Free Speech: Was it a Bad Idea?

 

mark-zuckerberg-headshotFor the sake of argument, let’s not have the argument about whether the EU itself is a bad idea right now. Mentally replace the words “EU Commission” with “a group of European countries that finds it expedient at times to negotiate as a single country.” That will keep us focused.

Here’s the press release:

The Commission together with Facebook, Twitter, YouTube and Microsoft (“the IT companies”) today unveil a code of conduct that includes a series of commitments to combat the spread of illegal hate speech online in Europe.

The IT Companies support the European Commission and EU Member States in the effort to respond to the challenge of ensuring that online platforms do not offer opportunities for illegal online hate speech to spread virally.  They share, together with other platforms and social media companies, a collective responsibility and pride in promoting and facilitating freedom of expression throughout the online world. However, the Commission and the IT Companies recognise that the spread of illegal hate speech online not only negatively affects the groups or individuals that it targets, it also negatively impacts those who speak out for freedom, tolerance and non-discrimination in our open societies and has a chilling effect on the democratic discourse on online platforms.

In order to prevent the spread of illegal hate speech, it is essential to ensure that relevant national laws transposing the Council Framework Decision on combating racism and xenophobia are fully enforced by Member States in the online as well as the in the offline environment. While the effective application of provisions criminalising hate speech is dependent on a robust system of enforcement of criminal law sanctions against the individual perpetrators of hate speech, this work must be complemented with actions geared at ensuring that illegal hate speech online is expeditiously reviewed by online intermediaries and social media platforms, upon receipt of a valid notification, in an appropriate time-frame. To be considered valid in this respect, a notification should not be insufficiently precise or inadequately substantiated.

I’m not sure how this story is related, or even if it’s related, but I note it:

A French Jewish youth group sued Twitter Inc., Facebook Inc. and Google over how they monitor hate speech on the web, highlighting the challenge — and potential costs — for Internet platforms to regulate user-generated content.

The lawsuit filed at a Paris court by the Jewish youth group called UEJF is seeking more clarity on who moderates social network posts and how it’s conducted. Together with an anti-racism and an anti-homophobia group, UEJF published a report earlier this month showing Twitter, Facebook and Google’s YouTube deleted only a small number of posts flagged as hateful, threatening or promoting violence.

Points to consider:

We have some of the most powerful organizations in America helping foreign governments to suppress speech. Yes, they are private organizations, just like Ricochet, and what they choose to host on their property is none of our government’s business. In America. In principle.

But when do we ask ourselves, “Is the right to freedom of expression meaningful if these four private entities can control the vehicle by which almost all political speech and thought is now conveyed?” I submit to you that this is a question worth serious thought. The founders certainly understood the potential tyranny of an over-strong government. Did they give enough thought to the possibility of over-strong IT companies? Rhetorical question. They couldn’t have. So we’ll have to think this one through for ourselves, here in the 21st Century.

Holocaust denial is illegal in Austria, Belgium, the Czech Republic, France, Germany, Liechtenstein, Lithuania, the Netherlands, Poland, Romania, Slovakia, Spain, and Switzerland. It’s not in America, obviously. Is your commitment to freedom of expression such that you think it should be legal for neo-Nazis and ISIS fanboys in America to spout off about killing Jews and infidels to their heart’s content? My answer is “Of course it should be.” We settled this one in 1977 in Skokie. (If your answer is “No,” stop here and explain why not.)

If your answer is “Yes,” do you believe that this is because it is self-evident that we’ve been endowed by our Creator with certain unalienable Rights, among them the right to say what we please? Or do you think this is just a contingent and practical American tradition?

If the latter, you can stop here. Makes things simple. But if your answer is the former (or something along natural law lines), do you think it applies to Europeans? If not, why not?

Do you think it’s possible for individual people to lose a human right because they are collectively responsible for a historic crime? Consider, in particular, Section 130 of the German Criminal Code. To the modern American ear, it sounds like the Barnard Faculty Lounge’s idea of paradise. It’s easy to be against it on principle. Until you remember how that law came into being.

In Holocaust Denial Legislation, Working Papers du Centre Perelman de philosophie du droit, 2008/3., J.D. Josephs surveys the origins and the arguments for and against laws criminalizing Holocaust denial. This is literally and metaphorically an academic debate; there is no chance of convincing anyone in Europe right now that these laws are a bad idea. Terrorism tends to make people think the idea of “natural rights” is a luxury and a frivolity. I leave it to you to read and consider the arguments on the “for” side.

These are the reasons he notes on the “against” side. First, there’s the principle of it:

The principle argument of those opposed to Holocaust denial legislation is entirely bound up with freedom of expression. It is one of the most fundamental freedoms of all in any truly democratic society, famously encapsulated in that well-known phrase attributed to Voltaire: ‘I disapprove of what you say, but I will defend to the death your right to say it’.

Second, and importantly, there’s the pragmatics of it:

In restricting freedom of speech to deny the Holocaust, it is argued, one is playing right into the hands of the deniers. The reasoning for this is the danger of unwittingly turning the Holocaust denier into martyr. Professor Evans, expert witness at the Irving v Lipstadt  trial, explained to the author that the publicity from Irving’s imprisonment in Vienna in 2005 made him “something of a martyr for freedom of speech, something Irving ‘had no interest in at all.’” This is what can be referred to as the popular-hated figure dilemma. It will boost the denier’s popularity, generating an interest in his words whilst exposing people to his deliberate falsehoods and lies. In the Irving v Lipstadt  case, the reverse was true. As unpopular a figure as David Irving was, he was the person accusing Lipstadt of libel. So there was no outpouring of public sympathy in Britain during or after the trial in his favour. In fact if anything precisely the opposite was true; one only had to read the next morning headlines for proof.

It is surely a paradox that David Irving, whilst calling for his freedom of speech to deny the Holocaust, went out of his way to suppress the freedom of speech of Deborah Lipstadt. However, many sectors of the public and press were very sympathetic to him upon his incarceration in Austria. As Lipstadt herself put it during the interview “when Irving was imprisoned in Austria, people who vehemently opposed him immediately sprang to his defence – some of them even asking me to do likewise.”

Furthermore, critics argue that by having such laws demonstrates a lack of confidence in historical truth. Making deniers important enough to warrant legislation, the argument goes, attributes to them a status they should not be entitled to. After all, as playwright George Bernard Shaw once put it: “martyrdom is the only way in which a man can become famous without ability.”

Je-suis-Dieudonne-800-copy

Dieudonné’s a vile anti-Semite. The last thing I feel like doing is vigorously defending his right to be one.

The pragmatic results of these bans may affect how I feel about the principle. It’s my experience that yes, making people into martyrs valorizes their disgusting opinions. This goes both for Holocaust deniers and other species of lunatic bigots.

But I just don’t know if I have the confidence to say, “Take the training wheels off, Europe. Nothing bad will happen.”

Do you feel entirely confident in saying, “Of course the Continent should mix its track record with the Internet, the political effects of which we don’t yet fully understand?”

Do you feel entirely confident in the moral wisdom of our IT companies?

Of one thing, I’m pretty sure. It’s a bad idea to announce that you feel “a collective responsibility and pride in promoting and facilitating freedom of expression throughout the online world” when you’re announcing the steps you plan to take to limit it. Why not say the truth? “We feel a collective responsibility and pride in promoting and facilitating some expressions, but not others.”

The arguments for this position are neither totally irrational nor disgraceful, and saying anything else is stupid. Promoting stupidity about a major point of political principle cultivates stupidity. I doubt it’s a good idea to make people more stupid.

***************

(I don’t know if I’ll be able to tell you what all of this means and how it’s relevant to you, but I’ll surely try or die trying.)

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  1. The Reticulator Member
    The Reticulator
    @TheReticulator

    Claire Berlinski, Ed.:

    The Reticulator: free speech is not widely practiced and supported by our civic and private institutions, where it’s not a primary instinct throughout most of our society.

    How will you know when it’s being properly practiced and supported? How would you measure this?

    I wouldn’t bother to try to measure it. There is no one “proper” way to do it.  It’s a civic, community thing.

    • #61
  2. EJHill Podcaster
    EJHill
    @EJHill

    Claire Berlinski, Ed.: Dumb voters.

    Are voters “dumb” or shielded from the truth?

    You’re confirming not disproving my theory: Any dumb schmendrick can become president in the US. He doesn’t need great ideas.

    Your assumption is not confirmed. Barack Obama is not “any dumb schmendrick.” He is a calculating individual with specific ideas to “fundamentally transform” American society. Each elected office, each vague non-position and present vote was calculated by the powers within the Democratic Party to elevate him to the White House as a blank slate.

    Claire Berlinski, Ed.: You think that if people had read his dissertation, they wouldn’t have voted for him? I don’t.

    Oh? Then you know what’s in it?

    Claire Berlinski, Ed.: Which ones do you mean?

    The laws that state that employees of the state are shielded from public scrutiny for public actions. Too often a lefty professor will say something in public or in the classroom that they truly believe, such as “White people are the source of all evil in the world and should be killed.” Or “Yes, the Holocaust happened but they were asking for it.”

    When that becomes public knowledge more often than not the universities will issue a statement that reads along these lines, “While the views of Professor Schmuckly do not reflect the views of this University, we are prohibited by privacy laws in discussing disciplinary actions.”

    “Disciplinary actions” just might as well include a wink and a nod and an additional two weeks of paid vacation for all we know.

    • #62
  3. The Reticulator Member
    The Reticulator
    @TheReticulator

    Bryan G. Stephens:

    Claire Berlinski, Ed.:

    Bryan G. Stephens: an elite, Northeastern School

    And is your theory that only an elite class gets to go to these schools? Can you define the class? I do not believe there’s any real barrier standing between any bright young American and Yale, if he or she is talented enough and that’s what he or she wants badly enough.

    The class is not one of birth, but one of station. People fall over themselves to get into the ruling class. Look at the Clintons.

    We have a class system, but the ruling class is not an endogamous class.  Yet.  Some have pointed out, using marriage and education data, etc., that we are moving in that direction.

    • #63
  4. civil westman Inactive
    civil westman
    @user_646399

    Claire Berlinski, Ed.:

    The Reticulator:We could pressure our local and state governments to refuse to do business with social media companies that practice censorship. Some of them refused to do business with North Carolina over the bathroom issue. They should be even more willing to do this.

    These companies are more powerful than North Carolina. And I’m not sure what the case for pressuring them would be. They’re private companies: Any law that could force them to accommodate customers they don’t wish to accomodate could do the same to Ricochet, it seems to me.

    I agree, Claire. I think what needs to be guarded against is the fascist collusion between government and huge social media companies – which is precisely what your OP describes. Where is that all purpose and all powerful “appearance of impropriety” standard when we really need it? This not only appears improper: if government and social media team up to stifle “hate speech” with no push back, freedom of speech is all but dead. Advocacy of most any non-progressive opinion will never be heard.

    • #64
  5. Old Bathos Moderator
    Old Bathos
    @OldBathos

    The issue is not speech or its content.  It is about whether anyone should have the power to dictate or curtail that content.  It is about the wisdom never to concentrate such power in the hands of any government figure or agency.

    The EU is all about the ongoing concentration of power which is why it should be allowed to fail and dissolve.  It is a project to impose the moral, aesthetic and ideological preferences of an elite segment on entire populations at a level so granular as to make the High Sparrow envious.

    If actual hate speech is so prevalent that it requires suppression then the polity is doomed anyway.  Best to let it out and shout it down in the public square with speech.  If a society can’t muster the energy to naturally counter such speech, such moral exhaustion cannot be rescued with bureaucratic edicts.

    • #65
  6. Ford Member
    Ford
    @FordPenney

    Claire Berlinski, Ed.“It took occupation, division, denazification, the levelling of quite some number of German cities and the loss of many American lives to suppress that speech. In the rest of the world, genocide tends to be prompted by what we might loosely call “hate speech.” Radio Télévision Libre des Milles Collines did presage a genocide in Rwanda. I’m very willing to accept the argument that freedom of speech is a natural right, but I don’t think empirical evidence is on the side of it being anti-violence.”

    Wow! Equivocate much? So the rise of Nazism and the Rwandan genocide was because of ‘free speech’? Too much free speech? Thats a wholesale rewiring of history in support of suppression.

    So people who are ‘wiser’ can tell beforehand when ‘free speech’ is actually hate speech and therefor are clairvoyant and can change the future. And now before throwing ISIS back at everyone note they are a terrorist organization, not a bunch of 60’s radicals who want to yell swear words on campus, can we stay focused here? They want to and do kill people for a living, that action is not ‘free speech’ qualified.

    • #66
  7. The Reticulator Member
    The Reticulator
    @TheReticulator

    By the way, I presume Claire in this thread is much of the time playing the devil’s advocate.

    And that reminds me of what a young pastor told me some time ago.  He was at a pastor’s conference where some issue was being disputed.  I don’t recall whether it was a matter of church government or what.

    Pastor A: “I’m just playing the devil’s advocate here.”

    Pastor B: “You speak very well on his behalf.”

    I was told that Pastor A did not appreciate B’s remark.

    • #67
  8. James Gawron Inactive
    James Gawron
    @JamesGawron

    anonymous:The European Commission consists of a president who is proposed by the European Council and confirmed by the European Parliament. The other 27 members, one from each member state, are appointed by the Council with the approval of the President and confirmed, as a body, by the Parliament. These 28 members form a cabinet which oversees around 23,000 civil servants (bureaucrats) who aren’t elected by anybody and crank out binding rules and regulations which affect every aspect of life and business within the EU.

    Change a few terms: General Secretary instead of President, Politburo for European Council, and Supreme Soviet for European Parliament, and you’ve described the governing structure of the Soviet Union, which was about as responsive to its populace as the central government in Brussels.

    Yep.

    Regards,

    Jim

    • #68
  9. Front Seat Cat Member
    Front Seat Cat
    @FrontSeatCat

    Claire Berlinski, Ed.:

    Front Seat Cat:

    In cases of child porn, and all the other garbage that is clearly illegal and a threat to the vulnerable, I welcome more censorship.

    That’s the route Turkey used to stifle the Internet: Let us have the power so we can stop child porn. People who go after speech don’t usually say, “We want to stop you from expressing your political opinions.”

    Child porn is already illegal in the states. I guess I mean more censoring as continuing to shut down things like that, not freedom of speech. And again, if it is clearly someone we are at war with like ISIS, most definitely. I think these companies already limit hate group content here.

    • #69
  10. Misthiocracy Member
    Misthiocracy
    @Misthiocracy

    The Reticulator:

    Claire Berlinski, Ed.:

    The Reticulator: free speech is not widely practiced and supported by our civic and private institutions, where it’s not a primary instinct throughout most of our society.

    How will you know when it’s being properly practiced and supported? How would you measure this?

    I wouldn’t bother to try to measure it. There is no one “proper” way to do it. It’s a civic, community thing.

    You cannot change what you don’t measure.

    (Well, you can, but only accidentally.)

    • #70
  11. civil westman Inactive
    civil westman
    @user_646399

    Relying on the depth of commitment to freedom of speech in this country, the left, not long ago, reveled in “speaking truth to power.” They understood that no one would dare to try to silence them. This view was punctuated with ashes of burnt flags.(I have had a knot in my gut since first reading Claire’s post, correctly figuring it would consume my emotions for the afternoon).

    These few short years later, as Claire’s post implies, that commitment is in doubt and in sufficient retreat that the left is all about silencing every opponent under the aegis of “hate speech.” Not prone to moral exhibitionism and crowing about it like the left (or are we afraid to say so?), I doubt we will come up with such an epithet. Were we so inclined, I guess it would be “whispering hate speech to those leading behinds,” or something of the sort.

    • #71
  12. The Reticulator Member
    The Reticulator
    @TheReticulator

    Misthiocracy:

    The Reticulator:

    Claire Berlinski, Ed.:

    The Reticulator: free speech is not widely practiced and supported by our civic and private institutions, where it’s not a primary instinct throughout most of our society.

    How will you know when it’s being properly practiced and supported? How would you measure this?

    I wouldn’t bother to try to measure it. There is no one “proper” way to do it. It’s a civic, community thing.

    You cannot change what you don’t measure.

    (Well, you can, but only accidentally.)

    So our Constitution didn’t change a thing?

    • #72
  13. Rodin Member
    Rodin
    @Rodin

    I am late to the party so please forgive if this point has already been made:

    The stated justification is due to the unique capability of messages becoming “viral” on social media. The notion is that the state has an obligation to control messages like they do biological viruses. And, in truth, there is some merit to the argument if the content of the message is incitement to do harm to individuals. But clearly the EU is intending to suppress what Americans would regard as protected speech. I still am amazed (and saddened) when I read about Europeans being sanctioned for telling facts that are inconvenient even when the truth of the statement is not disputed or disputable.

    • #73
  14. Eric Hines Inactive
    Eric Hines
    @EricHines

    Claire Berlinski, Ed.: [T]he Commission and the IT Companies recognise that the spread of illegal hate speech online….

    One small bit from the press release.  With this recognition of the existence of illegal hate speech, the Commission (and the IT Companies, but I’m only interested in the Commission here) explicitly recognizes the existence of legal hate speech.  This, in turn, creates a fundamental contradiction that must, from the force of history, bring about the destruction of the Commission and the synthesis of a new freedom–the true freedom of free speech and its underlying free thought and free conscious, flowing from free will, all of which require that free speech in order to have effect.

    Eric Hines

    • #74
  15. Misthiocracy Member
    Misthiocracy
    @Misthiocracy

    anonymous:Meanwhile, from The Register, “Google is the EU Remain campaign’s secret weapon”.

    Gleichschaltung, EU-style?

    Possible, but there’s precious little evidence in that article to back up the accusation.

    • #75
  16. She Member
    She
    @She

    No, Claire, the idea of “free speech” isn’t a bad one.

    But, of course, real hate speech which incites and advocates violence, even though such speech might be considered free, is horrible, and there is a line which a reasonable person can see, and which he should not cross.  And if governments, or law-enforcement agencies want to take that on, then I think, in rare instances, that might be OK.

    But before weighing in too far on this issue, I think it’s helpful to recognize that the ‘hate speech’ bar is set much lower in the Eurozone that it is in the US, and that Google, Facebook, YouTube, and Microsoft, by getting into bed with the EU will inevitably alter the balance on the unregulated Internet, and will perhaps drive more and more people to anonymous Tor browsing, and onion routing, just so they can escape this sort of scrutiny.

    For example, in 2014, a British candidate in the elections for the European parliament was arrested and detained for quoting Winston Churchill.

    This article, cites a number of ‘hate speech’ concerns, including one where Dutch officials told one man “You tweet a lot.  We have orders to ask you to watch your tone.  Your tweets may seem seditious.”

    It also mentions the British police’s determination that “harsh criticism of the Muslim influx would not be ‘tolerated,'” and that “Police Scotland will not tolerate any form of activity that could  . . . provoke offensive comments on social media.” 

    Clearly, there is no expectation, in the European view of hate speech that incitement to actual violence, or the advocacy of actual violence, is required in order to qualify.  Merely saying a disparaging thing, or making an ‘offensive comment’ about your neighbor is enough.

    Another example: British PR agent Matthew Doyle was arrested for tweeting the following after the Brussels terrorist attacks:

    “I confronted a Muslim woman in Croydon yesterday. I asked her to explain Brussels. She said ‘nothing to do with me’. A mealy mouthed reply.”

    Now, let us stipulate that Matthew Doyle may be a jerk, a numnuts, a nasty guy, and not someone you would ever invite over to meet your parents.  But he was arrested for this tweet.

    And although ultimately, the decision was made not to prosecute him, he said that, in addition to his arrest, “[his] flat was trashed, [his] passport seized, and two PCs, two tablets, and [his] phone taken.” 

    It is the ease with which the Brits fall for this sort of thing that makes me despair, in spite of occasional encouraging news, of a positive Brexit result.

    And it is the ubiquity of this sort of thinking in Europe that makes me wonder if these four companies really have any idea what they are getting into, or what the ultimate fallout will be.

    • #76
  17. RushBabe49 Thatcher
    RushBabe49
    @RushBabe49

    Here’s another way to look at the issue.  In any conflict between the Individual and the State, the Individual triumphs.  The EU wants to make Facebook and Google, etc. agents of the State.  Bad idea.

    • #77
  18. Eric Hines Inactive
    Eric Hines
    @EricHines

    RushBabe49: real hate speech which incites and advocates violence, even though such speech might be considered free, is horrible, and there is a line which a reasonable person can see, and which he should not cross. And if governments, or law-enforcement agencies want to take that on, then I think, in rare instances, that might be OK.

    No, that’s letting government engage in prior restraint.  That’s not starting down a slippery slope, that’s starting down a razor blade bannister.

    Punish the crime, not the thinking or the talking about the crime.

    Eric Hines

    • #78
  19. RushBabe49 Thatcher
    RushBabe49
    @RushBabe49

    Eric, that was NOT my comment you quoted.  I don’t know whose it is, but it’s not mine.  See the last comment on page 4.

    • #79
  20. Umbra Fractus Inactive
    Umbra Fractus
    @UmbraFractus

    RushBabe49:Eric, that was NOT my comment you quoted. I don’t know whose it is, but it’s not mine. See the last comment on page 4.

    Don’t blame Eric. It’s a bug that’s been popping up a fair amount recently.

    • #80
  21. RushBabe49 Thatcher
    RushBabe49
    @RushBabe49

    Weird!  Max, calling Max!

    • #81
  22. The Reticulator Member
    The Reticulator
    @TheReticulator

    Misthiocracy:

    anonymous:Meanwhile, from The Register, “Google is the EU Remain campaign’s secret weapon”.

    Gleichschaltung, EU-style?

    Possible, but there’s precious little evidence in that article to back up the accusation.

    Google said there was no manual intervention. Those are the weasel words.  In other words, their  hands are at least one step removed from the process.

    Google likes everybody on the internet to be identified and tracked. And in 2011 President Obama floated the idea of an ID for everyone on the internet, to do away with anonymity.

    But the process for ranking search results? That’s not so easily tracked. And it’s done anonymously.

    • #82
  23. Eric Hines Inactive
    Eric Hines
    @EricHines

    RushBabe49:Eric, that was NOT my comment you quoted. I don’t know whose it is, but it’s not mine. See the last comment on page 4.

    Sorry about the misattribution, which is beyond my control.  Not sure why anyone would go want to go to such trouble to misattribute.

    However, the quote itself is accurate–it’s from She at #79–as is my response to it.

    Eric Hines

    • #83
  24. Jason Turner Member
    Jason Turner
    @JasonTurner

    Another great post Claire, my view is that all speech should be legal unless it encourages and leads to a criminal act & that a reasonable person would assume that this speech would lead to a criminal act.

    The Australian Attorney General George Brandis was attacked in the Australian media for saying that people had a right to be bigots, although clumsily said he was right, people do have a right to be bigots but we also have the right to ridicule them for being so.

    • #84
  25. Tom Riehl Inactive
    Tom Riehl
    @TrinityWaters

    Claire Berlinski, Ed.:

    Tom Riehl: speech should remain unfettered by the edicts of our elite masters

    We don’t have elite masters. We elect our government through a reasonably transparent process. There’s no “them.” There’s only who we put there.

    Really?  The election process is very suspect, the media is complicit in deception, and WE THE PEOPLE feel betrayed.  Hence, Trump, and more power to him.  !!

    • #85
  26. Arthur Beare Member
    Arthur Beare
    @ArthurBeare

    Sorry, it’s nearly 3AM and I’ve only read the first page of comments, so forgive me if this idea is a duplicate, but —

    Has anyone considered that these companies are at least as deeply committed to making money as they are to any ideals of free speech?  And that it is in their financial interest to make nice with those who regulate and might restrict their market access?

    And that at least two of them have very progressive leanings, so that the they in fact disagree with many of the things that they would be asked to censor, and in fact might be quite happy to shut down communications supporting positions at odds with their own?  Didn’t we just have a post about Google selectively promoting (or not) trending topics on what appeared to many of us being ideological grounds?

    • #86
  27. Rodin Member
    Rodin
    @Rodin

    Arthur Beare:Has anyone considered that these companies are at least as deeply committed to making money as they are to any ideals of free speech? And that it is in their financial interest to make nice with those who regulate and might restrict their market access?

    And that at least two of them have very progressive leanings, so that the they in fact disagree with many of the things that they would be asked to censor, and in fact might be quite happy to shut down communications supporting positions at odds with their own? Didn’t we just have a post about Google selectively promoting (or not) trending topics on what appeared to many of us being ideological grounds?

    These companies clearly want to manage their relations with government to maximize profit. And, unlike the Kochs, they are not philosophically wedded to free market principles. They simply want to control their environment consistent with their own objectives and preferences rather than reacting to a free market. This is a basis for a strong marriage with the Eurocrats.

    • #87
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