A Win-Win Compromise on the Wall

By Professor Karl Manheim

We don’t give Donald J. Trump all the credit he deserves. He’s been arguing for a brilliant bi-partisan solution to the immigration problem for years, and the rest of us have simply ignored him. Is this the way to treat serious policy proposals by the President?

We’re all well aware of those mispronunciations, malapropisms, garbled words and covfefes, that dot Trump’s tweets and speeches. But, these are equally signs of genius at work. We should listen to his bigly words very carefully.

The mainstream press began reported in early 2016, when Trump was a candidate, that he was energizing his base with tough talk of putting up a beautiful wall at the southern border, one that Mexico would pay for. Closer inspection of the audio tapes at his speeches reveals that it wasn’t a wall than Trump wanted, but a Walmart!

The Walmart demand is actually quite clever, and one that should earn strong bipartisan support. First, building a 1,000 mile long Walmart on the border will ramp up infrastructure investment big time, improve our export balance and bring high-paying construction and manufacturing jobs back to the U.S. (except for those jobs that have to be performed on the Mexican side).

But its principal function will be to keep undeserving immigrants from crossing our borders illegally. Here’s how it would work:

The mega-Walmart would be positioned directly on the U.S. Mexican border, with north-facing entrances on the U.S. side and south-facing entrances on the Mexican side.

Mexicans and other southern immigrants would enter the Walmart through south side entrances. Americans and our visitors would enter through north side entrances. Once inside the mega-mega-store, all customers would be treated alike. They could mingle and purchase goods and services in either dollars or pesos (so long as the peso remains a convertible currency). Persons who need medical attention can visit one of the many pharmacies located at the north and south sides of the building. As many pharmacies are already doing, Walmart Pharmacy might add medically-licensed staff that can make diagnoses, prescribe drugs, give shots and make recommendations for hospital transfer where necessary. Current national health insurance plans would apply to the respective health care services provided at the northern and southern pharmacies. However, the Mexican and U.S. governments might find this a much more effective way to deliver health care services to the poor and appropriate additional funds for the purpose.

Mexicans and other immigrants seeking entry to the U.S. can begin the process in the comfort of familiar Walmart surroundings. First, they’d want to speak to NGO representatives who are given space (perhaps in the housewares aisle) to set up consultations. In some cases, applicants for asylum, family unification, H1B visas, and other lawful categories of entry, including just plain old temporary visitor visas, would then be directed to official U.S. immigration officers, also stationed within Walmart.

It is likely that only a very few of these referred persons would be permitted to exit at the northern (U.S.) side of Walmart unaccompanied. All persons exiting the north doors will need to show U.S. documentation. Converse for the south doors. Anyone denied exit at their preferred door, can always go back through the door they entered. (But you won’t be able to shop at this Walmart without some proof of passage within your own country).

There are solutions for those who want to further pursue immigration credentials, if denied at first. They will obviously need temporary accommodations until their cases can be acted upon. Walmart owns and manages one of the largest real estate portfolios in the U.S. What could be better than a captive audience of renters? I’m envisioning housing in a gated community, say adjacent to the mega-Walmart, that is far less terrifying and costly than those housing units rimmed by steel bars. Walmart could also partner, through Walmart Marketplace, with third-parties (churches, NGOs, home builders) to build new housing. Costco is already selling 300 sq. ft. houses for a bit over $7,000. That’s an order of magnitude less than what the Border Patrol currently spends on housing immigrants. Other firms sell small houses for $500 to $12,000; again cheaper than a holding cell.

The entire operation is humane, efficient, safe and likely very profitable to Walmart and America. What’s not to like? It was sheer brilliance for President Trump to propose this solution to secure our borders. He must keep trying. And the press and members of Congress should open their ears to hear what our Commander in Chief is really saying. Don’t let his words of wisdom trail off to the point where they become indecipherable, and don’t attack him for the wrong reason. Remember, genius and madness are sometimes hard to tell apart.

Charter-Time Warner Merger & Data Usage: How a Ruling Could Impact Consumers

By: Professor Karl Manheim

The Federal Communications Commission has recommended approval of Charter Communications’ merger with Time Warner Cable, making the combined company the nation’s second largest broadband provider. As a condition for FCC approval, Charter/TWC will not be able to impose usage-based charges or data caps on its broadband subscribers for seven years. Can the FCC impose such a condition? Maybe, but ultimately it may not matter.

In 2002, under a Republican administration, the FCC ruled that cable broadband was an “information service,” and thus mostly unregulated under the Federal Communications Act of 1934 and the Telecommunications Act of 1996. The Supreme Courtt upheld that determination in NCTA v. Brand X (2005). In 2010, the FCC began regulating cable broadband to achieve Net Neutrality, but in Verizon v. FCC (2014) the Court of Appeals for the DC Circuit invalidated the FCC order because the agency had earlier deemed cable broadband to be an information service, hence not subject to FCC regulatory jurisdiction. Last year, under a Democratic administration the FCC reversed its 2002 Order and ruled that cable broadband was a “telecommunications service,” and thus within the agency’s Title II jurisdiction (as a public utility). 2015 Report and Order on the Open Internet aka "net neutrality"). It is this ruling that allows the FCC to impose a no-cap policy (as a condition for merger). Verizon has once again appealed the FCC Order; that case is pending.

If the DC Circuit upholds the 2015 Order, then the no-cap condition will stand. If it invalidates the Order, then cable companies may have wide berth to do as they wish.

Keep in mind that the FCC is only 1 of 3 federal agencies who have to pass on the competitive effects of telecom mergers; the other 2 being the FTC and the DoJ. In the case of cable companies, state regulators may have to approve as well. Also keep in mind that cable companies will increasingly rely on broadband revenue as more customers cut the cord on cable video service. That’s why it is so expensive (roughly $50/mo for a service that costs the company far less than that). But even though cable companies have a license to print money, I still wouldn’t put my marbles there. That’s because customers will soon be able to cut the cable broadband cord too. We are in the middle of an FCC auction that will repurpose TV frequencies (channels 46-51) from broadcast TV to mobile Internet (ch. 52-69 have already been reclaimed). Once that happens, the speed of your Internet connection on your cell phone will rival that on cable (or DSL). Then we can kiss the cable companies and their monopoly prices goodbye.

Theft of Trade Secrets Brings Federal Conviction

By Professors Jeffery Atik and Karl Manheim

Stealing a trade secret (reprehensible though this may be) has generally not attracted federal criminal liability. Yet in the recent prosecution of David Nosal, the Justice Department applied a computer hacking statute to convict a departing employee for a rather run-of-the-mill trade secret theft: the unauthorized taking of customer lists. Many if not most trade secrets -- like the customer lists involved in Nosal -- are stored on computers. As such, aggressive use of the federal Computer Fraud and Abuse Act could convert many trade secret misappropriations -- traditionally civil offenses and a state law matter - into federal crimes. And this policy shift -- criminalizing and federalizing -- results from the determinations of prosecutors and judges, and not from Congress.

David Nosal worked for the executive search firm Korn/Ferry International until 2004 when he left to form a rival firm. Upon departure, he signed a standard non-compete agreement, but also recruited 3 fellow Korn/Ferry employees to join his new firm. Before those employees left, they downloaded proprietary customer information from the Korn/Ferry network and provided the confidential data to Nosal.

The Justice Department charged Nosal with 22 counts under the Computer Fraud and Abuse Act, 18 U.S.C. §1030, which prohibits, inter alia, unauthorized access to computer systems for fraudulent purposes. The fraudulent purpose in this case was theft of trade secrets.

Can Executive Officials 'Veto' Initiatives Passed by the Voters?

By Professor Karl Manheim and Adjunct Professors John S. Caragozian and Donald Warner

This op-ed originally appeared in the Oct. 21 edition of the Los Angeles Daily Journal.

A case has reached the 9th U.S. Circuit Court of Appeals that may further determine the fate of the initiative process in California. In Vivid Entertainment v. Fielding, No. 13-56445 (9th Cir. filed Aug. 20, 2013), the court is being asked whether an initiative will be invalidated, even after its constitutionality has been upheld at trial, because executive officials have abandoned its defense.

Vivid follows on the heels of Hollingsworth v. Perry, decided by the Supreme Court in June. In Hollingsworth, same-sex California couples challenged voter-approved Proposition 8, which had banned same-sex marriage. The U. S. district court ruled that Prop. 8 was unconstitutional, and state officials refused to appeal. Accordingly, Prop. 8's official proponents -- who had successfully intervened as defendants at trial -- appealed. The 9th Circuit affirmed the district court's ruling of unconstitutionality, and the proponents petitioned for certiorari.

The Supreme Court held that Prop. 8 proponents lacked Article III standing and dismissed the appeal. Chief Justice John Roberts' majority opinion stated that only state "officials" may represent the state's interests in defending a voter-enacted initiative. Although the California Supreme Court earlier had held that Prop. 8's official proponents were authorized by state law to represent the state's interests, Roberts characterized the proponents as mere "bystanders" for Article III purposes.

Vivid challenges another voter-passed initiative, and elected officials are again refusing to defend it. Measure B, which was passed by Los Angeles County voters, requires, inter alia, condom use by actors in adult films made in the county. Vivid's plaintiffs -- movie producers and actors -- sued the county in U. S. district court, claiming that Measure B was an unconstitutional restriction on expression.

Loyola Professors Release Journalist's Guide to American Law

Reporting on the legal system without a law degree can be challenging. A team of Loyola Law School professors aimed to fix that by writing The Journalist's Guide to American Law. The book, published by Routledge and released on Monday, Dec. 10, serves as an essential reference for journalists whose coverage area includes the law. The authors are Professors John Nockleby, Laurie Levenson, Karl Manheim, Jay Dougherty, Dean Victor Gold, Allan Ides and Daniel Martin.

From the publisher:

> How do you report on the latest sensational criminal trial or newest controversial legislation without a basic understanding of how the American legal system works?

> This easy-to-use guidebook offers an overview of American law that should be found on the desk of any journalism student or professional journalist. It provides an overview of major legal principles and issues in simple terms for journalists who cover any aspect of the legal system. The Guide can be used in two ways: first, as a sit-down read that gives an overview of American law; and second, as a reference that can be used every day under deadline pressure for a specific purpose. Every feature of the book is designed to serve both functions. Thus, the book's organization captures both the birds-eye view of a subject; and, alternatively, permits a quick review of a given section when the professional needs to understand a distinct concept. The areas covered range from professional concerns such as the First Amendment, cameras in the courtroom, Sunshine laws, and access to government documents to general legal matters such as the institutions of law and lawmaking function of the judiciary; core constitutional principles such as separation of powers and judicial review; and how courts function.

> The book is ideal for use in general newswriting and reporting courses, particularly those with a focus on legal or court reporting, and may also be used as a supplementary text in Media Law courses.

Loyola to host paparazzi law forum

By Jacqueline Lechtholz-Zey, JD '11 and Gregory Strausberg, JD '09, LLM '11

On Feb. 25, the Loyola of Los Angeles Entertainment Law Review will present a day-long, three panel event entitled "Paparazzi Law in a Flash: Examining California's Past, Present and Future." This symposium aims to educate its law student, media professional, and attorney audiences on the legal discourse surrounding the modern day paparazzi in the context of the recent enactment of AB 2479 ("the anti-stalking law"). This newly enacted law makes it a misdemeanor to tailgate or drive recklessly to capture a photo or tape recording of an individual for commercial purposes. It represents California's most recent attempt at addressing the storied problem of striking the proper Constitutional balance between the First Amendment's protections for newsgatherers and an individual's right to privacy. With the passage of AB 2479, it is clear that states are again starting (as they did with the rise of "yellow journalism" over a hundred years ago) to recognize a growing problem in the way this segment of the media interacts with its subjects. However, the lack of enforcement of past laws aimed at curbing abusive practices--as indicated by the relative absence of lawsuits under California Civil Code § 1708.8--demonstrates the immense power of the First Amendment and the difficulty in crafting laws that do strike this proper balance. More information about the event is available on its website.

The legal dialogue regarding the paparazzi--including its dynamic interplay of state and federal law--is a field that has intrigued scholars (legal and non-legal alike) since the beginnings of America's media and entertainment industry, as exemplified by the axiomatic writings of Louis Brandeis and Samuel Warren in The Right To Privacy at 4 Harvard Law Review 193 (1890). While no point in American history clearly establishes the origin of an aggressive media force in need of legal regulation, many attribute the identification of this problem as coinciding with the rise of "yellow journalism" in the late nineteenth century. Such "journalism" is no better typified than by the infamous publication of an article in the New York Journal in 1898 that exclaimed, "DESTRUCTION OF THE WAR SHIP MAINE WAS THE WORK OF AN ENEMY"--a title that does not seem to sound so far flung from the typical grocery store tabloid reads of 2011. Such dramatic, seemingly simple proclamations had the power of catching the attention of the average nineteenth century reader and were therefore crucial to the fortunes of the rapidly expanding media companies of the time. However, behind such "simple" statements and their accompanying images (which often depicted famous individuals or sensationalized events) laid an extremely complex legal dilemma, which forced legal scholars such as Louis Brandeis and Samuel Warren, along with the American courts, to properly consider the point at which the First Amendment shield ended and where the right to privacy sword began.

Paparazzi Law in a Flash: Examining California's Past, Present and Future will include discussions of the past, present and future legal developments on this topic in a way that is understandable to legal and non-legal professionals. Loyola Law School has assembled leading practitioners, scholars, as well as recently admitted entertainment lawyers who have all played a central role in the on-going debate of what is permissible, constitutionally protected activity versus activity giving rise to criminal and civil liability. Loyola Professor Karl Manheim will speak about parallel efforts and international privacy law. And Professor Jay Dougherty will serve as a moderator. Loyola of Los Angeles Entertainment Law Review is also proud to include the discussions and articles of its own students Patrick Alach JD '09 and Gary Wax JD '09, which should be of use to those who seek to enforce or defend against the instantiation of this new statutory scheme.

This event is open to all who wish to attend. For media relations, please contact Brian Costello, deputy director of commujnications. We thank you for your support of this event and other future Loyola Law School entertainment and media law productions.