Fair Elections Act Trumps Celebrities' Free Speech

The entertainment industry recently rose up in arms against the Comelec for making known its intention to strictly enforce a resolution implementing the Fair Elections Act (R.A. 9006), which requires celebrities to resign or take a leave of absence from their work during the campaign period if they campaign for or against a candidate in the May 2010 elections. Although the Comelec ruled to make the requirement optional, some quarters, like the PPCRV, still appear poise to have the law implemented.

It is well known that many movie and television personalities have endorsed or campaigned for candidates, especially those vying for national elective positions, by appearing in political ads or campaign sorties. The Comelec and proponents of the law argue that candidates who employ celebrities derive undue advantage over other candidates due to the influence these celebrities wield over their massive viewers and followers.

Celebrities, on the other hand, counter that the strict enforcement of the law violates their free speech rights and rights as citizens to support the candidates they like, not to mention their right to earn a living. There is also argument that the law unduly singles them out.

Section 6, paragraph 6.6. of the Fair Elections Act provides that "[a]ny mass media columnist, commentator, announcer, reporter, on-air correspondent or personality who is a candidate for any elective public office or is a campaign volunteer for or employed or retained in any capacity by any candidate or political party shall be deemed resigned, if so required by their employer, or shall take a leave of absence from his/her work as such during the campaign period . . ."

The above-quoted provision clearly requires the enumerated persons, which include movie and TV personalities, to either resign or take a leave of absence from work during the campaign period if they are (1) candidates (2) campaign volunteers (3) employed or retained in any capacity by any candidate or political parties, including coalitions and party-list groups.

The State's interest in allowing equal opportunities for candidates in reaching out to voters by leveling the playing field - achieved through regulation of the time, place and manner of communicating political or campaign messages - has long been recognized since National Press Club v. Comelec. In fact, the Supreme Court has justified legislations of this nature under the Constitution's social justice provisions guaranteeing equal access to opportunities for public service to everyone.

While there is no question on the rule prohibiting mass media personalities, such as actors and newscasters, who are candidates, from working as such during the campaign period, a similar restriction on others who are not candidates but merely supporters or workers of candidates is unreasonable. A celebrity candidate who continues to do his or her high profile work clearly gives undue advantage over other candidates who are not similarly situated; the constant exposure allows him or her to become well acquainted with voters. Not only that, it makes the regulatory limits on broadcast time and print space useless as against these candidates. The same is true of non-candidate celebrities and other media personalities who actively campaign for or against a candidate during their shows.

Requiring non-candidate celebrities or media personalities to resign or abstain from work under pain of penal sanctions for campaigning for or against a candidate, other than through their movie or television programs, invades the realm of constitutionally protected speech. The strictures of Section 6, par. 6.6. of the Fair Elections Act, as implemented by Sec. 36 of Comelec Resolution 8758, suffers from overbreath for stifling more speech than is necessary. When a celebrity endorses a candidate in a legitimate political ad or performs any act to generate support for such candidate, he or she engages in political speech protected by the Constitution. The law in question, however, in effect penalizes that speech by barring the celebrity from engaging in his or her means of livelihood, even though for a limited period only. Failure to resign or take a leave of absence from work would constitute an election offense punishable by fine and imprisonment of up to six years.

The law does not only regulate the time, place and manner of the speech involved, but targets the content itself. It in effect restricts political speech by celebrities because it forces them to choose between engaging in political speech or their means of livelihood. To pass constitutional muster, the law must be justified by a compelling or overriding government purpose and the means employed must be necessary to achieve that purpose. As previously mentioned, it is now settled that the State has vital interest in having fair or level playing field among candidates in reaching out to voters, but the manner the questioned law seeks to achieve its objective does not appear to be necessary for it is not the least restrictive means of doing it.

The equalization of political speech and opportunities for reaching out to voters is no longer served here because the celebrity cannot be said to be still furthering a candidate's campaign by simply engaging in his or her normal work. True, the celebrity, by expressing support for a candidate, would henceforth be identified with that candidate, but identification or association cannot be justified as furtherance of a candidate's campaign anymore than a candidate choosing a certain network or newspaper for broadcast or publication of his or her political ads constitutes furtherance by that network or newspaper of the candidate's campaign.

What makes the questioned provision even more unreasonable is the fact that it applies as well to celebrities and media personalities who work for a candidate in capacities that do not necessarily expose them to the public, such as being a political or legal adviser, a consultant or a speech writer, since the law covers those who work in any capacity. The law is also vague as to what the term "campaign volunteer" means. If a celebrity cooks for the staff of a candidate or hosts meetings in his mansion, could he be considered a campaign volunteer? If so, how will that possibly obscure role, although performed by a well-known personality, give a candidate undue advantage over others, as does the adviser and consultant?