Regulation of the Media: Overview
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.
Disclaiming any intimation “that the owners of newspapers are immune from any of the ordinary forms of taxation for support of the government,” the Court voided a state two-percent tax on the gross receipts of advertising in newspapers with a circulation exceeding 20,000 copies a week.1 In the Court’s view, the tax was analogous to the 18th-century English practice of imposing advertising and stamp taxes on newspapers for the express purpose of pricing the opposition penny press beyond the means of the mass of the population.2 The tax at issue focused exclusively upon newspapers, it imposed a serious burden on the distribution of news to the public, and it appeared to be a discriminatorily selective tax aimed almost solely at the opposition to the state administration.3 Combined with the standard that government may not impose a tax directly upon the exercise of a constitutional right itself,4 these tests seem to permit general business taxes upon receipts of businesses engaged in communicating protected expression without raising any First Amendment issues.5
Ordinarily, a tax singling out the press for differential treatment is highly suspect, and creates a heavy burden of justification on the state. This is so, the Court explained in 1983, because such “a powerful weapon” to single out a small group carries with it a lessened political constraint than do those measures affecting a broader based constituency, and because “differential treatment, unless justified by some special characteristic of the press, suggests that the goal of the regulation is not unrelated to suppression of expression.” 6 The state’s interest in raising revenue is not sufficient justification for differential treatment of the press. Moreover, the Court refused to adopt a rule permitting analysis of the “effective burden” imposed by a differential tax; even if the current effective tax burden could be measured and upheld, the threat of increasing the burden on the press might have “censorial effects,” and “courts as institutions are poorly equipped to evaluate with precision the relative burdens of various methods of taxation.” 7
Also difficult to justify is taxation that targets specific subgroups within a segment of the press for differential treatment. An Arkansas sales tax exemption for newspapers and for “religious, professional, trade, and sports journals” published within the state was struck down as an invalid content-based regulation of the press.8 Entirely as a result of content, some magazines were treated less favorably than others. The general interest in raising revenue was again rejected as a “compelling” justification for such treatment, and the measure was viewed as not narrowly tailored to achieve other asserted state interests in encouraging “fledgling” publishers and in fostering communications.
The Court seemed to change course somewhat in 1991, upholding a state tax that discriminated among different components of the communications media, and proclaiming that “differential taxation of speakers, even members of the press, does not implicate the First Amendment unless the tax is directed at, or presents the danger of suppressing, particular ideas.” 9
The general principle that government may not impose a financial burden based on the content of speech underlay the Court’s invalidation of New York’s “Son of Sam” law, which provided that a criminal’s income from publications describing his crime was to be placed in escrow and made available to victims of the crime.10 Although the Court recognized a compelling state interest in ensuring that criminals do not profit from their crimes, and in compensating crime victims, it found that the statute was not narrowly tailored to those ends. The statute applied only to income derived from speech, not to income from other sources, and it was significantly overinclusive because it reached a wide range of literature (e.g., the Confessions of Saint Augustine and Thoreau’s Civil Disobedience) “that did not enable a criminal to profit from his crime while a victim remains uncompensated” 11
Just as newspapers and other communications businesses are subject to nondiscriminatory taxation, they are entitled to no immunity from the application of general laws regulating their relations with their employees and prescribing wage and hour standards. In Associated Press v. NLRB,12 the application of the National Labor Relations Act to a newsgathering agency was found to raise no constitutional problem. “The publisher of a newspaper has no special immunity from the application of general laws. He has no special privilege to invade the rights and liberties of others. . . . The regulation here in question has no relation whatever to the impartial distribution of news.” Similarly, the Court has found no problem with requiring newspapers to pay minimum wages and observe maximum hours.13
Resort to the antitrust laws to break up restraints on competition in the newsgathering and publishing field was found not only to present no First Amendment problem, but to comport with the government’s obligation under that Amendment. Justice Black wrote: “It would be strange indeed, however, if the grave concern for freedom of the press which prompted adoption of the First Amendment should be read as a command that the government was without power to protect that freedom. The First Amendment, far from providing an argument against application of the Sherman Act, here provides powerful reasons to the contrary. That Amendment rests on the assumption that the widest possible dissemination of information from diverse and antagonistic sources is essential to the welfare of the public, that a free press is a condition of a free society. Surely a command that the government itself shall not impede the free flow of ideas does not afford non-governmental combinations a refuge if they impose restraints upon that constitutionally guaranteed freedom. Freedom to publish means freedom for all and not for some. Freedom to publish is guaranteed by the Constitution, but freedom to combine to keep others from publishing is not.” 14
Thus, both newspapers and broadcasters, as well as other such industries, may not engage in monopolistic and other anticompetitive activities free of possibility of antitrust law attack,15 even if such activities might promote speech.16
Broadcast Radio and Television
Because there are a limited number of broadcast frequencies for radio and non-cable television use, the Federal Government licenses access to these frequencies, permitting some applicants to use them and denying the greater number of applicants such permission. Even though this licensing system is in form a variety of prior restraint, the Court has held that it does not present a First Amendment issue because of the unique characteristic of scarcity.17 Thus, the Federal Communications Commission has broad authority to determine the right of access to broadcasting,18 although, of course, the regulation must be exercised in a manner that is neutral with regard to the content of the materials broadcast.19
In certain respects, however, governmental regulation does implicate First Amendment values, and, in Red Lion Broadcasting Co. v. FCC, the Court upheld an FCC regulation that required broadcasters to afford persons an opportunity to reply if they were attacked on the air on the basis of their “honesty, character, integrity or like personal qualities,” or if they were legally qualified candidates and a broadcast editorial endorsed their opponent or opposed them.20 In Red Lion, Justice White explained that “differences in the characteristics of [various] media justify differences in First Amendment standards applied to them.” 21 Thus, although everyone has a right to speak, write, or publish as he will, subject to very few limitations, there is no comparable right of everyone to broadcast. The frequencies are limited and some few must be given the privilege over others. The particular licensee, however, has no First Amendment right to hold that license and his exclusive privilege may be qualified. Qualification by censorship of content is impermissible, but the First Amendment does not prevent a governmental insistence that a licensee “conduct himself as a proxy or fiduciary with obligations to present those views and voices which are representative of his community and which would otherwise, by necessity, be barred from the airwaves.” 22 Furthermore, said Justice White, “[b]ecause of the scarcity of radio frequencies, the government is permitted to put restraints on licensees in favor of others whose views should be expressed on this unique medium. But the people as a whole retain their interest in free speech by radio and their collective right to have the medium function consistently with the ends and purposes of the First Amendment. It is the right of the viewers and listeners, not the right of the broadcasters, which is paramount.” 23 The broadcasters had argued that, if they were required to provide equal time at their expense to persons attacked and to points of view different from those expressed on the air, expression would be curbed through self-censorship, for fear of controversy and economic loss. Justice White thought this possibility “at best speculative,” but if it should materialize “the Commission is not powerless to insist that they give adequate and fair attention to public issues.” 24
In Columbia Broadcasting System v. Democratic National Committee,25 the Court rejected claims of political groups that the broadcast networks were constitutionally required to sell them broadcasting time for the presentation of views on controversial issues. The ruling terminated a broad drive to obtain that result, but the fragmented nature of the Court’s multiple opinions precluded a satisfactory evaluation of the constitutional implications of the case. However, in CBS v. FCC,26 the Court held that Congress had conferred on candidates seeking federal elective office an affirmative, promptly enforceable right of reasonable access to the use of broadcast stations, to be administered through FCC control over license revocations, and held such right of access to be within Congress’s power to grant, the First Amendment notwithstanding. The constitutional analysis was brief and merely restated the spectrum scarcity rationale and the role of the broadcasters as fiduciaries for the public interest.
In FCC v. League of Women Voters,27 the Court took the same general approach to governmental regulation of broadcasting, but struck down a total ban on editorializing by stations receiving public funding. In summarizing the principles guiding analysis in this area, the Court reaffirmed that Congress may regulate in ways that would be impermissible in other contexts, but indicated that broadcasters are entitled to greater protection than may have been suggested by Red Lion. “[A]lthough the broadcasting industry plainly operates under restraints not imposed upon other media, the thrust of these restrictions has generally been to secure the public’s First Amendment interest in receiving a balanced presentation of views on diverse matters of public concern. . . . [T]hese restrictions have been upheld only when we were satisfied that the restriction is narrowly tailored to further a substantial governmental interest.” 28 However, the earlier cases were distinguished. “[I]n sharp contrast to the restrictions upheld in Red Lion or in [CBS v. FCC], which left room for editorial discretion and simply required broadcast editors to grant others access to the microphone, § 399 directly prohibits the broadcaster from speaking out on public issues even in a balanced and fair manner.” 29 The ban on all editorializing was deemed too severe and restrictive a means of accomplishing the governmental purposes—protecting public broadcasting stations from being coerced, through threat or fear of withdrawal of public funding, into becoming “vehicles for governmental propagandizing,” and also keeping the stations “from becoming convenient targets for capture by private interest groups wishing to express their own partisan viewpoints.” 30 Expression of editorial opinion was described as a “form of speech . . . that lies at the heart of First Amendment protection,” 31 and the ban was said to be “defined solely on the basis of . . . content,” the assumption being that editorial speech is speech directed at “controversial issues of public importance.” 32 Moreover, the ban on editorializing was both overinclusive, applying to commentary on local issues of no likely interest to Congress, and underinclusive, not applying at all to expression of controversial opinion in the context of regular programming. Therefore, the Court concluded, the restriction was not narrowly enough tailored to fulfill the government’s purposes.
Sustaining FCC discipline of a broadcaster who aired a record containing a series of repeated “barnyard” words, considered “indecent” but not obscene, the Court posited a new theory to explain why the broadcast industry is less entitled to full constitutional protection than are other communications entities.33 “First, the broadcast media have established a uniquely pervasive presence in the lives of all Americans. Patently offensive, indecent material presented over the airwaves confronts the citizens, not only in public, but also in the privacy of the home, where the individual’s right to be left alone plainly outweighs the First Amendment rights of an intruder. . . . Second, broadcasting is uniquely accessible to children, even those too young to read. . . . The ease with which children may obtain access to broadcast material . . . amply justif[ies] special treatment of indecent broadcasting.” 34 The Court emphasized the “narrowness” of its holding, which “requires consideration of a host of variables.” 35 The use of more than “an occasional expletive,” the time of day of the broadcast, the likely audience, “and differences between radio, television, and perhaps closed-circuit transmissions” were all relevant in the Court’s view.36
Governmentally Compelled Right of Reply to Newspapers
However divided it may have been in dealing with access to the broadcast media, the Court was unanimous in holding void under the First Amendment a state law that granted a political candidate a right to equal space to answer criticism and attacks on his record by a newspaper.37 Granting that the number of newspapers had declined over the years, that ownership had become concentrated, and that new entries were prohibitively expensive, the Court agreed with proponents of the law that the problem of newspaper responsibility was a great one. But press responsibility, although desirable, “is not mandated by the Constitution,” whereas freedom is. The compulsion exerted by government on a newspaper to print what it would not otherwise print, “a compulsion to publish that which ‘reason tells them should not be published,’” runs afoul of the free press clause.38
The Court has recognized that cable television “implicates First Amendment interests,” because a cable operator communicates ideas through selection of original programming and through exercise of editorial discretion in determining which stations to include in its offering.39 Moreover, “settled principles of . . . First Amendment jurisprudence” govern review of cable regulation; cable is not limited by “scarce” broadcast frequencies and does not require the same less rigorous standard of review that the Court applies to regulation of broadcasting.40 Cable does, however, have unique characteristics that justify regulations that single out cable for special treatment.41 The Court in Turner Broadcasting System v. FCC42 upheld federal statutory requirements that cable systems carry local commercial and public television stations. Although these “must-carry” requirements “distinguish between speakers in the television programming market,” they do so based on the manner of transmission and not on the content the messages conveyed, and hence are content-neutral.43 The regulations could therefore be measured by the “intermediate level of scrutiny” set forth in United States v. O’Brien.44 Two years later, however, a splintered Court could not agree on what standard of review to apply to content-based restrictions of cable broadcasts. Striking down a requirement that cable operators must, in order to protect children, segregate and block programs with patently offensive sexual material, a Court majority in Denver Area Educational Telecommunications Consortium v. FCC,45 found it unnecessary to determine whether strict scrutiny or some lesser standard applies, because it deemed the restriction invalid under any of the alternative tests. There was no opinion of the Court on the other two holdings in the case,46 and a plurality47 rejected assertions that public forum analysis,48 or a rule giving cable operators’ editorial rights “general primacy” over the rights of programmers and viewers,49 should govern.
Subsequently, in United States v. Playboy Entertainment Group, Inc.,50 the Supreme Court made clear, as it had not in Denver Consortium, that strict scrutiny applies to content-based speech restrictions on cable television. The Court struck down a federal statute designed to “shield children from hearing or seeing images resulting from signal bleed,” which refers to blurred images or sounds that come through to non-subscribers.51 The statute required cable operators, on channels primarily dedicated to sexually oriented programming, either to scramble fully or otherwise fully block such channels, or to not provide such programming when a significant number of children are likely to be viewing it, which, under an FCC regulation meant to transmit the programming only from 10 p.m. to 6 a.m. The Court found that, even without “discount[ing] the possibility that a graphic image could have a negative impact on a young child,” it could not conclude that Congress had used “the least restrictive means for addressing the problem.” 52 Congress in fact had enacted another provision that was less restrictive and that served the government’s purpose. This other provision requires that, upon request by a cable subscriber, a cable operator, without charge, fully scramble or otherwise fully block any channel to which a subscriber does not subscribe.53
- Grosjean v. American Press Co., 297 U.S. 233, 250 (1936).
- 297 U.S. at 245–48.
- 297 U.S. at 250–51. Grosjean was distinguished on this latter basis in Minneapolis Star & Tribune Co. v. Minnesota Comm’r of Revenue, 460 U.S. 575 (1983).
- Murdock v. Pennsylvania, 319 U.S. 105 (1943); Follett v. McCormick, 321 U.S. 573 (1944) (license taxes upon Jehovah’s Witnesses selling religious literature invalid).
- Cf. City of Corona v. Corona Daily Independent, 115 Cal. App. 2d 382, 252 P.2d 56 (1953), cert. denied, 346 U.S. 833 (1953) (Justices Black and Douglas dissenting). See also Cammarano v. United States, 358 U.S. 498 (1959) (no First Amendment violation to deny business expense tax deduction for expenses incurred in lobbying about measure affecting one’s business); Leathers v. Medlock, 499 U.S. 439 (1991) (no First Amendment violation in applying general gross receipts tax to cable television services while exempting other communications media).
- Minneapolis Star & Tribune Co. v. Minnesota Comm’r of Revenue, 460 U.S. 575, 585 (1983) (invalidating a Minnesota use tax on the cost of paper and ink products used in a publication, and exempting the first $100,000 of such costs each calendar year; Star & Tribune paid roughly two-thirds of all revenues the state raised by the tax). The Court seemed less concerned, however, when the affected group within the press was not so small, upholding application of a gross receipts tax to cable television services even though other segments of the communications media were exempted. Leathers v. Medlock, 499 U.S. 439 (1991).
- 460 U.S. at 588, 589.
- Arkansas Writers' Project, Inc. v. Ragland, 481 U.S. 221 (1987).
- Leathers v. Medlock, 499 U.S. 439, 453 (1991) (tax applied to all cable television systems within the state, but not to other segments of the communications media).
- Simon & Schuster v. New York Crime Victims Bd., 502 U.S. 105 (1991).
- 502 U.S. at 122.
- 301 U.S. 103, 132 (1937).
- Oklahoma Press Pub. Co. v. Walling, 327 U.S. 186 (1946).
- Associated Press v. United States, 326 U.S. 1, 20 (1945).
- Lorain Journal Co. v. United States, 342 U.S. 143 (1951) (refusal of newspaper publisher who enjoyed a substantial monopoly to sell advertising to persons also advertising over a competing radio station violates antitrust laws); United States v. Radio Corp. of America, 358 U.S. 334 (1959) (FCC approval no bar to antitrust suit); United States v. Greater Buffalo Press, 402 U.S. 549 (1971) (monopolization of color comic supplements). See also FCC v. National Citizens Comm. for Broadcasting, 436 U.S. 775 (1978) (upholding FCC rules prospectively barring, and in some instances requiring divesting to prevent, the common ownership of a radio or television broadcast station and a daily newspaper located in the same community).
- Citizen Publishing Co. v. United States, 394 U.S. 131 (1969) (pooling arrangement between two newspapers violates antitrust laws; First Amendment argument that one paper will fail if arrangement is outlawed rejected). In response to this decision, Congress enacted the Newspaper Preservation Act to sanction certain joint arrangements where one paper is in danger of failing. 84 Stat. 466 (1970), 15 U.S.C. §§ 1801-1804.
- NBC v. United States, 319 U.S. 190 (1943); see also Red Lion Broadcasting Co. v. FCC, 395 U.S. 367, 375–79, 387–89 (1969); FCC v. National Citizens Comm. for Broadcasting, 436 U.S. 775, 798–802 (1978).
- NBC v. United States, 319 U.S. 190 (1943); Federal Radio Comm’n v. Nelson Bros. Bond & Mortgage Co., 289 U.S. 266 (1933); FCC v. Pottsville, 309 U.S. 134 (1940); FCC v. ABC, 347 U.S. 284 (1954); Farmers Union v. WDAY, 360 U.S. 525 (1958).
- “But Congress did not authorize the Commission to choose among applicants upon the basis of their political, economic or social views or upon any other capricious basis. If it did, or if the Commission by these regulations proposed a choice among applicants upon some such basis, the issue before us would be wholly different.” NBC v. United States, 319 U.S. 190, 226 (1943).
- 395 U.S. 367, 373 (1969). “The Federal Communications Commission has for many years imposed on radio and television broadcasters the requirement that discussion of public issues be presented on broadcast stations, and that each side of those issues must be given fair coverage. This is known as the fairness doctrine. . . .” Id. at 369. The two issues passed on in Red Lion were integral parts of the doctrine.
- 395 U.S. at 386.
- 395 U.S. at 389.
- 395 U.S. at 390.
- 395 U.S. at 392–93.
- 412 U.S. 94 (1973).
- 453 U.S. 367 (1981). The dissent argued that the FCC had assumed, and the Court had confirmed it in assuming, too much authority under the congressional enactment. In its view, Congress had not meant to do away with the traditional deference to the editorial judgments of the broadcasters. Id. at 397 (Justices White, Rehnquist, and Stevens).
- 468 U.S. 364 (1984), holding unconstitutional § 399 of the Public Broadcasting Act of 1967, as amended. The decision was 5-4, with Justice Brennan’s opinion for the Court being joined by Justices Marshall, Blackmun, Powell, and O’Connor, and with Justices White, Rehnquist (joined by Chief Justice Burger and by Justice White), and Stevens filing dissenting opinions.
- 468 U.S. at 380. The Court rejected the suggestion that only a “compelling” rather than “substantial” governmental interest can justify restrictions.
- 468 U.S. at 385.
- 468 U.S. at 384–85. Dissenting Justice Stevens thought that the ban on editorializing served an important purpose of “maintaining government neutrality in the free marketplace of ideas.” Id. at 409.
- 468 U.S. at 381.
- 468 U.S. at 383.
- FCC v. Pacifica Foundation, 438 U.S. 726 (1978).
- 438 U.S. at 748–51. This was the only portion of the constitutional discussion that obtained the support of a majority of the Court. In Denver Area Educational Telecommunications Consortium v. FCC, 518 U.S. 727, 748 (1996), the Court noted that spectrum scarcity “has little to do with a case that involves the effects of television viewing on children.”
- 438 U.S. at 750. See also id. at 742–43 (plurality opinion), and id. at 755–56 (Justice Powell concurring) ( “The Court today reviews only the Commission’s holding that Carlin’s monologue was indecent ‘as broadcast’ at two o’clock in the afternoon, and not the broad sweep of the Commission’s opinion.” ).
- 438 U.S. at 750. Subsequently, the FCC began to apply its indecency standard to fleeting uses of expletives in non-sexual and non-excretory contexts. The U.S. Court of Appeals for the Second Circuit found this practice arbitrary and capricious under the Administrative Procedure Act, but the Supreme Court disagreed and upheld the FCC policy without reaching the First Amendment question. FCC v. Fox Television Stations, Inc., 556 U.S. ___, No. 07-582 (2009). See also CBS Corp. v. FCC, 535 F.3d 167 (3d Cir. 2008), vacated and remanded, 129 S. Ct. 2176 (2009) (invalidating, on non-constitutional grounds, a fine against CBS for broadcasting Janet Jackson's exposure of her breast for nine-sixteenths of a second during a Super Bowl halftime show). The Supreme Court vacated and remanded this decision to the Third Circuit for further consideration in light of FCC v. Fox Television Stations, Inc. Decisions regarding legislation to ban “indecent” expression in broadcast and cable media as well as in other contexts are discussed under “Non-obscene But Sexually Explicit and Indecent Expression,” infra.
- Miami Herald Pub. Co. v. Tornillo, 418 U.S. 241 (1974).
- 418 U.S. at 256. The Court also adverted to the imposed costs of the compelled printing of replies but this seemed secondary to the quoted conclusion. The Court has also held that a state may not require a privately owned utility company to include in its billing envelopes views of a consumer group with which it disagrees. Although a plurality opinion to which four Justices adhered relied heavily on Tornillo, there was no Court majority consensus as to rationale. Pacific Gas & Elec. v. Public Utilities Comm’n, 475 U.S. 1 (1986). See also Hurley v. Irish-American Gay Group, 515 U.S. 557 (1995) (state may not compel parade organizer to allow participation by a parade unit proclaiming message that organizer does not wish to endorse).
- City of Los Angeles v. Preferred Communications, 476 U.S. 488 (1986) (leaving for future decision how the operator’s interests are to be balanced against a community’s interests in limiting franchises and preserving utility space); Turner Broadcasting System v. FCC, 512 U.S. 622, 636 (1994).
- Turner Broadcasting System v. FCC, 512 U.S. 622, 638–39 (1994).
- 512 U.S. at 661 (referring to the “bottleneck monopoly power” exercised by cable operators in determining which networks and stations to carry, and to the resulting dangers posed to the viability of broadcast television stations). See also Leathers v. Medlock, 499 U.S. 439 (1991) (application of state gross receipts tax to cable industry permissible even though other segments of the communications media were exempted).
- 512 U.S. 622 (1994).
- 512 U.S. at 645. “Deciding whether a particular regulation is content-based or content-neutral is not always a simple task,” the Court confessed. Id. at 642. Indeed, dissenting Justice O’Connor, joined by Justices Scalia, Ginsburg, and Thomas, viewed the rules as content-based. Id. at 674–82.
- 391 U.S. 367, 377 (1968). The Court remanded Turner for further factual findings relevant to the O’Brien test. On remand, the district court upheld the must-carry provisions, and the Supreme Court affirmed, concluding that it “cannot displace Congress’s judgment respecting content-neutral regulations with our own, so long as its policy is grounded on reasonable factual findings supported by evidence that is substantial for a legislative determination.” Turner Broadcasting System v. FCC, 520 U.S. 180, 224 (1997).
- 518 U.S. 727, 755 (1996) (invalidating § 10(b) of the Cable Television Consumer Protection and Competition Act of 1992).
- Upholding § 10(a) of the Act, which permits cable operators to prohibit indecent material on leased access channels; and striking down § 10(c), which permits a cable operator to prevent transmission of “sexually explicit” programming on public access channels. In upholding § 10(a), Justice Breyer’s plurality opinion cited FCC v. Pacifica Foundation, 438 U.S. 726 (1978), and noted that cable television “is as ‘accessible to children’ as over-the-air broadcasting, if not more so.” 518 U.S. at 744.
- This section of Justice Breyer’s opinion was joined by Justices Stevens, O’Connor, and Souter. 518 U.S. at 749.
- Justice Kennedy, joined by Justice Ginsburg, advocated this approach, 518 U.S. at 791, and took the plurality to task for its “evasion of any clear legal standard.” 518 U.S. at 784.
- Justice Thomas, joined by Chief Justice Rehnquist and Justice Scalia, advocated this approach.
- 529 U.S. 803, 813 (2000).
- 529 U.S. at 806.
- 529 U.S. at 826–27. The Court did not state that there is a compelling interest in preventing the possibility of a graphic image's having a negative impact on a young child, and may have implied that there is no compelling interest in preventing the possibility of a graphic image's having a negative impact on an older child. It did state: “Even upon the assumption that the government has an interest in substituting itself for informed and empowered parents, its interest is not sufficiently compelling to justify this widespread restriction on speech.” Id. at 825.
- 47 U.S.C. § 560.
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