CITIZEN PUBLISHING CO. v HON. MILLER/ELLEITHEE et al

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SUPREME COURT OF ARIZONA En Banc CITIZEN PUBLISHING CO., an Arizona Corporation, ) ) ) Petitioner, ) ) v. ) ) HON. LESLIE MILLER, JUDGE OF THE ) SUPERIOR COURT OF THE STATE OF ) ARIZONA, in and for the County ) of Pima, ) ) Respondent Judge, ) ) ALY W. ELLEITHEE and WALI YUDEEN ) S. ABDUL RAHIM, ) ) Real Parties in Interest. ) ) __________________________________) Arizona Supreme Court No. CV-04-0280-PR Court of Appeals Division Two No. 2 CA-SA 04-0041 Pima County Superior Court No. C20040194 O P I N I O N Special Action from the Superior Court of Pima County The Honorable Leslie B. Miller, Judge No. C20040194 REVERSED AND REMANDED WITH INSTRUCTIONS Petition for Review from Order of the Court of Appeals, Division Two No. 2 CA-SA 04-0041 STEPTOE & JOHNSON, LLP By David J. Bodney Peter S. Kozinets Chris Moeser Attorneys for Citizen Publishing Company Phoenix HERBERT BEIGEL & ASSOCIATES, LLC Tucson By Herbert Beigel Attorneys for Aly W. Elleithee and Wali Yudeen S. Abdul Rahim MAYNARD CRONIN ERICKSON CURRAN & SPARKS, P.L.C. Phoenix By Daniel D. Maynard Attorneys for Amicus Curiae The Thomas Jefferson Center for the Protection of Free Expression PERKINS COIE BROWN & BAIN, P.A. Phoenix By Daniel C. Barr Attorneys for Amicus Curiae The Reporters Committee for Freedom of the Press H U R W I T Z, Justice ¶1 The intentional issue before infliction of us is emotional whether distress liability can be for imposed against a newspaper for printing a letter to the editor about the war in Iraq. I. ¶2 On December 2, 2003, the Tucson Citizen ( the Citizen ) published a letter on its Op-Ed page from Emory Metz Wright, Jr. In its entirety, the letter stated: We can stop the murders of American soldiers in Iraq by those who seek revenge or to regain their power. Whenever there is an assassination or another atrocity we should proceed to the closest mosque and execute five of the first Muslims we encounter. After all this is a Holy War and although such a procedure is not fair or just, it might end the horror. Machiavelli was correct. In war it is more effective to be feared than loved and the end result would be a more equitable solution for both giving us a chance to build a better Iraq for the Iraqis. ¶3 The letter prompted immediate adverse reaction. From December 4 through 6, 2003, the Citizen published twenty-one 2 letters from readers who criticized Wright s letter. Among the critical letters was one from real party in interest Aly W. Elleithee. ¶4 On January 13, 2004, Elleithee and Wali Yudeen S. Abdul Rahim ( Plaintiffs ) filed a complaint in superior court in Pima County against the Citizen and Wright for assault and intentional infliction of emotional distress, seeking damages and injunctive relief.1 Plaintiffs sought to represent a putative class of all Islamic-Americans who live in the area covered by the circulation of the Tucson Citizen, including the reach of the Internet website published by the Tucson Citizen. ¶5 The Citizen moved to dismiss the complaint for failure to state a claim pursuant to Arizona Rule of Civil Procedure 12(b)(6). The superior court dismissed the assault claim but declined to dismiss Plaintiffs claim for intentional infliction of emotional distress, holding that reasonable minds could differ in determining whether the publication of the letter rose to the level of extreme and outrageous establish the emotional distress tort. conduct needed to The court also rejected the Citizen s First Amendment argument for dismissal, reasoning 1 The Citizen is published by Citizen Publishing Company, the named defendant below. For convenience, we refer to both the publishing company and the newspaper itself as the Citizen in this opinion. The other defendant named in the complaint, Wright, was not served with the complaint and was therefore not involved in the proceedings below. 3 that a public threat of violence directed at producing imminent lawlessness and likely to produce such lawlessness is not protected. ¶6 The Citizen filed a special action petition in the court of appeals seeking review of the superior court s order refusing to dismiss distress claim. the intentional infliction of emotional The court of appeals, by a 2-1 vote, declined to accept jurisdiction. The Citizen then filed a petition for review in this Court. We granted the petition because of the public importance of the issue presented. We have jurisdiction pursuant to Article 6, Section 5(3) of the Arizona Constitution and Arizona Revised Statutes ( A.R.S. ) § 12-120.24 (2003). II. ¶7 This case involves discretionary review. an unusual exercise of our [B]ecause relief by special action is largely discretionary, we follow a general policy of declining jurisdiction when relief by special action is sought to obtain review of orders denying motions to dismiss . . . . United States v. Superior Court (In re the General Adjudication of All Rights to Use Water in the Gila River System and Source), 144 Ariz. 265, recognizes 269, that 697 P.2d special 658, action 662 (1985). review of such This policy interlocutory rulings often frustrates the expeditious resolution of claims, unnecessarily increases both appellate 4 court caseload and interference with trial judges, harasses litigants with prolonged and costly appeals, and provides piecemeal review. City of Phoenix v. Yarnell (Smith), 184 Ariz. 310, 315, 909 P.2d 377, 382 (1995). It follows that we will rarely review the court of appeals discretionary refusal to accept jurisdiction of a special action challenging the denial of a motion to dismiss or motion for summary judgment. ¶8 There is good reason to depart from this general rule, however, when a suit raises serious First Amendment concerns. In Scottsdale Publishing, Inc. v. Superior Court (Romano), the court of appeals made an exception to its usual reluctance to review a denial of summary judgment by special action because of the public s significant first amendment interest in protecting the press from the chill of meritless libel actions. 72, 74, 764 P.2d 1131, 1133 (App. 1988). to similar conclusions. See, e.g., 159 Ariz. Other courts have come Washington Post Co. v. Keogh, 365 F.2d 965, 966-67, 968 (D.C. Cir. 1966) (hearing an interlocutory appeal from the denial of a motion for summary judgment in a defamation case); Schaefer v. Lynch, 406 So. 2d 185, 187 (La. 1981) (recognizing an exception to the general rule prohibiting appeals from a court s refusal to grant summary judgment in cases implicating the First Amendment to avoid a chilling effect on the freedom of press); cf. AMCOR Inv. Corp. v. Cox Ariz. Publ ns, Inc., 158 Ariz. 566, 568, 764 P.2d 327, 5 329 (App. 1988) ( [W]hen the complaint implicates the fundamental value of freedom of the press, there is good reason for a court to examine the complaint with a more rigorous eye in order not to burden public debate with insupportable litigation. ). ¶9 In cases in which an appellate court can determine from the pleadings a case-dispositive First Amendment defense, special action review of a trial court s refusal to grant a motion to dismiss may be appropriate. Such a procedure relieve[s] the parties and the court of a prolonged, costly, and inevitably rights. futile trial and protects First Amendment Scottsdale Publ g, 159 Ariz. at 74, 764 P.2d at 1133. ¶10 This is such a case. There is no dispute about the content of the letter to the editor that forms the basis for this litigation; the letter is set forth in its entirety in the complaint. letter is The only issue is whether the publication of that protected by the First Amendment. We therefore of emotional proceed to the merits of that issue. III. A. ¶11 The tort of intentional infliction distress requires proof of three elements: [F]irst, the conduct by the defendant must be extreme and outrageous ; second, the defendant must either intend to cause emotional distress or 6 recklessly disregard the near certainty that such distress will result from his conduct; and third, severe emotional distress must indeed occur as a result of defendant's conduct. Ford v. Revlon, Inc., 153 Ariz. 38, 43, 734 P.2d 580, 585 (1987); accord Restatement (Second) of Torts § 46 (1965). For present purposes, we assume arguendo that the superior court correctly held that Plaintiffs complaint stated a claim for intentional infliction of emotional distress. ¶12 claim However, our assumption that the complaint states a for inquiry. relief under Arizona tort law merely begins the The First Amendment to the United States Constitution, made applicable to the states by the Due Process Clause of the Fourteenth Amendment, provides that Congress shall make no law . . . abridging the freedom of speech, or of the press. Const. amend. I. Sullivan through . . . The landmark case of New York Times Co. v. recognized civil U.S. that the litigation may enforcement impose of invalid state tort restrictions law on constitutional freedoms of speech and press and thus constitute state action denying due process of law in violation of the Fourteenth Amendment. 376 U.S. 254, 265 (1964); accord NAACP v. Claiborne Hardware Co., 458 U.S. 886, 916 n.51 (1982) ( Although this is a civil lawsuit between private parties, the application of state rules of law by the . . . state courts in a manner alleged to restrict First Amendment freedoms constitutes 7 state action under the Fourteenth Amendment. ). The Supreme Court has most often applied the New York Times doctrine in the context of defamation actions, but it has expressly recognized that the same First Amendment principles apply to tort suits alleging distress. speech-based intentional infliction of emotional See Hustler Magazine v. Falwell, 485 U.S. 46, 56 (1988). ¶13 While speech involving private matters is not totally unprotected by the First Amendment, Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 U.S. 749, 760 (1985), in most such cases a state s interest in compensating its citizens for injuries arising from tortious speech will outweigh any First Amendment concerns, id. at 757-61. Generally speaking the law does not regard the intent to inflict emotional distress as one which should receive much solicitude, and it is quite understandable that most if not all jurisdictions have chosen to make it civilly culpable sufficiently outrageous. ¶14 where the conduct in question is Hustler Magazine, 485 U.S. at 53. But when speech involves a matter of public concern, the balance changes significantly. [I]n the world of debate about public affairs, many things done with motives that are less than admirable are protected by the First Amendment. Id. When speech is about a matter of public concern, state tort law alone cannot place the speech outside the protection of the 8 First Amendment. inflict See id. (stating that although the intent to emotional distress may be deemed controlling for purposes of tort liability in other areas of the law, we think the First Amendment public debate ). prohibits such a result in the area of This is because [a]t the heart of the First Amendment is the recognition of the fundamental importance of the free flow of ideas interest and concern. and opinions on matters of public Id. at 50; accord Dun & Bradstreet, 472 U.S. at 758-59 ( [S]peech on matters of public concern . . . is at the heart of the First Amendment s protection. ) (internal quotation marks omitted). ¶15 the Even when speech involves matters of public concern, protections absolute.2 afforded by the First Amendment are not But those seeking to impose liability for speech about matters of public concern so-called political speech must establish some exception to . . . general First Amendment principles. Hustler Magazine, 485 U.S. at 56. [P]olitical speech . . . may not be punished or enjoined unless it falls into one of the narrow categories 2 of unprotected speech As New York Times recognized, even speech about public officials can be the proper subject of a defamation suit when made with actual malice that is, with knowledge that it was false or with reckless disregard of whether it was false or not. 376 U.S. at 279-80; see, e.g., Goldwater v. Ginzburg, 414 F.2d 324 (2nd Cir. 1969) (upholding libel verdict for United States senator and presidential nominee under actual malice standard). 9 recognized by the Supreme Court. Planned Parenthood of Columbia/Willamette, Inc. v. Am. Coalition of Life Activists, 290 F.3d 1058, 1092 (9th Cir. 2002) (Kozinski, J., dissenting). B. ¶16 The complaint is letter based to the involves concern the war in Iraq. editor a upon matter of which Plaintiffs undeniable public Thus, the question is whether the letter to the editor in this case fell within one of the welldefined and narrowly limited classes of speech, the prevention and punishment of which has never been thought to raise any Constitutional problem. 568, 571-72 (1942). Chaplinsky v. New Hampshire, 315 U.S. Only three such exceptions to the general rule of First Amendment protection of political speech have been suggested in this case. The trial court held that the speech at issue here was not protected because it could incite imminent lawless action. (1969) See Brandenburg v. Ohio, 395 U.S. 444, 447 (recognizing that First Amendment protection does not extend to advocacy that is directed to inciting or producing imminent lawless action and is likely to incite or produce such action ). Plaintiffs argue alternatively that the statement at issue here constituted either fighting words, see Chaplinksy, 315 U.S. at 572 (allowing state law to punish insulting or fighting words ), or a true threat, see Virginia v. Black, 538 U.S. 343, 359 (2003) ( [T]he First Amendment also permits a 10 State to ban a true threat. ) (internal quotation marks omitted); R.A.V. v. City of St. Paul, 505 U.S. 377, 388 (1992) ( [T]hreats of violence are outside the First Amendment. ). We analyze each of these contentions in turn. 1. ¶17 The seminal case addressing the incitement exception is Brandenburg, which arose out of a speech at a Ku Klux Klan rally. 395 U.S. at 444-45. In that speech, Brandenburg criticized Blacks and Jews and threatened revengeance if the suppression of the white race continued. was convicted which of prohibited unlawful methods violating advocacy of Ohio s of as industrial or political reform. ¶18 that The the Supreme Court constitutional Criminal crime, terrorism Id. at 445-47. Syndicalism He Act, sabotage, means a violence, accomplishing of or Id. at 444-45. reversed guarantees the of conviction, free speech holding and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action. holding that Brandenburg s limited incitement speech exception, the did Court not Id. at 447. fall within emphasized that In this the mere abstract teaching . . . of the moral propriety or even moral necessity for a resort to force and violence, is not the 11 same as preparing a group for violent action and steeling it to such action. Id. at 448 (quoting Noto v. United States, 367 U.S. 290, 297-98 (1961)). ¶19 In order to qualify as incitement under the Brandenburg test, challenged speech must not only be aimed at producing imminent lawless action but must also be likely to do so. Id. at 447. In applying that test, courts must employ careful consideration of the actual circumstances surrounding the challenged speech, and recognize that not every expression of a provocative idea will incite a riot. Texas v. Johnson, 491 U.S. 397, 409 (1989). ¶20 The Supreme Court has made statements will meet this demanding test. particularly instructive in this regard. plain that very few Claiborne Hardware is That case arose out of the 1960s civil rights movement and involved a boycott of white merchants in Mississippi. 89. Claiborne Hardware, 458 U.S. at 888- A number of the affected merchants filed suit against the NAACP and various individuals to recover losses and to enjoin the boycott. Id. at 889-90. The record showed that Charles Evers, an official of the NAACP, had stated in various speeches that the boycott organizers knew the identity of Blacks who had violated the boycott, id. at 900 n.28, and intended to take action against them, id. at 902. Evers stated that [i]f we catch any of you going into any of them racist stores, we re 12 going to break your damn neck, and that the sheriff would be unable to protect boycott violators. ¶21 The trial court injunctive relief. Court affirmed Id. awarded the merchants Id. at 890-93. portions of the damages and The Mississippi Supreme trial court s judgment expressly rejected the NAACP s First Amendment defense. and Id. at 894-95. ¶22 The Supreme Court reversed. It began from the premise that because the merchants sought to impose liability on the basis of a public address which predominantly contained highly charged political rhetoric lying at the core of the First Amendment we approach this suggested basis for liability with extreme care. whether Evers Id. at statements Brandenburg test. 926-27. The qualified Court as then incitement considered under the Even though isolated instances of violence occurred after Evers emotionally charged rhetoric, the Court concluded that Evers speeches did not transcend the bounds of protected speech set forth in Brandenburg. Id. at 928. The Court noted that the acts of violence occurred long after the challenged speech and that the speech did not therefore carry with it an imminent threat of violence. ¶23 Id. Measured against the Supreme Court s precedents, the speech at issue in this case falls far short of unprotected incitement. The suggestion in the letter to the editor that the 13 intentional response murder to of innocent the deaths of civilians American is an soldiers appropriate is no doubt reprehensible, and Plaintiffs allegation that publication of the letter community caused them considerable and other members apprehension has of much the Islamic force. But, however offensive, the letter did not advocate imminent lawless action. on the The suggestion that we execute Muslims was premised occurrence atrocity. Nor of some were lawless action. the future words assassination likely to or produce another imminent The statement was made in a letter to the editor, not before an angry mob. Indeed, the complaint was filed more than a month after the challenged statements were made and did not allege that a single act of violence had ensued from the publication nor that such violence was imminent. Rather, the only thing that appears to have resulted from the challenged speech was more speech, in the form of numerous critical letters to the editor, including one from one of the Plaintiffs. This is precisely what the First Amendment contemplates in matters of political concern vigorous public discourse, even when outrageous statement. the impetus for such discourse is an See Whitney v. California, 274 U.S. 357, 377 (1927) (Brandeis, J., concurring) ( If there be time to expose through discussion the falsehood and fallacies, to avert 14 the evil by the processes of education, the remedy to be applied is more speech, not enforced silence. ). 2. ¶24 Fighting words are those personally abusive epithets which, when addressed to the ordinary citizen, are, as a matter of common violent reaction. knowledge, inherently likely to provoke Cohen v. California, 403 U.S. 15, 20 (1971). Such words are those which by their very utterance inflict injury or tend to incite an immediate breach of the peace. Chaplinsky, 315 U.S. at 572. Fighting words must be directed to the person of the hearer. Cantwell v. Connecticut, 310 Cohen, 403 U.S. at 20 (citing U.S. 296, 309 (1940)). The fighting words doctrine has generally been limited to face-toface interactions. See, e.g., Chaplinsky, 315 U.S. at 573 ( The statute, as construed, does no more than prohibit the face-to-face words plainly likely to cause a breach of the peace by the addressee. ); Gooding v. Wilson, 405 U.S. 518, 523-24 (1972) (holding unconstitutional a Georgia statute that lacked the limitations of the statute in Chaplinsky). ¶25 This case does not fall exception to the First Amendment. made in a letter to the within the fighting words The statements at issue were editor, not in confrontation with the target of the remarks. a face-to-face While the letter expresses controversial ideas, it contains no personally abusive 15 words or epithets. The letter is neither directed toward any particular individual nor likely to provoke a violent reaction by the reader against the speaker. 3. ¶26 The remaining question constituted a true threat. is whether the letter The true threat doctrine had its genesis in Watts v. United States, 394 U.S. 705 (1969). The defendant in that case had spoken at a public rally protesting the Vietnam War. Id. at 706. He noted that he had been ordered to report for a draft physical and stated: If they ever make me carry a rifle the first man I want to get in my sights is L.B.J. Id. Watts was thereafter convicted for violating a federal law prohibiting threats against the president, and the conviction was upheld on appeal. ¶27 Id. at 705. The Supreme Court reversed, holding that the kind of political hyperbole indulged in by petitioner was not the kind of true threat forbidden by the statute. Id. at 708. Although the Court based its decision on an interpretation of the federal statute, it made it clear that First Amendment principles informed its conclusion, remarking that any statute which makes criminal a form of pure speech, must be interpreted with the commands of the First Amendment clearly in mind. Id. at 707. Given the expressly conditional nature of the statement and the absence of violent reaction by listeners, the Court did not 16 believe that the statement could be interpreted as anything but a kind of very crude offensive method of stating a political opposition to the President. ¶28 The threat Virginia Supreme doctrine law intimidate. in Court Id. at 708. most Virginia prohibiting v. cross 538 U.S. at 348. recently revisited Black, which burning with the dealt the true with intent a to In holding that cross burnings committed with an intent to intimidate could be constitutionally prohibited, the Court explained the true threat doctrine as follows: True threats encompass those statements where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals. The speaker need not actually intend to carry out the threat. Rather, a prohibition on true threats protect[s] individuals from the fear of violence and from the disruption that fear engenders, in addition to protecting people from the possibility that the threatened violence will occur. Id. at 359-60 (internal quotation marks and citations omitted). The Court then explained that [i]ntimidation in the constitutionally proscribable sense of the word is a type of true threat, where a speaker directs a threat to a person or group of persons with the intent of placing the victim in fear of bodily harm or death. ¶29 Our court of Id. at 360. appeals has adopted a substantially similar test for determining a true threat under the First 17 Amendment. § In re Kyle M. involved the interpretation of A.R.S. 13-1202(A)(1), intimidating. 2001). which proscribes threatening or 200 Ariz. 447, 448 ¶ 1, 27 P.3d 804, 805 (App. The court of appeals recognized that the dictionary definition of threaten could encompass some constitutionally protected speech. Therefore, to Id. avoid at 450-51 ¶¶ constitutional 18-19, 27 P.3d conflict, 807-08. the court interpreted threat in the statute as concurrent with the true threat doctrine. Id. at 451 ¶ 22, 27 P.3d at 808. Relying on [c]ases decided since Watts, the court determined that true threats are those statements made in a context or under such circumstances wherein a reasonable person would foresee that the statement would communicates the be interpreted statement as by those a serious to whom the expression maker of an intention to inflict bodily harm upon or to take the life of [a person]. Id. at 451 ¶ 21, 27 P.3d 808 (quoting United States v. Khorrami, 895 F.2d 1186, 1192 (7th Cir. 1990)). ¶30 Thus, as in the case of incitement, the presence of a true threat can be determined only by looking at the challenged statement in context. See Black, 538 U.S. at 345 (holding that consideration of all of the contextual factors is necessary to decide whether a particular cross burning is intended to intimidate ); Watts, 394 U.S. at 708 ( Taken in context, and regarding the expressly conditional nature of the statement and 18 the reaction of the listeners, challenged statement was not a true threat, but rather political hyperbole. ). in context be there protected: may critical is a vast in determining constitutional A difference if speech difference is between falsely shouting fire in a crowded theater and making precisely the same statement in a letter to the editor. ¶31 Given statement at both issue the content here, we and the conclude context that constitutionally proscribable true threat. it is comments arose in the context central political issue of the day: Iraq. than of the not a First, the letter involved statements with a plainly political message. the of a discussion Indeed, about a the conduct of the war in Such statements are far less likely to be true threats statements directed purely at other individuals. See Watts, 394 U.S. at 706 (finding no true threat when statement involved issues of current public debate); cf. United States v. Orozco-Santillan, 903 F.2d 1262, 1266 (9th Cir. 1990) ( Although a threat must be distinguished from what is constitutionally protected speech this is not a case involving statements with a political message. ) (internal citation omitted). ¶32 editor Second, this expression occurred in the letters to the section traditional of medium a general for circulation making dedicated to political speech. threats, newspaper, and a hardly public a arena Speech that is part of this sort 19 of public discourse is far less likely to be a true threat than statements contained in private communications or in face-toface confrontations. See, e.g., Melugin v. Hames, 38 F.3d 1478, 1484-85 (9th Cir. 1994) (distinguishing threat communicated to judge by mail from threat made in Watts at a public rally); McCalden v. Cal. Library Ass n, 955 F.2d 1214, 1222 (9th Cir. 1990) (stating that public speeches advocating violence are entitled to more First Amendment protection than privately communicated threats of violence ). ¶33 Third, the action threatened in the letter was that we should take deadly measures in assassinations and other atrocities. response to future The letter is unclear as to whom we refers it could be read as referring to the United States armed forces or to the public at large. It is similarly unclear whether the letter advocates violence against Muslims in Iraq, against Muslims worldwide, or against Muslims in Tucson. Given the letter s conditional nature and ambiguity, we believe do not that a reasonable person could view that letter as a serious expression of an intent to commit an act of unlawful violence individuals. to a particular individual or group of Black, 538 U.S. at 359. IV. ¶34 within In short, we conclude that this letter does not fall one of the well-recognized 20 narrow exceptions to the general rule of First Amendment protection for political speech. It therefore follows that the Citizen cannot be held liable under Arizona tort law for publishing this letter. court erred in not dismissing the Plaintiffs The superior claim for intentional infliction of emotional distress, and we remand this case to the superior court with instructions to dismiss that portion of the complaint with prejudice.3 Andrew D. Hurwitz, Justice CONCURRING: _________ Ruth V. McGregor, Chief Justice ____ Rebecca White Berch, Vice Chief Justice 3 The Citizen also claims that the publication of the letter is protected by the Arizona Constitution s even greater protection for freedom of the press than the First Amendment[ s]. Article 2, Section 6 of the Arizona Constitution provides that [e]very person may freely speak, write, and publish on all subjects, being responsible for the abuse of that right. Given our conclusion that tort liability for the publication of this letter is prohibited by the federal constitution, we need not decide today whether the state constitution provides even greater protection. See Petersen v. City of Mesa, 207 Ariz. 35, 37 ¶ 8 n.3, 83 P.3d 35, 37 n.3 (2004) (stating that a showing of a violation of the federal constitution obviates the need to consider whether the protections granted by the Arizona Constitution extend beyond those of the federal constitution). 21 ____ Michael D. Ryan, Justice _________ Charles E. Jones, Justice (Retired) 22

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