Artistic Freedom Requires, Now, State Policy
Guilherme Varella is a professor at the School of Communication at the Federal University of Bahia . He holds a PhD in Law from USP and was Secretary of Cultural Policies at the Ministry of Culture (2015-16) and technical advisor and Chief of Staff at the Municipal Secretariat of Culture of São Paulo (2013-15). He is the author of the books National Culture Plan: Rights and Cultural Policies in Brazil (Azougue, 2014) and Direito à Folia (Alameda, 2024). This article was written for the 148th edition of the WBO weekly bulletin, published on December 20, 2024. To subscribe to the bulletin and receive it for free, enter your email in the field provided.
The violation of freedoms is one of the most noticeable symptoms of a country in democratic crisis. Threats to freedom of the press, academic freedom, and science are the first to be reported in these cases. Protest rights are also often violated. In the case of artistic and cultural freedom, the violation causes even deeper damage. It is in this arena where the dispute over values that underpin a social order occurs. Taming the field of culture and restricting free artistic creation is to corrupt the range of values that buttress a democratic society.
Brazil has recently gone through a democratic crisis from which it is still recovering. It was hit by an avalanche of episodes of the violation of artistic freedom with reverberations still present. Hundreds of cases have come to light since 2016, but especially between 2019 and 2022, the period of President Jair Bolsonaro's administration. This was the period analyzed by the Brazilian Integrated Movement for Freedom of Artistic Expression (MOBILE), which studied, systematized and catalogued 299 cases of censorship, authoritarianism, and the institutional dismantling of culture in the country. Through the Censorship Map, situations were recorded of prior censorship of shows; closing of exhibitions; removal of shows or artists from programs; persecution of artists and hate speech on the Internet; intimidation; instrumentalization and distortion of public cultural institutions; paralysis of agencies, policies and programs; and institutional harassment of public servants working in the field of culture. The State, especially the executive, which should support artists, lent its apparatus to the implementation of censorship. In the period studied by MOBILE, the level, powers, federative entities and institutional forces of the State were the agents responsible for the most diverse types of the violation of artistic and cultural freedom. The data is alarming. Among the almost three hundred cases, 90% were perpetrated by the executive branch (compared to 4% by the legislative and 6% by the judiciary). Of this sample, 70% were episodes of violations committed by the federal executive. The preferred target, around 30% of the registered cases, are expressions of gender, race or sexual orientation or violations motivated by religious or moral issues.
The method used is innovative. Unlike the explicit censorship of the dictatorial periods, the mechanisms were now covered with a veneer of formality and institutionality and a (supposed) appearance of legality. The “new censorship” included devices such as the unilateral cancellation of contracts, abusive clauses, budgetary pretexts, undermining of financing lines, disproportionate bureaucratic obstacles, selective denial of accountability, inertia, and emptying of bodies responsible for the progress of projects, etc. This all took place within the discretionary space of the government manager, far from legal controls and oversight of other powers.
Clearly, the political situation has changed. The democratic rupture of the 2016 impeachment was followed by an autocratic government that abolished the Ministry of Culture and launched a crusade against the artistic sector. Its ideological base of support were inflamed to make culture an enemy. In 2023, a government that recreated the Ministry of Culture and committed itself to an agenda of institutional reconstruction and strengthening of the Brazilian cultural sector returned to power. This was undoubtedly a significant change for cultural policies. The big problem is that, today, the protection of artistic freedom is still not a cultural policy. We must protect, promote, preserve and repair.
Artistic freedom is protected as a fundamental right by Article 5, IX, of the Federal Constitution. This provision is supported by several (and historical) international human rights treaties. The combination with Article 220 of the constitutional text guarantees the express prohibition of censorship in Brazil.
It turns out that of all the types of freedom covered by the freedom of expression category, such as scientific and communication freedom, or the right to protest (articles 5, XVI and XVII), artistic freedom is the least developed institutionally, judicially, media-wise and politically. This can be explained by the still incipient field of cultural rights in which it is situated. But it does not justify, in any way, the complete absence of the State as a promoter of a public policy to protect it.
More than protecting, it is necessary to promote artistic freedom through complex government action. As a right, it requires the creation of conditions for integral artistic creation and the full development of cultural expressions. As a freedom, it requires that the State is absent, so that there is no repression of artistic and cultural work.
There is a need for sustained, structured action that outlines guidelines, orientations, and directives for public institutions, and even for the private sector, on how to preserve artistic freedom in contracts, regulations, notices, ordinances, cooperation terms, and agreements, in short, in the institutional framework of cultural law, which will deal with cultural management and production. Such guidelines should be discussed internationally with countries that have gone through (or are going through) similar situations. This also requires Brazil to take a new leading role in the international articulation of cultural rights, as occurred with the debate on the Convention on Cultural Diversity led by Minister Gilberto Gil in the early 2000s.
This policy should propose a theoretical deepening of the topic, as well as its legal maturity, political spread, and institutionalization in the public sector. It should consider the requirements of this right: the holders, the vehicles and vectors, and the context in which artistic freedom should be effectively protected. The topic needs to be specialized in cultural policies and given a locus, which seems to be the National Arts Foundation (Funarte).
The artist as a cultural worker should be the focus (the client or beneficiary) of this policy. Freedom is the main raw material of the artistic creator and should be ensured by the State as a labor guarantee in any political circumstance in the country. Those artists who have seen their work censored and their rights violated must be entitled to compensation. Measures to value the works that have been restricted are essential, as an affirmation of the right to artistic memory and justice in the cultural field. We need a policy to ward off the haunting specter of censorship.
Finally, a public policy for artistic freedom should strengthen artists and their sense of cultural citizenship, keeping them aware of their rights, while remaining proud and fully dedicated to their work. The goal is to prevent them from imposing limits on their work out of fear of reprisals, fear of losing contracts, or financial insecurity. We must avoid the greatest evil that can befall them: self-censorship.
Artistic freedom can be a great new platform that connects all areas of cultural policies related to the arts across the board with a view to realizing rights. It requires a state policy now before any further setbacks.
