Adjunct Professor Leila Amineddoleh wrote an op-ed about Hobby Lobby’s purchase of looted artifacts for its proposed Museum of the Bible.
This week, news of Hobby Lobby’s purchase of looted artifacts for its proposed Museum of the Bible took the media by storm. As an art and cultural heritage law attorney and professor, I wasn’t surprised by the news itself. After all, unscrupulous collectors have acquired stolen antiquities for generations.
More interesting has been the public outcry, particularly from cultural heritage commentators, lamenting the fact that the government did not pursue tougher criminal penalties against Hobby Lobby’s executives. Yet this kind of criticism, I believe, misinterprets what it would mean for the government to pursue the case, while underplaying the significance of the actual results.
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In the case at hand, there has been outcry that Hobby Lobby’s representatives knew about the looted nature of its acquisitions because they had consulted with a cultural heritage expert prior to the purchase of works. However, an expert’s general advice concerning heightened risk of acquiring Iraqi objects unfortunately does not necessarily prove knowledge about the status of specific objects.
Moreover, Hobby Lobby is a huge company with numerous employees and executives who have access to a variety of different information sources. It simply might not be possible to prove that all high-ranking members of, or purchasers within, the organization were provided with all the relevant information in this case.
Proving scienter by the parties involved in the acquisition of works is a tremendous burden. Even though some knew of the illicit nature of the purchases, they could easily conceal their guilt by hiding their actions, assigning them to other parties within the organization.
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Proving origin is easier for larger and more distinctive pieces that leave a more traceable record. The pieces acquired by Hobby Lobby are harder to trace due to their lower values and commonplace nature.
Hobby Lobby acquired thousands of relatively inexpensive and, frankly, ordinary pieces. For the government to prosecute a case for thousands of pieces, it would have the burden of proving that each one was stolen, taken in violation of a national patrimony law (in this case, Iraq’s law) or international law. This would require the government to prove, definitively, that all or a substantial number of the items in the vast trove did actually come from Iraq, and were removed illicitly.
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Rather than face the heavy burden of a criminal case and devote financial resources and excessive amounts of time to it, the government found it more efficient to pursue a civil resolution. In this civil case, Hobby Lobby didn’t fight as ardently as would be expected in a criminal prosecution. And it got results: the company agreed to return the artifacts in question.
As part of the settlement, Hobby Lobby also adopted a list of serious reforms: It will pay a sum of $3 million; adopt internal policies governing its importation and purchase of cultural property; provide appropriate training to its personnel; hire qualified outside customs counsel and customs brokers; and submit quarterly reports to the government on all cultural property acquisitions for the next 18 months.
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Perhaps the most interesting aspect of this case concerns the oft-cited “willful ignorance” defense. Hobby Lobby never admitted guilt, but defended its actions by claiming ignorance and characterizing the acquisitions as “regrettable mistakes.” They brazenly stated that, “The company was new to the world of acquiring these items and did not fully appreciate the complexities of the acquisitions process.”
Cultural heritage specialists have long cried foul when circumstances suggest that a collector turned a blind eye to red flags. In this case, Hobby Lobby did not even turn a blind eye. The company actually sought out one of the best known cultural experts—and then ignored her advice.
This wasn’t willful ignorance, but the willful ignoring of advice.
Is that acceptable? This case is an opportunity for all participants in the cultural heritage profession to examine and establish reasonable acquisition standards.
This point should not be missed: The government took the Hobby Lobby case as a valuable opportunity to examine the antiquities market and to work to bring some light to a world which is characterized as being highly unregulated.
I applaud the government for wisely devoting resources in this case against Hobby Lobby, even after realizing that a criminal case carried too many risks, costs, and high burdens. The authorities have pursued the corporate giant in an effective way that has placed both Hobby Lobby and the Museum of the Bible under intense scrutiny.
