Regulating Disclosure of Private v. Public Museums

Posted on December 4, 2008

A few days ago I commented in a CPAL post that I would support legislation requiring publicly funded museums to disclose provenance or lack thereof of the items in their collections. Archaeologist Paul Barford asked via comment why I would make a distinction between public museums and private ones? He pointed out that the harm in displaying artifacts without provenance is the same regardless of whether a museum is private or public.

I brushed off his question with a comment on my libertarian leanings, but if you know Paul Barford, you know he is nothing if not persistent. So he asked again. I took a little time to think about it and did find some clarity in my position.

I believe that publicly funded museums should be held to a higher ethical standard than currently exists, one that takes into account potential societal harms and political conflicts that may result from irresponsible collecting practices. When an institution accepts public funding, it waives many rights it may have had beforehand. It becomes subject to regulation that, if applied to private entities, may be excessive.

To apply legislation requiring full disclosure to private museums is to act as if there is no such thing as the legal trade in antiquities. It is to invite Big Brother into the private sphere to inspect personal actions and possessions for ethical/moral compliance. As a matter of principle, I believe that regulating morality at the expense of private rights is ethically wrong. And I believe this might be what would be happening were we to legally require disclosure on the part of private museums.

The most relevant analogy that comes to mind is the 14th Amendment to the U.S. Constitution as it provides for equal rights regardless of race. Every public business in the U.S. is legally required to provide services and allow admission regardless of race, and thank goddess for it. But truly private enterprises are not. There are still some “whites only” clubs in Georgia, and those dumbheaded fools have a constitutional right to have those clubs that restrict membership. While I am not proud to live in a country where some people feel that way, I’m sure as hell glad to live in a country where they have the right to.

To lawfully require private museums to provide proof of provenance would, in a manner, circumvent the due process right to be innocent until you are proven guilty. It would be to assume guilt on the part of collectors and curators, and to shift the burden to them to prove their innocence.

What it boils down to is what kind of government you want to have. I have not been convinced that the interests that would be served by legislation requiring disclosure on the part of private museums outweigh the interests that would be undermined (privacy, due process, and free trade, mainly).

Due to my personal convictions regarding liberty and government, I would rather err on the side of less governmental regulation as a matter of principle when it remains unproven that the public interest mandates interference with private, lawful actions.

[Having said all that, of course I believe that private museums should be held publicly accountable for disclosing provenance of the items in their collections.]

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