28 No. 69 JUSTICE Even if the law can theoretically ease the tension between compelling speech and First Amendment rights, there is an unfortunate trend which will likely apply to this newest amendment. Running parallel to a history of laws establishing a broad consensus on Nazi art theft is a history of lawmakers promptly forgetting the contents of such laws. In 2016, Congress passed the Holocaust Expropriated Art Recovery (HEAR) Act to extend claimants’ ability to have their day in court.15 The law was accompanied with great fanfare, and co-sponsored by unlikely allies like Ted Cruz and Chuck Schumer. It passed unanimously. Yet when the Supreme Court stated (in dicta) in 202116 that the HEAR Act was primarily to promote non-litigation resolutions (at complete odds with the statute’s text), was there any Congressional objection? No. Similarly, when Congress amended the Foreign Sovereign Immunities Act explicitly to define “Nazi era claims” to mean the entirety of the Nazi era between 1933 and 1945, SCOTUS held that Congress only meant some of them. The Congressional response to this defiance was . . . nothing. Not a bill, not a speech, not a hearing. One wonders if the attention of the New York politicians – who were happy to call attention to themselves last year when the bill was signed – will be similarly fleeting. n Nicholas M. O'Donnell is an attorney in Boston, Massachusetts. He has served as lead counsel on a variety of lawsuits concerning restitution and fine art sales and has advised museums, dealers, auction houses, and collectors worldwide about restitution, copyright, and de-accessioning issues. Mr. O’Donnell is also the author of numerous articles and papers on the subject of art disputes and regulation, as well as “A Tragic Fate—Law and Ethics in the Battle Over Nazi Looted Art” (2017), which was the first comprehensive overview of disputes regarding Nazi-looted art in the U.S. The work included his clients’ claims for the Guelph Treasure or “Welfenschatz,” which he argued before the Supreme Court in 2020. 15. Supra note 2. 16. F.R.G. v. Philipp, 141 S.Ct. 703 (2021).
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