Peter S. Cayetano (Petitioner-Intervenor) filed a Motion for Leave to Intervene and to File and Admit the Petition-in-Intervention, which was granted by the Court per its Resolution dated March 19, 2013. Petitioner-Intervenor also assails Section 9 (a) of the Resolution changing the interpretation of candidates' and political parties' airtime limitation for political campaigns or advertisements from a "per station" basis, to a "total aggregate" basis. Petitioners allege that Resolutions No. 9615 and 9631, amending the earlier Resolution, are unconstitutional and issued without jurisdiction or with grave abuse of discretion amounting to lack or excess of jurisdiction, for the reasons set forth hereunder.

Petitioners posit that Section 9 (a) of the assailed Resolution provides for a very restrictive aggregate airtime limit and a vague meaning for a proper computation of "aggregate total" airtime, and violates the equal protection guarantee, thereby defeating the intent and purpose of R.A. No. 9006.

Petitioners contend that Section 9 (a), which imposes a notice requirement, is vague and infringes on the constitutionally protected freedom of speech, of the press and of expression, and on the right of people to be informed on matters of public concern

Also, Section 9 (a) is a cruel and oppressive regulation as it imposes an unreasonable and almost impossible burden on broadcast mass media of monitoring a candidate's or political party's aggregate airtime, otherwise, it may incur administrative and criminal liability.

Further, petitioners claim that Section 7 (d) is null and void for unlawfully criminalizing acts not prohibited and penalized as criminal offenses by R.A. No. 9006.

Section 14 of Resolution No. 9615, providing for a candidate's or political party's "right to reply," is likewise assailed to be unconstitutional for being an improper exercise of the COMELEC's regulatory powers; for constituting prior restraint and infringing petitioners' freedom of expression, speech and the press; and for being violative of the equal protection guarantee. In addition to the foregoing, petitioner GMA further argues that the Resolution was promulgated without public consultations, in violation of petitioners' right to due process. Petitioner ABC also avers that the Resolution's definition of the terms "political advertisement" and "election propaganda" suffers from overbreadth, thereby producing a "chilling effect," constituting prior restraint.

Respondent contends that the remedies of certiorari and prohibition are not available to petitioners, because the writ of certiorari is only available against the COMELEC's adjudicatory or quasi-judicial powers, while the writ of prohibition only lies against the exercise of judicial, quasi-judicial or ministerial functions. Said writs do not lie against the COMELEC's administrative or rule-making powers.

Respondent likewise alleges that petitioners do not have locus standi, as the constitutional rights and freedoms they enumerate are not personal to them, rather, they belong to candidates, political parties and the Filipino electorate in general, as the limitations are imposed on candidates, not on media outlets. It argues that petitioners' alleged risk of exposure to criminal liability is insufficient to give them legal standing as said "fear of injury" is highly speculative and contingent on a future act. Respondent then parries petitioners' attack on the alleged infirmities of the Resolution's provisions.

Respondent maintains that the per candidate rule or total aggregate airtime limit is in accordance with R.A. No. 9006 as this would truly give life to the constitutional objective to equalize access to media during elections. It sees this as a more effective way of levelling the playing field between candidates/political parties with enormous resources and those without much. Moreover, the COMELEC's issuance of the assailed Resolution is pursuant to Section 4, Article IX (C) of the Constitution which vests on the COMELEC the power to supervise and regulate, during election periods, transportation and other public utilities, as well as mass media, to wit:

Sec. 4. The Commission may, during the election period, supervise or regulate the enjoyment or utilization of all franchises or permits for the operation of transportation and other public utilities, media of communication or information, all grants, special privileges, or concessions granted by the Government or any subdivision, agency, or instrumentality thereof, including any government-owned or controlled corporation or its subsidiary. Such supervision or regulation shall aim to ensure equal opportunity, and equal rates therefor, for public information campaigns and forums among candidates in connection with the objective of holding free, orderly, honest, peaceful, and credible elections.

This being the case, then the Resolutions cannot be said to have been issued with grave abuse of discretion amounting to lack of jurisdiction.

Next, respondent claims that the provisions are not vague because the assailed Resolutions have given clear and adequate mechanisms to protect broadcast stations from potential liability arising from a candidate's or party's violation of airtime limits by putting in the proviso that the station "may require buyer to warrant under oath that such purchase [of airtime] is not in excess of size, duration or frequency authorized by law or these rules." Furthermore, words should be understood in the sense that they have in common usage, and should be given their ordinary meaning. Thus, in the provision for the right to reply, "charges" against candidates or parties must be understood in the ordinary sense, referring to accusations or criticisms.

Respondent also sees no prior restraint in the provisions requiring notice to the COMELEC for appearances or guestings of candidates in bona fide news broadcasts. It points out that the fact that notice may be given 24 hours after first broadcast only proves that the mechanism is for monitoring purposes only, not for censorship. Further, respondent argues, that for there to be prior restraint, official governmental restrictions on the press or other forms of expression must be done in advance of actual publication or dissemination. Moreover, petitioners are only required to inform the COMELEC of candidates'/parties' guestings, but there is no regulation as to the content of the news or the expressions in news interviews or news documentaries. Respondent then emphasized that the Supreme Court has held that freedom of speech and the press may be limited in light of the duty of the COMELEC to ensure equal access to opportunities for public service.

With regard to the right to reply provision, respondent also does not consider it as restrictive of the airing of bona fide news broadcasts. More importantly, it stressed, the right to reply is enshrined in the Constitution, and the assailed Resolutions provide that said right can only be had after going through administrative due process. The provision was also merely lifted from Section 10 of R.A. No. 9006, hence, petitioner ABC is actually attacking the constitutionality of R.A. No. 9006, which cannot be done through a collateral attack.

Next, respondent counters that there is no merit to ABC's claim that the Resolutions' definition of "political advertisement" or "election propaganda" suffers from overbreadth, as the extent or scope of what falls under said terms is clearly stated in Section 1 (4) of Resolution No. 9615.

It is also respondent's view that the nationwide aggregate total airtime does not violate the equal protection clause, because it does not make any substantial distinctions between national and regional and/or local broadcast stations, and even without the aggregate total airtime rule, candidates and parties are likely to be more inclined to advertise in national broadcast stations. Respondent likewise sees no merit in petitioners' claim that the Resolutions amount to taking of private property without just compensation. Respondent emphasizes that radio and television broadcasting companies do not own the airwaves and frequencies through which they transmit broadcast signals; they are merely given the temporary privilege to use the same. Since they are merely enjoying a privilege, the same may be reasonably burdened with some form of public service, in this case, to provide candidates with the opportunity to reply to charges aired against them.

Lastly, respondent contends that the public consultation requirement does not apply to constitutional commissions such as the COMELEC, pursuant to Section 1, Chapter I, Book VII of the Administrative Code of 1987. Indeed, Section 9, Chapter II, Book VII of said Code provides, thus:

Section 9. Public Participation. - (1) If not otherwise required by law, an agency shall, as far as practicable, publish or circulate notices of proposed rules and afford interested parties the opportunity to submit their views prior to the adoption of any rule.

However, Section 1, Chapter 1, Book VII of said Code clearly provides:

Section 1. Scope. -This Book shall be applicable to all agencies as defined in the next succeeding section, except the Congress, the Judiciary, the Constitutional Commissions, military establishments in all matters relating exclusively to Armed Forces personnel, the Board of Pardons and Parole, and state universities and colleges.

Nevertheless, even if public participation is not required, respondent still conducted a meeting with representatives of the KBP and various media outfits on December 26, 2012, almost a month before the issuance of Resolution No. 9615.

Issue: Proper interpretation of the limitation on the number of minutes that candidates may use for television and radio advertisements, as provided in Section 6 of Republic Act No. 9006 (R.A. No. 9006), otherwise known as the Fair Election Act.

Ruling:

Locus Standi

For the broadcast companies, they similarly have the standing in view of the direct injury they may suffer relative to their ability to carry out their tasks of disseminating information because of the burdens imposed on them. Nevertheless, even in regard to the broadcast companies invoking the injury that may be caused to their customers or the public - those who buy advertisements and the people who rely on their broadcasts - what the Court said in White Light Corporation v. City of Manila may dispose of the question.

In that case, there was an issue as to whether owners of establishments offering "wash-up" rates may have the requisite standing on behalf of their patrons' equal protection claims relative to an ordinance of the City of Manila which prohibited "short-time" or "wash-up" accommodation in motels and similar establishments. The Court essentially condensed the issue in this manner: "[T]he crux of the matter is whether or not these establishments have the requisite standing to plead for protection of their patrons' equal protection rights." The Court then went on to hold:

Standing or locus standi is the ability of a party to demonstrate to the court sufficient connection to and harm from the law or action challenged to support that party's participation in the case. More importantly, the doctrine of standing is built on the principle of separation of powers, sparing as it does unnecessary interference or invalidation by the judicial branch of the actions rendered by its co-equal branches of government.

The requirement of standing is a core component of the judicial system derived directly from the Constitution. The constitutional component of standing doctrine incorporates concepts which concededly are not susceptible of precise definition. In this jurisdiction, the extancy of "a direct and personal interest" presents the most obvious cause, as well as the standard test for a petitioner's standing. In a similar vein, the United States Supreme Court reviewed and elaborated on the meaning of the three constitutional standing requirements of injury, causation, and redressability in Allen v. Wright.

Nonetheless, the general rules on standing admit of several exceptions such as the overbreadth doctrine, taxpayer suits, third party standing and, especially in the Philippines, the doctrine of transcendental importance.

For this particular set of facts, the concept of third party standing as an exception and the overbreadth doctrine are appropriate. x x x

x x x x

American jurisprudence is replete with examples where parties-in-interest were allowed standing to advocate or invoke the fundamental due process or equal protection claims of other persons or classes of persons injured by state action. x x x

x x x x

Assuming arguendo that petitioners do not have a relationship with their patrons for the former to assert the rights of the latter, the overbreadth doctrine comes into play. In overbreadth analysis, challengers to government action are in effect permitted to raise the rights of third parties. Generally applied to statutes infringing on the freedom of speech, the overbreadth doctrine applies when a statute needlessly restrains even constitutionally guaranteed rights. In this case, the petitioners claim that the Ordinance makes a sweeping intrusion into the right to liberty of their clients. We can see that based on the allegations in the petition, the Ordinance suffers from overbreadth.

We thus recognize that the petitioners have a right to assert the constitutional rights of their clients to patronize their establishments for a "wash-rate" time frame.

If in regard to commercial undertakings, the owners may have the right to assert a constitutional right of their clients, with more reason should establishments which publish and broadcast have the standing to assert the constitutional freedom of speech of candidates and of the right to information of the public, not to speak of their own freedom of the press. So, we uphold the standing of petitioners on that basis.

a. Past elections and airtime limits

The authority of the COMELEC to impose airtime limits directly flows from the Fair Election Act (R.A. No. 9006 [2001])32 - one hundred (120) minutes of television advertisement and one-hundred· eighty (180) minutes for radio advertisement. For the 2004 elections, the respondent COMELEC promulgated Resolution No. 652033 implementing the airtime limits by applying said limitation on a per station basis. Such manner of determining airtime limits was likewise adopted for the 2007 elections, through Resolution No. 7767. In the 2010 elections, under Resolution No. 8758,36 the same was again adopted. But for the 2013 elections, the COMELEC, through Resolution No. 9615, as amended by Resolution No. 9631, chose to aggregate the total broadcast time among the different broadcast media xxx

It does appear that the COMELEC did not have any other basis for coming up with a new manner of determining allowable time limits except its own idea as to what should be the maximum number of minutes based on its exercise of discretion as to how to level the playing field. The same could be encapsulized in the remark of the COMELEC Chairman that "if the Constitution allows us to regulate and then it gives us the prerogative to amplify then the prerogative to amplify you should leave this to the discretion of the Commission."

b. COMELEC is duty bound to come up with reasonable basis for changing the interpretation and implementation of the airtime limits

There is no question that the COMELEC is the office constitutionally and statutorily authorized to enforce election laws but it cannot exercise its powers without limitations - or reasonable basis. It could not simply adopt measures or regulations just because it feels that it is the right thing to do, in so far as it might be concerned. It does have discretion, but such discretion is something that must be exercised within the bounds and intent of the law. The COMELEC is not free to simply change the rules especially if it has consistently interpreted a legal provision in a particular manner in the past. If ever it has to change the rules, the same must be properly explained with sufficient basis.

c. The COMELEC went beyond the authority granted it by the law in adopting "aggregate" basis in the determination of allowable airtime

The Court does not agree. It cannot bring itself to read the changes in the bill as disclosing an intent that the COMELEC wants this Court to put on the final language of the law. If anything, the change in language meant that the computation must not be based on a "per day" basis for each television or radio station. The same could not therefore lend itself to an understanding that the total allowable time is to be done on an aggregate basis for all television or radio stations. Clearly, the respondent in this instance went beyond its legal mandate when it provided for rules beyond what was contemplated by the law it is supposed to implement. As we held in Lakin, Jr. v. Commission on Elections:

The COMELEC, despite its role as the implementing arm of the Government in the enforcement and administration of all laws and regulations relative to the conduct of an election, has neither the authority nor the license to expand, extend, or add anything to the law it seeks to implement thereby. The IRRs the COMELEC issued for that purpose should always be in accord with the law to be implemented, and should not override, supplant, or modify the law. It is basic that the IRRs should remain consistent with the law they intend to carry out.

Indeed, administrative IRRs adopted by a particular department of the Government under legislative authority must be in harmony with the provisions of the law, and should be for the sole purpose of carrying the law's general provisions into effect. The law itself cannot be expanded by such IRRs, because an administrative agency cannot amend an act of Congress.

d. Section 9 (a) of COMELEC Resolution No. 9615 on airtime limits also goes against the constitutional guaranty of freedom of expression, of speech and of the press

The guaranty of freedom to speak is useless without the ability to communicate and disseminate what is said. And where there is a need to reach a large audience, the need to access the means and media for such dissemination becomes critical. This is where the press and broadcast media come along. At the same time, the right to speak and to reach out would not be meaningful if it is just a token ability to be heard by a few. It must be coupled with substantially reasonable means by which the communicator and the audience could effectively interact. Section 9 (a) of COMELEC Resolution No. 9615, with its adoption of the "aggregate-based" airtime limits unreasonably restricts the guaranteed freedom of speech and of the press.

Political speech is one of the most important expressions protected by the Fundamental Law. "[F]reedom of speech, of expression, and of the press are at the core of civil liberties and have to be protected at all costs for the sake of democracy." Accordingly, the same must remain unfettered unless otherwise justified by a compelling state interest.

In regard to limitations on political speech relative to other state interests, an American case observed:

A restriction on the amount of money a person or group can spend on political communication during a campaign necessarily reduces the quantity of expression by restricting the number of issues discussed, the depth of their exploration, and the size of the audience reached. This is because virtually every means of communicating ideas in today's mass society requires the expenditure of money. The distribution of the humblest handbill or leaflet entails printing, paper, and circulation costs. Speeches and rallies generally necessitate hiring a hall and publicizing the event. The electorate's increasing dependence on television, radio, and other mass media for news and information has made these expensive modes of communication indispensable instruments of effective political speech.

The expenditure limitations contained in the Act represent substantial, rather than merely theoretical restraints on the quantity and diversity of political speech. The $1,000 ceiling on spending "relative to a clearly identified candidate," 18 U.S.C. § 608(e)(l) (1970 ed., Supp. IV), would appear to exclude all citizens and groups except candidates, political parties, and the institutional press from any significant use of the most effective modes of communication. Although the Act's limitations on expenditures by campaign organizations and political parties provide substantially greater room for discussion and debate, they would have required restrictions in the scope of a number of past congressional and Presidential campaigns and would operate to constrain campaigning by candidates who raise sums in excess of the spending ceiling.

The assailed rule on "aggregate-based" airtime limits is unreasonable and arbitrary as it unduly restricts and constrains the ability of candidates and political parties to reach out and communicate with the people. Here, the adverted reason for imposing the "aggregate-based" airtime limits - leveling the playing field - does not constitute a compelling state interest which would justify such a substantial restriction on the freedom of candidates and political parties to communicate their ideas, philosophies, platforms and programs of government. And, this is specially so in the absence of a clear-cut basis for the imposition of such a prohibitive measure. In this particular instance, what the COMELEC has done is analogous to letting a bird fly after one has clipped its wings.

xxx

f. Resolution No. 9615 needs prior hearing before adoption

While it is true that the COMELEC is an independent office and not a mere administrative agency under the Executive Department, rules which apply to the latter must also be deemed to similarly apply to the former, not as a matter of administrative convenience but as a dictate of due process. And this assumes greater significance considering the important and pivotal role that the COMELEC plays in the life of the nation. Thus, whatever might have been said in Commissioner of Internal Revenue v. Court of Appeals, should also apply mutatis mutandis to the COMELEC when it comes to promulgating rules and regulations which adversely affect, or impose a heavy and substantial burden on, the citizenry in a matter that implicates the very nature of government we have adopted:

It should be understandable that when an administrative rule is merely interpretative in nature, its applicability needs nothing further than its bare issuance for it gives no real consequence more than what the law itself has already prescribed. When, upon the other hand, the administrative rule goes beyond merely providing for the means that can facilitate or render least cumbersome the implementation of the law but substantially adds to or increases the burden of those governed, it behooves the agency to accord at least to those directly affected a chance to be heard, and thereafter to be duly informed, before that new issuance is given the force and effect of law.

A reading of RMC 37-93, particularly considering the circumstances under which it has been issued, convinces us that the circular cannot be viewed simply as a corrective measure (revoking in the process the previous holdings of past Commissioners) or merely as construing Section 142(c)(l) of the NIRC, as amended, but has, in fact and most importantly, been made in order to place "Hope Luxury," "Premium More" and "Champion" within the classification of locally manufactured cigarettes bearing foreign brands and to thereby have them covered by RA 7654. Specifically, the new law would have its amendatory provisions applied to locally manufactured cigarettes which at the time of its effectivity were not so classified as bearing foreign brands. x x x In so doing, the BIR not simply interpreted the law; verily, it legislated under its quasi-legislative authority. The due observance of the requirements of notice, of hearing, and of publication should not have been then ignored.

For failing to conduct prior hearing before coming up with Resolution No. 9615, said Resolution, specifically in regard to the new rule on aggregate airtime is declared defective and ineffectual

g. Resolution No. 9615 does not impose an unreasonable burden on the broadcast industry

The Court cannot agree with the contentions of GMA. The apprehensions of the petitioner appear more to be the result of a misappreciation of the real import of the regulation rather than a real and present threat to its broadcast activities. The Court is more in agreement with the respondent when it explained that:

The legal duty of monitoring lies with the Comelec. Broadcast stations are merely required to submit certain documents to aid the Comelec in ensuring that candidates are not sold airtime in excess of the allowed limits. These documents include: (1) certified true copies of broadcast logs, certificates of performance, and certificates of acceptance, or other analogous record on specified dates (Section 9[d][3], Resolution No. 9615, in relation to Section 6.2, R.A. 9006; and (2) copies of all contract for advertising, promoting or opposing any political party or the candidacy of any person for public office within five (5) days after its signing (Section 6.3, R.A. 9006).

Appearance or guesting by a candidate on any bona fide newscast, bona fide news interview, bona fide news documentary, if the appearance of the candidate is incidental to the presentation of the subject or subjects covered by the news documentary, or on-the-spot coverage of bona fide news events, including but not limited to events sanctioned by the Commission on Elections, political conventions, and similar activities, shall not be deemed to be broadcast election propaganda within the meaning of this provision. For purposes of monitoring by the COMELEC and ensuring that parties and candidates were afforded equal opportunities to promote their candidacy, the media entity shall give prior notice to the COMELEC, through the appropriate Regional Election Director (RED), or in the case of the National Capital Region (NCR), the Education and Information Department (EID). If such prior notice is not feasible or practicable, the notice shall be sent within twenty-four (24) hours from the first broadcast or publication. Nothing in the foregoing sentence shall be construed as relieving broadcasters, in connection with the presentation of newscasts, news interviews, news documentaries, and on-the-spot coverage of news events, from the obligation imposed upon them under Sections 10 and 14 of these Rules."

Comparing the original with the revised paragraph, one could readily appreciate what the COMELEC had done - to modify the requirement from "prior approval" to "prior notice." While the former may be suggestive of a censorial tone, thus inviting a charge of prior restraint, the latter is more in the nature of a content-neutral regulation designed to assist the poll body to undertake its job of ensuring fair elections without having to undertake any chore of approving or disapproving certain expressions.

Also, the right to reply provision is reasonable

In the same way that the Court finds the "prior notice" requirement as not constitutionally infirm, it similarly concludes that the "right to reply" provision is reasonable and consistent with the constitutional mandate.

Moreover, as already discussed by the Court in Telecommunications and Broadcast Attorneys of the Philippines, Inc. v. Commission on Elections.

In truth, radio and television broadcasting companies, which are given franchises, 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. 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. x x x

Relevant to this aspect are these passages from an American Supreme Court decision with regard to broadcasting, right to reply requirements, and the limitations on speech:

We have long recognized that each medium of expression presents special First Amendment problems. Joseph Burstyn, Inc. v. Wilson, 343 US 495, 502-503, 96 L Ed 1098, 72 S Ct 777. And of all forms of communication, it is broadcasting that has received the most limited First Amendment protection. Thus, although other speakers cannot be licensed except under laws that carefully define and narrow official discretion, a broadcaster may be deprived of his license and his forum if the Commission decides that such an action would serve "the public interest, convenience, and necessity." Similarly, although the First Amendment protects newspaper publishers from being required to print the replies of those whom they criticize, Miami Herald Publishing Co. v. Tornillo, 418 US 241, 41 L Ed 2d 730, 94 S Ct 2831, it affords no such protection to broadcasters; on the contrary, they must give free time to the victims of their criticism. Red Lion Broadcasting Co. v. FCC, 395 US. 367, 23 L Ed 2d 371, 89 S Ct 1794.

The reasons for these distinctions are complex, but two have relevance to the present case. First, the broadcast media have established a uniquely pervasive presence in the lives of all Americans. Patently offensive, indecent material presented over the airwaves confronts the citizen not only in public, but also in the privacy of the home, where the individual's right to be left alone plainly outweighs the First Amendment rights of an intruder. Rowan v. Post Office Dept., 397 US 728, 25 L Ed 2d 736, 90 S Ct 1484. Because the broadcast audience is constantly tuning in and out, prior warnings cannot completely protect the listener or viewer from unexpected program content. To say that one may avoid further offense by turning off the radio when he hears indecent language is like saying that the remedy for an assault is to run away after the first blow. One may hang up on an indecent phone call, but that option does not give the caller a constitutional immunity or avoid a harm that has already taken place.

Second, broadcasting is uniquely accessible to children, even those too young to read. Although Cohen's written message might have been incomprehensible to a first grader, Pacifica's broadcast could have enlarged a child's vocabulary in an instant. Other forms of offensive expression may be withheld from the young without restricting the expression at its source. Bookstores and motion picture theaters, for example, may be prohibited from making indecent material available to children. We held in Ginsberg v. New York, 390 US 629, that the government's interest in the "well-being of its youth" and in supporting "parents' claim to authority in their own household" justified the regulation of otherwise protected expression. The ease with which children may obtain access to broadcast material, coupled with the concerns recognized in Ginsberg, amply justify special treatment of indecent broadcasting.

Given the foregoing considerations, the traditional notions of preferring speech and the press over so many other values of society do not readily lend itself to this particular matter. Instead, additional weight should be accorded on the constitutional directive to afford a right to reply. If there was no such mandate, then the submissions of petitioners may more easily commend themselves for this Court's acceptance. But as noted above, this is not the case. Their arguments simplistically provide minimal importance to that constitutional command to the point of marginalizing its importance in the equation.

In fine, when it comes to election and the exercise of freedom of speech, of expression and of the press, the latter must be properly viewed in context as being necessarily made to accommodate the imperatives of fairness by giving teeth and substance to the right to reply requirement.

WHEREFORE, premises considered, the petitions are PARTIALLY GRANTED, Section 9 (a) of Resolution No. 9615, as amended by Resolution No. 9631, is declared UNCONSTITUTIONAL and, therefore, NULL and VOID. The constitutionality of the remaining provisions of Resolution No. 9615, as amended by Resolution No. 9631, is upheld and remain in full force and effect.

In view of this Decision, the Temporary Restraining Order issued by the Court on April 16, 2013 is hereby made PERMANENT.

SO ORDERED.

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