25 Spring 2023 n August 2022, New York Governor Kathy Hochul signed into law an amendment to New York Education Law Section 233-AA,1 which now requires museums to publicly identify any object in their collection that was displaced by the Nazis during the Holocaust, which Congress rightly described as the “greatest displacement of art in human history.”2 The amendment reflects a response to the widely varying degree of candor with which American museums proactively approach the issue of Nazi-looted art in their collections. Many have shown admirable initiative in probing their collections, while others have shown a regrettable passivity in waiting to receive claims which they ultimately deflect. New York is the center of the art world, and its museums hold a unique place of prominence. Whether this bill will finally stimulate passive institutions into action is the question. While the amendment serves many of the modern restitution era’s defining ideals of transparency and disclosure, it could create some unintended consequences and posit some uncomfortable questions about compelled speech under the First Amendment. The law states: Every museum which has on display any identifiable works of art known to have been created before nineteen hundred fortyfive and which changed hands due to theft, seizure, confiscation, forced sale or other involuntary means in Europe during the Nazi era (nineteen hundred thirty threenineteen hundred forty-five) shall, to the extent practicable, prominently place a placard or other signage acknowledging such information along with such display.3 There are two key concepts at work here. First, the amendment’s bracketing of 1933-1945 is vital. It reflects the importance of acknowledging the full extent of Nazi crimes during the entirety of the regime, rather than focusing on a specific type of hateful act or arbitrary period within the Third Reich such as the enforcement of Reich Citizenship (Nuremberg Race) Laws beginning in 1935. Second, the law takes an appropriately broad view of Nazi art crimes. One of the practical limitations of the Washington Conference Principles on Nazi-Confiscated Art is the term “confiscated” itself. The scope of Nazi art theft was so much broader than cartoonish scenarios of deprivations at gunpoint. The Nazis were driven by an insatiable quest to pretend they were buyers rather than thieves, and rendered their victims unable to make real legitimate and uncoerced decisions,4 as recognized in dictates like Military Government Law No. 59’s New York Law on Display of Information about Nazi-Displaced Art Promotes Understanding but Raises Questions I Nicholas M. O’Donnell 1. N.Y. Education Law § 233-AA (Aug. 19, 2022), available at https://www.nysenate.gov/legislation/laws/EDN/233AA; see generally “Governor Hochul Signs Legislation to Honor and Support Holocaust Survivors in Educational, Cultural, and Financial Institutions,” NEW YORK STATE (Aug. 10, 2022), available at https://www.governor.ny.gov/ news/governor-hochul-signs-legislation-honor-andsupport-holocaust-survivors-educational-cultural; Clara Cassan, “New York Museums to Display the History of Nazi-Looted Artworks,” INTERNATIONAL BAR ASSOCIATION (Nov. 7, 2022), available at https://www.ibanet.org/NewYork-museums-to-display-the-history-of-Nazi-lootedartworks#_edn1 2. Holocaust Expropriated Art Recovery (HEAR) Act of 2016, Pub. L. No. 114-308, 130 Stat. 1524, § 4(3) (2016). 3. N.Y. Education Law § 233-AA (Aug. 19, 2022), available at https://www.nysenate.gov/legislation/laws/EDN/233-AA 4. For example, the Military Government Law No. 59 presumes that confiscation occurs where their possessor– rather than the claimant–bears the burden of proving that the work was not stolen. Presidential Advisory Commission on Holocaust Assets in the United States and Art & Cultural Property Theft, “Military Government Law No. 59,” CLINTON DIGITAL LIBRARY, available at https://clinton. presidentiallibraries.us/items/show/30179
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