Bonus Episode: Berkshire Museum Litigation Update (It’s not over!)


Katie and Steve get an update from attorney Nicholas O’Donnell about the status of the lawsuit he brought on behalf of certain members of the Berkshire Museum for breach of fiduciary duty, among other claims, in relation to the Museum’s sale of much of its valuable art collection to pay for operating and capital expenses.  While much of the art has been sold, the members fight on.  Nick explains the unusual posture of the case to our listeners.

*Note: On Monday, the Massachusetts Appeals Court ended the Berkshire Museum deaccessioning legal saga by upholding a decision by the court that members of the Berkshire Museum do not have standing to sue the Museum challenging the conduct of its Board of Directors.

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Nazi Looted Art: Legal Remedies and Limitations


Steve and Katie discuss the Nazis’ complicated and perverse relationship with fine art with attorney and author Nicholas O’Donnell.  Nick is the author of the recent book, A Tragic Fate: Law and Ethics in the Battle Over Nazi-Looted Art, which tells the story of stolen and appropriated art in World War II Europe and how the U.S. legal system has been instrumental in dealing with claims for restitution decades later.  Steve, Katie and Nick start with the historical landscape in 1930s Europe, and discuss some the most contentious and ongoing disputes.

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Bonus Episode: Is Cake “Art” and Entitled to First Amendment Free Speech Protections?


On this bonus episode, Katie and Steve discuss the recent SCOTUS case Masterpiece Cakeshop v. Colorado Civil Rights Commission, 584 U.S. ___ (2018).  In this case, a baker claimed his First Amendment free exercise and free speech rights were violated when he was found in violation of a Colorado statute prohibiting disparate treatment based on sexual orientation in public accommodations for refusing to make and sell a wedding cake to a gay couple.  The baker refused to make the wedding cake because of his religious objections to gay marriage.  Although the controlling decision of the Supreme Court only dealt narrowly with the baker’s free exercise, religious discrimination claim, free expression issues lurked in the background and were taken up directly and forcefully in Justice Thomas’ partial concurrence.  Katie and Steve discuss the free expression part of the case and its real or imagined relationship to artist’s rights and government censorship of art.

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Art, Censorship and the First Amendment


On this month’s episode, Steve and Katie dive into the charged topic of censorship.  With guest Professor Amy Adler they talk about government and non-government attempts to censor art, what the legal boundaries are and where the law actually has little if nothing to say about censorship of art.  They describe applicable First Amendment doctrine, apply it to art and examine particular examples of art “censorship” from the culture wars of the 1990s through today, from both the political right and left.

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