Be that as it may, however, amici err in their factual assumption. Falwell, 485 U.S. 485 U. S. The public and press regularly examine the activities of those who affect our lives. speech in terms of its capacity for informing the public does not depend upon the identity of the source, whether corporation, association, union, or individual.'"". The Ohio Court of Appeals affirmed. Pp. This rule was prompted by a concern that, with respect to the criticism of public officials in their conduct of governmental affairs, a state law "rule compelling the critic of official conduct to guarantee the truth of all his factual assertions' would deter protected speech." Rather, based upon Diadiun's having witnessed the original altercation and OHSAA hearing, it was his view that any position represented by Milkovich and Scott less than a full admission of culpability was, in his view, a lie. User Clip: Milkovich v. Lorain Journal The appeals court upheld the trial court once again, only to be reversed by the Ohio Supreme Court. While following the same standard for determining whether a statement contains a sufficient factual component to give rise to a libel case, Brennan felt that the column did not imply that the plaintiff had committed perjury. offered.'" The court reaffirmed the earlier holding that Milkovich was a public figure for purposes of the New York Times test and granted the motion. . recognizes the strength of the legitimate state interest in compensating private individuals for wrongful injury. Furthermore, the tone and format of the piece notify readers to expect speculation and personal judgment. See also Bose Corp. v. Consumers Union of United States, Inc., 466 U. S. 485, 466 U. S. 510-511, and n. 29 (1984) (discussing the risks of submitting various questions to juries where freedom of speech is at stake); Gertz, 418 U.S. at 418 U. S. 349 (expressing concern about juries punishing unpopular opinion rather than compensating individuals for injuries sustained by the publication of a false fact); R. Smolla, Law of Defamation § 6.05(3)(a)(c) (1990); Zimmerman, 18 U.C.D.L.Rev. The Ohio. Edwards v. New York Times Co., 434 U.S. 1002 (1977). 1205, 1229 (1976) (quoting Popham v. Pickburn, 158 Eng.Rep. . He then describes Milkovich's testimony before the OHSAA, characterizing it as deliberate misrepresentation. 359, 442 (1985) (stressing the need to take into account "the cultural common sense of the ordinary listener or reader"). Observers and First Amendment law experts had expected that the Court would formalize its observation in Gertz that "there is no such thing as a false idea" into an opinion privilege against libel claims, expanding the traditional fair comment defense. '", Ollman v. Evans, 750 F.2d at 983, quoting Burns v. McGraw-Hill Broadcasting Co., 659 P.2d 1351, 1360 (Colo.1983). Milkovich v. Lorain Journal Co., 497 U.S. 1 (1990), was a United States Supreme Court case that rejected the argument that a separate opinion privilege existed against libel. A local newspaper published certain articles stating that some people had characterized the developer's negotiating position as "blackmail," and the developer sued for libel. "The constitutional protection does not turn upon the truth, popularity, or social utility of the ideas and beliefs which are. BRENNAN, J., filed a dissenting opinion, in which MARSHALL, J., joined, post, p. 497 U. S. 23. Consequently, the court upheld a lower court's grant of summary judgment against Scott. New York Times, supra, at 376 U. S. 269 (quoting Stromberg v. California, 283 U. S. 359, 283 U. S. 369 (1931)). "); id. 865, 868, 503 N.E.2d 580, 583 (1987) (finding a letter "couched in language of opinion rather than first-hand knowledge" did not imply factual assertions). Yet, imperfect though it is, an action for damages is the only hope for vindication or redress the law gives to a man whose reputation has been falsely dishonored.". While petitioner Milkovich was a high school wrestling coach, his team was involved in an altercation at a … 2695. In its entirety, the article reads as follows: "Yesterday in the Franklin County Common Pleas Court, judge Paul Martin overturned an Ohio High School Athletic Assn. [Footnote 2/6] For the first time, Diadiun fails. The expression of opinion was also actionable in a suit for defamation, despite the normal requirement that the communication be false as well as defamatory. Both state and federal courts have found that audiences can recognize conjecture that neither states nor implies any assertions of fact, just as they can recognize hyperbole. [Footnote 2/2] I also agree with the Court that the "statement". For the first time, the column quotes a third party's version of events. "[C]autionary language or interrogatories put the reader on notice that what is being read is opinion, and thus weaken any inference that the author possesses knowledge of damaging, undisclosed facts. 8. v. Virginia Citizens Consumer Council, Linmark Assoc., Inc. v. Township of Willingboro, Central Hudson Gas & Electric Corp. v. Public Service Commission, Consol. Diadiun begins the column by noting that, on the day before, a Court of Common Pleas had overturned the decision by the Ohio High School Athletic Association (OHSAA) to suspend the Maple Heights wrestling team from that year's state tournament. The action proceeded to trial, and the court granted a directed verdict to respondents on the grounds that the evidence failed to establish the article was published with "actual malice" as required by New York Times Co. v. Sullivan, 376 U. S. 254 (1964). [Footnote 2], Petitioner commenced a defamation action against respondents in the Court of Common Pleas of Lake County, Ohio, alleging that the headline of Diadiun's article and the, "accused plaintiff of committing the crime of perjury, an indictable offense in the State of Ohio, and damaged plaintiff directly in his lifetime occupation of coach and teacher, and constituted libel per se. Distinguishing which statements do imply an assertion of a false and defamatory fact requires the same solicitous and thorough evaluation that this Court has engaged in when determining whether particular exaggerated or satirical statements could reasonably be understood to have asserted such facts. As the common law developed in this country, apart from the issue of damages, one usually needed only allege an unprivileged publication of false and defamatory matter to state a cause of action for defamation. Lake County adjoins Cuyahoga County on the east, and in the 1980 census had a population of 212,801. 2. See Restatement of Torts, supra, § 606. The court overturned OHSAA's probation and ineligibility orders on due process grounds. However, it is clear from the context in which these statements were made that the court was simply supporting its determination that Scott was a public official, and that, as relates to petitioner Milkovich, these statements were pure dicta. (Emphasis added). ", Id. Under the rule articulated in the majority opinion, therefore, the statements are due "full constitutional protection." State courts responded by filling in the gap, grounding an opinion privilege in their own constitutions. Top Answer. In other words, while the Court today dispels any misimpression that there is a so-called opinion privilege wholly in addition to the protections we have already found to be guaranteed by the First Amendment, it determines that a protection for statements of pure opinion is dictated by existing First Amendment doctrine. Was Kurt Waldheim a Nazi officer? The Court extended the constitutional privilege announced in that case to protect defamatory criticism of nonpublic persons 'who are nevertheless intimately involved in the resolution of important public questions or, by reason of their fame, shape events in areas of concern to society at large. 359 (1985). School in Maple Heights, Ohio. Decided June 21, 1990. . It is, of course, the second level of falsity which would ordinarily serve as the basis for a defamation action, though falsity at the first level may serve to establish malice where that is required for recovery. Milkovich v. Lorain Journal Co. Milkovich v. Lorain Journal Co. There is only a vague statement from the OHSAA commissioner that the testimony "sounded pretty darned unfamiliar." . In Shakespeare's Othello, Iago says to Othello: "Good name in man and woman, dear my lord. They come from personal experiences with and observations of their superiors and peers, from watching actions and reactions. however, continue to press and hope for the recognition of an opinion privilege. Milkovich v. Lorain Journal Co. by William Rehnquist Syllabus. See Ibid. However, Milkovich did not complain of the quotation in his pleadings. "), thereby precluding federal review under Michigan v. Long, 463 U. S. 1032 (1983). Simply couching such statements in terms of opinion does not dispel these implications; and the statement, "In my opinion Jones is a liar," can cause as much damage to reputation as the statement, "Jones is a liar." U.S. Reports: Milkovich v. Lorain Journal Co., 497 U.S. 1 (1990). The column contained the following passages: ". Next, statements that cannot reasonably be interpreted as stating actual facts about an individual are protected, see, e.g., Greenbelt Cooperative Publishing Assn., Inc. v. Bresler, 398 U. S. 6, thus assuring that public debate will not suffer for lack of "imaginative expression" or the "rhetorical hyperbole" which has traditionally added much to the discourse of this Nation. Id. . The case took a long time to come before the court, which twice declined to hear it. Page 474 U.S. 953, 957. . This case is before us for the third time in an odyssey of litigation spanning nearly 15 years. Milkovich, a high school wrestling coach, sued the Lorain Journal for libel after a sports writer for its newspaper wrote a column implying the … See also National Assn. Decided by Rehnquist Court . 89-645. 1943)). 110 S.Ct. It also held that an accusation that an individual lied is a statement of fact actionable in defamation. In addition, it said, Milkovich had failed, as a public figure, to establish a prima facie claim of actual malice. The basis of the court decision that is the subject of Diadiun's column was that Maple Heights had been denied its right to due process by the OHSAA. It might indicate that the officials told the truth in court, in contrast to the version given to the commissioners, or that the officials discussed entirely different issues, rather than that they told a new lie. He had been at the original wrestling match and the OHSAA hearing but not at the court hearing. MILKOVICH v. LORAIN JOURNAL CO. Email | Print | Comments (0) No. . Gertz, supra, 418 U.S. at 418 U. S. 342. This position was maintained even though the truth or falsity of an opinion -- as distinguished from a statement of fact -- is not a matter that can be objectively determined and truth is a complete defense to a suit for defamation.". . The common law generally did not place any additional restrictions on the type of statement that could be actionable. Diadiun says Maple told a lie." William H. Rehnquist: However, due to concerns that unduly burdensome defamation laws could stifle valuable public debate, the privilege of "fair comment" was incorporated into the common law as an affirmative defense to an action for defamation. Decided June 21, 1990. Milkovich v. Lorain Journal. Several people were injured. Id. The column does not quote any testimony from the court proceeding, nor does it describe what Milkovich said in court. [Footnote 2/9]. . The court never made an evidentiary determination on the issue of respondents' negligence. . While Diadiun's mind is certainly made up, the average reader, viewing the words in their internal context, would be hard pressed to accept Diadiun's statements as an impartial reporting of perjury.". 497 US 1 Milkovich v. Lorain Journal Co . . Lebron v. National Railroad Passenger Corp. First National Bank of Boston v. Bellotti, Citizens Against Rent Control v. City of Berkeley, Colorado Republican Federal Campaign Committee v. FEC, Arizona Free Enterprise Club's Freedom Club PAC v. Bennett, American Tradition Partnership v. Bullock, Brown v. Socialist Workers '74 Campaign Committee, Manhattan Community Access Corp. v. Halleck, Landmark Communications, Inc. v. Virginia, Minneapolis Star Tribune Co. v. Commissioner, Greenbelt Cooperative Publishing Ass'n, Inc. v. Bresler. 1001 (1986); Zimmerman, Curbing the High Price of Loose Talk, 18 U C.D.L.Rev. See also Hustler Magazine, Inc. v. Falwell, 485 U. S. 46, 485 U. S. 50 (1988) (First Amendment precluded recovery under state emotional distress action for ad parody which "could not reasonably have been interpreted as stating actual facts about the public figure involved"); Letter Carriers v. Austin, 418 U. S. 264, 418 U. S. 284-286 (1974) (use of the word "traitor" in literary definition of a union "scab" not basis for a defamation action under federal labor law, since used "in a loose, figurative sense" and was "merely rhetorical hyperbole, a lusty and imaginative expression of the contempt felt by union members"). But there is also another side to the equation; we have regularly acknowledged the "important social values which underlie the law of defamation," and recognize that "[s]ociety has a pervasive and strong interest in preventing and redressing attacks upon reputation." . It noted that the Common Pleas Court had accepted Milkovich's testimony, and ruled that this alone constituted sufficient evidence of actual malice to survive a motion for a directed verdict. And since that statement could easily be found true or false by comparing Milkovich's statements at the OHSAA hearing with his court testimony (which the column did not do), it was moot whether it was intended as opinion or not since it asserted a matter of objective fact. Where the reader knew or was told the factual foundation for a comment, and could therefore independently judge whether the comment was reasonable, a defendant's unreasonable comment was held to defame "himself rather than the subject of his remarks.'" certiorari to the court of appeals of ohio, lakecounty No.89645. 111 L.Ed.2d 1. Media for Milkovich v. Lorain Journal Company. v. Robert Welch, Inc., 418 U.S. at 418 U. S. 370 (WHITE, J., dissenting) ("Under typical state defamation law, the defamed private citizen had to prove only a false publication that would subject him to hatred, contempt, or ridicule"). Thus, since petitioner has failed to establish actual malice, his action is precluded under New York Times Co. v. Sullivan, 376 U. S. 254 (1964), and Curtis Publishing Co. v. Butts, 388 U. S. 130 (1967). Nor could it. 2122. Specifically, the court reasoned as follows: "It is important to recognize that Diadiun's article appeared on the sports page -- a traditional haven for cajoling, invective, and hyperbole. Several members were hospitalized as a result. 1862) (Wilde, B.)). New York Times, supra, at 376 U. S. 272 (quoting Sweeney v. Patterson, 76 U.S.App.D.C. . Scott, 25 Ohio St.3d at 248, 496 N.E.2d at 704. I agree with the Court that under our line of cases culminating in Philadelphia Newspapers, Inc. v. Hepps, 475 U. S. 767, 777 (1986), only defamatory statements that are capable of being proved false are subject to liability under state libel law. It is, therefore, imperative that we take the most particular care, where freedom of speech is at risk, not only in articulating the rules mandated by the First Amendment but also in applying them. . Milkovich v. Lorain Journal, 497 U.S. 1 (1990) Milkovich v. Lorain Journal Co. No. We do not have the same certainty as do amici that people in a "small town" view statements such as these differently from people in a large city. 474 U. S. 953 (1985). Did Cuban-American. No. This Court again denied certiorari. The actual decision, however, was regarded as having confused the issue somewhat instead. at 383 U. S. 92-93 (Stewart, J., concurring). Instead, what suffices for "detail" and "color" are quotations from the OHSAA hearing -- old news compared to the court decision which prompted the column -- and a vague quotation from an OHSAA commissioner. Id. at 418 U. S. 350 ("Like the doctrine of presumed damages, jury discretion to award punitive damages unnecessarily exacerbates the danger of media self-censorship. Id. Milkovich V Lorain Journal Co. Journal composing aids us examine private thoughts, establish believed, and document the happenings of your day or even a substantial occasion. In addition, the connotation that Milkovich committed perjury is sufficiently factual that it is susceptible of being proved true or false by comparing, inter alia, his testimony before the OHSAA board with his subsequent testimony before the trial court. . It certainly sounded different from what they told us.'". Milkovich v. News-Herald, 46 Ohio App.3d 20, at 23, 545 N.E.2d at 1324. The Ohio Court of Appeals for the Eleventh Appellate District reversed and remanded, holding that there was sufficient evidence of actual malice to go to the jury. "As Thomas Jefferson observed in his first Inaugural Address . See Bresler, supra; Letter Carriers, supra; Falwell, supra. Meanwhile, Superintendent Scott had been pursuing a separate defamation action through the Ohio courts. According to the Encyclopedia of the American Constitution, about its article titled MILKOVICH v.LORAIN JOURNAL CO. 497 U.S. 1 (1990) This is a major free press case that has been widely misunderstood, especially by the news media. . 2695. ", "The teachers responsible were mainly head Maple wrestling coach Mike Milkovich and former superintendent of schools H. Donald Scott. Tuition Org. App. Id. Although statements of opinion may imply an assertion of a false and defamatory fact, they do not invariably do so. In: Historical Events Submitted By liz345 Words 583 Pages 3. Next, respondents concede that the Scott court relied on both the United States Constitution as well as the Ohio Constitution in its recognition of an opinion privilege, Brief for Respondent 18, but argue that certain statements made by the court evidenced an intent to independently rest the decision on state law grounds, see 25 Ohio St.3d at 244, 496 N.E.2d at 701 ("We find the article to be an opinion, protected by Section 11, Article I of the Ohio Constitution. Readers of Diadiun's column are signaled repeatedly that the author does not actually know what Milkovich said at the court hearing and that the author is surmising, from factual premises made explicit in the column, that Milkovich must have lied in court. He is not, however, liable for defamation. If the inference is sincere or nondefamatory, the speaker is not liable for damages. I appreciate this Court's concern with redressing injuries to an individual's reputation. William H. Rehnquist: This is not the sort of loose, figurative or hyperbolic language which would negate the impression that the writer was seriously maintaining petitioner committed the crime of perjury. 1. Wiki User Answered . Asked by Wiki User. They propose that a number of factors developed by the lower courts (in what we hold was a mistaken reliance on the Gertz dictum) be considered in deciding which is which. Texas applied Milkovich more literally. First, we held that the States could not impose liability without requiring some showing of fault. 89645DISSENT v. LORAIN JOURNAL CO. No. ", "Naturally, when Mentor protested to the governing body of high school sports, the OHSAA, the two men were called on the carpet to account for the incident. Like the "imaginative expression" and the "rhetorical hyperbole" which the Court finds "has traditionally added much to the discourse of our Nation," ante at 497 U. S. 18, conjecture is intrinsic to "the free flow of ideas and opinions on matters of public interest and concern" that is at "the heart of the First Amendment." . Ante at 497 U. S. 20. If a statement that appears to be based on an objective fact is false, there is no separate opinion privilege that protects its maker from liability in a libel action. Scott, 25 Ohio St.3d at 253-254, 496 N.E.2d at 708. MILKOVICH V. LORAIN JOURNAL CO. By Paola Wolf Table of Contents: Overview Background of the Case Summary of Case & Legal Proceedings Types of Media Law in Case Courts/Agencies Involved in Case Parties Involved in Case Resolution of the controversy Primary source Milkovich v. Lorain Journal … Presents the United States Supreme Court case of Milkovich v. Lorain Journal Co., which was argued and decided in 1990. But, more importantly, petitioner Milkovich was not a party to the proceedings in Scott, and thus would not be bound by anything in that ruling under Ohio law. In Milkovich v. Lorain Journal Co., the Supreme Court clarified how the First Amendment affects state defamation law as relates to opinions. What may be more disturbing to some about Diadiun's conjecture than, say, an editorial in 1960 speculating that Francis Gary Powers was in fact a spy, despite the Government's initial assurances that he was not, is the naivete of Diadiun's conclusion. Id. We think this question must be answered in the affirmative. We now reverse. "Whatever is added to the field of libel is taken from the field of free debate." Nor does the general tenor of the article negate this impression. Id. The court first decided that petitioner was neither a public figure nor a public official under the relevant decisions of this Court. The common-law doctrine of fair comment was also premised on such an observation. Without such objective evidence, a jury's judgment might be too influenced by its view of what was said. Oral Argument - April 24, 1990; Opinions. [Footnote 2/8], Although I agree with the majority that statements must be scrutinized for implicit factual assertions, the majority's scrutiny in this case does not "hol[d] the balance true," ante at 497 U. S. 23, between protection of individual reputation and freedom of speech. 2011-11-09 18:27:16 2011-11-09 18:27:16. Ibid. I made the following changes: The day after the court rendered its decision, respondent Diadiun's column appeared in the News-Herald, a newspaper which circulates in Lake County, Ohio, and is owned by respondent Lorain Journal … Defamation law developed not only as a means of allowing an individual to vindicate his good name, but also for the purpose of obtaining redress for harm caused by such statements. The defendant in the Hepps case was a major daily newspaper and, as the majority notes, see ante at 497 U. S. 16, the Court declined to decide whether the rule it applied to the newspaper would also apply to a nonmedia defendant. In the interim, Scott had been pursuing a separate action which the Ohio Supreme Court considered in 1986. at 250-252, 496 N.E.2d at 706-707. The source, an OHSAA commissioner, is described -- in evident contrast to Diadiun -- as having attended the proceeding. Michael MILKOVICH, Sr., Petitioner, v. LORAIN JOURNAL CO. et al. We note that the issue of falsity relates to the defamatory facts implied by a statement. 497 U. S. 22-23. " Diadiun's column, it found, strongly suggested that Milkovich perjured himself and was not couched hyperbolically, figuratively or in any other way that would mean the writer didn't seriously mean it. New York Times, supra, at 376 U. S. 271 (quoting N.A.A.C.P. Milkovich v. Lorain Journal Co., 65 Ohio App.2d 143, 416 N.E.2d 662 (1979). ", "But there is something much more important involved here than whether Maple was denied due process by the OHSAA, the basis of the temporary injunction. of Disciplinary Counsel of Supreme Court of Ohio, Posadas de Puerto Rico Assoc. While petitioner Milkovich was a high school wrestling coach, his team was involved in an altercation at a … Towne v. Eisner, 245 U. S. 418, 245 U. S. 425 (1918). 110 S.Ct. Similarly, where such a statement involves a private figure on a matter of public concern, a plaintiff must show that the false connotations were made with some level of fault. Lorain Journal Co., The News Herald, J. Theodore Diadiun. While petitioner Milkovich was a high school wrestling coach, his team was involved in an altercation at a match with another high school's team. Diadiun emphasizes to the audience that he was present at the wrestling meet where the brawl that led to the team's suspension took place, and that he was present at the hearing before the OHSAA. The trial court granted summary judgment to the defendants on the grounds that the article constituted an opinion which was protected speech under the First Amendment. The commissioner is quoted as having said: "'I can say that some of the stories told to the judge sounded pretty darned unfamiliar. Please take a moment to review my edit. Statements of belief or opinion are like hyperbole, as the majority agrees, in that they are not understood as actual assertions of fact about an individual, but they may be actionable if they imply the existence of false and defamatory facts. Mitchell L.Rev. . This contention is meritless. 89645 [June 21, 1990] Justice Brennan, with whom Justice Marshall joins, dissenting. Diadiun says Maple told a lie.' Where readers know that an author represents one side in a controversy, they are properly warned to expect that the opinions expressed may rest on passion rather than factual foundation. 641, 644, 552 P.2d 425, 429 (1976) (finding a letter "cautiously phrased in terms of apparency" did not imply factual assertions); Stewart v. Chicago Title Ins. ", "It's not final yet -- the judge granted Maple only a temporary injunction against the ruling -- but unless the judge acts much more quickly than he did in this decision (he has been deliberating since a Nov. 8 hearing) the temporary injunction will allow Maple to compete in the tournament and make any further discussion meaningless. Asked by Wiki User. United States v. Playboy Entertainment Group, Inc. American Booksellers Foundation for Free Expression v. Strickland, Board of Airport Commissioners v. Jews for Jesus, Clark v. Community for Creative Non-Violence, Barr v. American Association of Political Consultants, Schenck v. Pro-Choice Network of Western New York, Perry Education Association v. Perry Local Educators' Association, West Virginia State Board of Ed. While petitioner Milkovich was a high school wrestling coach, his team was involved in an altercation at a match with another high school's team. a reader would not expect a sports writer on the sports page to be particularly knowledgeable about procedural due process and perjury. . See id. Location Maple Heights High School. Under Long, then, federal review is not barred in this case. There the Court recognized the need for, "a federal rule that prohibits a public official from recovering damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made with 'actual malice' -- that is, with knowledge that it was false or with reckless disregard of whether it was false or not.". School Dist. Preliminarily, respondents contend that our review of the "opinion" question in this case is precluded by the Ohio Supreme Court's decision in Scott, supra. v. Tourism Co. of Puerto Rico, San Francisco Arts & Athletics, Inc. v. U.S. Olympic Committee. ", "Instead they chose to come to the hearing and misrepresent the things that happened to the OHSAA Board of Control, attempting not only to convince the board of their own innocence, but, incredibly, shift the blame of the affair to Mentor. Nor is there any merit to respondents' contention that the Court of Appeals below alternatively decided there was no negligence in this case even if petitioner were regarded as a private figure, and thus the action is precluded by our decision in Gertz v. Robert Welch, Inc., 418 U. S. 323 (1974). Implicit in the constitutional rule that a plaintiff must prove a statement false to recover damages is a requirement to determine first what statement was actually made. Bose, 466 U.S. at 466 U. S. 499 (quotation omitted). Monitor Patriot Co. v. Roy, 401 U. S. 265, 401 U. S. 277 (1971) (quoting New York Times, 376 U.S. at 376 U. S. 270). On balance . On appeal, the Supreme Court of Ohio reversed and remanded. "Anyone who attended the meet," Diadiun wrote, "whether he be from Maple Heights, Mentor, or impartial observer, knows in his heart that Milkovich and Scott lied at the hearing after each having given his solemn oath to tell the truth.". at 62-70. The reference to "opinion" in dictum in Gertz v. Robert Welch, Inc., 418 U. S. 323, 418 U. S. 339-340, was not intended to create a wholesale defamation exemption for "opinion." "attempting not only to convince the board of [his] own innocence, but, incredibly, shift the blame of the affair to Mentor." Is pointed, exaggerated, and description were not created by C-SPAN, Diadiun remains in,! ' '' ; Letter Carriers, supra, 418 U.S. at 466 U. S. 339-340 ( Footnote omitted.! 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