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U.S. Supreme Court Agrees to Hear "Crush Video" Free Speech Case,

as Jonathan Adler had predicted. Here's my summary and analysis of the case from when the Third Circuit decided it en banc:

The relevant statute, 18 U.S.C. § 48, criminalizes (a) "knowingly creat[ing], sell[ing], or possess[ing] a depiction of animal cruelty with the intention of placing that depiction in interstate or foreign commerce," though with an exception for (b) "any depiction that has serious religious, political, scientific, educational, journalistic, historical, or artistic value."

"[D]epiction of animal cruelty" is defined in (c) to include "any visual or auditory depiction ... of conduct in which a living animal is intentionally maimed, mutilated, tortured, wounded, or killed, if such conduct is illegal under Federal law or the law of the [jurisdiction] in which the creation, sale, or possession takes place, regardless of whether the maiming, mutilation, torture, wounding, or killing took place in the [jurisdiction]." This means that it's a federal crime to distribute videos of cockfighting or dogfighting in, say, California (assuming the depictions lack "serious ... value") even if the cockfighting or dogfighting was legal in the place (say, Puerto Rico or Japan) in which the video was created.

The statute was enacted as an attempt to stop the distribution of so-called "crush videos," which generally depict a woman's legs and feet, often in high heels, stepping on insects, mice, or kittens; and it does indeed seem to cover such videos, assuming the relevant state law bars the underlying conduct (often yes as to killing kittens, often no as to killing insects). Don't ask me why people would want to watch this stuff, but apparently some get their jollies this way.

But the statute is written much more broadly than that. On its face, the statute would also punish, depending on how judges and juries interpret "serious religious, political, scientific, educational, journalistic, historical, or artistic value" (emphasis added):

  • A TV program showing foreign bullfights, which might be legal in the country in which they're taken, but illegal in at least some states in which the program is shown.

  • A magazine with photographs of people illegally killing endangered species in a foreign country.

  • A magazine with photographs of people committing cruelty to animals, aimed at exposing and punishing such cruelty, so long as the magazine is sold on newsstands or by subscription (rather than given away).

One can certainly argue that all the above has such serious value, but at least as to the first item and maybe as to the others, some factfinders might conclude otherwise — the test is quite subjective, and some jurors or judges might well say "this bullfighting scene has no serious value; it's just aimed to shock, titillate, and get ratings."

Note also an important difference between this clause and the third prong of the obscenity test, from which the clause is borrowed: clause (b) doesn't say that the work has to be judged "taken as a whole." This means the "serious value" exemption under this law may well be a smaller safe harbor than the "serious value" exemption under obscenity law.

The statute doesn't fit within the existing obscenity or incitement exceptions. President Clinton's signing statement tried to cabin the statute by saying that the Justice Department should construe the law narrowly, limiting it to "wanton cruelty to animals designed to appeal to a prurient interest in sex"; that at least brings it closer to the obscenity exception, though not entirely within it. But the signing statement isn't part of the law, and is certainly not binding on later administrations.

The real question is whether the child pornography exception — the one exception that allows restriction of the distribution of speech because of the manner in which the speech was created — should be extended to cover the distribution of material the making of which involved harm to animals, rather than just harm to children. The argument would be that, as with child pornography,

  1. production of cruelty videos can be done in secret, but the distribution has to be relatively public;

  2. a ban on production will thus be very hard to enforce;

  3. so long as there's money to be made in distributing cruelty videos, there'll always be someone willing to produce them; and thus,

  4. to prevent the harm that takes place when the videos are made (injury to animals), one also needs to stop their distribution.

The argument against extending the child pornography exception would be:

  1. The statute might end up suppressing a lot of valuable speech, such as the film of the bullfight and the like, and clause (b) is an inadequate safe harbor because it's much too vague.

  2. The statute will in fact suppress more valuable speech than child pornography law does, because depictions of animal cruelty are more likely to be relevant to political debates or to legitimate art than depictions of sex (or of lewd exhibition of genitals) involving children.

  3. The harm that the distribution of this speech causes — indirectly furthering animal cruelty — is much less severe than the harm of indirectly furthering sexual exploitation of children. (The legal system itself embodies such a judgment — child sexual abuse is a very serious crime, generally punished much more severely than animal cruelty. Cockfighting, in particular, is not even a crime in Puerto Rico, though Congress could have outlawed it if it wanted to. For more on when and whether it's legitimate for courts to draw such crime severity lines as a constitutional matter, see Crime Severity and Constitutional Line-Drawing, 90 Va. L. Rev. 1957 (2004).)

This also illustrates how the "slippery slope" can work in a legal system that's built on precedent and analogy. Crush video laws have indeed been advocated by their supporters as analogous to child pornography bans; and while courts might well draw the line between the two, perhaps on the grounds that child sexual abuse is just much more harmful than crush videos, the analogy seemed to be at least helpful in persuading legislatures to enact the laws.

Some might embrace the slippery slope here, if they think that cruelty videos should be banned. Some who disagree about cruelty videos nonetheless might accept the slippery slope risk, on the theory that child pornography is so harmful that we should have an exception for it even if there's some risk that the exception will spread further than one would like. (That's my view, and the Third Circuit decision suggests the risk of spread isn't that high, though note that the 3 dissenters did indeed rely heavily on Ferber as justification for carving out a new exception here.) But one shouldn't pretend that the slippery slope risk doesn't exist.

Dave N (mail):
Last night 60 Minutes had a story on two brothers who were also bullfighters. Good to know a national broadcast network was violating federal law in the process.

"Crush" is sick but the law seems overly broad.
4.20.2009 12:20pm
ruuffles (mail) (www):
What about hunting videos sold in places where its not hunting season? Sounds like a point to address to Scalia.
4.20.2009 12:31pm
A Conceited Jerk:
Assuming arguendo that a ban on depictions of animal cruelty could be prohibited consistent with the First Amendment...

It seems to me that the "serious ... political ... value" exception in the statute would itself create a First Amendment problem. The most obvious "serious ... political ... value" situation would be that of animal rights groups using these depictions to advocate greater legal protections against animal cruelty. (Indeed, this is a pretty common PETA tactic, and in my view, a legitimate tactic.) But doesn't this create a viewpoint discrimination issue after RAV v. St. Paul? A depiction of animal cruelty in a crush video—which implicitly conveys the message "cruelty is good/cool/awesome"—would be subject to the statue. A depiction of animal cruelty with subtitles decrying animal cruelty and calling for increased government protection for animals would not be subject to the statute. In other words, nearly identical ads would be treated differently because of the viewpoint they convey.

Or is my thinking on this hopelessly confused? (I feel like I must be missing something obvious.)
4.20.2009 12:51pm
Sk (mail):
What about the contrary argument that slippery-slope arguments either don't exist or don't matter (or are, in fact, beneficial).

The basis of a slippery slope argument is:

banning A) is reasonable.

Banning B) is not reasonable, but by banning A), we have created the legal structure to more easily ban B).

Therefore, banning A) is not acceptable.


My contrary view is:

the dividing line between banning (say, A)) and not banning (say, not-A)) is arbitrary and political (even if it is nearly universal-say, for instance, child pornography).

Thus, the dividing line between banning (A) and B)) and not banning (A), or B) or a combination of the two) are equally arbitrary political decisions.

If I accept the politically-motivated line necessary to ban A), I must, consistent with principle, accept the politically-motivated line to ban A) and B) (or, rather, I can argue against banning B) on political grounds, but I cannot, with any degree of intellectual consistency, argue to ban A) but not B) on principled grounds).


This is all written on the fly, so I realize I'm probably not being entirely clear. Suffice it to say, that when you write:

" Some might embrace the slippery slope here, if they think that cruelty videos should be banned. Some who disagree about cruelty videos nonetheless might accept the slippery slope risk, on the theory that child pornography is so harmful that we should have an exception for it even if there's some risk that the exception will spread further than one would like."

There is a third group: the first amendment covers most stuff (not A), but not all stuff (A)). The line drawn is arbitrary, and political (Just A), or A) and B), or A) and B), and C)?). So what. Its not slippery slope away from a principle. Its not a threat to a principle (The principle was blown out by A). Its just the political process. (in fact, labelling it 'slippery slope', in order to make it sound as if a principled argument is being made, is itself a part of the political process).

Sk
4.20.2009 12:54pm
Monty:
I find laws that use 'has serious religious, political, scientific, educational, journalistic, historical, or artistic value' language very troubling. It shifts the role of the jury from determining the facts to determining whether those facts constitute a crime. A jury should decide if you actually shot someone, or if you drove with a certain BAC, but would it be just to have a law that punishes anyone who drives with "A BAC likely to impair thier ability to drive" leaving it to the jury to decide what BAC is illegal to drive with? No one with any BAC level (Assuming they could find out what it was) would ever know if thier driving was legal, no matter how much they desired to obey the law. Likewise a law abbiding person who wishes to obey this law cannot know whether a jury would find thier video to have 'serious religious, political, scientific, educational, journalistic, historical, or artistic value.' There is no way for them to know what conduct is illegal and what is legal untill charged and convicted/aquitted.
4.20.2009 12:59pm
Sigivald (mail):
Isn't the entire thing government overreaction ("to be seen to be doing something" over a non-problem?

As far as I know, the actual production and sale of such videos was almost as rare as hen's teeth, before the first time they got noticed and hysteria over them started.

Seems to me the best solution is to simply repeal that law, and then charge anyone who actually makes such a film with the appropriate already-extant charges of animal cruelty.

Jerk: On that ground, PETA would be exempt because they give away their propaganda as plain political speech. It thus does not really enter into interstate commerce, as I understand the most common interpretations of the commerce clause.

(It's difficult to view their propaganda as sneakily competing with an existing commercial market, given the lack of size of the alleged "crush video" market.

And doubly so since that market is purported to be all about the specific act of women harming animals in a sexual context, which is something PETA's videos don't involve.

Lastly, of course, as much as I despise PETA and dislike vaguely worded laws, I can't imagine that PETA's works don't count as serious political value for the specific purposes of this context. If the law was upheld, they'd still be safe under it.)
4.20.2009 1:03pm
ChrisIowa (mail):

The most obvious "serious ... political ... value" situation would be that of animal rights groups using these depictions to advocate greater legal protections against animal cruelty. (Indeed, this is a pretty common PETA tactic, and in my view, a legitimate tactic.)

There is a difference between videos where the cruelty was performed for the purpose of being recorded, and videos which are created for the purpose of exposing the cruelty.

Hard to believe I would ever do anything to defend PETA but there it is.
4.20.2009 1:07pm
Seamus (mail):

On that ground, PETA would be exempt because they give away their propaganda as plain political speech. It thus does not really enter into interstate commerce, as I understand the most common interpretations of the commerce clause.


If you read the Supremes' opinion in Raich, you'll quickly learn that what "interstate commerce" or even "commerce" means in Supreme Court jurisprudence is a lot different from what ordinary people mean by those terms.
4.20.2009 1:19pm
Daryl Herbert (www):
Why would PETA be exempt?

Most of the animal cruelty shown in PETA's videos is gratuitous, excessive, and unnecessary.

They could make the same political points without showing animal cruelty.

At least, I'm sure the beef industry could find a Texas prosecutor willing to argue that . . .
4.20.2009 1:25pm
LarryA (mail) (www):
What about hunting videos sold in places where its not hunting season?
Hunting could quickly get much more convoluted. Hunting a particular species (bears, mountain lions) could be legal, and indeed encouraged in one state but banned in another. Hunting a species may be legal in both states, but the method of hunting may be illegal in one state. Species and method may be legal, but one state may impose size limits, as in fishing, age limits, as in antlerless bucks, or gender differences, as in hunting does.
Why would PETA be exempt?
Particularly if it was a video of PETA killing most of the stray dogs and cats they "rescue."
4.20.2009 3:04pm
Michael Masinter (mail):
Although I think the statute is facially overbroad, the Court has not been kind to facial challenges lately in a range of circumstances, and may not be here either. Because the statute is a federal rather than a state statute, the Court is more likely to regard its power to construe the statute narrowly as sufficient to save it from an overbreadth challenge. Here's hoping I'm wrong.
4.20.2009 3:51pm
Wahoowa:

I find laws that use 'has serious religious, political, scientific, educational, journalistic, historical, or artistic value' language very troubling. It shifts the role of the jury from determining the facts to determining whether those facts constitute a crime. A jury should decide if you actually shot someone, or if you drove with a certain BAC, but would it be just to have a law that punishes anyone who drives with "A BAC likely to impair thier ability to drive" leaving it to the jury to decide what BAC is illegal to drive with? No one with any BAC level (Assuming they could find out what it was) would ever know if thier driving was legal, no matter how much they desired to obey the law. Likewise a law abbiding person who wishes to obey this law cannot know whether a jury would find thier video to have 'serious religious, political, scientific, educational, journalistic, historical, or artistic value.' There is no way for them to know what conduct is illegal and what is legal untill charged and convicted/aquitted.


Do you have the same problem with negligence laws? Or anything with a reasonableness standard? What about traffic laws that require driving in one lane insofar as it is practical?
4.20.2009 3:54pm
A Conceited Jerk:
ChrisIowa: You said:

There is a difference between videos where the cruelty was performed for the purpose of being recorded, and videos which are created for the purpose of exposing the cruelty.

I wholeheartedly agree, in a moral sense. But I simply don't understand how a statute can survive RAV v. St. Paul if it criminalizes videos endorsing the practices (explicitly or implicitly) but not videos condemning the practices. It seems to be "viewpoint discrimination."

My way of thinking about it is like this. You could imagine three videos, each containing identical depictions of animal cruelty. The only difference among the three is the subtitles. In Specimen A, there are no subtitles. In Specimen B, there are subtitles that proclaim "Animal Cruelty is Morally Acceptable." In Specimen C, there are subtitles that proclaim "Animal Cruelty is Barbaric."

Under RAV v. St. Paul, the First Amendment would invalidate a statute that criminalized Specimen B but did not criminalize Specimen C, because that would be viewpoint discrimination. But aren't Specimen A and Specimen B really the same thing? I don't see how the addition of words makes a difference—the viewpoint is the same either way.
4.20.2009 5:17pm
David Welker (www):
As far as "slippery slopes" go, I think the problem I have with it is not that there is no underlying thing that exists, is that the phrase slippery slope implies lack of control.

The truth is, society has a deep status quo bias. So, any action that changes the status quo does in fact make some policies easier to enact and other policies harder to enact. That is just a political reality. Also, when it comes to legal disputes, judges are more comfortable making decisions that do not alter the status quo too dramatically. So, if there is a child pornography exception to the First Amendment, it is easier for judges to make a crush video exception.

What Eugene Volokh is doing here though is still problematic. He is taking the observation that some policies are easier to enact when the status quo changes and calling it a "slippery slope." (Of course, what is ignored is all of those policies that are harder to enact when the status quo changes.)

Look at these crush videos. The decision to outlaw them was a choice. No one held a gun to Congress's head and forced them to pass this legislation. This law is an outcome of ordinary legislative processes. Therefore, the phrase "slippery slope" which implies lack of control is fundamentally deceptive.

When you are sliding down a slope, the point is that you have no control over whether you go farther down the hill or not. Here, we as a society have democratic control over Congress. We as a society thus have total control over whether we decide to ban crush videos or not.

Another fundamental problem with the rhetoric of slippery slopes (if the problem just identified wasn't already bad enough) is the rhetoric is applied selectively. What is the true slippery slope? Why isn't the true slippery slope the earlier decisions by the Supreme Court to interpret the First Amendment to broaden the definition of speech such that it includes symbolic acts (like the torture of small animals).

The slippery slope is whatever anyone wants it to be. All changes in policies involve "slippery slopes" because all changes of policy impact the status quo and make some future possible policy changes easier. Yet, you do not hear people talking about "slippery slopes" when it is policies they favor! Is there a reason for that?

The phrase "slippery slope" is little more than inaccurate propaganda. The idea of being on a "slippery slope" is scary, because it implies loss of control. That is, in truth, where the true appeal of the phrase comes from. It allows one to persuade an audience not an intellectual, but instead on an emotional level. That is why the phrase is used rather than the comparatively dry observation that any change to the status quo will make some possible further changes to policy easier (but we still have a choice!) and other possible further changes to policy harder (but we still have a choice!). That the phrase "slippery slope" is so propagandist in appealing to base fears rather than the intellect is why use of the phrase should be heavily discouraged.

Here is how one truly grapples with these issues in an intellectually honest manner: One identifies all the policies that they think might be somewhat easier to implement in the future if policy X is enacted and one identifies all of the policies that will be somewhat harder to enact. (Emphasis on the word somewhat. We are not talking about overwhelming effects here, as the phrase "slippery slope" implies.) Then one considers the relative probabilities of these future events actually coming to pass.

In contrast, what do people making slippery slope arguments do? Instead of looking at all policies that are either somewhat easier or somewhat harder to enact, they look at the most frightening ones that would be somewhat easier to enact (often when the policy is very far fetched and in fact would have an extremely low probability of enactment) and assert that the so-called "slippery slope" effect is overwhelming. These are not balanced arguments designed to appeal to the intellect. These are emotional arguments designed to appeal to our fears of losing control. This emotional argument is built into the phrase "slippery slope," which is evocative of a total loss of control.
4.20.2009 5:21pm
Dan Weber (www):
What if I produce videos of women's feet next to a cat, and then have a caption there?
4.20.2009 5:30pm
einhverfr (mail) (www):
David Welker:

Slippery slope in this case being that freedom of speech ends up being defined by statute rather than constitutional law.

As I think Justice Stevens asked the lawyer representing Texas in Lawrence, "Can you criminalize lying to one's family at the dinner table? .... After all, it certainly is immoral, isn't it?"

My guess is that the Supreme Court will affirm, on a 1A rather than 4A basis.
4.20.2009 5:50pm
einhverfr (mail) (www):
Also the Child Pornography Exception, unlike the Obscenity Exception requires actual children to be harmed (Obscenity OTOH seems to require a public element, such as public distribution). See ACLU v Reno/Ashcroft/Gonzales.

In this regard it seems to me that the law is actually more similar to the obscenity exception rather than the child pornography exception. When we compare the approaches there, however, we still end up with it failing strict scrutiny EVEN IF we accept that prohibiting animal cruelty is a compelling interest towards restricting freedom of speech.
4.20.2009 5:53pm
David Welker (www):
einhverfr,

You didn't even make an attempt to address my arguments. So, why address your comment to me? Your point is not relevant to my argument about why reference to slippery slopes is an emotional rather than intellectual move in an argument.

To address your point anyway. To what extent is it worse for Congress to make certain decisions that impact freedom of speech if the Court is just making it up as it goes along anyway? Would you object to Congress providing more protection for speech than the Constitution requires? Altering the nuances of such extra protection from time to time?

I don't think that the distribution of videos depicting the crushing of the skulls of small animals was exactly what the Founders or Ratifiers had in mind when they added the First Amendment to the Constitution. I also don't think that such distribution is clearly protected by the text under an "original meaning" approach either. Whether it is justified or not, I think it is fair to say that the Court really is "making the rules up as it goes along" when it decides whether or not such video distribution is protected by the First Amendment. In that case, I have no problem with leaving it to Congress (which is more democratically accountable, after all) to decide whether or not the distribution of videos depicting beautiful women crushing the skulls of kittens with the heels of their shoes should be permitted or not.

I am SO SORRY if this disappoints you. If you think that democratic decision-making (which is provided for in the Constitution too!) is never to be allowed if it impacts what some would argue (in my view, in a far-fetched manner) to be constitutionally protected speech.

Whatever the case, you aren't really addressing my argument against slippery slope arguments.
4.20.2009 6:25pm
Andy Bolen (mail):
Welker, have you read Volokh's article on slippery slope mechanisms?
4.20.2009 10:01pm
nick_p (mail):
Is the cover of yesterday's (Sunday) New York Times illegal under this law?

The above-the-fold photograph is here.

-Nick
4.20.2009 11:12pm
LarryA (mail) (www):
What Eugene Volokh is doing here though is still problematic. He is taking the observation that some policies are easier to enact when the status quo changes and calling it a "slippery slope." (Of course, what is ignored is all of those policies that are harder to enact when the status quo changes.)
I use the slippery slope argument because I've seen it in action, as whenever gun-rights folks compromise to resolve an issue, before the ink dries the Brady people are out on the front steps holding a press conference calling it a "good first step" and saying "we've got the NRA on the run" and "now we can enact real common-sense gun control."

And the national media dances their tune.
4.21.2009 3:48am
LarryA (mail) (www):
The statute was enacted as an attempt to stop the distribution of so-called "crush videos," which generally depict a woman's legs and feet, often in high heels, stepping on insects, mice, or kittens;
Can't hold back any longer.

Eeewwww.
4.21.2009 3:50am
Sk (mail):
"Your point is not relevant to my argument about why reference to slippery slopes is an emotional rather than intellectual move in an argument."

Yep. This is the heart of the problem with slippery slope arguments.

Just about everybody (judiciary, as well as the overwhelming majority of people) think child porn is icky.

The majority (not the judiciary, but the overwhelming majority of people) think crush videos are icky.

A plurality (not the judiciary, and perhaps not a majority, but a solid mass of the people) think burning flags (or any other hot button issue) are icky.

"Slippery slope" is a technique to allow the judiciary to draw the line at banning child porn (which they agree is extremely icky) without allowing the masses to draw the line (either at crush videos, or at flag burning-which they don't think are especially icky: though their grandfather judges did think both were especially icky, which is why both could have been banned up until about 1968).

In other words, 'slippery slope' (And in fact, all constitutional logic questions) are simply techniques to allow the elites to make decisions rather than the masses. It is the Noble Lie of modern American democracy: but instead of a Noble Lie to appease the masses, its a Noble Lie to make the elites feel good about their powergrab.

Sk
4.21.2009 10:13am
trad and anon (mail):
Just about everybody (judiciary, as well as the overwhelming majority of people) think child porn is icky.


Depends on how you define "child porn." A lot of people think porn with "barely legal" performers who look younger than 18 is hot, as demonstrated by the substantial market for such things. Presumably they would feel the same way about porn with performers who look 16 or 17 and actually are. A lot of under-18's think nude photos of each other are hot too, which is why they send them to their boy/girlfriends. I think some of them are even prosecuted for child porn for doing this, which is absurd. It's not a good idea because if such photos find their way onto the Internet there is no way to get them back, but you shouldn't be prosecuted for taking nude photos of yourself (or having your boy/girlfriend do it) just because you are under 18. I don't think people stop finding such things hot after they get older than 18; there are lots of people who happily look at (real, clothed) teenagers and find them attractive but don't touch and never would. I will admit to doing the same myself, at least if the teenagers look old enough (some guys who look 16 or 17 are attractive; guys who look 13 never are).
4.21.2009 2:35pm
einhverfr (mail) (www):
David Welker:

I seem to have hit the substance of your position and argument closer than initially you thought, based on this paragraph:


To address your point anyway. To what extent is it worse for Congress to make certain decisions that impact freedom of speech if the Court is just making it up as it goes along anyway? Would you object to Congress providing more protection for speech than the Constitution requires? Altering the nuances of such extra protection from time to time?


The court provides an important check against overreach of Congressional power. Congress could also make advocating causes of the enemy a crime too and did so for a number of years until a series of cases rolled back that power. Probably the best example of this was how Yates v. United States hamstrung the Smith Act by making it legal to advocate Communism as a political philosophy.

The court doesn't prohibit the general public from doing things. It decides matters of law. If we decide that Congress is the final arbiter of what free speech is protected, then why even write it into the Constitution in the first place?

Our Constitution is predicated on the idea that the rights of those outside the majority on any given issue are protected. As soon as we decide that democratic decision making is the only valid way to decide these issues, we no longer live in a Constitutional Republic, and the rights of the minority will no longer be protected.

Our history is quite full of acts which have been controversial in impinging on free speech in ways which are now acknowledged to be well outside of the power that government possesses. These started right along with our country, as seen in the Alien and Sedition Acts (repealed by Congress before Marbury v. Madison), and later including all manner of laws such as The Smith Act, various laws against hate speech, and so forth.

In fact, the strong protections we enjoy here are entirely the product of Congress seeking to forbid political speech that was unpopular or seen as harmful to the current cause. What started out as a simple "bad tendencies" test inherited from common law (think of it as a rational basis review requirement) has been strengthened to a very robust protection unparalleled elsewhere in the world. As EV has pointed out elsewhere, our protections are even more robust than the normal application of the term "strict scrutiny."

Crush video restrictions are not in the same category as the Smith Act, for example. However, I think the first amendment implications here are extremely important.

Bottom line: democratic decision making is only valid when provided for and in line with the Constitution. When it abridges freedom of speech, the press, etc. then it is not in line with the Constitution and is invalid.
4.22.2009 12:36am

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