27 Spring 2023 piece in the midst of litigation is covered by the law. To be sure (and perhaps by coincidence), there have been disputes elsewhere in which the parties all agreed that the art met the criteria to be considered Nazi-looted art, but the museums resisted restitution for one reason or another. In that scenario, a museum in New York would be obliged at least to display the information about the piece’s provenance. The elephant in the room is the nature of the law’s command: speech. Distilled to its essence, the law requires the museums to say something. At a certain level such compelled speech is antithetical to the First Amendment. The First Amendment does not permit the government to require private actors to speak, even if the subject is something about which there is broad agreement. We live in an age where social media posts trumpet obvious falsehoods, but the First Amendment does not condone requiring those speakers to make a correction. How can something that often involves judgment and opinion be required, if outright believers in the 9/11 truth movement and election deniers are free to spread objective falsehoods? This is not to suggest New York museums have done anything akin to denying the reality of a terrorist attack or the legitimacy of a U.S. presidential election. Instead, state authority stands on firmer ground when promoting awareness in primary and secondary education, which was addressed in another law passed and signed at the same time as the one discussed here, by mandating a survey regarding instruction on the Holocaust within New York State public school districts.14 11. See e.g., “Nazi-Era Provenance Research” (https://www. mfa.org/collections/provenance/nazi-era-provenanceresearch); see also Claire Smith, “World War II Art Restitution Exhibitions: A Step in the Right Direction or Not Far Enough?” Summer 2022, THE IJOURNAL, available at https://theijournal.ca/index.php/ijournal/article/ download/39327/29957 12. N.Y. Education Law § 233-AA (Aug. 19, 2022), available at https://www.nysenate.gov/legislation/laws/EDN/233AA 13. See Silver, et al. v. Basil and Elise Goulandris Foundation, et al., 3:2022cv08914, Justia (N.D. Cal); Bennigson, et al. v. The Solomon R. Guggenheim Foundation, Index No. 650416/2023, Court House News (N.Y. Sup. Ct.). 14. Chapter 490 of the Laws of 2022 (A.472C /S.121B); see also “Governor Hochul Signs Legislation to Honor and Support Holocaust Survivors in Educational, Cultural, and Financial Institutions,” supra note 1. matter of ethics. Every museum under the jurisdiction of the recent New York law operates in the context of these existing principles. Some outside the jurisdiction of New York law, like the Museum of Fine Arts Boston or the Nelson-Atkins Museum in Kansas City, have hired dedicated experts to assess their collections’ provenance.11 Others have resisted even acknowledging the obvious likelihood that their collections include Nazi-looted art, and made little effort towards transparency. The New York amendment is therefore a classic example of attempting to compel behavior that was previously only suggested. There is no enforcement mechanism for the AAM or AAMD guidelines, and any museums that flouted the guidelines are generally met with silence from the associations themselves. It would seem that the threat of legal liability under the new amendment supports the notion that something more than best practices might be a good idea. However, this is a law, and what actions constitute compliance versus a violation will depend on a careful reading of the statute’s text. Moreover, even allowing for the admirably broad-minded description of what constitutes Nazi art theft, it is unclear what or who determines whether art “changed hands due to theft, seizure, confiscation, forced sale or other involuntary means in Europe during the Nazi era.” The Attorney General? Presumably, if a museum had reason to believe that it possessed a piece that fell under this definition, the museum could be compelled to indicate as much in a sign. But what degree of certainty is required? The law does not say. Finally, in some ways the law could act as a disincentive to further inquiry, rather than a galvanizing force. After all, the law does not compel investigation, nor does it condemn a lack of knowledge. Arguably, a museum would be safer to cease further research lest that research uncover information that would then have to be disclosed. Notable disputes that have unfolded in New York bear this out. Museums ranging from the Metropolitan Museum of Art, to the Guggenheim, to the Museum of Modern Art have steadfastly rejected the underlying premise advanced by claimants that works in their collections, “changed hands due to theft, seizure, confiscation, forced sale or other involuntary means in Europe during the Nazi era.”12 Moreover, if museums came to that conclusion and were prepared to defend it in litigation – as they had every right to do – this law may not lead to any different disclosure. Indeed, those museums have again been sued in multiple cases since the original law was passed,13 and no one seriously expects any museum to admit that a
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