In the second half of the 20th century, there was mounting criticism of the power of advertisers over journalists. In addition, the state still had a monopoly over broadcast media until the 1980s, which was broken up in part due to street protests. Press freedom demonstration on Zurich’s Münsterhof on 8 August 1980, photograph by Gertrud Vogler. Swiss Social Archives, Zurich

The right to a free press, free speech and artistic expression

Freedom of expression is sometimes described as oxygen to democracy. Freedom of the press has been enshrined in the Federal Constitution since 1848. However, the right to free speech and artistic expression were only recognised as fundamental rights in the 20th century.

Vanessa Rüegger

PD Dr. iur. Vanessa Rüegger is a lecturer at the University of Basel, lawyer and mediator.

Freedom of the press and the right to free speech were central demands of the Enlightenment. The French Declaration on the Rights of Man and the Citizen of 1789 described the free communication of ideas and opinions as “one of the most precious human rights”. The Helvetic Constitution, which was largely imposed on the cantons in 1798, was guided by this ideal and guaranteed freedom of the press for the first time in Switzerland. However, strict authoritarian censorship remained in various forms. Only from the 1830s onwards did freedom of the press gradually find its way into liberal cantonal constitutions.

In the Federal Constitution of 1848, freedom of the press was included as one of the “very first federal fundamental rights”. The aim was to protect the press as a space for democratic dialogue and to restrict cantonal censorship measures. Sanctions against the abuse of that freedom remained. Freedom of the press was restricted during the First and Second World Wars. In addition, the state surveillance of intellectuals and artists during the Cold War, and of political movements, such as the youth protests in the 1980s, restricted truly free speech.

As opposed to other fundamental rights, freedom of the press was enshrined in the Federal Constitution as early as 1848, thus abolishing censorship. To the libertarian ‘founding fathers’ it was important that citizens could form their own opinions about political matters. Censored section in the Schweizer Bote, 1825. Bayerische Staatsbibliothek, Munich

What exactly protected freedom of the press from the beginning? Protection was only granted to mechanically printed matter that published statements "in the service of the general public" or doctrines. Stated opinions that fell outside of these categories were not protected. In general, the Federal Supreme Court only recognised freedom of expression as an unwritten fundamental right in the Federal Constitution in 1961. In a ruling served shortly afterwards, it also extended the protection of freedom of expression to cinema. Freedom of the press therefore served as a 'breakthrough' in a comprehensive right to freedom of expression. It is a fine example of the agility of the Swiss Federal Constitution. In Switzerland, too, the catalogue of basic rights set out in the Federal Constitution has continually evolved in dialogue with civil society, the courts and legal doctrine and has therefore in general been able to respond appropriately to technical and social changes. A particularly good example of the development of fundamental rights is artistic freedom: neither the 1848 Federal Constitution nor the version of 1874 regulated the right to freedom of artistic expression.

Ferdinand Hodler’s painting Night was presented at the opening of a municipal exhibition in Geneva in 1891. The Geneva City Council subsequently had the painting removed from the exhibition on “the grounds of protecting public morality”. Wikimedia / Kunstmuseum Bern

**According to the poster, the painting by Hodler that was removed from the exhibition could be seen elsewhere for one Swiss franc.** Bibliothèque de Genève

However, from the 19th century, courts developed a separate approach to art in their case law. From an early stage, they showed a willingness to recognise art’s special status in society and the way it contributes to cultural diversity and democratic discourse. In the 20th century, the Federal Supreme Court condensed this case law in dealing with the rigid film censorship in the cantons, which in turn led to the recognition of artistic freedom as an independent fundamental right.

Cinemas in the cantons were in some cases still subject to strict censorship until the 1970s. The screening of the film Pink Flamingos was banned in the canton of Zurich in 1974 in response to a complaint by someone who had only read a write-up of the film. Poster for the film Pink Flamingos by John Waters, 1972. Keystone

The main reason behind the development of artistic freedom as a fundamental right in Switzerland was the case law of the German Constitutional Court following the disastrous cultural policy of National Socialism. The protection of human rights in the international human rights conventions and the case law of the European Court of Human Rights (ECHR) were also significant. The ECHR’s judgment in the case of ‘Müller v. Switzerland’ of 1988 is still a landmark ruling on artistic freedom. The case concerned a trio of works that were exhibited in Fribourg in 1981 entitled Three nights – Three paintings by artist Josef Müller and feature the explicit depiction of sexual acts. The court in Strasbourg confirmed through its ruling that the right to free speech also protects artistic expression.

Besides the explicit depictions of sex, this painting was described as obscene material due to the image of Jesus being removed from the Cross. The Fribourg government seized all three paintings in this series by Josef Felix Müller in 1981. To have them returned, the artist took the case to the European Court of Human Rights. Shortly before the judgment was served, the paintings were returned. Switzerland therefore narrowly escaped a conviction. Josef Felix Müller

The current Federal Constitution guarantees various fundamental rights of communication. Freedom of expression and information (Article 16) conveys the general notion of free speech. The specific fundamental rights of expression then expand on this protection for specific areas of life, such as freedom of the media (Article 17), academic freedom (Article 20), and freedom of artistic expression (Article 21).

Free speech is considered an essential foundation of a democratic society. It protects the opportunity to form one’s own opinion and to engage in public debate on political, social and cultural matters. This fundamental right facilitates the human need to exchange ideas with others, which also encourages self-fulfilment. The free and public exchange of ideas and opinions makes for a diverse and lively society. A fundamental point is that in a democracy, opinions that offend, shock or disturb are also protected. This is based on the assumption that absolute truths are beyond human cognition and that a society’s state of knowledge is constantly evolving. Open discourse on differing positions, tolerance towards those with different views and public criticism are required for people to achieve self-fulfilment and for political communities to be able to thrive. This is why freedom of expression is sometimes described as oxygen to democracy.

Every person has the right freely to form, express, and impart their opinions.

Federal Constitution of 1999, Article 16, paragraph 2

Freedom of expression therefore protects the whole communication process, that is to say, the freedom to seek, receive and impart information and ideas. It protects all forms of expression, from the spoken word, publications and art to demonstrations and symbolic messages. The protection of free speech also includes a ban on censorship. This is based on a mistrust of any opinion imposed by the state or other authoritarian means, and assumes that less convincing ideas are put into perspective by public debate. As early as 1893, the Federal Supreme Court delivered a verdict in which it recognised the principle that constitutionally protecting both doctrines that are recognised as true and those that are considered false meant that citizens can be trusted to make their own judgements. The Court also granted special protection early on to criticism of public administration and political protests. The general principle is that no one may be prevented by the state from expressing their opinion. But this right does not apply in all cases. Limits sometimes exist in instances where there could be a gross violation of legally protected rights, such as life, limb and privacy rights of third parties. For example, to protect human dignity, promulgating racist remarks is prohibited.

The state is not only obliged to respect and protect freedom of expression, it must also create the right conditions through support, education and legislation to allow people to actually exercise this freedom. This obligation is vitally important in practical terms, as shown by the support of the arts and media. State support for the media guarantees a diverse media landscape as essential to a functioning democracy. Meanwhile, financial support for the arts allows free artistic creation in which new ideas can be tested and brought into public debate, irrespective of the tastes of the art market. The state cannot influence the content of this art, though. The cultural policy of spiritual national defence, which was institutionalised in Switzerland during the Second World War, is likely to have had a greater impact on artistic freedom in this regard than previously thought. This is shown, for example, in the state surveillance of artists, for example the Federal Police’s file on Max Frisch. It was only the democratisation of cultural policy in the 1970s that helped to leverage artistic freedom in arts promotion. Tendencies to override this still sometimes exist in arts policy, however. A high-profile example is the ‘Hirschhorn Affair’ in which the Federal Assembly cut the budget of Pro Helvetia (the Swiss arts council) by a million Swiss francs due to a controversial exhibition on Swiss direct democracy by artist Thomas Hirschhorn.

Nowadays, the protection of freedom of speech on the internet represents a particular challenge. Guaranteeing this right is particularly complex as opinions are usually expressed on powerful private platforms, such as Facebook and Twitter, whose owners are not bound by fundamental rights. It is therefore up to national governments to put in place suitable protections. At the same time, the owners of social media are required to tolerate provocative or shocking remarks on their platforms, and only to take action in exceptional cases, for example when people incite hatred or violence.

More of: Federal Constitution 20th / 21st century Art

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