Is That Painting a Forgery? Don't Answer, You Might Get Sued

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People shouldn't face the threat of litigation for voicing their honest professional opinions.

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Leading art experts increasingly refuse to give their opinions on whether a work is authentic, according to Patricia Cohen's front page story in the New York Times. Fear of litigation is the culprit. The former chief curator at MoMA, John Elderfield, refused to give an opinion on whether a work attributed to Henri Matisse was real, because he "could be sued if he said the painting was not a real Matisse."

Free speech is supposedly a core value of our culture. But the mere possibility of a lawsuit by a self-interested seller of dubious art apparently has trumped the First Amendment. Not many years ago, Elderfield observed, art experts felt they "had a moral obligation to" give their honest view. Now, organizations dedicated to safeguarding the reputations of artists, including the Andy Warhol Foundation and the Noguchi Museum, "have all stopped authenticating works to avoid litigation."

This is a serious blow to the integrity of art markets. Forgeries will be allowed to stay in circulation, and newly discovered works will have a cloud on their authenticity, even if experts believe them to be real.

Something important is missing here. We would never let the Justice Department indict a person for giving an honest view of, say, the performance of the president. A judge would dismiss the indictment immediately. So why is a person trying to peddle a potentially fake painting allowed to use a lawsuit to muzzle the honest opinion of experts?

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What's missing is a core legal value: that people shouldn't get sued for voicing their honest opinions. The solution is clear: Judges should throw out any such lawsuit, with an explicit legal ruling that, absent a conflict of interest, expert opinions are protected as a matter of law.

Judges don't make rulings like this because there is a false premise underlying American civil justice: that lawsuits are an act of freedom, like free speech. But lawsuits are an act of state power, not a personal preference. Lawsuits are just like indicting someone, except the indictment is for money. If judges don't act as gatekeepers, drawing boundaries of valid legal claims as a matter of law, then lawsuits can be used to scare people away from doing what they believe is right.

The art market is only the latest casualty of a defective theory of justice. No court or legislature banned job references. Nor did any court ban seesaws, diving boards, or merry-go-rounds, or mandate silly warning labels on common products. Now, the Times reports, "leading experts on Degas have avoided publicly saying whether 74 plasters attributed to him are a stupendous new find or an elaborate hoax." What does that do to the integrity of the art market, or our admiration for Degas the next time we're at a museum?

A laissez-faire approach to lawsuits does not support freedom. It destroys it. It's time for judges to understand that lawsuits are not just private disputes. They affect the freedoms of everyone in society.

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Philip K. Howard is a lawyer, author and chair of Common Good. He is the author, most recently, of Life Without Lawyers: Restoring Responsibility in America, and wrote the introduction to Al Gore's Common Sense Government. More

Philip K. Howard is the author of Life Without Lawyers(Norton 2009), as well as the best-seller The Death of Common Sense(Random House, 1995) and The Collapse of the Common Good(Ballantine, 2002), and he is a periodic contributor to the op-ed pages of The New York Times, The Wall Street Journal, and The Washington Post. He advises leaders of both parties on legal and regulatory reform issues, and wrote the introduction to Vice President Al Gore's book Common Sense Government. A practicing lawyer, Howard is a partner in the law firm Covington & Burling LLP. In 2002, Howard founded Common Good (www.commongood.org), organized to restore common sense to American public life. The Advisory Board of Common Good is composed of leaders from a broad cross-section of American political thought including, among others, former Senators Howard Baker, Bill Bradley, George McGovern, and Alan Simpson. Howard is a civic leader in New York and is Chair-Emeritus of the Municipal Art Society, a leading civic group that spearheaded initiatives to preserve Grand Central Terminal.
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