Yes, Donald Trump Can Create Problems For Free Speech & The First Amendment

from the pay-attention dept

A few weeks ago, Donald Trump’s spokesperson claimed that he had “single-handedly brought back free speech.” It was an odd thing to say for a variety of reasons. First, the US has really strong free speech protections and they haven’t gone away (even if there are some threats to them). That is, free speech doesn’t need to be “brought back” because it’s already here. Second, Trump himself, just a few weeks earlier was quoted deliberately mocking free speech, claiming that people who support it are “foolish people.” And then, of course, there’s the fact that Trump has a very, very long and detailed history of both threatening to sue, and actually suing, over the speech of others. As Walter Olson noted:

Donald Trump has been filing and threatening lawsuits to shut up critics and adversaries over the whole course of his career. He dragged reporter Tim O?Brien through years of litigation over a relatively favorable Trump biography that assigned a lower valuation to his net worth than he thought it should have. He sued the Chicago Tribune?s architecture critic over a piece arguing that a planned Trump skyscraper in lower Manhattan would be ?one of the silliest things? that could be built in the city. He used the threat of litigation to get an investment firm to fire an analyst who correctly predicted that the Taj Mahal casino would not be a financial success. He sued comedian Bill Maher over a joke.

That first case is instructive. I highly recommend reading the details. O’Brien wrote a biography of Trump which was mostly favorable to Trump, but which briefly mentioned that he might only be worth hundreds of millions of dollars, rather than billions, and Trump sued him over that claim. And as that link notes, Trump didn’t just lose, he was “humiliated” by the courts. Incredibly, Trump still seems to insist that he “won” the case by basically redefining having the case totally tossed out of the courts as winning:

And that leaves out plenty of other threats, such as threatening to sue Rosie O’Donnell for mocking him, threatening to sue competitor Ted Cruz for challenging his political views or actually suing Univision claiming that because its President of Programming posted an Instagram picture showing Trump next to Charleston, South Carolina, shooter Dylann Roof, with the text “No comments,” that was somehow “defamatory.” That lawsuit was just settled a few weeks ago, which is interesting because, as John Oliver recently noted, Trump insists he refuses to settle lawsuits.

Anyway, last Friday Trump made even more news, saying that if he wins he’s planning to “open up” libel laws to make it even easier to sue. Given his statement in the Tweet above about how he won… except for what libel laws actually say, it’s not surprising that he wants to change such laws.

Here are the key points. After talking about how he hates the Washington Post, and thinks Jeff Bezos just bought it for political influence, he notes:

If I become President, oh, are they going to have problems. They’re going to have such problems.

… One of the things I’m going to do if I win, and I hope we do and we’re certainly leading. I’m going to open up our libel laws so when they write purposely negative and horrible and false articles, we can sue them and win lots of money. We’re going to open up those libel laws. So when The New York Times writes a hit piece which is a total disgrace or when The Washington Post, which is there for other reasons, writes a hit piece, we can sue them and win money instead of having no chance of winning because they’re totally protected.

…. So we’re going to open up those libel laws, folks, and we’re going to have people sue you like you’ve never got sued before…

That last line is said pointing to the media. Trump followed that up by extolling the virtues of libel law in the UK, which is famous for how horrible they are and how they’re abused to silence speech around the globe.

Well, in England, I can tell you, it’s very much different and very much easier. I think it’s very unfair when the New York Times can write a story that they know is false, that they virtually told me they know it’s false, and I say, why don’t you pull the story, and they say, we’re not going to do that, because they can’t basically be sued. And you can’t be sued because can you say anything you want, and that’s not fair.

Of course, as Politifact noted, Trump is flat out wrong (shocker there) in saying that the NY Times can’t be sued if it knowingly publishes a false story. That is, in fact, the standard necessary for defamation in this country.

Many others rushed in to point out something that seemed even more fundamental, which is that libel law is based entirely on state, rather than federal, statutes leading some, like Mathew Ingram at Fortune, to claim that Trump really can’t do much to carry out those threats. Indeed, many commentators are treating Trump’s confusion over the difference between state and federal laws (and his apparent confusion over key First Amendment precedents that would mean even if it were a federal issue, he couldn’t just change the law the way he wanted to) as yet another example of Trump being ridiculously clueless on policy matters he’s discussing.

And, of course, it is true that Trump appears to not understand NY Times v. Sullivan, one of the most important cases on the intersection of defamation and the First Amendment, which found that for public figures there is tremendous leeway in allowing speech, such that it is only defamatory if statements are not only false, but made with “actual malice.” Trump, obviously, doesn’t like this, but seems to think you can just “open up” the law, ignoring that the issue is not the law, but the 1st Amendment of the Constitution and First Amendment precedent.

That said, this is not a situation where you can just wave this off and say, “Oh, clueless Trump, he can’t really impact free speech like that.” As Marc Randazza explains in a CNN story, Trump can actually still create tremendous damage to the First Amendment if he were to become President. First off, you may have noticed that there’s a vacancy on the Supreme Court, and a Senate insisting it won’t look at any nominees until the next President comes into office. If that’s the case, then it’s entirely possible Trump could appoint someone willing to overturn NYT v. Sullivan. That might be difficult to do with the rest of the court, but it’s not impossible.

On top of that, though, there are federal laws related to defamation that Trump could harm. For years we’ve talked about the importance of anti-SLAPP laws, which allow people sued for defamation, where it’s clearly designed to just shut them up, to get those lawsuits tossed quickly and (often) to get their legal fees paid for. People who file SLAPP (Strategic Lawsuits Against Public Participation) hate these laws, and Trump appears to be a serial SLAPP filer. And, as we’ve been discussing, there’s an ongoing push for a federal anti-SLAPP law that may have some real momentum. Yet, if that law actually passes Congress under a President Trump, it seems pretty obvious that it will be vetoed.

So, yes, it’s easy to just mock Trump as clueless on this particular subject, and to note that it’s not nearly as easy as he seems to think to just “open up” libel laws. But don’t be fooled: if he were to become President, rather than “bringing free speech back,” he will have plenty of power to create a serious chill on free speech in this country.

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Comments on “Yes, Donald Trump Can Create Problems For Free Speech & The First Amendment”

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84 Comments
Anonymous Coward says:

Re: Re: Sad but true

…the US needs more political parties…

No, there are plenty already.

What the US needs are wide open primaries whereby the top 2 candidates irregardless of political party go to the general election. I for one am tired of elections that over 50% of the vote goes to losing candidates.

(Yes, I know: a constitutional amendment would be required for Presidential elections. Even without wide open primaries I would favor an amendment to make the Electoral College a tie breaker if a presidential candidate does not receive 50%+ of the vote.)

Roger Strong (profile) says:

Re: Re: Re: Sad but true

I for one am tired of elections that over 50% of the vote goes to losing candidates.

If Hillary and Donald go head to head in the election, it could be another very close race. Which brings us to a possible outcome of this election:

Imagine a repeat of the 2000 presidential election with Bush v. Gore decided by weeks of recounts and court battles. It was already a circus, but imagine what it would be like if it were Hillary vs. Trump. And imagine that the Supreme Court battle happens in the current environment, with Judge Scalia’s death and the fight to replace him. And a Tea Party that didn’t exist in 2000.

Jason says:

Re: Re: Re: Sad but true

As I understand it, the primary process is more or less run by the state parties (under the auspices of the national party organization) so I’m not necessarily sure we’d need a lot of Constitutional changes to alter it. There’s nothing in the Constitution mandating party primary procedures, after all. (When some states altered their primary schedules in the last election, it wasn’t a Constitutional issue… it was the national party apparatus that freaked out.)

Not an Electronic Rodent (profile) says:

Re: Re: Re: Sad but true

…the US needs more political parties…

Well, only if you redefine “political party” because political parties in general seem to be a large chunk of the problem.

What the US needs are wide open primaries whereby the top 2 candidates irregardless of political party go to the general election.

Again maybe nice, but doesn’t seem to fix the problem that only people supported by (and beholden to) uber-rich corporations are capable of getting elected.
It might also be nice not to have an electorate that seems to go consistently for either the dumbest and most preposterous or most clearly lying through their teeth candidates available no matter what their political persuasion…

Dark Helmet (profile) says:

Re: Re: Sad but true

“Although truth be said, the D probable candidate is just marginally better.”

This line of false equivalency needs to end. I absolutely HATE Clinton, but comparing the candidates makes the choice between them clear.

1. Hillary: a liberal democrat demagogue with an insane amount of experience, even though she’s a proven liar.

2. Trump: a liberal republican demagogue with zero experience, even though he’s a proven liar.

So, the only way choosing Trump over Clinton makes sense is if you value the word “republican”, which is meaningless in terms of actual policy, more than you value experience on the political stage, or if you actually think that having experience as a politician is a huge negative.

This isn’t political; it’s essentially a math equation where only one answer makes any fucking sense. I may disagree with those that support other candidates, such as Bernie, Cruz or Rubio. Hell, I may disagree with Clinton supporters depending on whom she’s running against. But I will never understand how a liberal New Yorker with zero moral standing, zero experience, and a policy platform that has historically been liberal is somehow convincing republican voters to vote for him. There is simply no rational explanation for it.

Anonymous Coward says:

Re: Re: Re: Sad but true

If you start with the assumption that everything that the Republicans have been saying over the years is true, then Trump is the only possible candidate to choose.

Just look at terrorism. We’ve been being told that the brown man is coming to kill us all any second now. Assume you believe that. Don’t you think closing the boarders and building walls is a good idea? Trump is the only one saying that. Basically Trump is the Republican party reaping what they have sown. Your lack of understanding comes from being able to think critically and assuming everyone else can.

I still believe Hillary is going to be our next President and because of Manning/Wikileaks, she is going to do everything she can to quash our civil liberties. The fact that the republicans seem to want to nominate someone even worse doesn’t really surprise me.

I intend to vote for Bill the Cat.

Anonymous Coward says:

Re: Re: Re: Sad but true

Trump’s doing well among Republicans that aren’t idiots through virtue of being the only Republican candidate not to promise to spend his first term fighting gay marriage. It also helps to know that most of what he says is bullshit, letting people pick and choose what promises they want to believe he means.

You’re right about the difference between him and Hillary, but for the moderates, it comes down to what you want. Hillary is great at politicking, she has plenty of experience…. So if you hate her agenda, she’s a terrible option, because she’ll be able to get it through. Trump’s an arrogant blowhard that no one likes, so most of his agenda will be hampered out of spite and lack of experience politicking, and that makes his crazy a lot more palatable.

Zgaidin (profile) says:

Re: Re: Re:3 Sad but true

Electing the least effective politician into office (any office) should always have been the purpose. Government is always some combination of coercive force and brute force, and never anything else. Even when it promotes something you agree with, it’s still forcing a significant portion of the population to alter the way it lives, speaks, acts, and conducts business to avoid legal trouble.

“It may not be possible to do away with government — sometimes I think that government is an inescapable disease of human beings. But it may be possible to keep it small and starved and inoffensive…” R. A. Heinlein

Anonymous Coward says:

Re: Re: Re:3 Sad but true

Yes, exactly.

Hillary scares the shit out of me, because I know she comes from a long, corrupt political career and has the ability to pull off some seriously backhanded shit at the expense of the country.

At this point, I’d rather vote for a complete moron incapable of arguing his way out of a paper bag.

Anonymous Coward says:

Re: Re: Re:4 Sad but true

Remember, you need not vote for the “lesser” of two evils. You need not vote at all. No singular person runs the country anyway. The ever-changing president still is nothing more than a spokesperson for a regime behind the scenes that always stays the same. The president stands between them and you to deflect criticism of the regimes doings. Lately, they’ve been inserting those they feel you would be afraid to criticize, a black person currently, next… ” a woman”… that alone should tell they have some mighty criticizable upcomming shit planned for the country.

GrooveNeedle (profile) says:

Re: Re: Re: Sad but true

If the sole difference is their experience, doesn’t that make Hillary the more threatening choice? She can actually accomplish something that is negative towards the populace overall.

Trump on the other hand, will be so ineffective that nothing will change (for better or worse) until 4 years go by.

Anonymous Coward says:

Re: Re: Re:2 Sad but true

You are seriously underrating duck, duck go. While he is spouting absolute nonsense, he still may be able to get something done on certain issues. Don’t get me wrong, he is not going to make Obamacare or other large projects, but as a relatively liberal republican (under his controversial fluff) he may actually start to cooperate with congress.

Since he is chosen as a republican, they cannot run the obstructionism they used against Obama and even if they don’t generally like him, he may be able to use bipartisanship to get his way through. As for inexperienced: Yes, but with the right people around him to handle those weaknesses he may be very efficient.

Anonymous Coward says:

Re: Re: Re: Sad but true

You are equating experience to good results. While she has lots of experience, she has few if any good results. In fact she has done as much harm to the US reputation on the world stage as Obama. Just look at the lie her and O were telling the UN weeks after it had already been debunked.

Anonymous Coward says:

Re: Re: Re:2 Sad but true

In fact she has done as much harm to the US reputation on the world stage as Obama

Where does this idea come from? That Obama has done damage to overall global perception of the US? It seems disconnected from and contrary to easy-to-see evidence and virtually every respectable poll I’ve seen. And it runs counter to almost every conversation I’ve had with non-citizens over the last eight years.

After both of Obama’s elections people in other countries were literally celebrating in the streets that this was a return to rational foreign policy from the US on the world stage after eight years of Bush. I am by no means saying he has been perfect, or even that his foreign policy has approached the ideal, but he is still quite popular around the world. And positive perception of the US as whole has consistently mirrored that popularity.

Anonymous Coward says:

Re: Re: Re:3 Sad but true

And I don’t mean to imply that the AC@12:35 is a conservative right wing pundit, but that’s who I most often hear making this claim which is laughably absurd. So NOW they care about foreign perception of US policies?!

What about those eight years of being pretty much universally reviled by every other country while Bush was in office; a leader they fell all over themselves to praise? “Who cares what the world thinks?! AMERICA!!!”

But a mildly progressive centrist democrat who is widely respected by most countries except… Russia? Maybe? “He’s tarnishing the US’s image!!!”

Anonymous Coward says:

Re: Re: Re:3 Sad but true

I dont know if i want other countries cheering in the streets when we elect a new president. People are happy when they are getting something. We have to have a somewhat advasarial relationship with other countries. Id rather grudging respect. Im sure china and mexico cherred in the streets when free trade agreements were passed. Meanwhile the trade deficet is in the toilet. Somehow i dont see the wife of bill clinton who has more recently been our secretary of state fixing that but im sure other countries will love it.

Ninja (profile) says:

Re: Re: Re: Sad but true

I do agree with you that Trump is incredibly bad. But experience doesn’t mean she’ll be good. See Obama and how much hope was on him after 8 years of Bush and yet he fared worse.

We are comparing two spoiled eggs. One has gone bad in the last few weeks and the other is bad for many months now. Sure the first is better but in the end both will either kill you or make you very sick.

AJ says:

Re: Re: Re: Sad but true

“1. Hillary: a liberal democrat demagogue with an insane amount of experience, even though she’s a proven liar.

Hillary isn’t just a liar. She’s a crook, married to an adulterer,who’s willful incompetence is responsible for the deaths of our citizens in Benghazi. She belongs in jail.

“2. Trump: a liberal republican demagogue with zero experience, even though he’s a proven liar.”

Agreed, he is all those things. But the difference is; He truly loves this country, and want’s to see it great again.

So your choices are; Career criminal coward who thinks she’s above the law… or…. Carrot topped circus clown patriot, who wants to turn the Presidency into a game show.

So much for hope and change!!

Lawrence D’Oliveiro says:

Re: Re: the US needs more political parties

It needs a proportional-representation election system, where the winner does not take all. Otherwise there’s not much point to having more political parties, since they will just end up representing large numbers of voters who are simply marginalized.

Anonymous Coward says:

Re: Re: Re: the US needs more political parties

Proportional representation elections works well when you have multiple parties and the election isn’t binomial. Ie. A presidential election reform is meaningless before you get better congress elections.

A solution could be to stop districting – with the added bonus of ending gerrymandering – and use statewide proportionality elections.

As for now, the primaries are a problem since they rely on party funding and they are build around a closed system of voters.

DannyB (profile) says:

New and Improved Libel laws

last Friday Trump made even more news, saying that if he wins he’s planning to “open up” libel laws to make it even easier to sue.

Live by the libel laws, die by the libel laws.

Those who live in glass houses should not throw stones.

For someone who is running for US President, but has yet to utter an actual, workable policy statement; yet demonstrates that his major (perhaps only) skill is spewing vile insults at others, he should perhaps be careful about opening up libel laws.

I suspect that ‘opened up’ libel laws work both ways.

In a moment, in the twinkling of an eye, at the last TRUMP: for the trumpet shall sound, and the dead shall be raised incorruptible, and we shall be changed. — 1 Cor 15:52

Richard (profile) says:

Whatever else

Whatever else one can say about Trump, his fortune means that he is more or less immune to lobbying dollars.

That is a plus.

He has also demonstrated some skill in amassing his fortune.

Those who have some personal knowledge of him say that the things he is saying in public are simply designed to attract votes and don’t reflect his personal opinions or intentions.

If you think that what he says is stupid/racist/whatever then effectively you are saying that the American public (or at least the segment that votes in republican primaries) is also stupid/racist/whatever.

Anonymous Coward says:

Re: Whatever else

He has also demonstrated some skill in amassing his fortune.

It was probably a lot easier amassing that fortune having started out with one.

If you think that what he says is stupid/racist/whatever then effectively you are saying that the American public (or at least the segment that votes in republican primaries) is also stupid/racist/whatever.

I honestly can’t decide how to respond to that.

Anonymous Coward says:

Re: Whatever else

The problem is that there are indications that Trump overstates what his fortune is. John Oliver pointed out that he claims that his personal brand is his primary asset and its value fluctuates based on his feelings, so what he claims is his value and what is his actual net worth in real assets and investments are two different things.

His fortune started with an inheritance. It’s difficult to say if he would have gotten anywhere had he started out as a middle class worker with no startup capital from Klansman daddy.

If you think that what he says is stupid/racist/whatever then effectively you are saying that the American public (or at least the segment that votes in republican primaries) is also stupid/racist/whatever.

I would definitely say that. It’s true. I’m related to some of those people. They never left the south. They never traveled anywhere except Iraq or Afghanistan and those experiences didn’t broaden their minds.

Richard (profile) says:

Re: Re: Whatever else

His fortune started with an inheritance. It’s difficult to say if he would have gotten anywhere had he started out as a middle class worker with no startup capital from Klansman daddy.

Yes I’m aware of that- but his fortune is at least larger now than the one he started with – wich not everyone can say!

As a bystander to this election from the UK I can say that none of the candidates is flawless from my point of view. Within the democrat camp I prefer Sanders to Clinton but I can see major flaws in both. As usual I have major objections to all the republicans and Trump is the only one who has any redeeming features (the relative immunity from lobbyists and the fact that he isn’t really a republican – he is a Liberal in the 19th century Brtish sense of the word). However just about any democrat candidate from the pre-Clinton past – and several republicans from that era would be preferable to any of the above.

Karl (profile) says:

Re: Whatever else

He has also demonstrated some skill in amassing his fortune.

Right. And here is how he has amassed it:

1. Get investors to put money into some thing he is ostensibly creating
2. Declare bankruptcy and/or take government bailouts
3. Take all of his investors’ money

http://www.alternet.org/story/156234/exposing_how_donald_trump_really_made_his_fortune%3A_inheritance_from_dad_and_the_government%27s_protection_mostly_did_the_trick

Richard (profile) says:

Re: Re: Whatever else

Right. And here is how he has amassed it:

OK so he was a successful bastard!

That is stil (in some sense) better than being an unsuccessful bastard.

According to Brian Clough (apparently) Don Revie’s Leeds side didn’t win their trophies “fairly” – but then again plenty of other sides have not played fairly – but still never won anything!

When Trump said that he preferred soldiers who didn’t get captured (talking about John McCain) my response was that I preferred business men who didn’t go bankrupt – so I am not exactly on his side – except in the following sense:

He is a maverick who doesn’t have any debts to any third party (at least none that he has any intention of repaying). If he became president he would leave no dynasty behind him to carry on afterwards. He would also have almost zero support from any part of congress so would have difficulty doing much damage. The alternative of a more mainstream republican who could enact a rightwing agenda WITH the support of congress is frankly too terrifying to contemplate.

The remainder of the republican

orbitalinsertion (profile) says:

Re: Whatever else

He;s demonstrated manipulation and multiple failures in amassing his consecutive fortunes. Still not a good way to run an administration, and he would not be an improvement.

If you think that what he says is stupid/racist/whatever then effectively you are saying that the American public (or at least the segment that votes in republican primaries) is also stupid/racist/whatever.

Duh?

John Fenderson (profile) says:

Re: Whatever else

“his fortune means that he is more or less immune to lobbying dollars.”

Perhaps, but irrelevant. His person interests already align with the interests of the biggest pools of lobbying dollars.

“He has also demonstrated some skill in amassing his fortune.”

No, he has not. His wealth is not something he earned.

“Those who have some personal knowledge of him say that the things he is saying in public are simply designed to attract votes and don’t reflect his personal opinions or intentions.”

And this hits the head of my biggest problem with Trump: he is a bald-faced, transparent, unapologetic liar.

sorrykb (profile) says:

Re: Whatever else

Richard wrote:

Those who have some personal knowledge of him say that the things he is saying in public are simply designed to attract votes and don’t reflect his personal opinions or intentions.

https://twitter.com/jonostrower/status/705171149022433280

Yes, I’m Godwinning this. Because sometimes it’s not wrong.

(And yes, the article is real. Full article available at http://timesmachine.nytimes.com/timesmachine/1922/11/21/98786796.html?pageNumber=18 .)

OutwardBound says:

Get Out While You Can

I’ve considered leaving the US because it’s a police state. If Trump becomes president it will get worse. I don’t want to live in a country where the second coming of Hitler is president. I don’t want to live in a country with people who would elect a person like him. Never have I been so disappointed in my countrymen.

Anonymous Coward says:

Likewise, “don’t be fooled”, if Hillary were to become president she’ll simply pick up where Obama left off with regard to many things, including the hindrance of free speech, and as such, she is the GREATER threat (this is also true of any other democrat). You know it… I know it… – in your guts you know they’re nuts.

John85851 (profile) says:

Just gut the whole first amendment

Why doesn’t trump just gut the whole first amendment while he’s at it?
1) Freedom of speech: sue for libel.
2) Freedom of religion: not if you’re one of those “brown person” religions, including Sikh or Buddism, which kind-of looks like Islam.
3) Freedom of the press: watch how much freedom the press gets once there’s not as much freedom of speech.

Anonymous Coward says:

good article on the new yorker right now that makes the point that the gop has been caught in a trap of their making. trying to sell the tax-breaks-for-the-wealthy party to the working class has necessitated a lot of smoke and hand-waving that has engendered a large, disaffected part of the gop. every step the gop regulars take now is one step short of what might work because they can’t bring themselves to actually start becoming who they have pretended to be. they are stuck.

imo, the gop is out of touch with the times. if reagan came back today, he’d have a retched blond comb-over.

as for us, the frankenstein political process we have hand-built to not serve the nation has begun to move.

it’s alive. it’s a-liiiiive.

Anonymous Coward says:

All the trump bashing is startinh to get on my nerves. When you actually look at some of the stuff instead of taking it at face value its changes things. For example the maher suit stemmed from the fact that maher went on national tv and said that he would donate 5million dollars to charity if trump cpuld prove he wasnt a by product of an oranangatang fucking his mother to which trump responded by sending him his birth certificate. He then sued when maher wouldent cough up the money. Thats just funny. Slapp is all about public persons i dont know if im comfortable saying anyone is a public person it seems like a better bar in that arena would be to define a public person as one elected to office.

Nick Sneider says:

JRN 101 Response

Yet again I am reminded why Donald Trump is a ridiculous candidate to consider for presidency. It astounds me that someone would want to challenge such a fundamental right included with being a citizen of the United States. By limiting our freedom of speech he would succeed in limiting the power of the people. Since the United States relies so heavily on the media and being able to voice the opinion of many without worry, limiting our ability to do this would give whoever set those rules an enormous amount of power. The New York Times Co. v. Sullivan case is primarily focused on the actual malice standard. Although Trump can’t out right change the First Amendment, it is predicted he might make things difficult by repealing the actual malice standard. Actual Malice is found within defamatory material and is according to Rot Law Group is described as acting “with knowledge that it was false or reckless disregard of whether it was false or not.” If Trump were allowed to change the actual malice standard, there is a good chance many of his attempts to sue for “defamation” about himself would go through. This type of power isn’t what we want to give anyone, especially someone with the resources and personal motivation like Trump.

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