Case Summary and Outcome

The Supreme Court of Argentina held that freedom of expression was not violated by Law 268 of the City of Buenos Aires, which prohibited the dissemination of exit polls two days before the national election and three hours after the polls closed. The Association of Argentinian TV-Radio Broadcasting and the Association of Private Argentinian Radio Broadcasting claimed that this law violated their right to freedom of expression by preventing them from disseminating the results of their research to the population during sensitive and important periods of the electoral process. The Government of the City of Buenos Aires, for its part, argued that the law did not violate freedom of expression, but was a restriction on the dissemination of electoral polls for a short period to preserve public “tranquility” and allow citizens to reflect on their vote without external influence. The Court held that Law 265 did not violate the petitioners’ right to freedom of expression because it was a temporary restriction, valid only for a short period, and it safeguarded fair elections and civic space.

---

Facts

The Association of Argentinian TV-Radiobroadcasting and the Association of Private Argentinian Radiobroadcasting  (hereinafter “the Petitioners”) filed an amparo against the Government of the City of Buenos Aires, claiming that Article 5 of Law 268 of the City of Buenos Aires violated their right to freedom of expression, as enshrined in Article 14 of the Argentine National Constitution. The petitioners argued that they are the owners of radio and television companies in Argentina and explained that Law 268 arbitrarily restricts their activities by preventing them from disseminating information obtained through exit polls. The petitioners remarked that the law prohibits them from broadcasting exit polls forty-eight hours before the day of the national vote and for three hours after polls are closed. 

The Government of the City of Buenos Aires, for its part, argued that Article 5 of Law 268 was valid and requested that the petitioners’ claim be dismissed. The defendant stated that the restriction was reasonable since the rule sought to preserve “public tranquility” by guaranteeing citizens a space for reflection. Furthermore, the defendant stated that the rule was intended to protect society’s right to be correctly informed about the results of the elections and to prevent the dissemination of false “exit polls” results.

The Superior Court of Justice of the City of Buenos Aires rejected the petitioners’ claim. The Court ruled that the aforementioned provision did not violate the petitioners’ right to freedom of expression, but rather limited the dissemination of election and exit polls for a short period. In addition, the Court argued that the regulation was reasonable and pursued a legitimate purpose since it allowed the preservation of public order during the two days before the election and up to three hours after it. 

The petitioners filed an extraordinary appeal to the Supreme Court of Argentina against this decision, arguing that the contested law violated their right to freedom of expression. The petitioners argued that the prohibition on the dissemination of opinion polls and exit polls prevented them from disseminating the results of their research at crucial moments. They also claimed that the restriction was unlawful because it was based on “content”, i.e., it prohibited the dissemination of polls on voting intentions.  

The Government of the City of Buenos Aires, for its part, argued that the purpose of the prohibitions outlined in Article 5 of Law 268 was to protect the “public tranquility” of voters to decide and cast their votes according to their conscience and preferences, without external influence of any kind. In turn, the defendant asserted that the rule ensures that no voter is induced by any political party in the hours before voting. In addition, the respondent stated that Law 268 prioritizes and “hierarchizes the right to exercise a free choice over the unrestricted exercise of freedom of expression.” [para. 12] Likewise, the defendant noted that the law seeks to avoid the uncertainty that occurred in the past when false information about the polls was disseminated in the days leading up to the elections. In addition, it also argued that exit polls conducted by polling companies are technically complex and subject to many errors. On this point, the defendant explained that the purpose of the law was to provide the population with a temporary period of reflection in the days before voting and to prevent citizens from being influenced by such polls.

---

Decision Overview

The Supreme Court of Justice of Argentina had to decide whether Article 5 of Law 268 of the City of Buenos Aires violated the petitioners’ right to freedom of expression by prohibiting them from disseminating electoral and exit polls two days before elections and three hours after the  election’s closing time 

The petitioners argued that the provision violated their right to freedom of expression by prohibiting them from disseminating the results of voting intention surveys and exit polls at crucial moments of the democratic elections. For its part, the defendant argued that the law did not violate the petitioners’ freedom of expression because it limited the dissemination of exit polls for a short period to protect public tranquility, allow citizens to reflect without undue influence, and prevent the dissemination of erroneous results at decisive moments in national elections. 

First, the Court recalled that Article 5 of Law 268 of the City of Buenos Aires establishes that the dissemination, publication, commentary, or reference, by any means, of the results of electoral polls is prohibited forty-eight hours before the voting begins and three hours after the election’s closing time. 

Further, the Court explained that “the provision contains a double prohibition.” [para. 8] On the one hand, the Court held that the rule forbids the dissemination of the results of “election polls” by any means two days before the election; that is, it limits the dissemination of those polls that predict how people are likely to vote. At the same time, the Court added that the rule also prohibits the dissemination of “exit polls”—whose purpose is to predict the likely winner of the election—up to three hours after the polls close; that is, it limits the dissemination of polls about how people voted. 

Next, the Court examined whether the first restriction violated freedom of expression. On this point, the Court held that “such a restriction is valid, since what the law seeks to protect is the optimal space for reflection that every citizen should have before casting their vote.” [para. 10] Similarly, the Court held that opinion polls or any other information on electoral trends about citizens’ voting intentions “may circulate freely in the days and months preceding the date of the election, during the election campaign, and is restricted only for a short period of 48 hours.” [para. 10]

Next, the Court examined whether the second restriction laid out in Article 5 violated the petitioners’ freedom of expression. On this issue, the Court held that “concerning the prohibition of the dissemination of information in the hours immediately following the closing of the polls, this Court understands that such a restriction is valid.” [para. 11]

In turn, the Court stated that exit polls “may interfere with those who are still waiting their turn to vote inside the establishments or voting places” and it is for this reason that “the law establishes a period during which it is not possible to disseminate them.” [para. 12] The Court then recalled that the election’s closing time is 6:00 p.m. of that same day. At this time the authorities must restrict access to the “voting places”, but will continue to receive the votes of the voters who are inside the place waiting their turn to vote. On this point, the Court considered that the purpose of Law 268 is to preserve the order of the voting process, at the moment elections reach their actual end and all the voters have effectively cast their votes. 

In this sense, the Court held that after the polls close at 6:00 p.m.—and until all the voters actually voted—the law provides for a three-hour period during which “there is a state interest in preserving the tranquility of the voting process and of the voters, and, above all, in ensuring that the latter are not disturbed or influenced by non-final information that may in any way reach the voters.” [para. 14]

As part of its analysis, the Court described an example of one presidential election in the history of the U.S. The Court explained that decades ago, on the day of the presidential election, at 8:15 p.m. (East Coast time), the National Broadcasting Company (NBC) announced that candidate Ronald Reagan had won the presidential election according to its own “exit polls” results. The Court noted that this announcement was made when there were still three hours left before the official polls closed and many people in the West Coast states still had to vote. According to the Court, this circumstance influenced and had a real impact on voters in that region.

Similarly, the Court cited U.S. doctrine which states that the spread of “exit poll” election results can confuse voters and influence their behavior.  In light of this, the Court held that the three hours prohibition “is designed to prevent winners from being claimed based on data that may later prove to be erroneous or, if true, may unduly influence the electorate.” [para. 15] In short, the Court stated that the prohibition of the dissemination of “exit polls” for a short period of three hours is designed to avoid undue influence on the electorate.

The Court then explained that Article 5 of Law 268 is valid because it also seeks to avoid unnecessary tensions between “exit polls”, which may contain false and contradictory information, and the real official information. In turn, the Court held that allowing “exit polls” could delegitimize the credibility of the official information if it contradicted those results. Similarly, the Court stated that the aforementioned provision must be analyzed in the context of the Electoral Law, whose purpose is to ensure that election days, and the stages preceding and following them, are carried out peacefully and without interference of any kind. 

On the other hand, the Court said that the prohibition provided for in Article 5 of Law 268 cannot be classified as a “regulation of the message based on its content.” [para. 18] On the contrary, the Court stated that “the rule is a temporal restriction rather than a content restriction, since, regarding the message itself, the prohibition is neutral, given that it prohibits any exit poll, regardless of its result and regardless of its affiliation to a party or certain pollsters.” [para. 18] On this point, the Court explained that the neutrality of the prohibition is demonstrated by the fact that other activities protected by the right to freedom of expression are also prohibited during election day, such as outdoor or indoor shows, parties of any kind, public meetings not related to the electoral act, the use of flags, among other examples. 

For its part, the Court held that the right to freedom of expression is not absolute and can be limited by Congress. In this regard, the Court reaffirmed that Article 5 of Law 268 is valid because “it does not prohibit the collection of information from the ‘exit polls,’ but only limits its dissemination for a very short period of three hours, with the sole purpose of preventing the alteration of the electoral process before its completion and for protecting the citizens’ right to vote with the necessary guarantees.” [para. 18]

For all the above reasons, the majority of the Court decided that Article 5 of Law 268 did not violate the right to freedom of expression and dismissed the petitioners’ appeal.

Concurring and dissenting votes

In their concurring opinion, Justices Carlos Fayt and Juan Carlos Maqueda added that the U.S. Supreme Court has upheld the regulatory validity of limitations similar to Article 5 of Law 268. The justices stated that in Reynolds v. Sims, 377 U.S. 533, 1964, the SCOTUS held that it was valid to limit the publication of exit polls for a brief period “based on the compelling state interest in protecting voters from confusion and undue influence and to preserve the integrity of the electoral process. This is so, since the right to vote freely for a candidate is of the essence of a democratic society.” [para. 11] At this point, the judges remarked that the right to vote is a highly valued right in a free country and that the State has an imperative interest in ensuring that the right of individuals to vote is not undermined by electoral fraud. Likewise, the two judges explained that this type of prohibition is common in comparative law, citing the German Federal Election Law of May 7, 1956, art. 32, and the Spanish Organic Law 5/1985, art. 69, inc. 7. 

Justices Maqueda and Fayt then explained that the core value of the right to freedom of expression has been recognized by the National Constitution and by the Argentine Supreme Court’s own jurisprudence. In this regard, they explained that this primordial value “derives from the need to promote a ‘robust, uninhibited and open debate on issues of public interest,’ according to the expression made by Justice Brennan in ‘New York Times v. Sullivan.’” [para. 14] The judges noted, however, that in this case the restriction to freedom of expression “relates only to one aspect, that of self-expression, which lacks that primordial character: the people of the nation, about to vote and thus elect the representatives who will govern them, need a moment of reflection without interference from propaganda, proselytizing, comments, polls, etc., that might influence their sovereign decision.” [para. 14] Thus, the judges considered that Article 5 of Law 268 limits the dissemination of polls only temporarily and briefly, to protect the necessary and indispensable expression of the voters, as cast in the polls.

Moreover, Justices Maqueda and Fayt concluded that the brief and temporary restriction on the dissemination of electoral polls does not violate freedom of expression.

Judge Eugenio Raúl Zaffaroni joined the majority in a concurring vote. The judge stated that the purpose of Article 5 of Law 268 of the City of Buenos Aires is to not disturb social tranquility with exit polls, which are fallible, and to prevent “the data of polling companies from ‘competing’ with the official ballot.” [para. 13] Likewise, Judge Zaffaroni held that the short time restriction for the public dissemination of exit polls “does not violate freedom of expression, since the function that the press must perform in the development of the electoral process is not impeded by this limitation.” [para. 16]

On the other hand, Justices Enrique Santiago Petracchi and Augusto Cesar Belluscio dissented from the majority. First, they argued that Article 5 of Law 268 is a content-based restriction because it seeks to prohibit the dissemination of election polls within a certain period. On this point, the two judges stated that “restrictions on speech that are based on the content of the message must be judged with stricter scrutiny than those that do not share that characteristic,” [para. 9], as laid out in U.S. Supreme Court cases United States et al. v. Playboy Entertainment Group, Inc. and R.A.V. v. St. Paul, 505 U.S. 377, 382. The two judges also held that content-based restrictions on speech are presumptively invalid or unconstitutional and that the government must show that they are necessary to achieve a compelling public interest. 

Next, the two judges examined the ban on publishing the results of polls for forty-eight hours before election day. On this point, both Judges Petracchi and Belluscio concluded that “the restriction must be considered valid” [para. 10], following the majority. However, the two judges considered that the prohibition to disseminate the results of the “exit polls” three hours after the end of voting violated the petitioners’ freedom of expression. On this point, the two judges stated that the rule was paternalistic and that “the data provided by the pollsters must be judged by the people for what they are, i.e., predictions of how the people voted.” [para. 11]. Likewise, the two judges explained that it is not the role of the state to protect the population from mistakes that pollsters may make about how citizens voted. On this point, the two judges considered that such errors or mistakes “should be judged by the people, not by the government.” [para. 11]

For these reasons, Judges Petracchi and Belluscio concluded that Law 268 did not pass strict scrutiny and violated the petitioners’ freedom of expression.

---