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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. Example: films showing men being put to work on Accelerated Public 

Work Projects.

The intended uses of movies include two basic ones: by Congressmen 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 use1and will probably be produced, directly or indirectly, in coordination with the Democratic 

National Committee. It is hoped that professional help would be donated 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.
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286

are public property, publicly released, for use by anyone. Still pictures are already being used regularly in the ‘Democrat’ and I assume this is proper. With movies, we would want to excerpt, rearrange 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 
Providing Government Films to the Democratic National Committee or Congressmen

287

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 prohibitions and by the necessity for a determination as to whether the proposed disposition would be in the public interest. Article 4, Section 3, Clause 2 of the Constitution 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 acquired by the Government may not be sold, or title otherwise disposed of, except 

under the authority of Congress.” Grant of Revocable Licenses Under Government-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 constitutional 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 agency3to 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.
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288

. . . 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 Aqueduct 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’ Bureau, 33 Op. 325, 327 (1922).] The power has been frequently exercised 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 Department 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 Government 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 conditions, 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 
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289

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 distribution 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.