dissenting:
In Monitor Patriot Co. v. Roy, 401 U.S. 265, 272, 91 S.Ct. 621, 625, 28 L.Ed.2d 35 (1971), the Supreme Court observed that “. . .it can hardly be doubted that the constitutional guarantee [to free speech] has its fullest and most urgent application precisely to the conduct of campaigns for political office.” The particular importance of protecting vigorous and unfettered political debate has been repeatedly emphasized. See Buckley v. Valleo, 424 U.S. 1, 96 S.Ct. 612, 46 L.Ed.2d 659 (1976); Mills v. Alabama, 384 U.S. 214, 86 S.Ct. 1434, 16 L.Ed.2d 484 (1966); New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964). Hence, any limitation of speech in this area can be justified only by a compelling state interest. N.A.A.C.P. v. Button, 371 U.S. 415, 438, 83 S.Ct. 328, 9 L.Ed.2d 405 (1963).
In the case at bar, the Commonwealth undeniably has a compelling interest: preservation of the integrity of the *61electoral process by reducing the chance that last-minute misleading, false, or scandalous campaign claims will go unrebutted and improperly sway the result of an election. Moreover, in many respects the statute only narrowly restricts speech. The statute does not constitute a prior restraint, cf. Near v. Minnesota, 283 U.S. 697, 51 S.Ct. 625, 75 L.Ed. 1357 (1931), for it is not an absolute pre-publication prohibition of advertising. At least on its face, the statute does not prohibit advertising at all; rather, since it only imposes a notice requirement, it is a kind of time, place, and manner restraint. Cf. Cox v. New Hampshire, 312 U.S. 569, 61 S.Ct. 762, 85 L.Ed. 1049 (1941). Nor is there any suggestion that candidates’ ads are subject to the approval of the Commissioner of Elections, with the result that they would be subject to a form of censorship. Cf. Lovell v. Griffin, 303 U.S. 444, 58 S.Ct. 666, 82 L.Ed. 949 (1938).
Having recognized these favorable aspects of the statute, however, I nonetheless conclude that it violates the First Amendment.
As a preliminary matter, it is worth noting that it is far from clear that it is within the state’s power to regulate speech at all in this area. In Mills v. Alabama, supra, the Supreme Court held unconstitutional an Alabama statute that prohibited newspapers from publishing election day editorials urging voters to vote in a particular way. Although it did not explicitly discuss the point, the Court seemed to assume that no state interest could justify the state’s abridgement of speech at a crucial stage in a political campaign.1 Assuming, however, that the state does have power to regulate speech in this area, the statute is deficient on two grounds.
First, although the statute does not on its face prohibit speech, in certain instances it will operate to bar completely *62the placement of ads. In situations where candidates cannot give their opponents notice in time enough to allow for a reply, they must either forgo placement of an ad or face possible criminal penalties. Thus, relevant information discovered in the final days of a campaign may be prevented by the statute from reaching the voters. Conceivably, by employing a balancing test this “incidental” restriction of information might be outweighed by the Commonwealth’s interest in protecting the integrity of the electoral process. However, in the context of an election campaign, the Commonwealth has a legitimate interest only in the regulation of false, misleading, or scandalous speech — speech that is likely to undermine the integrity of an election. Last-minute ads that are not misleading, but truthful and informative, do not threaten the democratic process. On the contrary, such ads enhance the democratic process, and the Commonwealth has no interest sufficient to justify their suppression. It follows that the statute is overbroad. It abridges speech by suppressing in certain instances the dissemination of the truth. See N.A.A.C.P. v. Alabama ex rel. Flowers, 377 U.S. 288, 307, 84 S.Ct. 1302, 12 L.Ed.2d 325 (1964); Cantwell v. Connecticut, 310 U.S. 296, 304, 60 S.Ct. 900, 84 L.Ed. 1213 (1940).
Second, the statute suffers from the same flaw that invalidated the statute in Mills v. Alabama, supra.
In Mills, Alabama, ostensibly in order to prevent the making of irrefutable, last-minute charges in election campaigns, prohibited the publication on election day of editorials urging voters to vote a particular way. The Supreme Court ruled that even if it assumed that the statute had a permissible purpose, the statute was nonetheless unconstitutional because it abridged speech without fulfilling the state’s purpose. Specifically, the Court found that the statute failed to meet its goal of protecting the electorate from “confusive last-minute charges and countercharges” because it allowed the making of such charges until election day, but then imposed criminal penalties on anyone who attempted to refute such charges on election day. 384 U.S. 220, 86 S.Ct. *631434. Thus the Court established a test of effectiveness: a state’s abridgement of speech is not lawful merely because the state hopes thereby to foster some legitimate interest; rather, the abridgement must in fact further a legitimate interest. This test is a specific application of the general principle that a state’s interference with speech must be necessary to further a compelling state interest. United States v. O’Brien, 391 U.S. 367, 377, 88 S.Ct. 1673, 20 L.Ed.2d 672 (1968).
The statute here fails to pass the Mills test of effectiveness. The notice requirement of the statute has been construed not to apply to “reply” ads under the act.2 Thus, if candidate A is running against candidate B, and A sends B notice that he is placing an ad within the final two days of the campaign, B is not required to notify A of his reply to A’s ad. Thus the statute gives B carte blanche to engage in misleading campaigning. The statute in effect confers a strategic advantage on the unscrupulous candidate, because it supplies him with advance notice of his opponent’s end-of-campaign advertising strategy, without subjecting him to a similar notice requirement.
This difficulty may not be avoided by holding that those portions of “reply” ads that raise new matter or in some way go beyond the proper scope of a reply are subject to the notice requirement of the statute, for then candidates would be chilled in the exercise of their First Amendment rights. There could be no clear boundary to mark what would be considered a reply ad, and what would be considered as more than a reply and so subject to the notice requirement. If, for instance, A gives notice and places an ad attacking B’s integrity, and B replies not by defending himself but by launching a counterattack on A’s integrity, is this a reply ad that is exempt from the notice requirement, or must B notify A of his ad? More to the point, how is B to determine *64whether his ad is subject to the notice requirement? Plainly, candidates would not be able to predict with certainty how their ads would be viewed, and thus would be constrained to act cautiously in drafting replies lest they expose themselves to criminal penalties for failure to give notice. It is indisputable that an abridgement of speech caused by fear of sanctions is as violative of the First Amendment as an abridgement caused by application of the sanctions. N.A.A.C.P. v. Button, supra, 371 U.S. at 433, 83 S.Ct. 328; see Keyishian v. Board of Regents of New York, 385 U.S. 589, 604, 87 S.Ct. 675, 17 L.Ed.2d 629 (1967); Speiser v. Randall, 357 U.S. 513, 526, 78 S.Ct. 1332, 2 L.Ed.2d 1460 (1958).
I would reverse the court below.
. After noting the state’s asserted interest in protecting the electoral process, the Court prefaced its holding with the caveat, “. . . even if [this argument] were relevant to the constitutionality of the law . . ” 384 U.S. at 220, 86 S.Ct. at 1437. The permissibility of state regulation in this area would therefore at best seem to be problematic.
. In Commonwealth v. Suplee, 255 Pa.Super. 351, 387 A.2d 85 (1978) we noted that to require replying candidates to give notice of their ads would result in an infinite series of notices and counternotices under the statute, and that the legislature did not intend such an absurd and unwieldly system.