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I’ve always had a warm spot in my heart for Ohio. It was, after all, the first state whose name I could spell, and — really — you never forget your first. Besides, like most of us here on the left coast, I’ve spent my whole life hearing how wise and sensible and “down to earth” folks in the Midwest are. “Sturdy pioneer stock.” “Rock solid values.” “America’s heartland.” I’ve been brainwashed into thinking people are somehow more likely to be rational and level-headed if they grew up where weather can kill you and you’re surrounded entirely by people who know what “shoats” and “gilts” are. Most of this rubbish is doled out by people who either live in the Midwest or used to live in the Midwest. As near as I can determine, 50 percent of Southern California is populated by descendants of Tom Joad, Laura Ingalls Wilder, William Howard Taft, and Lassie. And another 25 percent are people who watched last year’s Rose Bowl game after shoveling a foot of snow off their driveway and decided midway through the third quarter — when it started to snow again — that Jed Clampett was right: “Californy, that’s the place ya gotta be.” Now, I’m generally willing to cut them some slack. They have, after all, lived a hard life, for the most part. If you spend the freezing winter bundled up in 85 pounds of clothing and the sweltering summer carrying around eight ounces of clothing soaked in 84 pounds of sweat, I figure you deserve a little leeway. THE MAYOR AND HIS MERRY MEN I mention this because Mayor Richard M. Daley and a city construction crew went out to Chicago’s largest general aviation airport at 1:30 on a March morning, and tore up the runway. The mayor explained that he was concerned that the airport was pretty close to Chicago’s very tall buildings, and that constituted a security risk. So he gathered up some cops and some hard hats and some heavy equipment, and they went out and destroyed the place. Now I don’t know whether this is a good idea or a bad one. I kinda think turning general aviation airports into concrete jumbles because of Sept. 11 is a rather Luddite response to the problem. And the fact it took the mayor a year and a half to think of this measure — a measure that no one else in America had previously suggested — might have indicated to him that maybe it needed a little more thinking through. But what concerns me more is the fact that while Chicago has 50 aldermen and a council system designed to make decisions for the city, exactly none of them was consulted about this. And the action was taken at 1:30 in the morning. I don’t know. I guess it’s different in the Midwest, but out here in America’s Loony Bin, those two factors — completely bypassing the body entrusted with such decisions and acting at an hour when the only observers would be the guys driving the Entenmann’s trucks — would be considered prima facie evidence of both the existence of a conspiracy and the need to appoint a conservator. And Mayor Daley’s explanation was classic: He said he acted without consulting the City Council “to avoid a lot of contentiousness.” Well, I say “Amen” to that. That damned representative government thing can be one helluva nuisance. Thank God for the cover of darkness. Now, in the words of one of the great San Franciscans, “I know what you’re thinkin’.” You’re thinking this is one isolated instance involving one . . . unusual . . . city official. OK then, let’s talk about Ohio. You’ll recall I started out talking about Ohio and then got distracted by nocturnal airport eradication — a concept I had not hitherto encountered. But now I’m ready to get back on track — assuming Mayor Daley hasn’t blown it up. Ohio has a Supreme Court, which decided a couple of months ago to reduce a punitive damages award from $49 million to $30 million. No problem there. State supreme courts do that all the time. But then they went a little further. They ordered that most of the damages should be diverted away from the plaintiff. All right, that’s a little more “out there,” but several states have done that — ordering that the funds go into the state general fund or an enumerated special fund. But I’m not aware of any previous court that has ordered that the money go into its own charity, which it created in the opinion. JUDICIAL FUND RAISING, MIDWESTERN-STYLE That’s right. They ordered that $20 million go into a fund they named “the Esther Dardinger Fund — in honor of the plaintiff’s deceased wife — at the James Cancer Hospital and Solove Research Institute at the Ohio State University in Columbus.” At least they didn’t name it after themselves. But it puts a lot of pressure on the rest of us appellate types. I’m sure the California Supreme Court’s phones have been ringing off the hook with calls from the justices’ alma maters, wanting a few mil diverted into their research programs. One of my colleagues suggested we should divert a few punies into the football program at his school, which hasn’t played in the Rose Bowl since the first Mayor Daley was in office. But — call me hidebound and antiquated — I think this is precisely the kind of bad idea California usually gets blamed for. And, unlike jurists in other states, who could point at us if we did something this spectacularly ditzy, and say, “Hey, it’s California. What did you expect?” we have to deal with the perception of our constituents that this is a “level-headed, solid, trustworthy Midwest” idea. Everybody out here thinks if they’re doing it in Ohio, it must be solid as savings bonds. They’ll probably be amazed when I tell them about the 4th Ohio District Court of Appeals’ decision that holds — so help me, I’m not making this up — a man was exercising his free speech rights when he barked back at a police dog. Honest. That’s what it says right here in my local legal newspaper. Barking at a police dog is free speech, and one Jeremy Gilchrist’s conviction violating a law making it illegal to “taunt, torment, or strike a police dog or horse” has been reversed on the grounds it violated the First Amendment. Once again, I must confess my ignorance. I only read The Federalist Papers once. I probably just missed the part about free speech including barking like a dog. I assume that right is found in the same constitutional penumbra that protects yodeling during symphonies and the noise my 10-year-old nephew makes with his hand in his armpit. But if barking like a dog is protected by the First Amendment, how can we call the police when our neighbor’s dog does it at 2 a.m.? Surely we’re not so specist as to deny to dogs the right we so jealously guard for humans. Surely a bad imitation of Fido isn’t entitled to more protection than the original. And how do we know these aren’t fighting words that are being barked? Free speech doesn’t protect fighting words. How do we know Jeremy Gilchrist didn’t bark something at the police dog that was “inherently likely to provoke an immediate violent reaction”? (This is the wording of the California Penal Code, usually referred to as “disturbing the peace,” which has been held to pass First Amendment muster.) Wouldn’t you just love to read an opinion that actually addressed whose burden it was to prove whether the barking included “words” that would not merit constitutional protection under the Supreme Court’s 1971 opinion in Cohen v. California? A BITCHIN’ OPINION And doesn’t the Ohio court’s ruling open up the rather difficult question of whether a First Amendment defense can include the claim that even if the barking did include fighting words, they were true? Almost 20 years ago, the 4th District Court of Appeal in California held that John V.’s act of calling his neighbor a “fucking bitch” constituted the utterance of “fighting words” and was punishable, without offending the First Amendment. But try to apply that holding to the Ohio case. What if Gilchrist was barking “fucking bitch” at the police dog? Are those fighting words or an accurate assessment of the dog? The dog’s name was “Pepsie.” For all I know, she was exactly what John V. called his neighbor. Does that change the First Amendment analysis? In other words, to express the issue in a sentence that should embarrass the living daylights out of any 21st century system of justice, “Can you be prosecuted for barking fighting words if they’re true?” I don’t know. I’ll probably have to read the Ohio decision to get a handle on the proper analysis of freedom-of-bark issues. And even then I’ll be laboring under a handicap. I’m a native Californian. I am wholly unprepared to deal with Midwestern issues. My head is just not sufficiently flat. I mean, level. William W. Bedsworth is an associate justice at the Fourth District Court of Appeal in Santa Ana, Calif. He can be reached at [email protected]. This article originally ran in The Recorder, a San Francisco newspaper affiliated with Legal Times .

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