Freedom of artistic expression is guaranteed.
Art. 21 Federal Constitution — Freedom of the arts is guaranteed
#Overview
What does Art. 21 Federal Constitution regulate?
Art. 21 Federal Constitution protects freedom of the arts as an independent fundamental right. This provision guarantees the free development of all artistic activities. This includes the creation of works of art, their dissemination and access to art. The state may not, in principle, determine what constitutes art or evaluate its content.
Who is affected?
Freedom of the arts protects various persons:
- Artists of all disciplines (painters, musicians, writers, theatre professionals)
- Gallery owners, publishers and others who disseminate art
- The public who wish to have access to works of art
- Companies may also invoke freedom of the arts if they are involved in the artistic process
What are the legal consequences?
Freedom of the arts primarily protects against state censorship. The state may not prohibit works of art simply because it does not like them. Prior censorship (control before publication) is fundamentally inadmissible. However, artists have no claim that the state should financially support their art.
Freedom of the arts does have limits, however. When works of art violate other fundamental rights, a balancing must be undertaken. For example, a novel that portrays an identifiable person in a bad light may violate that person's personality rights. Pornographic content also does not automatically fall under the protection of freedom of the arts.
Concrete example:
A theatrical play sharply criticises a politician and portrays him as corrupt. The theatre may not simply be prohibited, even if the politician is annoyed. The work enjoys the protection of freedom of the arts. However, if the play were to clearly spread false facts about the politician and seriously damage his reputation, a balancing of interests could fall in favour of personality protection.
The courts examine satirical or critical works of art with particular care to determine whether there is a sufficient connection to reality and whether the work as a whole has artistic value.
Art. 21 FC — Freedom of Art
#Doctrine
#1. Legislative History
N. 1 Art. 21 FC has no express counterpart in the old Federal Constitution of 1874. The Federal Supreme Court derived protection for artistic creation from Art. 55 oFC (freedom of the press) and the general freedom of expression (BGE 120 II 225 E. 3b; BGE 117 Ia 478). An independent constitutional anchoring was absent; the guarantee was thus secured by judge-made law, not by positive law. At the level of international law, Art. 15 para. 3 of the UN Covenant I covered artistic creation as a component of the right to participate in cultural life.
N. 2 In the preliminary draft of 1995 (PD 95), freedom of art was regulated together with freedom of science in a single article. This combination was criticised because it obscured the independent significance of both freedoms. The Federal Council and experts subsequently proposed separate articles. The preliminary draft of 1996 (PD 96) did not yet identify a corresponding provision in the old FC for freedom of art in Art. 16 and characterised it as a materially new fundamental right (BBl 1997 I 563, 592).
N. 3 The Federal Council's dispatch of 20 November 1996 justified the independent anchoring as a fundamental right on the grounds that freedom of art protects the act of creation, the presentation, and the artwork itself, thus going beyond pure freedom of expression. The Federal Council expressly stated that freedom of art protects not only artists but also art mediators — such as gallery owners, publishers, or curators (BBl 1997 I 163 f.). Despite this material independence, it was noted that freedom of art constitutes an aspect of personal freedom and freedom of expression.
N. 4 During parliamentary deliberations, the fundamental decision to anchor the right was uncontested. The report in the Council of States (rapporteur: Inderkum Hansheiri) noted that freedom of art had hitherto not been recognised as an unwritten fundamental right but was covered by the UN Covenant I and the ECHR (AB 1998 SR separate print). In the National Council, minority spokesperson Thür Hanspeter (G/AG) moved to extend the article to a «freedom of culture», arguing that otherwise the demarcation between art and culture would «raise insoluble problems» and that cultural activities would enjoy less protection than artistic ones (AB 1998 NR separate print). Federal Councillor Koller Arnold opposed the motion on the grounds that «culture» was an even vaguer term than «art» and could not form the basis of a justiciable fundamental right; moreover, culture was addressed in other constitutional articles — notably the culture article (AB 1998 NR separate print). Committee rapporteur Hubmann Vreni (S, ZH) explained that Art. 21 FC (then designated Art. 17a) guaranteed freedom of art and that this had previously been derived by doctrine and case law from Art. 55 oFC (AB 1998 NR separate print). The minority motion by Thür was rejected; the guarantee is confined to freedom of art.
N. 5 The concise formulation «Freedom of art is guaranteed» reflects a deliberate legislative decision: it avoids an exhaustive definition of the concept of art and leaves the judge the necessary room for the further development of the law (BBl 1997 I 163).
#2. Systematic Classification
N. 6 Art. 21 FC forms part of the catalogue of fundamental rights in Arts. 7–36 FC and is conceived as a classic liberty right (right to defend against state interference). It stands in immediate proximity to freedom of science (→ Art. 20 FC) and freedom of expression (→ Art. 16 FC), with which it has substantive overlaps. Freedom of art constitutes an independent guarantee that is lex specialis in relation to Art. 16 FC insofar as artistic expression is concerned; freedom of expression remains concurrently applicable, in particular with respect to the discursive content of a work of art (Häfelin/Haller/Keller/Thurnherr, Schweizerisches Bundesstaatsrecht, 10th ed. 2020, N 534).
N. 7 As a liberty right, Art. 21 FC primarily obliges the state to refrain from interfering with the freedom of artistic creation and art mediation. Any restriction requires a legal basis, must be justified by a public interest or the protection of the fundamental rights of third parties, and must comply with the principle of proportionality (→ Art. 36 FC). An institutional duty of the state to protect art — for example in the field of arts promotion — cannot be derived from Art. 21 FC alone; no subjective right to state promotion exists (Müller/Schefer, Grundrechte in der Schweiz, 4th ed. 2008, p. 427 f.).
N. 8 Freedom of art operates not only in the relationship between the individual and the state (vertical relationship), but also radiates as an objective constitutional principle into private law (indirect third-party effect). This is evidenced in particular by the balancing between freedom of art and the protection of personal rights under Art. 28 CC (↔ Art. 28 CC; → Art. 7 FC).
N. 9 In relation to international guarantees, Art. 21 FC corresponds to the protection afforded by Art. 10 para. 1 ECHR to freedom of expression, which according to the case law of the ECtHR also encompasses artistic forms of expression. Art. 19 para. 2 of the UN Covenant II and Art. 15 para. 3 of the UN Covenant I likewise guarantee the right to artistic creation. In the event of conflict, → Art. 190 FC applies: international law obligations are binding, even where they may take precedence over federal statutes.
#3. Elements of the Provision / Normative Content
3.1 Concept of Art
N. 10 Art. 21 FC does not define «art». The Federal Supreme Court has held that it is in the nature of art to constantly assume new forms, to break norms, and to call the existing order into question; accordingly, an exhaustive definition is not possible (BGE 131 IV 64 E. 10.1.3). Neither the self-understanding of the artist — who has no sole right of definition — nor the understanding of the average person alone is decisive. What is determinative, rather, is the perspective of an «artistically open-minded observer» (BGE 131 IV 64 E. 10.1.3).
N. 11 Every form of artistic creation is eligible for protection: literature, painting, sculpture, music, film, theatre, dance, and newer forms of expression such as performance art, video art, and street art. Satire is recognised as a particular art form that falls under both Art. 21 FC and → Art. 16 FC (IFSB Decision b.453 of 23 August 2002; IFSB Decision b.503 of 4 February 2005). The decisive factor is that the form is deliberately incongruent with the intended message — satire exaggerates, alienates, and caricatures reality.
N. 12 In criminal law (Art. 197 no. 5 SCC), the Federal Supreme Court also assesses the cultural value of a work according to the criterion of the artistically open-minded observer: the prerequisite is that the artistic value, assessed on the basis of the overall impression, outweighs the element in question (BGE 131 IV 64 E. 10.1.3). The overall impression is determinative, not individual elements.
3.2 Material Scope of Protection
N. 13 The scope of protection of Art. 21 FC encompasses three dimensions:
- Freedom to create («Werkfreiheit»): the right to create a work of art according to one's own judgment, without substantive prescriptions from the state;
- Freedom to disseminate («Verbreitungsfreiheit»): the right to make a completed work accessible to the public, to exhibit it, to perform it, or to publish it;
- Freedom of the artwork («Kunstwerkfreiheit»): protection of the artwork as such against state-ordered distortion, suppression, or destruction.
This triad corresponds to the threefold structure of creation, presentation, and artwork described in the dispatch (BBl 1997 I 163); it is widely adopted in doctrine (Häfelin/Haller/Keller/Thurnherr, loc. cit., N 534; Müller/Schefer, loc. cit., p. 415 ff.; Rhinow/Schefer/Uebersax, Schweizerisches Verfassungsrecht, 3rd ed. 2016, N 1862).
3.3 Personal Scope of Protection
N. 14 According to the express intention of the dispatch (BBl 1997 I 163 f.), the provision protects not only artists (painters, writers, musicians, film directors, etc.) but also art mediators (publishers, gallery owners, curators, theatre directors). Legal persons may invoke freedom of art insofar as they are involved in the production or dissemination of art. Since the provision does not presuppose citizenship, foreign nationals may also rely on it.
#4. Legal Consequences
N. 15 Interferences with freedom of art are permissible only if the conditions of → Art. 36 FC are cumulatively satisfied: (1) a legal basis, (2) a public interest or the protection of the fundamental rights of third parties, (3) proportionality (suitability, necessity, reasonableness), and (4) preservation of the essential core.
N. 16 Where freedom of art conflicts with the personal rights of third parties (→ Art. 28 CC, → Art. 7 FC), a balancing of interests must be carried out. In consistent case law since BGE 120 II 225 E. 3b, the Federal Supreme Court has held: «Artistic activity must remain within the bounds of the legal order. Even the artist must respect the personal rights of others. The interest of the injured party must accordingly be weighed against the interest of the injuring party in artistic activity, taking into account what possibilities were open to the artist to create the work without the infringement of personal rights.» The Federal Supreme Court expressly confirmed and refined this formula in BGE 135 III 145 E. 4.3.
N. 17 Freedom of art does not preclude a conviction under Art. 197 SCC (pornography) where the depiction lacks a cultural value worthy of protection (Art. 197 no. 5 SCC). Following BGE 128 IV 201 E. 1.2, the Federal Supreme Court has held that, in the context of constitutionally conform interpretation, fundamental rights — in particular Art. 16 FC, Art. 20 FC, and Art. 21 FC, but also human dignity (→ Art. 7 FC) — must be taken into account.
N. 18 State restrictions on freedom of art through environmental measures (e.g. temporal restrictions on light installations) are permissible where the requirements of the principle of proportionality are observed. In judgment 1C_250/2013 of 12 December 2013 E. 5.7, the Federal Supreme Court left open whether decorative lighting falls within the scope of protection of Art. 21 FC, and qualified the proportionality of a mandatory switch-off requirement from 10 p.m. as a minor interference justified by the public interest in reducing light emissions (→ Art. 36 FC).
N. 19 Freedom of art gives rise to no direct entitlement to state promotion. Where the state voluntarily promotes art, however, it must apply constitutionally conformant criteria; freedom of art binds the authorities in shaping promotion decisions (Rhinow/Schefer/Uebersax, loc. cit., N 1865). The requirement that art be free from state influence obliges the promoting state to remain neutral as to content.
#5. Contested Questions
5.1 Concept of Art: Formal vs. Material Approach
N. 20 It is contested by which criterion the concept of art is to be determined. A material approach focuses on substantive or aesthetic characteristics; it presupposes that the work exhibits a particular type of message or quality of form. A formal approach, by contrast, inquires into the communicative context: is the work presented in an artistic framework and received as art? Müller/Schefer (Grundrechte in der Schweiz, 4th ed. 2008, p. 409 ff.) advocate a combination of both approaches, in order to avoid excluding avant-garde works from the outset while still providing the concept of art with sufficient contour. In BGE 131 IV 64 E. 10.1.3, the Federal Supreme Court developed the standard of the «artistically open-minded observer», who follows neither the artist's self-understanding nor everyday understanding, but adopts a mediating perspective.
5.2 Demarcation Between Freedom of Art and Freedom of Culture
N. 21 Whether, alongside freedom of art, an unwritten «freedom of culture» is to be recognised as an independent fundamental right was a central point of contention in the parliamentary process (→ N. 4). Gross Andreas (SP Group) warned that the absence of an express freedom of culture could lead to the conclusion that cultural expression would in future enjoy less protection than artistic expression (AB 1998 NR separate print). Federal Councillor Koller countered that «culture» was a «comprehensive concept that was not the subject of independent, directly enforceable constitutional protection» (AB 1998 NR separate print). In doctrine, the question is answered differently: Rhinow/Schefer/Uebersax (loc. cit., N 1860) emphasise that cultural activities outside the narrower sphere of art are captured by → Art. 16 FC (freedom of expression) and → Art. 10 para. 2 FC (personal freedom). Häfelin/Haller/Keller/Thurnherr (loc. cit., N 536) maintain that Art. 21 FC refers to «art» in the narrow sense and does not directly cover cultural activities lacking an artistic character.
5.3 State Promotion and Protective Duties
N. 22 Whether Art. 21 FC generates state protective duties (performance dimension) is controversial in doctrine. Müller/Schefer (loc. cit., p. 427 f.) recognise an objective-law dimension that obliges the legislature to create a normative framework that effectively enables artistic creation (e.g. through copyright protection). A subjective-law performance duty — that is, an enforceable claim to subsidies or exhibition space — does not exist under the prevailing view. Rhinow/Schefer/Uebersax (loc. cit., N 1865) do, however, derive from Art. 21 FC at least the requirement that state arts promotion must be neutral as to content and must not be directed towards a particular artistic tendency.
5.4 Relationship Between Freedom of Art and Protection of Personal Rights
N. 23 Of particular practical relevance is the collision between freedom of art and the personal rights of real persons who are identifiably depicted in a work of art. Since BGE 120 II 225, the Federal Supreme Court has developed a balancing formula that was refined in BGE 135 III 145: freedom of art justifies an infringement of personal rights where the interest in artistic activity outweighs the interest of the injured party and no reasonable alternative was available to the artist to create the work without the infringement of personal rights. This case-by-case balancing is broadly accepted in doctrine; Geiser (Die Persönlichkeitsverletzung insbesondere durch Kunstwerke, Basle 1990, para. 9.73) had already developed corresponding criteria prior to the new FC. What remains contested is how the weight of freedom of art is to be measured concretely in relation to other protected interests — honour, privacy, data protection.
#6. Practical Notes
N. 24 Examine the material scope of protection: Before examining any alleged infringement of Art. 21 FC, it must be clarified whether the impugned activity actually falls within the scope of protection of freedom of art. The Federal Supreme Court denied the protection of Art. 21 FC, for example, in the case of purely commercial pornographic depictions without any recognisable intrinsic artistic value (BGE 128 IV 201 E. 1.2; BGE 131 IV 64 E. 10.4).
N. 25 Collision with personal rights (Art. 28 CC): In proceedings where a person claims to have had their personal rights infringed by a work of art, the following test is to be applied: (1) Does a work of art exist in the legal sense? (2) Is the claimant subjectively identifiable? (3) Does the interest of the person concerned outweigh the artist's interest in artistic activity? (4) Was a reasonable alternative available to the artist? (BGE 135 III 145 E. 4.3; BGE 120 II 225 E. 3b).
N. 26 State promotion decisions: When challenging decisions on arts promotion, it must be noted that Art. 21 FC does not give rise to an entitlement to promotion. Grounds of challenge are instead the prohibition of arbitrariness (→ Art. 9 FC), the guarantee of equality before the law (→ Art. 8 FC), and general procedural guarantees (→ Art. 29 FC). Freedom of art may, however, be invoked where the promoting authority exercises its discretion in order to disadvantage or favour a particular artistic tendency.
N. 27 Proportionality of state interferences: In the case of restrictions on freedom of art through bans on performance, exhibition, or distribution, the three-part proportionality test (suitability, necessity, reasonableness) under → Art. 36 para. 3 FC must be strictly applied. The mildest available means must always be preferred (e.g. age restrictions rather than a total ban; temporal restrictions rather than a complete prohibition). The essential core of freedom of art — the right to engage in artistic activity at all — must not be touched (→ Art. 36 para. 4 FC).
N. 28 Parallel examination under the ECHR: Anyone invoking an infringement of Art. 21 FC should examine whether Art. 10 ECHR is simultaneously infringed. The case law of the ECtHR on the protection of artistic expression — notably in the areas of satire and provocation — must be drawn upon for the interpretation of Art. 21 FC. The Federal Supreme Court regularly examines Art. 10 ECHR alongside Art. 21 FC (BGE 128 IV 201 E. 1.4).
#Case Law
#General Principles on Freedom of Arts
BGE 135 III 145 (25 September 2008) Artwork in the form of a novel; violation of personality vs. freedom of arts. A novel enjoys the protection of freedom of arts, even if it portrays persons in a recognizable manner and violates their personality rights.
«Freedom of arts is guaranteed (Art. 21 FC). However, the freedom of arts enshrined in Art. 21 FC does not constitute a blank cheque. Rather, a balance must be struck between the personality rights of the plaintiffs and the overriding public or private interest of the violator as a ground of justification.»
Judgment 5C.26/2003 (27 May 2003) Portraits without consent; balancing of interests between freedom of arts and personality rights. The cantonal court had to balance the personality rights of the portrayed persons and freedom of arts.
«The freedom of arts enshrined in Art. 21 FC does not constitute a blank cheque. Rather, a balance must be struck between the personality rights of the plaintiffs and the overriding public or private interest of the violator as a ground of justification.»
#Freedom of Arts and Criminal Law
BGE 128 IV 201 (26 July 2002) Hard pornography; freedom of expression and freedom of arts as grounds of justification. Freedom of arts does not justify the distribution of pornographic content that depicts sexual acts involving violence or human excrement.
«In the required constitutional interpretation, fundamental rights must also be taken into account, such as freedom of expression (Art. 16 FC), academic freedom (Art. 20 FC) and freedom of arts (Art. 21 FC), but also human dignity (Art. 7 FC).»
#Satire and Freedom of Arts
UBI Decision b.453 (23 August 2002) Swiss Television DRS, satirical contribution about Swissair. Satirical contributions fall under both freedom of expression and freedom of arts.
«Satire is a special means of expression where the form is deliberately incongruent with the intended statement. Satire falls within the scope of protection of freedom of expression and freedom of arts contained in Art. 16 FC and Art. 21 FC respectively, as well as in Art. 10 ECHR.»
UBI Decision b.503 (4 February 2005) Comedy contribution about Father Harald; satirical privilege under Art. 21 FC. Satirical presentations enjoy special protection under freedom of arts.
«Satire exaggerates reality, alienates it, transforms it, returns to it, trivializes it, caricatures it, makes it ridiculous. Satire falls within the scope of protection of freedom of expression and freedom of arts contained in Art. 16 FC and Art. 21 FC respectively, as well as in Art. 10 ECHR.»
UBI Decision b.958 (2 November 2023) Television SRF, satirical programme "Das VAR's"; limits of satirical privilege. Even satirical presentations have limits and can violate human dignity.
«The Sechseläuten sequence with the Ku Klux Klan exceeds the satirical privileges granted by the Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR; SR 0.101) and the Federal Constitution (FC; SR 101).»
#Freedom of Arts and Public Interest
BGE 140 II 33 (2013) Light emissions from Christmas and decorative lighting; freedom of arts vs. environmental protection. Freedom of arts does not justify unlimited light emissions, even if they serve artistic or decorative purposes.
«The year-round decorative lighting was limited to the time until 10.00 p.m. This only marginally restricts the property guarantee and any other fundamental rights of the appellants and is proportionate.»
#Freedom of Assembly with Artistic Elements
Judgment 1P.53/2001 (20 September 2001) Demonstration against the World Economic Forum; artistic expression of opinion. Demonstrations with artistic elements enjoy the protection of freedom of expression and freedom of assembly, even if Art. 21 FC is not directly applicable.
«Freedom of assembly and freedom of expression can be supplemented by artistic forms of expression without this changing the constitutional requirements.»
#New Developments
VB.2023.00719 (9 January 2025) Concept funding contribution for theatre; state arts funding. Freedom of arts does not establish a claim to state funding, but the state must apply constitutional criteria when making funding decisions.
«The appellant's complaints that the members of the Concept Funding Dance and Theatre jury were biased and that the jury was not composed according to specifications concern the fair application of funding criteria in the field of arts funding.»