             Providing Government Films to the Democratic
                  National Committee or Congressmen
Government motion picture films may be made available to the Democratic National Committee or
  congressmen when public release is authorized by statute.
In the absence of statutory authority, government films may be made available to the Committee or
   congressmen on a revocable loan basis if a public interest can be shown to justify such loan and if
   the films are available equally to other private organizations.
It would be improper for any government agency to produce a film for the specific purpose of making
   it available to the Democratic National Committee or to congressmen.

                                                                                December 26, 1963

           MEMORANDUM OPINION FOR THE ASSISTANT SPECIAL COUNSEL
                            TO THE PRESIDENT

   This is in response to your memorandum of June 15, 1963, requesting my
views upon the use for non-governmental purposes of motion picture films
produced by federal departments and agencies. Your request has reference to a
memorandum from Paul Southwick, dated June 3, 1963, in which he outlines a
proposed use of government motion picture films documenting activities of the
Kennedy administration. His memorandum states in part:

            I am requesting Federal agencies wherever possible to obtain both
        still and motion picture films to document activities of the Kennedy
        Administrative, with particular emphasis on human interest. Exam-
        ple: films showing men being put to work on Accelerated Public
        Work Projects.

           The intended uses of movies include two basic ones: by Con-
        gressmen and Senators on their local “public service” TV programs,
        and later, in a documentary or series of documentaries, depicting
        progress under the Kennedy Administration.

           The latter would have a partisan use1 and will probably be pro-
        duced, directly or indirectly, in coordination with the Democratic
        National Committee. It is hoped that professional help would be do-
        nated for editing, arranging and narrating.

          Question: Are there any legal pitfalls in regard to such use of
        government films? I don’t see any problem in regard to stills—they

   1
     I assume from this statement that the inquiry has no relationship to any films which might be
made or released for historical rather than partisan purposes.




                                                285
              Supplemental Opinions of the Office of Legal Counsel in Volume 1


        are public property, publicly released, for use by anyone. Still pic-
        tures are already being used regularly in the ‘Democrat’ and I as-
        sume this is proper. With movies, we would want to excerpt, rear-
        range and edit. Could government movies be made available to DNC
        for such purpose? If not, could they be made available to some other
        non-government group for essentially the same purpose?

   With respect to still pictures, it appears that there is no legal problem since Mr.
Southwick indicates that he refers only to pictures “publicly released, for use by
anyone.” Consequently, this memorandum is confined to a discussion of the use of
government motion picture films.

                                            I. Summary

   Government motion picture films may be made available to the Democratic
National Committee or congressmen in circumstances in which public release is
authorized by statute. In the absence of statutory authority, government films may
be made available to the Committee on a revocable loan basis if a public interest
can be shown to justify such loan and if the films are available equally to other
private organizations. However, it would be improper for any government agency
to produce a film for the specific purpose of making it available to the Democratic
National Committee or to congressmen, and, as a matter of policy, an arrangement
which creates the suspicion that the films were produced for such a purpose should
be avoided.

                                           II. Discussion

   Some federal agencies have specific statutory authority to release government
films for public use. However, specific statutory authorization for general public
release of government films appears to be limited to a few agencies. For example,
the Agriculture Department is authorized to loan, rent or sell copies of films.
5 U.S.C. § 554 (1958). Also, the Secretary of the Interior is authorized to prepare
for free distribution or exhibit or to offer for sale films pertaining to the National
Fisheries Center and Aquarium. 16 U.S.C. § 1052(b)(2) (Supp. IV 1958).
   Statutory permission for the public release of films may be restricted. For
example, under the United States Information and Educational Exchange Act of
1948, the United States Information Agency (“USIA”) is authorized to produce
films for “dissemination abroad.” Pub. L. No. 80-402, § 501, 62 Stat. 6, 9 (1948)
(codified at 22 U.S.C. § 1461 (1958)).2 In addition, provisions of some appropria-

    2
      During the visit of Mrs. John F. Kennedy to India and Pakistan, the USIA produced two films for
“dissemination abroad,” one of the First Lady’s visit to Pakistan and one of her visit to India. Pursuant
to authority contained in 22 U.S.C. § 1437, the USIA contracted with United Artists for the production
of a third film of Mrs. Kennedy’s trip. This film, utilizing in part government footage, was produced at




                                                  286
   Providing Government Films to the Democratic National Committee or Congressmen


tion acts forbid use of appropriations for publicity or propaganda purposes. For
example, the Departments of State, Justice, and Commerce, the Judiciary, and
Related Agencies Appropriation Act for 1963, Pub. L. No. 87-843, 76 Stat. 1080,
contains in title VII the following provision:

        No part of any appropriation contained in this Act shall be used for
        publicity or propaganda purposes not authorized by Congress.

Id. § 701.
    A systematic practice of a government agency to produce or obtain films and
turn them over to a political organization might well raise questions as to the use
of appropriated funds under such a provision.
    Absent specific statutory authority, the right of the head of a department or
agency to give, lend, sell, or otherwise dispose of government film to a private
organization would appear to be limited by constitutional and statutory prohibi-
tions and by the necessity for a determination as to whether the proposed disposi-
tion would be in the public interest. Article 4, Section 3, Clause 2 of the Constitu-
tion gives to the Congress the power “to dispose of . . . Property belonging to the
United States.”
    Under Article 4, Section 3, Clause 2 of the Constitution, “property once ac-
quired by the Government may not be sold, or title otherwise disposed of, except
under the authority of Congress.” Grant of Revocable Licenses Under Govern-
ment-Owned Patents, 34 Op. Att’y Gen. 320, 322 (1924). Attorney General Stone
stated that “this prohibition extends to any attempt to alienate a part of the
property, or in general, in any manner to limit or restrict the full and exclusive
ownership of the United States therein.” Id. As a consequence of this constitution-
al prohibition, a government agency was held not to have authority to sell maps to
individuals or private companies without statutory authorization. Puerto Rico
Reconstruction Company—Sale of Prints of Survey Map, 39 Op. Att’y Gen. 324,
325 (1939).
    Congressional authority appears to be unnecessary, however, to permit the head
of a department or agency3 to grant to individuals or organizations revocable
licenses to use government property for a purpose beneficial to the government or
in the public interest. The distinction between alienation of government property
and the granting of a revocable use license in the public interest was discussed by
Attorney General Stone:


the expense of United Artists and was commercially released through the Selzer Company. The
government benefited from this arrangement by obtaining a third film of Mrs. Kennedy’s trip produced
at the expense of a private company and by use of United Artists’ distribution facilities in countries in
which USIA has no facilities. The government footage was loaned to United Artists, which returned the
original to the government after making copies. Dissemination of one of the films in the United States
was admitted by USIA not to be authorized.
    3
      See infra note 4.




                                                  287
             Supplemental Opinions of the Office of Legal Counsel in Volume 1


           . . . And it has been uniformly held that revocable licenses, in the
        public interest, for the use of Government property, could be given
        by the head of the appropriate Department. [Revocable Licenses, 22
        Op. Att’y Gen. 240, 245 (1898); Government-Owned Site at Aque-
        duct Bridge, 30 Op. 470, 482 (1915); Transfer of Property from One
        Government Department to Another, 32 Op. 511, 513 (1921); Use of
        a Portion of Camp Lewis Military Reservation by the Veterans’ Bu-
        reau, 33 Op. 325, 327 (1922).] The power has been frequently exer-
        cised by such Departments in accordance with these opinions.

            When the law has been so construed by Government Departments
        during a long period as to permit a certain course of action, and
        Congress has not seen fit to intervene, the interpretation so given is
        strongly persuasive of the existence of the power. . . . In [United
        States v. MacDaniel, 32 U.S. (7 Pet.) 1, 14 (1833)], it is made clear
        that the head of a Government Department does not have to show
        statutory authority for everything he does. Reasonable latitude in the
        exercise of discretion is implied. “Usages have been established in
        every Department of the Government, which have become a kind of
        common law, and regulate the rights and duties of those who act
        within their respective limits . . . . Usage can not alter the law, but it
        is evidence of the construction given to it.” . . .

            ....

           Under section 161 of the Revised Statutes, the Head of each De-
        partment regulates the custody, use, and preservation of property
        pertaining to it. So that it may be said that while the Constitution
        prohibits the alienation of the title, ownership or control of Govern-
        ment property without Congressional sanction, Congress has given
        the Head of a Department authority and control over the “use” and
        preservation of such property in his charge.

Grant of Revocable Licenses, 34 Op. Att’y Gen. at 326–27. See also Government
Research Facilities—Use by Graduate and Faculty Scientists—National Bureau of
Standards Cooperative Program, 36 Comp. Gen. 561, 563–64 (1957).
   It would seem to follow from the foregoing that, subject to appropriate condi-
tions, the head of a department or agency4 may permit the use of government films

    4
      Undoubtedly, the head of an agency, as well as the head of a department, possesses authority to
permit non-governmental use of official property. Although in Grant of Revocable Licenses, 34 Op.
Att’y Gen. 320, Attorney General Stone relied in part upon Rev. Stat. § 161 (5 U.S.C. § 22), which
authorizes the head of an executive department to regulate the custody, use and preservation of
property belonging to that department, it does not appear that the Attorney General’s opinion would
have been different if Rev. Stat. § 161 had not been in force. Consequently, the opinion seems to be




                                                288
   Providing Government Films to the Democratic National Committee or Congressmen


by private organizations if a public interest can be demonstrated. If a government
decision should be made that public dissemination of any film is in the public
interest, the Democratic National Committee or congressmen would be entitled to
access to the film equally with any other private organization.
    This conclusion does not, however, dispose of all of the questions raised by Mr.
Southwick’s memorandum. He states that the films are intended to be used by
congressmen in their “public service” broadcasts and for a series of documentaries
to be a produced in coordination with the Democratic National Committee which
would probably have a “partisan use.” Nothing in the conclusion stated above
would justify a government agency in producing or collecting films for such
purposes. Statutory or other authority to make or collect films and to distribute
them to the public does not, as I have stated, preclude distribution to persons or
organizations which may use them for partisan political purposes. However, it can
hardly be contended that such authority extends to production or collection of
films in order to foster such purposes. 5 As a realistic matter, films made or
collected for use either by a political committee or for a congressman’s “public
service” broadcasts would in effect be produced or assembled for partisan political
purposes.
    I might add that a systematic practice of government agencies’ supplying films
to be used for private political purposes raises some questions which should be
seriously considered. I think that no question at all is presented when it is the
mission of a government organization, such as the Library of Congress, to
maintain a film or picture library, with prints available to the general public. Those
who wish to make use of its facilities for their private political purposes are as
entitled to do so as anyone is. But where the collection or production and distribu-
tion of films is incidental to the basic mission of any agency, a close working
relationship with persons or organizations who use the films for political purposes
is apt to create the suspicion that, in the first instance, they were made or collected
for those purposes. Obviously this should be avoided.

                                                         NORBERT A. SCHLEI
                                                        Assistant Attorney General
                                                         Office of Legal Counsel




broad enough to support the right of the head of an agency to allow private use of government property
subject to appropriate conditions. In this connection, it is of interest that the Comptroller General has
expressed the opinion that the Federal Communications Commission, an independent agency, may
issue a revocable license for the use of government property. Public Property—Administrative
Authority to Dispose Of, 22 Comp. Gen. 563 (1942).
    5
      With respect to agencies subject to statutory limitations on the use of appropriated funds for
publicity or propaganda purposes, such activity might also violate the provisions of the relevant
appropriation act.




                                                  289
