Art on trial - a sculptor's arrest highlights new extremes for censorship in China

On Wednesday, the United Nations human rights office joined a growing chorus of international advocacy groups to call for Gao's immediate release, saying his case "raises concerns with regard to retroactive application of criminal law and use of criminal sanctions to punish artistic expression".

There are also concerns for his health.

Gao suffers from chronic lumbar spine disease, arthritis, eye problems and chronic urticaria – a skin condition that causes itchy red welts. He has met his lawyer in a wheelchair on multiple occasions, in some cases struggling to get out of bed, and has reportedly shown signs of malnutrition, according to Qiang. Repeated applications for medical bail have been denied.

The risks are "grave", Qiang says. "His physical condition remains deeply concerning."

The Gao brothers gained prominence in the Chinese art scene during the 1990s and early 2000s, a quarter of a century after Mao's death. But the long shadow of his reign still loomed over their lives.

Mao founded Communist China in 1949 and led it through a tumultuous and devastating period in the 1960s and 1970s, when an attempt at rapid industrialisation triggered a famine, killing tens of millions. Then came the Cultural Revolution: a violent purge of anyone seen as a threat to Communism, including many Chinese intellectuals, landowners and artists.

Among the millions of victims was the Gao brothers' father, who was labelled a class enemy and taken to a place that Gao Zhen described, in a 2009 interview with the New York Times, as "not a prison, not a police station, but something else".

It should come as little surprise, then, that Mao is a recurring muse in the Gao brothers' oeuvre. But while for most of their careers they had been able to escape serious punishment, in 2012, with the rise to power of current leader Xi Jinping, the space for creative expression in China contracted.

Gao left China for New York, where he has permanent residency, shortly after Xi oversaw an amendment to China's criminal code in 2021, which strengthened laws against insulting the country's "heroes and martyrs".

Among this pantheon, Mao is especially sacrosanct. But he is also a complicated figure within the state-sanctioned narrative. While eager to imbue him with reverential status, the Party is simultaneously wary that almost any discussion of Mao's legacy could rake up uncomfortable memories.

To undermine Mao's legacy, though, is to challenge the CCP's legitimacy. And in the eyes of the state, this crosses the line from free speech into slander.

It has long been up to the Chinese authorities to determine where that line rests, and a range of artists, writers and activists have fallen afoul of it.

One of the most famous is Ai Weiwei, an artist who was arrested for "economic crimes" in 2011 after expressing support for pro-democracy protests. Another is Liu Xiaobo, a literary critic and human rights activist, who authored a manifesto calling for democratic reform in China and was arrested in 2008. Liu was awarded the Nobel Peace Prize in 2010, but could not receive it. He died in prison in 2017.

Chinese authorities have spent decades hunting down and rooting out those deemed to have challenged state-sanctioned narratives. But in recent years the dragnet has become increasingly elastic.

"Artists and writers have long been in the Chinese government's crosshairs - but the authorities are now extending that reach beyond physical borders," says Sophie Richardson, a spokesperson for the Network of Chinese Human Rights Defenders advocacy group.

This is done not just through "brutal tactics" like exit bans, Richardson explains, but also by pressuring foreign art institutions to adopt political rhetoric that aligns with that of the CCP.

"It's a global effort to limit free speech and artistic expression," she says.

Still, Gao Zhen's case is remarkable – not only because he is seemingly being punished retroactively, but also because, as Johnson points out, Zhen "did not directly criticise the Communist Party, let alone Xi Jinping".

"In other words, he's not a classic dissident," he says. "But still the Party is now so sensitive toward history that it felt it had to detain and try him."

Among the more classic dissidents is Badiucao, a Melbourne-based artist with firsthand experience of how far the long arm of the Party can extend.

Born in Shanghai, the 40-year-old cartoonist has lived in Australia since 2009 and earned a reputation for artworks critiquing Beijing and Xi.

Unsurprisingly, such works have piqued the attention of Chinese authorities and made Badiucao – who does not give his real name publicly – a target. He has been a victim of online smear campaigns, threats against his family, identity theft, and a suspected home invasion, all of which he links back to his angering of the CCP.

It is impossible to prove whether such incidents were ordained or carried out by Chinese government authorities. It's a matter of public record, though, that Badiucao has had multiple international exhibitions cancelled following pressure from Beijing.

Yet even for the CCP, Badiucao says, the brazenness with which police arrested an artist as internationally famous as Gao Zhen reveals an unprecedented level of self-confidence.

"It is really determined to wield power without hesitation, compared with old times," he says.

So why the shift? Badiucao, and others, point to global factors: the perceived decline of democracy worldwide and a major redrawing in recent years of which lines can and cannot be crossed.

"I do not feel safe every day," Badiucao says, "because now I know the Chinese government do not care about international reputation anymore."

Richardson makes a similar point, noting that China's escalated crackdowns come amid "a worrying trend in democracies of tolerating authoritarianism".

Yet while such tolerance may have emboldened the CCP to escalate its crackdown on dissidents, there is still a limit to how much punishment the Party is willing to dole out in plain sight. Gao Zhen's trial last month was closed to the public – a measure usually reserved for matters relating to national security – as well as family members and foreign diplomats.

Gao Qiang believes such secrecy shows that "the authorities know they cannot withstand public scrutiny".

"If exposed to public view, the legal weakness, political vindictiveness, and symbolic nature of the prosecution would become impossible to hide," he says.

Badiucao goes further, noting that an open trial would spotlight the very works it is trying to black out.

"That's the paradox when you're trying an artist," he says. "Because at the end of the day, the reason why we create art is we want it spreading one way or another. A public trial is almost like a national or international show in MoMA: now the whole world will know which work is particularly offensive to what leader."

But while Beijing tries to keep the process behind closed doors, Qiang is urging the international community to pay close attention to Zhen's case.

"This is about far more than the fate of one Chinese artist – it is a test of freedom of expression, historical memory, and the most basic boundaries of the rule of law," he says.

If Zhen's prosecution is met with silence, Qiang adds, it will send a message to the world: "that a state may retroactively redefine the meaning of art and turn satire, reflection, and memory themselves into crimes".

"Gao Zhen is under threat today; tomorrow it could be any writer, filmmaker, musician, or critic."