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The New York State Senate recently passed Senate Bill S117A, which would obligate museums to display placards for any art that might have been stolen by Nazi Germany indicating that fact.

Since the law would imply compelled speech by private and even not-for-profit entities, that naturally raises the question of whether there are any First Amendment issues with such a law. After all, as summarized in this (critical) article from Harvard Law, courts have often been reluctant to compel commercial speech even when there is a fairly strong public welfare interest in doing so.

Are there any issues with this law due to freedom of expression under the First Amendment? Why or why not?

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    This notice isn't commercial speech. It is not in any way part of an offer or commercial transaction. The contents of a museum's displays are no more commercial than the contents of a newspaper. Aug 23, 2022 at 20:37
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    @DavidSchwartz - Museums can change money for seeing their collection. That's a commercial transaction. Obligatory warning labels on cigarettes are also generally considered commercial speech, even though they are a mere description of the product, not advertising. That is much like a museum labeling objects in its collection.
    – Obie 2.0
    Aug 23, 2022 at 20:39
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    No, it's not like it at all. First, whether you charge money or not has nothing to do with whether speech is commercial or not. Speech is commercial speech if its contents are commercial. Second, the warnings on cigarettes are disclosures about the parameters of a commercial offer. The displays in a museum aren't on offer and they're just like the contents of a book or newspaper. (This law would almost certainly be okay if it applied only to items offered for sale for the same reason other commercial disclosure laws are.) Aug 23, 2022 at 20:43

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Compelled speech, which seems to violate the First Amendment, can be constitutional if it is necessary to advance a compelling government interest. Under "strict scrutiny", a constitutional right can be restricted if it is necessary for a compelling government interest, is the least restrictive means of achieving that interest, and is narrowly tailored to accomplishing just that interest. However (see NIFLA v. Becerra, 595 US ____)

“The Court has afforded less protection for professional speech in two circumstances—some laws that require professionals to disclose factual, noncontroversial information in their ‘commercial speech’...”

The New York law seems to fall within that exception where the rules are not as strict. The law does not require a statement that the work might have been stolen by Nazi Germany, it say that

identifiable works of art known to have been created before nineteen hundred forty-five and which changed hands due to theft, seizure, confiscation, forced sale or other involuntary means in Europe during the Nazi era (nineteen hundred thirty-three--nineteen hundred forty-five)

must be identified as such. It would be a controversial claim to say that the work was specifically seized by Nazi Germany. Insofar as the law offers two expressions for identifying the time period, a museum can simply refer to the time period without explicitly mentioning Nazis or Germany.

It is not self-evident what state interest is being advanced – one can conjecture, but we would have to wait for a legal challenge to see what the state's claimed interest is. It seems to relate to education (since this is part of the education law), and education is a well-recognized compelling state interest.

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  • Is there any case where courts have permitted compelled speech for a purported educational purpose other than disclosures around the terms of commercial transactions or professional services? A museum's displays are nearly perfectly analogous to a newspaper's contents, aren't they? This is not commercial speech -- the notice bears no connection to an offer of commercial products or services -- it's part of a pure speech display. Aug 23, 2022 at 20:35
  • @DavidSchwartz perhaps it's truth in advertising: some museum goers might want to know whether the provenance of the piece they're viewing is tainted by the cited practices, so the government requires a disclosure. The art on display is not analogous to a newspaper's content because it is a tangible asset. Someone who has paid $25 to see the asset has an interest in knowing whether it was stolen (etc), just as someone who is considering paying $5 for a loaf of bread has an interest in knowing whether it contains sugar (etc).
    – phoog
    Aug 23, 2022 at 20:51
  • @phoog That a person might want to know something is a minor concern that would apply in any attempt to compel speech. A newspaper is a tangible asset as well but communicates intangible ideas just as a museum display does. And I would agree with you if the displays were for sale, but if they're not, then what someone might want to know is not a justification for compelling someone else to say it. (I challenge you to find any court case saying otherwise.) Aug 23, 2022 at 22:09
  • @DavidSchwartz that a person might want to know something may be a major or minor concern depending on factors both objective and subjective. A newspaper is a tangible asset, but you wrote of content, which is intellectual property, an intangible asset. Certainly the compelled speech in food labeling is based on what someone might want to know, because many people do not care whether their bread contains added sugar. If some people have an expectation that museum treasures not be stolen, it is at least arguable that the state has an interest in regulating the service provided by museums.
    – phoog
    Aug 24, 2022 at 7:31
  • @phoog The difference is that one is commercial speech and the other is not. The food is for sale, the museum items are not. The idea that the State can compel truthful disclosures around speech products has been pretty much consistently rejected by courts. In fact, your argument is precisely backwards. Because people have that expectation, such a disclosure requirement violates the First Amendment because it permits retaliation against unpopular speech and displays at the hands of an intolerant society (McIntyre v. Ohio Elections Commission). Aug 24, 2022 at 8:12

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