That is one magic loogie.
“Well, that’s the way it happened,” Newman says defensively. Then Jerry asks Kramer what happened when his head was hit.
KRAMER: Well, uh, my head went back and to the left.
JERRY: Say that again.
KRAMER: Back and to the left.
JERRY: Back and to the left. Back and to the left.
Based on the movement of Kramer’s head, Jerry argues triumphantly, there had to have been “a second spitter behind the bushes on the gravelly road.” It could not have been Hernandez (who was behind Kramer) because had the spit come from the rear, Kramer’s head would have pitched forward and not back. When Elaine muses that the spit must therefore have come from the front and to the right, Jerry says dismissively, “But that’s not what they would have you believe.”
The Seinfeld episode was one of the few times that I saw my father really laugh about anything related to the Zapruder film. In fact, we all watched Seinfeld and loved its unsentimental approach to comedy, embodied by Larry David’s mantra: “No hugging, no learning.” It’s hard to imagine who but the writers and producers of Seinfeld could have pulled this scene off. Jerry Seinfeld remembered his “magic loogie” speech getting one of the longest and most sustained laughs in the history of the series. Everyone, it seemed, got the joke—not only Seinfeld’s satire of Stone’s exaggerated deconstruction of the single-bullet theory in JFK but also the way it reflected decades of endless analysis, scrutiny, argument, and ultimately unresolved questions about the Zapruder film and the assassination.
A lot of people thought Seinfeld’s JFK parody was funny, but there were many who thought Oliver Stone had a very strong point. The movie brought about a public outcry that caused members of Congress to take up the question of public access to the JFK assassination records in January 1992. Over the following months, these efforts gained traction as more and more powerful voices joined the chorus of those clamoring for the release of the files. Even former presidents Richard Nixon and Gerald Ford, the latter of whom had sat on the Warren Commission, lent their support. In the eyes of those who favored the release of the files, the reason was, of course, to prove that there had been no government conspiracy, no collusion, and no cover-up. In March 1992, Rep. Louis Stokes, who had chaired the House Select Committee on Assassinations in 1979, introduced legislation to open the government’s assassination records, and Sen. David Boren did the same in the Senate. Hearings were held through the summer and, in spite of minor disagreements over the substance of the law, both houses passed the Senate version of the President John F. Kennedy Assassination Records Collection Act of 1992. It was signed into law by George H. W. Bush on October 26, 1992.
The passage of the JFK Act, as it was called, was a bold and important step for government transparency and for public access to much classified material from one of the most controversial periods in American history. A five-member Assassination Records Review Board (ARRB), to be appointed by newly inaugurated President Bill Clinton, would be charged with defining what constituted an “assassination record” and then carrying out the monumental task of identifying, gathering, and making available millions of them from dozens of agencies.
Needless to say, I didn’t know about the JFK Act when it was passed, and at the time I had no idea it would have any effect on my life or my family’s future. Nor, apparently, did my father at first—or even Jamie Silverberg, who was still handling license requests for the film. Jamie found out about the Act from another lawyer, Mark Zaid, who called and casually asked Jamie what he thought about it. Jamie didn’t really know what he was talking about. Then Zaid dropped a bombshell. “I’m thinking the Zapruder film might be included in the legislation.” It didn’t take Jamie long to get up to speed. He recalled, “I’m reading the legislation and in sum and substance, it indicates that whatever had been in the possession or was in the possession of the federal government pertaining to the assassination would be included in the JFK records for the government… And I read that and I’m thinking, well, the Zapruder film is in the possession of the government because it’s on loan with the National Archives and maybe this is an assassination record.”
In 2013, Jamie and I had a conversation about this period at a deserted Chinese restaurant outside Baltimore in the middle of the day. His office had previously provided me with all the correspondence, license agreements, legal records, and other documents related to the history of the Zapruder film from 1975 to 2000. He had also invited me to his home, under construction at the time, where he served me brunch and handed over several sets of very high-quality first-generation prints of the Zapruder film, the responsibility for which had been keeping him up at night. Like many of the people who knew and worked with Henry, Jamie is shamelessly partisan and loyal to his memory. It may not be typical of the lawyer-client relationship, but Jamie admired and loved him. In fact, at the end of our interview, after I had probed his memory and raised with him many moral and ethical questions about the film that I never asked my father, I asked Jamie if there was anything else he wanted to add. “Just… I miss your dad,” he said, his eyes filling with tears. “It’s great seeing you. I look in your eyes and I see his eyes.”
It was not immediately clear whether the JFK Act automatically made the film part of the holdings of the federal government or whether a decision was required to make it so. For one thing, the ARRB had not yet been formed and there was only a preliminary definition of an “assassination record.” But more than that, as Jamie explained it to me, the uncertainty stemmed from the fact that those who had written the law had not considered the Zapruder film in their legislation. They had been focused on making government records—especially previously classified ones—available to the public. If it turned out that the legislation constituted a “taking” of the film, it was inadvertent and unexpected not just for our family but for everyone. Jamie described to me a phone call he had with one of the drafters of the legislation: “I called and talked to the person who actually wrote the legislation. I said, ‘My name is Jamie Silverberg and I represent the Zapruder family and… I’m just wondering, can you tell me what were you thinking when you wrote this? It appears that you possibly have taken the Zapruder film.’” Jamie laughed a little when he told me this story. He said the man on the other end was quiet for a minute, and then he said, “Oh, shit. We did that?!”
Jamie can laugh about it now, but he remembers that, at the time, he was immensely concerned about what the JFK Act meant for the film, especially if the government had unceremoniously taken possession of it. He was an intellectual property lawyer and had worked in the “collectibles” industry around antique paper and philatelic items, so he knew firsthand how otherwise unremarkable objects like postage stamps could be very valuable. “And the Zapruder film was no postage stamp,” he told me. “And so, plagued by this question, I called your father.” Henry, on the other hand, was anything but alarmed. When Jamie said that the government might have taken the film, he asked, “Why do we care about that?” Jamie explained that it might have substantial financial value as a historical object. “Your dad had a great sense of humor and a great laugh,” Jamie told me, “and he gave me one of his Henry Zapruder guffaws, like, ‘Come on. You’ve got to be kidding.’”
It strikes me now that this could seem disingenuous. After all, Henry was a sophisticated and experienced attorney, and he was used to big business deals and large sums of money. Certainly, he was aware of the licensing potential of the film and he knew that the print and moving-footage rights had financial value. But the original film was another story. It undoubtedly had historical value and emotional meaning for many people, but who would pay money to own it? And why? It was too fragile to be run through a projector. There were a great many copies of it by then. But more than that, it was already in the possession of the only entity my father would ever consider for its safekeeping—the federal government. In fact, Jamie recalled that one of my dad’s first questions upon
realizing that the government might have taken the film was, “Why would they take a film they already have?” Another way to ask the question is: Why would the government pay huge sums to own something that LMH and the Zapruder family had already entrusted to them? This question would turn into the basis for Henry’s dealings with the government for the next five years.
Before Henry could get off the phone, Jamie tried to persuade him to get the film appraised, to try to establish a sense of its value. Henry brushed him off. Jamie pushed, knowing that his reluctance stemmed at least in part from the fact that he didn’t want to know. They ended the conversation there, and Henry must have decided to think about it for a few days. During that time, he discussed it with Anita and his longtime law partner and trusted friend Roger Pies. “He said, fine, he didn’t care. He was going to let them take [the film],” Anita remembered. “I was just thinking to myself, you know, ‘This is yours. I don’t care what this new [law] said.’ There was an agreement with the Archives that they were the caretaker. They didn’t own this… And I thought, ‘That’s wrong. They can’t do that.’ Then I talked to Roger. And he’s like, ‘That’s wrong.’ And I said, ‘We’ve got to convince him that that’s wrong.’” Roger said the same thing Jamie did: He had to get it appraised. But Henry didn’t want to do that. Not yet.
Henry spoke to Jamie a few days later and asked him if it was clear whether or not the government had even taken the film. It wasn’t. But Jamie had a plan. He said, “The loan agreement says we can go into the National Archives to view the film any time we want, and I’m going to call them up and tell them that we want to view the film. And I’m going to go in and view it and then I’m going to tell them that I’m going to leave with it.” Jamie laughed as he recalled the conversation. “Your father almost had a heart attack. He said, ‘You’re going to get arrested!’ I said, ‘Well, you can’t get arrested for stealing your own property.’ He was laughing and he said, ‘Well, let me know if we need to post bail.’”
Jamie had some legwork to do before he was ready to go to the National Archives. He contacted Kodak and learned that he could identify the original Zapruder film by checking the edge markings on the film. He was fairly confident that he could get in to see it. But everything after that point was up in the air. He spoke again with Henry to sort out the thinking behind testing the law in this way. As Henry put it to Jamie, “We just want to know if they’ve ‘taken’ it or not. We don’t want it back. So if you walk out of the door, then we know they haven’t taken it; and if they don’t let you walk out of the door and they have marshals with guns, you know, pointing at you, then don’t take it.” Of course, there was the problem of what to do if Jamie successfully left with the film. Then what? Walk it around the block for some fresh air and return it? No one knew.
On March 15, 1993 (five months after the passage of the law), Jamie turned up at the National Archives having made his formal request to examine the film. “I went in and I looked at the edge markings on the film and I was able to determine that it was the original Zapruder film… And so I put it back in the canister and I walked out with it in my hand and I said—I had a notarized copy of the loan agreement with the National Archives that said we could remove it at any time, and I said, ‘I’m removing the film.’”
Jamie recalled that he was asked to wait for what seemed like a very long time. And then he was put on the phone with someone—he thinks perhaps from the Justice Department. The conversation went something like this:
PERSON ON THE PHONE: What do you think you’re doing?
JAMIE: I’m taking the film.
PERSON ON THE PHONE: What do you mean you are taking the film?
JAMIE: Well, I have the loan agreement and the loan agreement says that the family can remove the film at any time and so, you know, I’m removing the film.
PERSON ON THE PHONE: I don’t think that’s a very good idea.
JAMIE: Well, are you taking the film? I mean, are you saying that you’re seizing ownership of the film?
PERSON ON THE PHONE: I’m not saying we’re taking the film. And I’m not saying we’re not taking the film. I’m just saying that you’re not taking the film.
With that, Jamie had no choice but to leave the film in the custody of the National Archives and Records Administration (NARA) and return to his office to call Henry. “He answered the phone, laughing with a lilt in his voice, ‘Are you calling me from jail?’” After Jamie reported what had happened, Henry asked him, “Well, do they own it or not?” And Jamie told him, “I don’t know.” Little did either of them know how long it would take for that question to be fully resolved.
People are often shocked when I casually mention that the government “took” the film from our family. Out of context, it can sound a bit totalitarian, so now might be a good time to pause briefly to discuss eminent domain and the Takings Clause of the Fifth Amendment of the US Constitution. The principle of eminent domain says that the government has the authority to take private property for public use, but that it must pay just compensation to the owners of the property. Most commonly, the government invokes the power of eminent domain to take an individual’s home or land for the building of something that is deemed to be for the public good (like a highway, for instance). Just compensation is established by the fair market value of the property—for example, by finding out how much has been paid for similar houses in the same or a similar neighborhood. The principle of just compensation is to leave the individual whose property is taken in exactly the same financial position they would have been in if their property had not been taken.
For the vast majority of the records that were affected by the JFK Act, there was no issue of ownership. After all, the purpose of the law was not to seize property but to make government documents available. Congress stated that records relating to the assassination would, in the words of the Assassination Records Review Board report, “carry a presumption of immediate disclosure.” Since most assassination records were more than thirty years old, Congress stipulated that “only in the rarest of cases is there any legitimate need for continued protection of such records.” Whereas in the past, government agencies would make material available on a case-by-case basis, often determined by Freedom of Information Act requests, the JFK Act flipped the burden of responsibility from individual researchers to the federal government. Thus, unless an agency could make a specific case to keep something classified and this request was approved by the ARRB or the president, all documents related to the assassination were to be transferred immediately to the JFK Collection at the National Archives. In order to achieve this, the authors of the report wrote, “The JFK Act required all government agencies to search for the records in their possession concerning the assassination and place them in the National Archives.”
If the Zapruder film had still been in a safe deposit box in New York City, or in a private storage facility or in my mother’s closet, the question of taking the film would almost surely have been different. It’s a little hard to imagine federal agents storming my parents’ house and compelling them to turn over the film. But it was literally sitting in the National Archives, in the physical custody of the federal government (though not owned by it) and, therefore, “in the possession” of a government agency. Furthermore, the government agency that had possession of the film was also the agency to which it was supposed to be transferred—the National Archives. Which brings us back to Henry’s original question: Why would the government take something it already had?
The Zapruder film wasn’t the only object in the holdings of the government for which there was an issue of ownership. But it was certainly in a category of its own, in part because of the visual information contained on the film and in part because of its fame, cultural status, and emotional and symbolic value. The situation with the Zapruder film was also considerably more complicated than the highway-through-the-house model of eminent domain. If the government decided to exercise its constitutional right to take th
e film—that is, taking ownership of it, not just physical custody—it would be necessary to determine just compensation. But “just compensation” was determined by fair market value, which usually depended on the value of comparable items. What, exactly, was “comparable” to the Zapruder film?
While I’m sure it didn’t take my father long to see where this situation might be headed, he was not, by nature, a reactive or hysterical person. He was even-tempered and had a long fuse (though on the rare occasions when he got angry, it was best to scatter), and he tended to project an air of calm, deliberative patience. While Jamie worried, and Anita fumed, and Roger furrowed his brow and shook his head at the wrongness of it all, I can see my father sitting on a couch in his office, his long legs crossed in front of him, resting his chin in his hand, thinking.
One month after Jamie’s visit to the National Archives, the chief archivist wrote to LMH, deferring the decision on the disposition of the in-camera original of the Zapruder film to the Assassination Records Review Board. The problem was that there was still no ARRB. Its five members had not yet been appointed, nor were there staff in place, and the critical early work of the board—namely, refining Congress’s very general definition of an assassination record into a more specific one—had not been done. It’s therefore not surprising that no one at the National Archives knew whether or not the film had in fact been taken. No one knew because someone would have to decide—and that someone would be the ARRB.
On a December day in 1993, my phone rang. It was my father. I knew from the sound of his voice that he was calling with bad news. I asked him what was wrong and I remember that he laughed ruefully at his transparency. Nana from Texas, the brazen, bighearted, generous, wildly biased matriarch of our family, had died. She had been slowly fading away for at least five or six years, her memory gradually erased by Alzheimer’s disease, and though caring for her was difficult, she retained her cheerful good nature even after she had to leave her second husband, Martin, and move into Golden Acres, the Jewish nursing home in Dallas.
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