Right to honest and peaceful communication

[Jonathan Buhacoff]

The proposed right

No government shall censor, directly or indirectly, honest and peaceful communication in any medium. No government shall harm, directly or indirectly, a person for honest and peaceful communication in any medium.

Important clarifications about the intent for this right

* The term “government” here refers to this right protecting a freedom from interference by any level of government such as federal, state, or local government.
* The term “censor” here refers to the idea of completely suppressing the communication of an individual or organization. The mere act of reviewing a communication to determine if it is protected by this right, or a decision to not include a work in a library, is not considered censorship here. Furthermore, censorship of non-protected communication is allowed — the government may censor dishonest and non-peaceful communication and the government may prosecute people who communicate dishonestly and non-peacefully. Only the actual suppression by the government of honest and peaceful communication, such as declaring that having or sharing particular a book or movie is illegal, is a violation of this right.
* This right does not prohibit the government from entering into a confidentiality agreement with a person, such as the one that every official and employee and contractor must sign before they are granted access to classified information. Therefore while disclosing confidential information to a news organization may be protected by this right to honest and peaceful communication, this right does not prevent the government from enforcing its confidentiality agreement. However, contracts in furtherance of a crime are not enforceable, so if the disclosure reveals criminal misconduct by a government official, employee, or contractor, the confidentiality agreement cannot be enforced in that instance. True whistleblowers are protected by the right to justice. When a disclosure contains both protected and non-protected information, a judge will have to determine if the non-protected disclosure was intentional (using the protected disclosure as a cover) or non-intentional (there was a lot of information and the whistleblower didn’t have time or resources to remove unrelated information from the disclosure) and if it was intentional the government may enforce its agreement on the non-protected portion but only after justice has been concluded on the protected portion — meaning the government cannot use the disclosure of non-protected information as an excuse to avoid justice on its wrongdoings described by the protected information.
* This right does not prohibit the government from enacting procedural rules of order that govern when or how long someone is allowed to speak, such as in a court of law, in a meeting of the legislature, in any other official meeting in any branch of government.
* This right does not prohibit the government from enacting laws that govern activity in public institutions or facilities such as a school, library, hall, park, roads, or prisons.
* Individuals and organizations who are not a part of government are not prohibited from censoring what they communicate for themselves or on behalf of others.
* The term “directly” refers to an official or unofficial government action.
* The term “indirectly” refers to official or unofficial government actions that have the effect of censoring, including influencing non-government individuals an organizations to censor on the government’s behalf.
* Elected officials and government employees are individuals who are also protected by this right, but because of their position in government they have the responsibility of making their intent clear — whether their communication is a protected individual expression, or whether it is an official directive.
* The term “honest” here refers to the content and labeling of the communication. Opinions, beliefs, and entertainment are protected by this right when they are clearly labeled. Claims and facts are only protected by this right when they are true. The courts adjudicate disputes about whether a claim has sufficient evidence to be considered honest, even if it is eventually discovered to be false, and whether information presented as fact is true or false. Information labeled as news is assumed to be factual so the facts must be correct and any opinion or belief included in news must be clearly labeled separately from the facts to be protected by this right as honest communication. When a person or organization communicates information labeled as a fact that is later discovered to be false, they are not protected by this right with a claim that they honestly believed what they were sharing, but persuasive evidence that their intent was honest or dishonest might influence the severity of the consequences.
* The term “peaceful” here refers to the content and presentation of the communication. A communication is considered non-peaceful if its content or presentation violates another person’s rights, or advocates for violating another person’s rights, or disrupts an official government proceeding, or advocates for disrupting an official government proceeding. See also peaceful actions and communications.
* The term “communication” here refers to spoken and written words, images, sounds, objects, smells, and motions. It includes speech, sign language, text, pictures, audio, video, sculptures, odors, art, entertainment, news, political speeches and debates, protests, and more.
* The term “medium” refers to vocals, documents, electromagnetic signals, and any other means of transmission or storage of the communication.
* The term “harm” here refers to physical violence, deprivation of needs, violation of rights, and any other means of inflicting damage or suffering to a person or any organization that person represents. This right protects people from government. Other rights and laws already protect people from harm by other people, whether it’s because of something that was communicated or not.
* The term “person” here refers to any person regardless of citizenship, age, skin color, or sex.

Comparison to the United States

In the United States, the First Amendment to the Constitution states “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.” However, in practice the legislature has enacted many laws limiting speech to prohibit incitement of violence, hate speech, defamation, and fraud; and to make publishers liable for the articles they edit and disseminate. All of the restrictions relate to one or both of our explicit limitations of honesty and peacefulness, or to force everyone to comply with some group’s idea of decency.

The situation in the United States is problematic in three ways. First, the Constitution states “Congress shall make no law… abridging the freedom of speech, or of the press…” whereas in fact Congress has passed numerous laws restricting speech, so it appears these laws are unconstitutional even though they are necessary to maintain order. Second, even with some restrictions in place, additional restrictions are needed to prevent the freedom of speech from being abused against society itself such as by lying and making false claims under the guise of political speech or news or entertainment. Third, the freedom is a negative right against the government making laws restricting speech, but there is no positive right to speak and no provision for order so this leads to situations where private organizations operating as public spaces restrict speech that may be important political speech, or public organizations restrict speech in some ways without a law being made, and people either agree or disagree with the outcome based on their political party and whether the communication was advantageous to them instead of on the character of the communication.

Some exceptions to the freedom of speech have been codified by numerous laws that have been upheld by the courts. In general, the exceptions to the freedom of speech are adopted to protect people from harm so libel and defamation and slander are illegal, death threats are illegal, fraud (part of which involves speech) is illegal, making false reports to law enforcement is illegal, and more.

However, there are significant abuses of the freedom of speech for which restrictions are needed but haven’t been adopted. The overly broad right to free speech allows politicians and elected officials to lie to their constituents without penalty everywhere except under oath in a court of law; it allows people to spread propaganda that is harmful to society using false information, fake evidence, and other dishonest means, under the guise of news or entertainment; and it allows publishers to mislead the public with false claims in headlines or articles for the purpose of profiting from the attention they receive.

Furthermore, the law prohibiting defamation in the United States requires a particular person to be identified, so people can make false and malicious statements against a group of people without any legal opposition. A right to honest and peaceful communication would allow the government to enact a law that protects groups of people from such false and malicious statements, not necessarily by awarding any damages but by requiring a retraction and issuing an injunction against repeating the same defamation in public after the false and malicious communication is proven in a court of law.

The freedom of speech must be limited in order for the laws that restrict harmful speech to not contradict the freedom, and in order to prevent the freedom from being abused to the detriment of society.

A proposed revision to the First Amendment would that would partially solve the problems discussed here is to include the words “honest and peaceful” so that part of the sentence would read: “abridging the freedom of honest and peaceful speech”. This would entail that the various laws restricting dishonest and harmful speech would then be aligned with the freedom, and additional laws would be possible to restrict the use of false information or fake evidence in propaganda including political speech by elected officials or candidates or their supporters or detractors. It does not address the problems of free speech in private spaces or the use of procedures to govern conduct, not speech, and maintain order in designated public spaces such as legislatures, court rooms, libraries, and public schools.

Comparison to the United Nations

Article 7 of the United Nations Universal Declaration of Human Rights states “All are equal before the law and are entitled without any discrimination to equal protection of the law. All are entitled to equal protection against any discrimination in violation of this Declaration and against any incitement to such discrimination.” The second sentence of that relates to the right to honest and peaceful speech. An incitement to violence, hate speech, or an incitement to unfairly discriminate against others is not peaceful speech.

Article 19 of the United Nations Universal Declaration of Human Rights states “Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.” This omits any mention of important limitations on speech, and also the lack of any obligation on anyone else to provide a platform for someone’s speech.

Peaceful communication

Sometimes it’s easy to discern whether something is peaceful or not and sometimes it’s difficult. People are sophisticated and can express menacing thoughts in ways to hide the true nature of that speech from people who don’t understand it. They can then also point to the plain meaning of their words as a defense in court, claiming they never directed anyone to cause harm. In such cases the arguments against the defendant should be about conspiracy to violate someone else’s rights, with their words being merely tools to communicate in that conspiracy and not illegal on their own. The trouble with hidden meanings is part of the reason why the right is to honest and peaceful communication, instead of merely speech.

The term “peaceful” here refers to the content and presentation of the communication. A communication is considered non-peaceful if its content or presentation violates another person’s rights, or advocates for violating another person’s rights, or disrupts an official government proceeding, or advocates for disrupting an official government proceeding.

Some communication may cause harm to others directly or indirectly. Some communication may hurt feelings. Some communication may offend. It may seem that these are covered by the term “peaceful”, but they are not and these things are intentionally excluded from the clarification of what the term “peaceful” means in this right. If we included any harm, feelings, or offense in the definition of peaceful, then the government could oppress anyone by just finding one other person who will claim to be offended, or hurt, or even harmed by something that was said or written. Corrupt officials would claim to be harmed by employees or journalists who expose them. Vengeful neighbors will claim to be offended by a friendly wave. Anyone claiming to be harmed may sue in court, but the government should not be involved in censoring anything or harming anyone based on such claims of harm, hurt feelings, or offense that are not a violation of rights or a disruption of an official proceeding.

Decency

There are no words which are inherently good or bad or decent or indecent. Language is a tool for communicating and words represent things and concepts, and people do react to things that are said. The idea of restricting some speech or entertainment based on a measure of decency is to maintain the peace by attempting to make the bulk of publicly available speech and material to be acceptable to a majority of people, or to a minority of people who happen to be in power to make such restrictions. However, this is not good enough.

First, people’s tolerance for different words varies and so the venue is important — is the speech in a public place where anyone can hear it and there’s no practical way to get consent or to avoid the speech if it’s where someone needs to be for some other reason? or is it in a private place where it’s easy to get consent before the communication, and also easy for anyone to leave if they decide they don’t want to hear that speech?

Second, because people’s sensibilities differ, and because context matters, the government should not regulate what constitutes indecent communication. Instead, the government should enact laws that help people find or avoid the communications they want or don’t want, by requiring publishers to label their products or live events in their advertising and outer box or entry. Some categories can be nudity, sex, violence, gore, horror, rude language, alcohol, drugs, and smoking. Other categories can be about character behavior such as romance, betrayal, torture, or war.

Instead of outlawing specific entertainment content, which would violate the freedom of honest and peaceful communication, the government needs to enact labeling laws and leave it to consenting adults to decide what to read or watch, or what to allow their children to read or watch.

In every community, educators and parents can decide together what is appropriate for the children to access in the schools. The classifications should be different for elementary, middle, and high schools. Any item that doesn’t have broad support can be moved to community libraries or privately owned libraries instead, where material for all ages can be stored. If a book or movie is considered inappropriate for children and is not available in school, but is available in a public or private library, then that book or movie has not been censored because it is still available to the public. Parents who want their children to access that material can get it for them at the library.

No author or publisher has a right for their work to be included in school libraries, community libraries, or private libraries. Space is limited and librarians decide what to carry (and in the case of schools, librarian decisions may be directed by a council of educators and parents). The refusal of any librarian, whether public or private, to carry a work in the library does not constitute censorship. Only a ban by the government on anyone having or sharing a specific work is considered a violation of the right to honest and peaceful communication.

This means that parents or members of the community who are offended by a book or movie or believe it is harmful to children can lobby for the schools not to carry it but cannot prevent any other adults from having or sharing it.

Discussion about protected communication

The nature of protected speech must be peaceful. Inciting or threatening violence doesn’t need to be protected because only the government is allowed to initiate violence against people. Disrupting a public proceeding doesn’t need to be protected because it’s important to protect the functions of society and public proceedings usually have rules of order to ensure that everyone participating in the proceeding (distinct from people who are merely observing it) has a turn to speak. It would be a good idea to enact a law that requires this. If someone is not a participating in a proceeding, or was not given the opportunity to speak, it’s still possible to talk before or after the proceeding, or outside.

Imagine being asked to fight for someone else’s right to free speech, where the victim of the rights violation was censored or punished due to their speech, if the speech in question is a death threat against someone else due to a disagreement or a provably false claim that is either a baseless defamation or part of a fraud, or disrupting a public proceeding where that person could have waited for their turn to speak or communicated in another way such as holding a sign or writing a letter to the editor? Would you fight for that? Would you risk injury or death to protect someone else’s right to be a bully, to make baseless accusations, lie and cheat, or inappropriately disrupt a public proceeding? Are these things you would stand for? Maybe some people would, but in general it’s easier to find support for a fight to protect someone else’s right to free speech if the speech in question is honest and peaceful.

There are many Internet sites now that seem to be a kind of digital “public square” operated by a private company. Some people have clarity about the difference between editing and publishing content and being liable for it or allowing users to self-publish and be liable for what they post, but other people are confused about this. When a company hides or deletes a message that violates the terms of service, some people think the right to free speech has been violated even though in the Constitution that right is only a negative right against the government, and doesn’t apply to these privately owned spaces even though they seem public. This means at least some people expect an additional right to free speech that has not been agreed upon by society. Moreover, because the existing right to free speech is overly broad, some people think that any act of hiding or removing their messages violates their right to free speech, even when their messages contain false claims, hate speech, calls to violence, death threats, or other content prohibited by the site’s terms of service or by law.

There are other situations that require additional limits to free speech. Designated public spaces such as legislatures, court rooms, libraries, and public schools must further limit speech to maintain good order — in other words, to maintain the peace. Legislatures adopt rules of order and representatives speak only when recognized by the president of the proceedings. Court rooms have rules of order and attorneys and clients speak only when recognized by the presiding judge. Libraries need to foster a quiet environment for people to read books there, and people exercising their right to free speech in a loud way would be a nuisance. Schools must limit free speech to maintain order and create a productive learning environment. For some people, the idea of free speech precludes the notion that there’s a time and place for some kinds of speech but not other kinds. For other people, these additional limitations in designated spaces are important common sense exceptions to the right of free speech because without limitations those spaces would not work for their designated purpose.

If we accept the idea that the people benefit from having some designated places and times where there additional constraints on speech — even honest and peaceful speech — are necessary, we need a way to determine what these places are, when these times are, and what constraints are acceptable. Government should enact laws to declare the designated places and times that impose additional constraints on speech which are not considered violations of the right to honest and peaceful speech, and these laws must be in accordance with the important clarifications provided earlier. Therefore, for example, the government may enact laws about conduct in a court room or legislature and consequences for violating those laws. To avoid violating the right to honest and peaceful communication, such laws must focus on procedure to ensure that participants in a meeting have an equal opportunity to speak and be heard, or on eligibility to participate, and not limit ahead of time what these participants might say.

Discussion on the validity and necessity of limitations on the right

There is a perspective that there should be no restrictions on speech, but it’s easy to imagine situations where this leads to detriment of society itself. For example, imagine an election where two candidates are competing for an office, and one candidate promotes false claims against the other that cause the other candidate to lose support, leading to the election of the dishonest candidate. If we ask ourselves what kind of elected officials we need and compare that to the kind of politicians we have, we might come to the conclusion that at least one reason we have so many dishonest politicians is because we give them an advantage in elections by not restricting dishonest speech.

There is a perspective that more speech is a better than restricting speech. However, this is not practical for at least four reasons. First, it’s easier to make false claims than to seek out the truth, document the evidence, and report on it. Second, there’s no guarantee that the “more speech” will reach the same audience and have any impact on them. Third, a tactic used by propagandists is to cause their audience to distrust other information sources, such as by falsely claiming that all others are corrupt or fake or secretly controlled by a sinister cabal, so if the propagandist is allowed to continue the dishonest speech the audience will eventually reject the “more speech” when they encounter it. Fourth, some designated public spaces require limits on free speech to maintain good order in support of achieving their intended purpose. If a person’s speech is out of order and interferes with the proceedings, “more speech” by others doesn’t remedy that at all, and instead further interferes with the proceedings. More speech is not an effective remedy to dishonest or violent speech, or for free speech that interferes with the use of designated public spaces such as legislatures, court rooms, libraries, and public schools.

The “honest” limitation on freedom of speech leads to a question of who decides what is true or false. We already have a mechanism for that — the courts. The courts already rule on cases involving libel, slander, false advertising, fraud, death threats, and more. Attorneys present evidence and call on experts and witnesses to testify. There are punishments for contempt of court or lying under oath. This existing system is often overlooked by people who object to an honesty limitation and fear the creation of a “Ministry of Truth” as portrayed in George Orwell’s novel “1984”. Such a ministry isn’t necessary if the right to honest speech is enforced in the same way other rights and laws are enforced already, by the court system with due process.

In the United States, the First Amendment to the Constitution specifically mentions “the press”. This is an unnecessary distinction because everyone has the right to honest and peaceful speech and the medium is irrelevant — in person, in a book, in a newspaper, in a television broadcast, in a video distributed online, etc. The press should not have any special treatment compared to anyone else.

It is important for members of society to be able to speak their mind without fear of being arrested, injured, or murdered by the government or by other people in response. However, this freedom to speak must have limitations to protect others from harm, to protect society and by extension the freedom of speech itself, and to facilitate cooperation among people in designated public spaces and official meetings.

Honesty in labeling communication

People who want to legally disseminate information that is not based in fact MUST label it appropriately as “opinion”, “satire”, “entertainment”, or “religious belief”. Information that is not based in fact, or information that has non-factual opinion mixed in with facts, MUST NOT be labeled “fact” or “factual”, “true” or “truthful”, or “news” because “news” implies factual information. A news organization may honestly report that a person said something that was false or dishonest but must make a distinction between the news report, such as “person X said Z”, and the thing that was said (Z), clearly labeling the news report as factual (person X did in fact say Z) and, to avoid liability for disseminating the “Z” when the “Z” is not factual, the news organization may label the thing that was said (the “Z”) as person X’s opinion that is not shared by the news organization.

Non-disclosure agreements

When a person signs a non-disclosure agreement with another person, a private organization, or with the government, that is a limited waiver of the right to honest and peaceful communication regarding the topic of the non-disclosure agreement. A person who signs a non-confidentiality agreement would be in the wrong if they later disclose confidential information that was subject to the agreement.

However, agreements in furtherance of a crime are non-enforceable so a non-disclosure agreement cannot be used to seek damages from a person who disclosed evidence or suspicion of a crime or unethical conduct that has occurred or the person believes will occur. Specifically, the government may not use its information classification system to cover up misconduct. See the section on whistleblowers for further discussion on that.

Treason

Treason is the crime of betraying one’s own country, either by attacking the state directly, or providing aid to its enemies. A communication that happens in support of an act of treason is therefore not peaceful and is not protected under this right.

Examples of communications that are not protected include:

* advocating for an attack on the country, its government, or people
* disclosing classified information to anyone who doesn’t have a clearance to receive it, including the public

Any person, including journalists, who receive classified information are obligated to return it to the government because if that information is later stolen from them and disclosed, the government may charge them as an accessory in the treason.

However, if that classified information is evidence of a crime committed by a government official, employee, or contractor, the disclosure of the information by whistleblowers is protected by the right to justice.

Conspiracy to violate rights

A communication that happens in support of any crime, but does not itself advocate for the violation of rights, is still protected by the right to honest and peaceful communication. It can be used as supporting evidence in a charge for another crime, but is not a crime in itself. For example, a robber texting a getaway driver to “bring the car” cannot be charged with a crime for sending that text, but that text can be used as evidence in the trial for the robbery.

Discussion on news and entertainment outlets

In the United States, the freedom of speech guaranteed by the First Amendment to the Constitution applies only to government. In the United States, the government is prohibited from censoring speech, but private organizations are not. We propose that this could be improved upon by protecting a person’s right to honest and peaceful speech also from violations by other people, but only if the government influenced those people to censor or harm on its behalf. An individual person or organization is free to decide what they communicate or don’t communicate for themselves or on behalf of others.

In this proposal, the right to honest and peaceful speech is a individual right that protects against the government but not against private individuals or organizations. Therefore, if a person submits an article to a news or entertainment or business outlet, that outlet has the right to decide what it shares with its audience. Furthermore, a business may refuse service to someone who has been dishonest with it, or communicated to others misinformation (dishonest) or insults (non-peaceful) about that company, and this does not violate the right to honest and peaceful communication because the right only prohibits government from censoring or retaliating for such communication.

An important aspect of the right to honest and peaceful speech is whether it is a private or public communication. In private, two people can mutually consent to any kind of speech and as long as they both consent to it, it can be considered peaceful. However, if one of them withdraws consent and the other continues, it is no longer peaceful. When doing such things in private, inevitably there will be a dispute about whether there was or wasn’t consent. Documenting consent in writing would be a useful practice to generate evidence in one’s defense that consent was obtained, and similarly when consent is revoked it should be done in writing. In public communication, the broadcasting party cannot know in advance which members of the public consent or don’t consent to their communication, so there are at least two ways to honestly and peacefully communicate with the public without fear of punishment from the government: First, the legislature can enact some accepted standard for public communication. If the public communication is in compliance with these standards, it is protected. Second, if the public communication is not in compliance with the standards, but requires the audience to take a specific action to access it such as sign up to a website or newsletter, or subscribe to a television or streaming channel, the audience can simply decide not to receive that communication anymore. An opt-in approach ensures consent and therefore the communication is peaceful. However, if any such consensual communication is later shared with someone who does not consent, the person who shared it is liable for the act — not the original person who communicated it only to an opt-in audience. This means that people who enjoy saying hateful things can still do that together as long as everyone in the gathering or electronic space consents to receive that kind of communication, and they can continue doing that without fear of punishment by government as long as they limit their audience to people who want to hear that. However, they cannot go in public and repeat the hateful things to people who didn’t consent to hearing them — because it’s not peaceful speech it’s not protected by the right so government can enact laws against it and there can be legitimate consequences for saying hateful things in public or in private to people who don’t consent.

Any person who receives a letter or delivery from anyone else outside the context of a non-disclosure agreement can publish the receipt and content of the letter or delivery. If they include a prologue, their own prologue must be honest and peaceful. The attached communication must be clearly labeled as not their own and also separated from their own report of having received it, so that only people who want to see it with the understanding that it’s claimed to be dishonest or non-peaceful can obtain it. In a public gathering, this might mean making an announcement that dishonest and non-peaceful communication is about to be shared, so people know what they’re going to hear and have an opportunity to leave if they don’t want to hear it.

The speech and debate clause in the Constitution of the United States

Article 1, Section 1, Clause 1 of the Constitution of the United States says this:

The Senators and Representatives shall receive a Compensation for their Services, to be ascertained by Law, and paid out of the Treasury of the United States. They shall in all Cases, except Treason, Felony and Breach of the Peace, be privileged from Arrest during their Attendance at the Session of their respective Houses, and in going to and returning from the same; and for any Speech or Debate in either House, they shall not be questioned in any other Place.

Members of the House and the Senate have abused this “speech and debate clause” by claiming they’re allowed to lie to the public when they post on social media, publish a press release, talk with the press, participate in recorded interviews, and so on. All of those things are outside of “either House” of the legislature.

It’s difficult to imagine any scenario in which the welfare of the people, the rule of law, and good governance are served in any way by lying to the public, deliberately misrepresenting the facts or reaching incoherent and nonsensical conclusions with faulty logic based on either true or fake evidence, or omitting or hiding important information from the public.

There’s a good argument to make for the speech and debate clause, because in the legislature when representatives are talking to each other, it’s reasonable to assume that all of them are as well informed as they wish to be, since it’s their job to be there and to discuss or argue about the evidence and then put things to a vote. Maybe things get heated and someone makes a mistake in a statement — they shouldn’t be punished for that.

However, when such representatives are addressing the general public, the conversation is asymmetric. The representatives broadcast whatever they want, and the public, which trusts them to do their job, believes them. Not only is that outside of “either house” of the legislature and therefore without the protection of the speech and debate clause, it’s also very dysfunctional for representatives to lie to their constituents and the general public. If speech and debate within the legislature is to be protected, the right to honest and peaceful communication — and by extension the ability of private citizens or the government to sue purveyors of disinformation to correct the record — must be upheld outside of the legislature.

Instead of living to a higher standard and making sure their facts are correct and their conclusions logically reasonable, it seems at least some representatives want the freedom to lie and gaslight everyone for the purpose of scoring political “points” and getting elected and re-elected on a platform of disinformation. It’s the opposite of what should be happening. People should expect their elected representatives to be better and do better. Elected and appointed officials should not be claiming any exemptions to the right to honest and peaceful communication (meaning they also claim the right to lie and threaten and say hateful things) — especially not for statements made to the public, which is part of their job.

• This topic was modified 1 year, 10 months ago by Jonathan Buhacoff.

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