Trump Again Suggests U.S. Libel Laws Need To Change

Freedom_of_Speechdonald_trump_president-elect_portrait_croppedWe previously discussed the erroneous portrayal of U.S. defamation laws by President Donald Trump.  Trump has complained previously about the inability to sue his critics due to the protections recognized in the First Amendment.  He has returned to that theme at Camp David this weekend and criticized our libel laws as too protective and restrictive. These comments were made in the wake of the failed effort of Trump to prevent the publication of the Michael Wolff’s book Fire and Fury: Inside the Trump White House.  As discussed earlier, the threats made by Trump’s lawyer were facially weak, if not meritless, in claiming defamation. That was not a problem of our libel laws.  The statements by Steven Bannon leading to the notice letter were clearly opinions and protected under even the weakest defamation law.

Trump lamented this weekend that if libel laws “were strong . . . you wouldn’t have things like that happen where you can say whatever comes into your head.”  It was a chilling criticism of our defamation laws since most of us value the right to state our mind and our views.  To the extent that Wolf has published false claims, he can be sued for defamation and should be sued for defamation. While the standard of proof is higher for public officials, it is not so high as to shield reckless or knowing publications of false information.

In February 2016, Trump began his call for changing libel laws during a rally in Texas when he said, “When they write purposely negative and horrible and false articles, we can sue them and win lots of money.” He added later that while he “loves” the free press, but “we ought to open up the libel laws, and I’m going to do that.”

The focus of the criticism appears to be the standard created in New York Times v. Sullivan, which is celebrated as one of the Court’s greatest decisions.  The Supreme Court laid out the constitutional basis for libel laws roughly 50 years ago in a case that arose out of the attacks on Martin Luther King and freedom marchers. The New York Times ran an advertisement that referred to those abuses and claimed that King had been arrested seven times. In reality, King was arrested four times.  While not expressly mentioned, Montgomery Public Safety commissioner, L.B. Sullivan sued for defamation and punitive damages. He won under Alabama law in a highly dubious state preceding that awarded $500,000. It was one of a slew of cases designed to drain the media financially for exposing segregationists.

The Supreme Court recognized it for what it was: a direct attack on the protections accorded to both free speech and the free press. Justice William Brennan explained how the First Amendment was meant to give the free press “breathing space” to play its critical role in our democratic society.

The result was not to bar lawsuits by politicians like Trump against the media but rather to require a higher showing of proof. He must prove that the media had “actual malice” where it had actual knowledge of the falsity of a statement or showed reckless disregard whether it was true or false.

The current controversy proves the wisdom, not the weakness, of our first amendment protections.  Most of what the President has objected to in the book are statements of opinion about his mental stability — statements that are clearly opinion.  There are valid questions raised about some of the hyperbole in the book like the questionable claim that 100 percent of White House staff members were concerned over Trump’s mental capacity or stability. I find that rather dubious as a claim. If there is material in the book that makes false statements of fact, Trump can sue. However, the costs could be high. It would open up discovery and a trial over the primary defense to defamation: truth.  Wolff and Bannon could seek depositions of various members of the White House staff.

As many on the blog know, I hold a highly protective view of free speech with few exceptions.  For that reason, the President’s criticism of people feeling free to “say whatever comes into your head” is unnerving.  Free speech is the defining right our our constitutional system, particularly in stating criticism of our public figures.  The laws are “strong” in that they create bright lines of protection for free speech while still allowing compelling cases to be proven in court.  I hold no brief for the sources or the statements in this book. I have not read it.  However, we would have a very different country is statements about a President mental acuity could be easily litigated as libel.

What do you think?

 

156 thoughts on “Trump Again Suggests U.S. Libel Laws Need To Change

  1. All this hully-gully is nothing more than jibber-jabber. All the questions raised by the “informed” posters here have been examined and answered by Times v. Sullivan and following cases. Next.

    • Really? What did Times vs. Sullivan say about the media’s right to protect the identity of sources that provided provably false information. I’d love to hear it from someone with your knowledge of the law.

      • Henceforth, you will need to do your own reading. I will–this one time, demonstrate what a quick scan of the opinion would have revealed:

        The constitutional guarantees require, we think, a federal rule that prohibits a public official from recovering damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made with ‘actual malice’—that is, with knowledge that it was false or with reckless disregard of whether it was false or not. Sullivan, 376 U.S. at 279-80.

        Assuming momentarily that “provably false information” can be quantified (I will also overlay a patina of “materiality” as a requirement of the statement), and “actual malice” can be shown, the Sullivan opinion holds that the remedy is against the publisher, not the source. In other words, you allowed yourself to be distracted by irrelevancies.

        This is to “but that’s not how Hannity taught me” willie

  2. How come so many view intelligence as being directly proportional to the number of years one has served in elected office, think tanks, or the federal government?

  3. An Eli Lilly executive is the Trump nominee for Health and Human Services (hearings on Tuesday). Politico details a “gamed patent” under the exec.’s watch. Share Blue references Politico’s article, describing the situation as Trump’s nominee “testing erectile dysfunction drugs for kids”. The allegation is that the scheme was to extend Cialis’ patent. The rare childhood condition (a form of muscle atrophy) that served to enable the patent extension was found not to be improved by the drug- surprise, surprise.

  4. As Professor Turley points out, opinions have always been protected speech. Libel, however, involves knowingly or recklessly make false statements of FACT (not opinion), and with malicious purpose — that is, with intent to do injury. The law, as it stands, does a reasonably good job of sorting out what kind of information is punishable, though the courts don’t always interpret the law correctly.
    Anyway, instead of happening with one sweeping new change in the law, a better approach to what’s happening would be to address specific kinds of objectionable behavior by the press — the things that probably light Trump’s fuse — such as protecting the identities of anonymous sources that provided false information to the press.

    When someone leaks information to the press which turns out to be demonstrably false, there should no longer be any protection of the leaker’s identity. I see no moral, ethical, or legal basis for “journalists” to protect the identity of someone that fed them falsified information so that they could publish another of their ongoing series of blatant falsifications intended SOLELY to inflict injury.

    For instance, it has been reported that CNN had TWO sources that informed CNN that the date of an email received by Trump Jr offering allegedly-hacked DNC emails was September 4, 2016 — which means that Trump Jr would have been offered non-public information to which nobody else had access. Put together with the still-unproven allegation that Russians hacked the DNC and that September 4, 2016 date makes the email powerful evidence of apparent collusion and election interference by Russians and Trump acting in collusion.

    But then after the bombshell headlines exploded, it turned out that the actual date of the email that Trump Jr received was September 14, 2016, which was AFTER Wikileaks had released the emails — which means that someone had merely sent Trump Jr. an email telling him where/how to find information that was available to everyone. How is it possibly that two different people could allegedly look at the same date on the same email and both “accidentally” misread it such that the email becomes a fake bombshell?

    Yet CNN still protects the identities of allegedly TWO anonymous sources that both allegedly told CNN that the date of the email was September 4. Why should the press protect the identities of people that feed them false information? Maybe because (1) those people don’t actually exist and the entire story was fabricated by CNN, or (2) CNN prefers to be able to continue to recklessly or maliciously publish false information with intent to damage the President (or anyone else that CNN decides it wants to injure).
    There is absolutely no justification for protecting the identities of people that falsified facts that formed the basis of fake news.

    The purposeful misuse of anonymous sources to create and disseminate fake news would be a good place to begin cleaning up the shabby press without getting into First Amendment issues or libel law. There’s a difference between protecting “sources” and protecting liars.

    • The John Birch Society and the Koch’s are associated with anti-Stalin rhetoric. It’s a convenient 75- year old obsession starting with Fred Sr. William Bayer dredges up their slant in a comment below. The definitive book on the Charles and David Koch takeover of the American democracy is Dark Money by Jane Mayer. The Koch’s plotting at the state level is detailed at the site ALEC Exposed.
      Their operations played a substantial role in the lowest share of national income going to labor, in recoded U.S. history.

      • LOL — as if one has to be a Bircher or a Koch admirer to recognize Stalinism. Besides that, the Koch’s opposed Trump, and Trump got elected. As a lifelong Independent and a Trump supporter (first time I voted for a republican in 44 years of prior voting), I could not care less about the Koch’s, and don’t even know anything about them other than that they work in the oil business and democrats hate them.
        Anyway, the “anti-Stalin rhetoric” you mention has nothing to do with this comment. Are you just cyberstalking my comments to besmirch my character? Have you nothing to say about the comment you “replied” to here?
        Linda — you should be banned from this website.

        • On January 8th, 2018 at 12:31am William Bayer said, “Aside from that, the attacks on Trump’s mentality (and attacks on the mentality of Trump supporters) are just Stalinism 2.0 — a revision of the Stalinist method of punishing political opponents with accusations of mental illness. To that extent, it’s rather refreshing to see so many in the democrat media (especially at CNN) finally come out of the closet and openly (if indirectly) admit that they are, at heart, good ol’ fashioned devotees of the means and methods of Joseph Stalin.”

          On January 8th, 2018 at 1:13 pm Linda said, “The John Birch Society and the Koch’s are associated with anti-Stalin rhetoric. It’s a convenient 75- year old obsession starting with Fred Sr. William Bayer dredges up their slant in a comment below.”

          On January 9th, 2018 at 4:59 am William Bayer said, “Anyway, the “anti-Stalin rhetoric” you mention has nothing to do with this comment. Are you just cyberstalking my comments to besmirch my character? Have you nothing to say about the comment you “replied” to here? Linda — you should be banned from this website.”

          So one can clearly see that Linda specified to which William Bayer comment she was replying and where on this thread that comment could be located. One can also clearly see William Bayer pretending to be functionally illiterate in his January 9th reply to Linda’s January 8th reply. Oddly enough, that particular rhetorical technique [rebuttal by procedural minutia] that William Bayer deployed against Linda has a chain of custody going straight back to The Kremlin before, during and after The Stalinist Era. Looks to me like Linda hit the nail on the head–again.

          P. S. How long has Bayer been posting on this blawg? A month? Less than a month? And he’s already trying to ban posters who disagree with him even whilst espousing his firm commitment to free speech??? Stalinism much, Bayer?

          • Bayer damns himself and Murdoch when he says he could “care less” about the Koch’s. ALEC (American Legislative Exchange Council) wines and dines legislators . ALEC drafts state laws that benefit specific corporate interests. A new ALEC type influencer is operating at the county and city level (American County and City Exchange).

            Gerrymandered states have robbed citizens of their right to meaningfully participate in elections. Carving up districts to enable the richest 0.1% to rule, denying American soldiers, veterans, labor,… their voices in elections, should be found treasonous. Bayer’s descendants will loathe him if he succeeds in silencing the voices of his fellow citizens who saw the threat posed by men like the Koch’s and the threat of unlimited political spending.

            All Americans who believe in free enterprise and a representative government should feel compelled to understand the implications laid out in the Mayer book about the Koch’s, “Dark Money”.

            Fox, serving the richest 0.1%, have used the anger Americans feel at their powerlessness to enable the concentration of wealth that is bleeding every dime from the 99%, in order to reestablish on American soil, the colonialism against which Revolutionaries fought.

          • I appreciate the sarcasm, Rychlak. But Linda argued only that the right-wingers are obsessed with anti-Stalinist rhetoric. She did not argue that the right-wingers are, themselves, Stalinists. Instead, Linda argues that the right-wingers are neo-colonialists and oligarchs. Meanwhile, Bayer insists upon calling himself an independent, whilst hurling the Stalinist accusation at Trump’s detractors. Wait a second. You were being sarcastic; weren’t you, Darren Rychlak???

  5. Here is a hypothetical question:

    If large parts of the Press knowingly colluded with a group of liberal Democrats by 24/7 wall to wall attacks to try and make it appear the POTUS is unfit for office, does that qualify as SEDITION?

    • If a whole network colluded with the republican party to make it appear that the POTUS was not born in the US, would that be SEDITION? If that same network spread outright lies to their viewers, should it be able to keep it’s license? Again, if that same network reported stories that were proven lies and wrong, would it be a “news” operation or just republican talking points?

    • Yes. The key phrase is “to try and make it appear that POTUS is unfit for office.” That takes it a step beyond the normal (if objectionable) editorial license to sway voters for an up coming election — trying to make it appear that a candidate is less preferable than some other candidate — and takes the conduct of the press (largely working together like a pack of wolves) directly into the realm of trying to bring down a duly-elected president by means other than the election process and/or by other means than criminal process.

      Aside from that, the attacks on Trump’s mentality (and attacks on the mentality of Trump supporters) are just Stalinism 2.0 — a revision of the Stalinist method of punishing political opponents with accusations of mental illness. To that extent, it’s rather refreshing to see so many in the democrat media (especially at CNN) finally come out of the closet and openly (if indirectly) admit that they are, at heart, good ol’ fashioned devotees of the means and methods of Joseph Stalin.

      Meanwhile, as I’ve posted elsewhere many times before, there’s a good chance that much of the press behavior can be traced back to a little-publicized decision by Congress (reached in 2012 and activated with the 2013 NDAA) to legalize use of propaganda against the American people. Related thereto, note the difference between the definition of “psyops” provided by Military.com and Wikipedia — which are virtually identical but that the Wikipdedia definition has removed the word, “foreign,” from its description of targets of propaganda, while the Military.com definition misleadingly continues to assert that targets of propaganda must be “foreign”:

      Wikipedia: “Psychological operations (PSYOP) are planned operations to convey selected information and indicators to audiences to influence their emotions, motives, and objective reasoning, and ultimately the behavior of governments, organizations, groups, and individuals.”

      Military.com: “PSYOPS or Psychological Operations: Planned operations to convey selected information and indicators to foreign audiences to influence their emotions, motives, objective reasoning, and ultimately the behavior of foreign governments, organizations, groups, and individuals.”

      • The Koch’s, through their Presidential cabinet under Trump, will likely determine Don’s mental fitness. Since the Koch’s V.P., Mike Pence, will be installed, it’s important to read “11 Things the Koch Bros. Don’t Want You to Know”, at AlterNet. Item 10, on the list, is their antagonism toward Social Security. Pete Peterson has spent 1/2 a billion to eliminate S.S. for the benefit of Wall Street.

        • Zero relevance to my comment. You really should post your garbage as an independent comment and not as a reply when it has nothing to do with the comment you’re pretending to reply to.
          How much does the DNC pay squirrels such as you to garbage up the comment pages?

          • On January 8th, 2018 at 12:31 am William Bayer said, “The key phrase is ‘to try and make it appear that POTUS is unfit for office.'”

            On January 8th, 2018 at 12:55 pm Linda said, “The Koch’s, through their Presidential cabinet under Trump, will likely determine Don’s mental fitness.”

            On January 9th, 2018 at 5:02 am William Bayer said, “Zero relevance to my comment.”

            Thus, once again, Bayer pretends to be functionally illiterate in the act of failing to recognize the relevance of Trump’s mental fitness vis-à-vis Trump’s fitness for office. But might it be possible that Bayer is NOT pretending to be functionally illiterate? No. That’s not possible. Bayer is merely pretending to be thick as a brick.

          • The DNC was in debt during the 2016 Presidential election and was bailed out according to Donna Brazile. I presume they are not flush with cash in 2017-18 to pay blog commentators. But, if they do pay, I wouldn’t take the money. (In contrast, there are solid indicators that Russian influence for Trump targeted American citizens reading internet info.)

            Bayer, if you are referring to Bernie Sanders’ Our Revolution, whose coffers are filled with small donations (unlike the million dollar checks of corporate and Wall Street interests paid to the Republican Party), those people appear to be driven by patriotism for a country that provides opportunity for the 99%, and they attend rallies, resist movements and make internet comments w/o pay.

    • Why, no, Virginia, it doesn’t. While you are allowed your own opinion, you are not entitled to your own facts.

      This is to “Hannity is my truth whisperer” jr

    • The irony is that you only see someone as a “proven pathological liar” — keyword “proven” — if you oppose their politics. If you support their politics, they could probably stand there all day next to a blue dress with semen stains and say “I did not have sexual relations with that woman — Ms. Lewinsky” and you wouldn’t even think twice about it.

      • “what about…ism” doesn’t change the fact that Trump, the current president, not the one from almost 20 years ago, is a liar.

  6. There are a lot of smart people that comment here. Yet it amazes me that so few have figured out how Trump operates. It’s pretty simple folks. Even Linda can understand it if she tries.

    Trump takes an extreme position. He’ll use social media as a catalyst to drive it. That gets people talking. Thinking. The effect is he corners the market and pushes competing sides closer to a middle ground solution acceptable to most. Like with the Korea problem.

    Trump has taken the unusual approach of putting fat Kim in his place. Fat Kim isn’t used to anyone getting up in his face but Trump is willing to do so. The effect? North and South Korea are talking again after years of silence. I suspect the libel comment has a similiar goal in mind.

    Take an extreme position and then push the other sides toward solutions.

    • Yeah, like ole “Crazy Abe” used the telegraph to “…take an extreme position and then push the other sides toward solutions” with guns to their heads.

      “If you’ve got them by the balls, their hearts and minds will follow.”

      ― Theodore Roosevelt

      “Crazy Abe” was old-fashioned.

      • Relationship to the topic, which was libel law? If Andrew took the topic far afield, a person, like you, David, who has felt on other occasions compelled to judge whether something is on topic or off topic, could have shown consistency by pointing out that extreme positions related to Trump’s executive authority in military matters is quite dissimilar to an extreme position that would have to be addressed by a legislative body.

        • Wow, for once a post lacking the word “oligarchy”. Of course, you haven’t yet told me what ocholocracy is. You ought to know since you advocate for it.

    • I think you nailed it. Trump did the same thing with long-festering problems with NATO — he came out and criticized various components while simultaneously suggesting that NATO may have outlived its usefulness. There followed LOTS of whaling and moaning, including accusations that Trump is clueless and/or an outright traitor. And the next thing you know, the long-lingering problems with NATO stopped being ignored and finally got addressed. Now nobody talks about problems with NATO any more. Hmmm. And nobody gives Trump credit for doing what he did, which was simply throwing the issue out into the arena so that it would get resolved.

        • Unconventional in politics or government perhaps — but in the real world of businesses and board meetings, it’s how things get done, because in that world time is money and you don’t make money sitting around ignoring problems. That only works in government.

    • Really? How much are you earning here, comrade? In the universe where facts are acknowledged, the more likely circumstance is that the trumper is “impetuous, fragile, hostile, irrational, intentionally uninformed, information-averse and semiliterate.”
      Keep dreaming that the buffoon has some sort of plan beyond “what’s for lunch.”

      this is to “curses, conned again” andrew

      • Mark M., andrewworkshop and his cohorts are desperately trying to cook up a new replacement narrative for the old deep-state conspiracy theory that is still as dead as Generalissimo Francisco Franco. They don’t have anything firm yet. But you can see them groping around in the dark for enough straw with which to fashion their next scarecrow. When they finally get the new model together, you will literally fall out of your chair rolling in fits of laughter. Here’s a few hints: Ten Rapt Men. Runed Russed. F.W.P.POTUS. Or maybe they’ll snap out of it and come to their senses. It’s still eeksie peeksie with them.

  7. In my opinion: Stronger libel laws have nothing to do with free speech, free press, or the 1st Amendment. Libel is lies and lies hurt people and there should be a punishment for liars purposely telling lies for their own benefit.

  8. Free speech should be protected.

    This is another tack that Trump has laid in his path. If libel laws became stricter, as he would like, then his Tweets would put him in even more hot water.

    I understand the frustration of public figures when people can lie about you with impunity. Wolfe has admitted that he made up at least parts of his writings. Sad.

    • I think free speech should be protected. Like when someone misses the boat. Libel laws should be protected. Not libel law. There is more than one law regarding libel laws. Start with the First Amendment.

      As for Wolfe. He is a total dork. I saw that with impunity.

    • Free speech is protected. Free speech does not mean that you can say anything that comes out of your mouth. Free speech is able to express your views without threat of death or prison, and if you do not believe me, why not take a trip overseas – maybe Iran?

        • He said some da people told him different accounts of what happened in da assylum. Wolfie does not say he made anything up. You need to read it.

  9. The uninformed, thin-skinned narcissist and dictator wannabe would give his eye teeth to dismantle free speech laws and the justice department. The only way to curry favor with him is to kiss his patootie [see Steven Miller on Jake Tapper this AM, Lindsay Graham coming off the back 9 a few months ago, almost all of the GOP toadies, Bannon [who today offers regrets but no denials!].

    Whoever reminded us of the word kakistocracy a few months ago was really on his/her game!

    • Fascinating. Easton’s exploits do bear a vague resemblance to Bannon’s. Perhaps you had someone else in mind, Dr. Benson.

    • Bannon clarified his remarks by saying it was not treason on the part of Donald Trump Jr. to organize a meeting with Russian spies. It was only only treasonous on the part of Paul Manafort to attend it.

      • And, Steele’s meetings with Russians in order to put together the false dossier on Trump’s actions in Russia were???

        Where do you think that we get reports of behavior on foreign soil? Do you think that it all comes from Americans? Steele himself is not American; he’s British. His sources would have been Russian. If the dossier was true, that information would have been valuable. As it were, it was entirely fabricated by Russian operatives trying to insert chaos by casting aspersions on Trump. The meeting with Trump, Jr promised similar dirt on Hillary, but it didn’t get anywhere.

        Please explain this to me, because I don’t understand. Why do so many Democrats claim it was treason to attend a meeting with a Russian who claimed they had political opposition research, when it was actually Hillary Clinton and the DNC who bought fraudulent information from the Russians, in order to disparage a candidate in an attempt to defraud voters? Is there some sort of political requirement for it to be treason?

        We had diplomatic relations with Russia, so they were not our sworn enemy at the time. Do you remember the Reset Button? The 80’s wants its foreign policy back? When you get information on Canadian healthcare, you get it from Canadians. If you write a story on fraud in Haiti relief funds, where a politician funneled money to cronies instead of to the people in need, you get that information from Haitians.

        Opposition research is not illegal. Taking a meeting to see your proof of your claims is not illegal. And it’s certainly not treason. It might be impolitic, but it is not illegal. There is absolutely no way to know if you are taking a meeting with a spy, unless they are your spy or you have access to classified databases. My father worked with spies. He said spooks blended in like completely average people, and did not typically leave a lasting impression. Unless, however, you were in a crisis. And then they were extraordinarily calm and collected. You cannot tell if someone is a spy in most cases.

        Knowingly publishing false information in a dossier without properly vetting it, in order to destroy your opponent and snatch an election is wrong. Falsely claiming a man with a Jewish family and friends with Netanyahu is anti-semitic, in order to snatch an election, is wrong.

        Hillary Clinton’s dossier with disgraced former MI6 Steele is the case in which false information actually was paid for, accepted, and disseminated, not Donald Trump, Jr.

        • Spot on. Amazing that people, even this far along, don’t get it. Russia achieved their goal and continues to win against us. For them, it never mattered who won the White House – from their perspective the American political pendulum never swings too far from certain core ideologies. Our politics are a predictable quantity for them. What they wanted was to sow doubt and discord about the process itself. They must be ecstatic that to this very day the bulk of the media is continuing to parrot the pot they stirred over a year ago.

        • Karen S. asked, “Why do so many Democrats claim it was treason to attend a meeting with a Russian who claimed they had political opposition research . . .”

          Steve Bannon is NOT a Democrat. Moreover, Bannon was probably not using the word “treasonous” in its technical, legal sense. If he was, then he is clearly wrong. If you can identify, by name, any Democrat who has actually asserted what you say so many Democrats have claimed, then please do so.

          The only potential legal culpability that might have arisen from the Trump Tower meeting that I can see is conspiracy to violate The Magnitsky Act. But Manafort nipped that one in the bud so soon as he arrived fifteen minutes late and found out what the Russians were pedaling at that meeting. And, in any case, the fruition of such a conspiracy would have required several additional and highly improbable steps.

          One wonders why anyone would be so eager to put Bannon’s words into Democrats’ mouths? No. Actually, that’s not very much of a wonderment; is it?

      • Trump’s State of the Union Address might include a few well-known statements such as . . .

        “I’m a genius and a very stable genius at that.”

        Note: Trump’s claim has nothing to do with cleaning horse stalls.

        • The progression of Trump’s father’s dementia may foreshadow the future. But, given the ages of the Koch’s, their V.P., Pence, won’t improve the circumstances for America, when and if installed.

            • Trump’s unhealthy lifestyle establishes credibility for a “natural cause of death”, a familiar go-to for the Kremlin. At this point, Trump is a liability to Putin. If the KGB handled this threat as it is alleged they’ve handled other problems, it would create instability (Fox conspiracy theories) and muddy the waters about Russian involvement in U.S. governance- both wins for Russia.

              Republican politicians in D.C. have shown zero interest in holding Russia accountable. With no plan to stop Russian interference, the chaos that ensued would leave Russia still standing tall and smirking.

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