united-states new-york-state freedom-of-speech first-amendment
Are there any First Amendment issues around New York State Senate Bill S117A?
<p>The New York State Senate recently passed <a href="https://www.nysenate.gov/legislation/bills/2021/S117" rel="nofollow noreferrer">Senate Bill S117A</a>, which would obligate museums to display placards for any art that might have been stolen by Nazi Germany indicating that fact.</p>
<p>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 <a href="https://blog.petrieflom.law.harvard.edu/2020/12/11/graphic-warnings-cigarettes-first-amendment/" rel="nofollow noreferrer">this (critical) article</a> 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.</p>
<p>Are there any issues with this law due to freedom of expression under the First Amendment? Why or why not?</p>

<p>Compelled speech, which seems to violate the First Amendment, can be constitutional if it is necessary to advance a compelling government interest. Under &quot;strict scrutiny&quot;, 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 <a href="https://www.supremecourt.gov/opinions/17pdf/16-1140_5368.pdf" rel="nofollow noreferrer">NIFLA v. Becerra</a>, 595 US ____)</p>
<blockquote>
<p>“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’...”</p>
</blockquote>
<p>The New York law seems to fall within that exception where the rules are not as strict. <a href="https://legislation.nysenate.gov/pdf/bills/2021/s117a" rel="nofollow noreferrer">The law</a> does not require a statement that the work might have been stolen by Nazi Germany, it say that</p>
<blockquote>
<p>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)</p>
</blockquote>
<p>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.</p>
<p>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.</p>
