Syracuse University Thinks Satire Is Actionable Harassment

Law

Some people can't abide being ridiculed. For that matter, some people can't abide being the subject of even the mildest satire. Their frail little psyches cannot stand it.

Apparently Syracuse University attracts such people, and academics sympathetic to them.

FIRE has been savaging Syracuse all month over its investigation of, and threatened administrative proceedings against, law student Len Audaer for the offense of writing a satirical blog at www.wordpress.sucolitis blog (now defunct) about the doings and inhabitants of the Syracuse University College of Law.

As FIRE repeatedly concedes, Syracuse is a private institution and not a state actor. It is therefore not bound by the First Amendment, and its administrators may therefore persecute students for foolish reasons using Star Chamber procedures to their dark autocratic little hearts' content, except to the extent federal or state statutes limit them. But Syracuse claims to protect and celebrate freedom of expression. They aggressively market themselves as respecting freedom of expression. Americans expect universities, public and private, to protect freedom of expression. When universities do not, they deserve to be regarded with suspicion and contempt — they deserve to be regarded as something different, something less, than a real university.

I'm not going to discuss what Audaer did, and what Syracuse did in response, in great detail. FIRE has offered a wealth of information. In brief, Audaer wrote satirical posts about fellow law students and members of the faculty and administration, as well as public figures. The satire is broad, obvious, and, to be frank, not particularly good. But only an abject idiot could mistake it for anything but satire. Some of it is skillful. Some of it is funny. Some of it is crass, mean, and sophomoric, like a post allegedly identifying a particular first year law student as being "especially slutty." [Ed.: Note December 22 update below about this issue.]

Somebody complained. Syracuse decided to appoint a "prosecutor" to investigate the blog and determine whether to bring formal charges against Audaer under the Syracuse discipline system. All of that — the fact that someone complained about satire, and that the school didn't immediately reject the complaint — is appalling enough.

But Syracuse, and specially appointed prosecutor Syracuse law professor Gregory Germain, are angry about the criticism and are doubling down. As is often the case, the attempted cover-up is worse than the initial conduct.

Professor Germain has filed a motion with the Syracuse disciplinary body demanding a gag order against Audaer and his defense team. He wants Syracuse to issue an order forbidding Audaer from disclosing the contents of his own blog, or anything he gets from the university about the proceedings against him, to any third party unless the third parties agree in writing (1) not to disclose the names of any of the people identified in those blog posts or documents without their consent, and (2) to publish the entirety of documents, not just quotes from them, "in order to prevent misleading selective posting of information."

In other words, Professor Germain thinks that Audaer should be prohibited from sending FIRE, or me, or the Chronicle of Higher Education, or CNN, an unredacted copy of this blog post without the written permission of Ellen DeGeneres. Professor Germain also thinks that Audaer should be prohibited from sending FIRE, or me, or anyone else one of his own blog posts, or any document from the proceedings against him, unless we agree to Professor Germain's preferred method of writing about it. Professor Germain explicitly demands censorship of documents as a method of getting the type of media coverage of the proceedings that he wants. Of course, no respectable reporter — and no self-respecting blogger, or American — would agree to present materials only in the manner that a censor demanded. Moreover, given an internet in which it is trivially easy for Syracuse and its supporters to host and publish the raw documents themselves, the demand for written guarantees of full publication as a method of achieving "fair" coverage is transparently dishonest and/or stupid. The gag order is deliberately calculated to prevent Audaer from distributing his blog posts and the documentation of his persecution at all.

The demand for anonymity of the "victims" of the alleged misconduct is particularly perverse because the "misconduct" is satire. Professor Germain is investigating the possibility that the satirical blog posts are "harassment" — currently a fashionable term in academic circles meaning pretty much whatever the academics want it to mean. But it's impossible to understand or evaluate satire without knowing its target. Hustler v. Falwell is the seminal case about satire, establishing that Jerry Falwell could not recover even if Hustler's satirical depiction of him having sex with his mother in an outhouse really hurt his feelings. You couldn't possibly evaluate Hustler's joke correctly without knowing whom it depicted, because, like most satire, it revolves around the identity of its subject — in this case, the joke is the satirical contrast between Falwell the public first-stone-thrower and eager moral scold and Falwell the incestuous outhouse abuser. The satire falls flat if it's written about anonymous Person X. Here, by demanding redaction of the satire, Professor Germain makes it impossible to evaluate its meaning — which is, no doubt, part of his goal.

Professor Germain defends his censorious ambitions very unconvincingly, at considerable length, and in a rather unbecomingly whiny fashion in a series of emails:

I don't like the way you use language such as "people like Professor Germain." What does "people like Professor Germain" mean? I'm bad and you're good?

The fact is, you don't know me or anything about me.

Gosh, Professor Germain, I think FIRE is referring to the class of persons generally known as censorious thugs with grave control issues who are overly proud of their petty authority. Your emails also demonstrate that they may be referring to people who can't abide criticism. It's only appropriate to appoint such a person to investigate a student for the crime of making fun of people. I suspect FIRE thinks all of that, but is too polite to say so. They're an awfully well-mannered bunch over there, really.

In his motion for a gag order, Professor Germain suggests that Audaer must be gagged so that his accusers need not fear that more people will know that somebody made fun of them on the internet:

The students, faculty and staff who were targeted in the sucolitis blog did not consent to have their good names used in the blog, and do not wish to be the subject of attacks on the internet. One of the students has expressed to the Prosecutor a concern for her physical safety. Most wish to find jobs in the legal profession, and feel that bringing further public attention through the publication of their names could damage their
employment opportunities, and would cause further humiliation and embarrassment.

Leave aside, for the moment, the ignorant and authoritarian proposition that people have some sort of right not to have their names used on the internet, and not to be "attacked" on the internet. Focus on this instead: Professor German suggests that the people satirized in the blog fear that having that satire spread further as a result of their own complaints about it would be unfair, because potential employers might see it and their feelings might be further hurt.

I interview, and hire, people at a law firm. I cannot imagine a situation in which I would decline to hire someone because they had been the target of satire. That's because I'm not a fucking idiot. Perhaps the subjects of Audaer's blog aspire to be hired by fucking idiots. It sure looks like they are going to the right school, then.

Syracuse's excuse for a disciplinary system apparently protects the anonymity of accusers, and supports efforts to prevent the publication of their identity. That's common with systems that have, as their true aim, the uncritical acceptance of accusations and the swift arrival at a predetermined conclusion of guilt. See, if you allow the identity of an accuser to become public, then all sorts of inconvenient things happen. They might suffer consequences for making false accusations. People might read about the case and come out of the woodwork and say "Vance Victim couldn't have been assaulted by the defendant on Saturday night; I saw him passed out over at Delta house that night," or "Vance Victim is the same guy who threatened to accuse me of assault twice last year", or "Vance Victim is a person with a reputation for being a liar and a cad." In short, That's why protection of accuser anonymity is repellent and inimical to modern systems of justice.

But Professor Germain does have the kernel of a point about privacy. It's just not the point he thinks he has. It's irrational to think that employers will be put off because a humor blog satirized you. However, it's entirely rational to fear that, if employers find out that you ran to the administration to complain about being satirized, they might not want to hire you. I would happily hire people of every color, religion, and sexual preference. I would hire Republicans and Democrats and Independents and Greens. But I would never, in a million years, hire someone who complained to his or her school administration about being the subject of satire. People who run to the authorities to complain about being the subject of satire are weaklings, crybabies, losers, and nasty censorious authoritarians. I view them as likely to be of sub-optimal intelligence, insufficient fortitude, and poor morals. Those are not the qualities of a reliable employee or a good lawyer. They are not people I want to hire or be friends with. They are people I want to ridicule and shun.

What should these students made fun of in the blog — including in the crass and mean portions — have done instead, if they felt ill-treated? They should have resorted to the marketplace of ideas. They should have created their own blog identifying Audaer as the blogger and mocking some of his shittier writing. They should have called him out in public or given him the cut direct. They should have shunned him from their social circles and study groups. They should have made certain, through Google, that every time someone looked him up, they would see that he was someone who thought referring to a particular 1L as "especially slutty" was funny satire. If they had done that, rather than retreating behind the skirts of petty authority, I would have respected them. Remember, supporting freedom of expression does not mean you have to agree with or support the content of the expression or the people who utter it. Many of them are assholes.

Update on December 22, 2010: An informed source tells me that (1) the links in this post to the pdfs of the blog represent all of the articles the blog ever ran (so you don't have to find them, those links are here and here), and (2) as a review of those blog posts show, Audaer never wrote that anyone was "especially slutty"; that's apparently a mistake by the student quoted in one of the linked articles. That changes my view somewhat. If the posts linked (in redacted form) by FIRE represent all the posts Audaer ever wrote, then it's even clearer that they are all satirical, and there's nothing in them close to referring to someone as "especially slutty." They're still not to my taste, and I suppose that one or two could even be characterized as mean. But you'd have to be pretty damned thin-skinned to get in a huff over them. Syracuse's investigation becomes even more appalling, and Professor Germain's belief that these posts might plausibly represent harassment becomes even more transparently bogus.

In addition, it appears that Mr. Audaer has a web site discussing Syracuse's proceedings against him, here. That site also has copies of the redacted posts and links to other commentary on the case.

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25 Comments

22 Comments

  1. Brendan  •  Dec 17, 2010 @5:43 pm

    I'm no first amendment expert or any kind of expert, but I think there's a big difference between a more senior student calling a first year student a slut and satire. While one would hope that law schools are more advanced that middle school, it sounds like the authors of the offending blog were simply acting as bullies. The victims of the bullying have complained and that has led to an investigation. I can totally understand why a first year law student would worry about reputation damaging blog posts and don't understand why the right to satire exceeds the right to avoid character assassination. One could make the argument that a professor is something of a public figure and can be satirized, but a law student is certainly not a public figure and deserves some protection. Further, you draw this employment parallel, but in any job I can think of you if you start writing a blog that says bad things about your superiors and co-workers and they find out it's you, they'll fire you.

    People generally retaliate if you're an asshole. And realistically, would a law school really want to subject its students, paying $45k/year, to some childish and mean blog? They're trying to run a business.

  2. ZK  •  Dec 17, 2010 @5:44 pm

    I don't know why presumably intelligent people keep going up against FIRE when they're pretty clearly in the wrong. It has to be like throwing gasoline on a fire, hoping that this time, maybe it'll just go out.

    Maybe they just have radically different worldviews or are cloistered in academia so much they don't notice the fact that people don't like censors, or that people might question them? I really don't get it.

  3. Virginia Postrel  •  Dec 17, 2010 @6:31 pm

    Great article. Let me make a personal pitch, as a board member, for readers to
    support FIRE's work: http://myfire.thefire.org/Page.aspx?pid=218

  4. Ken  •  Dec 17, 2010 @6:46 pm

    I think there’s a big difference between a more senior student calling a first year student a slut and satire.

    Brendan, there's a difference between walking around saying "Susie is a slut" and saying it in the course of a satirical piece that also says "Alan humps dogs" and "Wayne is transgendered," or whatever. They context makes it clear that the whole is satirical.

    Read the Falwell opinion linked in the post. It's perhaps the most important First Amendment decision about satire.

    While one would hope that law schools are more advanced that middle school, it sounds like the authors of the offending blog were simply acting as bullies.

    "Bullying" is this year's shark week. It's the vague label that can be applied to almost any conduct in a OMG THINK OF THE CHILDREN fashion to discourage critical thinking. To the extent "bullying" constitutes satire and criticism, it is protected by the First Amendment from state action.

    I can totally understand why a first year law student would worry about reputation damaging blog posts and don’t understand why the right to satire exceeds the right to avoid character assassination.

    First of all, there is no "right to avoid character assassination." Second, satire and hyperbole are not "character assassination" — by which I mean they are not actionable defamation, for instance. If you come here and say "Ken, your posts suggest to me that you are a Nazi who molests squirrels," I will not be able to maintain a successful defamation suit against you, because your words are clearly hyperbole. If you respond to this post by writing a story in which I drive around the country shouting "SLUT!" at first year law students and then obsessively reciting the First Amendment, I will not be able to sue you for defamation successfully, because it is clearly satire.

    One could make the argument that a professor is something of a public figure and can be satirized, but a law student is certainly not a public figure and deserves some protection.

    What is your legal authority for the proposition that the First Amendment does not protect satire if the satire is directed at a private figure?

    Further, you draw this employment parallel, but in any job I can think of you if you start writing a blog that says bad things about your superiors and co-workers and they find out it’s you, they’ll fire you.

    No doubt. But unlike private universities in general, and Syracuse in particular, most private employers do not loudly assert that they respect and will protect the free expression of their employees.

    People generally retaliate if you’re an asshole. And realistically, would a law school really want to subject its students, paying $45k/year, to some childish and mean blog? They’re trying to run a business.

    That's a perfectly apt observation. But if a university wraps itself in the cloak of free expression, but acts contrary to that cloak in order to make a buck, should we not call it out and criticize it?

  5. SPQR  •  Dec 17, 2010 @7:24 pm

    What about my right to live in a country that has no censorious twits, Brendan? You know … while we are inventing "rights".

  6. Brendan  •  Dec 17, 2010 @8:34 pm

    Obviously using the word "right" on a law blog was probably a mistake, but whatever.

    Anyway, the point I was trying to make is that I think it's perfectly reasonable for the school to act on the complaint. While I'm not going to go read through Syracuse's code of conduct, I would assume that while they strive to promote free speech, the same document probably has language speaking to students' right to be in a safe environment, etc. If a student makes a complaint about being called a slut because she feels that she's defamed or worse, threatened, is it really that bad if the school investigates? Honestly, making a competing satire blog making fun of the original satire blog is not what anyone is going to do if they feel wronged. Ok fine, they're weaklings, but I think that's a cop out position to take. Does this mean that you only want to hire people who won't take workplace hostility up their boss or HR?

    But anyway, that redacted pdf doesn't seem to have any of the objectionable stuff involving calling people sluts or making fun of some professors. So, I have a hard time figuring out the context.

    Crappy satire is one thing, but calling your fellow student a slut and expecting her to put up with it or alternatively that she needs to think up some witty come back on her own blog just sounds like misogynistic bullshit.

  7. Eric L. Mayer  •  Dec 17, 2010 @8:49 pm

    "People like Prof. Germain" do not like your analysis. "People like Prof. Germain" think you should butt-out of stuff that isn't your business. "People like Prof. Germain" think you should remember that private institutions are allowed to resurrect the inquisition.

    "People like Prof. Germain" think you should be ashamed of yourself. Naughty, naughty.

    On a separate note: I love his comment of "You don't know me." I have the vision of him in a torn Budweiser t-shirt and tightie whities outside his trailer being interviewed by the show "Cheaters" and yelling that phrase at the cameras repeatedly.

  8. Linus  •  Dec 17, 2010 @9:36 pm

    Wow, first Patrick's post about McDonald's, and then this. Ken, you boys are in the zone.

    With respect to Brendan, I don't think it's reasonable for the university to act on the complaints. "Mommy, he called me some names!" That's all this is. Yes, "slut" is a particularly nasty and hurtful name. So what? Does the university appoint a prosecutor every time two students have a fight that ends with him saying "Bitch" and her saying "Asshole"? I guess the inquisitors have consoled themselves by saying that they're worried about this girl's "reputation", but Ken has explained pretty clearly the First Amendment distinctions between satire and false statements of fact. But again, this dude's not making factual statements, is he? Isn't he just being an asshole?

    Also, let me make sure I'm understanding this—someone felt they were in physical danger because someone said mean things on the internet? They thought the satirist would harm them, or that the posts would incite violence them? Maybe I just missed the logical explanation.

    The other explanation I must have missed is how exactly someone can "harass" someone else by writing things on their own blog. We've dumbed down and expanded that word into meaninglessness. "Dad, Billy is harassing me!" "Oh, Brenda? What is he doing?" "He is saying mean things to his friends about me when I'm not there." That certainly is asshattery, but it ain't "harassment".

    Crappy satire is one thing, but calling your fellow student a slut and expecting her to put up with it or alternatively that she needs to think up some witty come back on her own blog just sounds like misogynistic bullshit.

    If the choices are to expect her (1) to put up with it, (2) defend herself, or (3) run crying to Big Daddy to stop the mean, mean man, which of those three choices is "misogynistic"? Which one assumes women cannot handle insults without falling into hysterics?

  9. nrasmuss  •  Dec 18, 2010 @5:42 am

    I'm curious: is everyone here truly irked that Syracuse has chosen to "investigate" this incident, or is this a misguided but duly-earned reaction to the manner in which the University has chosen to pursue it, which is transparently clumsy, heavy-handed – and particularly as evidenced by the claims of the "independence" of Professor Germain and his proposed "gag order," quintessentially ass-hatted?

    Having read through the documentation and comments, I'm quite certain of the idiocy of this "investigation" as conducted, but not so certain that the conduct within is as easily defensible as those here seem to assert. I see a lot of bandying-about of 'satire' as a defense, and the Falwell precedent – but I don't see much analysis of the facts of the case (nor am I sure that we have them).

    The First Amendment affirmative defenses all appear to turn on either the ability of the audience to discern the inherent hyperbole contained within the allegedly offending statements, or the degree to which the target has knowingly/willingly placed themselves in a position to be commented upon. Hence, in libel, the public figure doctrine; in parody, as a general rule, the more recognizable the target, the more likely it is that the parody succeeds of itself, and as an asserted defense – and a failed parody may be a satire, which in some cases – TMs, for instance – is not a protected defense. And finally, even satire – certainly in Falwell – should turn on the 'publicity' of the target: a drawing of Falwell, "the moral scold," in flagrante delicto with his mother is satire. I would suggest that if you published such a drawing of me (a relative 'nobody,' I'm willing to assert) you might not fare so well in court.

    Context appears to matter, and I don't see much in the way of context here regarding the individual who complained/was "targeted," or Mr. Audaer. It's easy to claim that "it was a joke," but despite the generally sarcastic tone of the blog in general, and the letter-box disclaimer that "this website is a joke," is this dispositive? "Sally is a whore." Satire? Who's hearing this? What do they know about "Sally"? Is there an underlying commentary that the listeners are aware of, or that "Sally" herself has entered? What if "Sally" is an innocent-enough 1L who has repeatedly and disdainfully rebuffed the author's requests for a date?

    My long-winded point being that while I'm generally no fan of the rather nebulous terms under which Mr. Audaer is being pursued, there would certainly seem to be contextual situations in which such an examination would seem entirely reasonable. So I return to my initial question: is the issue here the examination, or the idiotic way in which it has been pursued?

    *Also, just what sort of favor does Syracuse think that it is doing the current students with this ham-handed debacle?*

  10. Patrick  •  Dec 18, 2010 @6:08 am

    nrasmuss.

    **misguided but duly-earned reaction to the manner in which the University has chosen to pursue it, which is transparently clumsy, heavy-handed – and particularly as evidenced by the claims of the “independence” of Professor Germain and his proposed “gag order,” quintessentially ass-hatted?**

    **I’m quite certain of the idiocy of this “investigation” as conducted**

    ** I’m generally no fan of the rather nebulous terms under which Mr. Audaer is being pursued**

    **is the issue here the examination, or the idiotic way in which it has been pursued?**

    **this ham-handed debacle**

    You seem rather irked at the university yourself.

    Without speaking for the author of this post, I will note that in this era, where the notion of "in loco parentis" has been abandoned for forty years, the idea of a university appointing itself a libel court, and retaining an "independent prosecutor," is so ridiculous as to merit a satire of its own.

    If Sally is not a whore, and Sally is not a public figure, the accusation that she prostitutes herself is libelous per se, and no proof of special damages is required. Surely Sally should not be subjected to this, but Sally is a 1L, and probably in a better position than most people to vindicate her reputation.

    It isn't the place of Syracuse to usurp the judicial power.

  11. PLW  •  Dec 18, 2010 @9:33 am

    If I organized a club and someone joined the club and started insulting fellow members publicly and in an obviously mean-spirited way (even if that mean-spiritedness was couched in satire), I would kick his sorry ass out of my club. I might give him a second chance, and ask him to quit publicizing his nasty insults while we were deciding whether or not to keep him. If he nonetheless continued to publicize them, I would probably say "screw the second chance," and give him the old heave-ho immediately.

  12. Linus  •  Dec 18, 2010 @2:43 pm

    PLW, would your club be expressly dedicated to freedom of expression? Would you kick people out for private assholery, or only the public kind? Would it serve brownies?

  13. BC  •  Dec 18, 2010 @2:46 pm

    Assume that when you organized the club you went to considerable lengths to garb yourself in respect for members' expressive freedoms, PLW. Same result?

  14. John David Galt  •  Dec 18, 2010 @3:10 pm

    I agree that Syracuse has the right to kick out a student for unworthy reasons such as this — if its contractual relationship with the student allows it.

    Then again, even with a contract allowing censorship, there may be a point where the university's treatment of the student crosses the line of bad faith and so is actionable. And if the university's expulsion of the student results in him having difficulty finding employment or another university, he may also very well have a good defamation case.

    But I hope that none of these cases ever have to be filed: that is, I hope that when the university administrators see a few articles like this one, and realize that they've made fools of themselves for all to see, they'll decide to make good for the harm they've done.

  15. JC  •  Dec 18, 2010 @7:32 pm

    Saw the headline and immediately thought of the great line from St Thomas More. "The devil, the proud spirit, cannot endure to be mocked".
    Heh

  16. Dello  •  Dec 20, 2010 @7:45 am

    While I won't pretend to know anything about the law, it seems to me that the university is going way overboard with this.

    That said, I would probably be quicker to hire the transvestite or the slut than I would this guy, just to avoid having him do the same thing at my company.

    Seems to me that he's impeaching his OWN reputation more than anyone else's.

  17. Chris  •  Dec 20, 2010 @8:47 am

    " If you respond to this post by writing a story in which I drive around the country shouting “SLUT!” at first year law students and then obsessively reciting the First Amendment, I will not be able to sue you for defamation successfully, because it is clearly satire."

    Damn you, lack of free time!

  18. Dan Weber  •  Dec 20, 2010 @9:57 am

    The more I've been thinking, the more I've been resisting the pile-on of the 1L.

    I can certainly imagine a point in my life where I wouldn't have responded with as much wisdom as I would today to a douchebag colleague. Maybe an especially "keener" student could have gotten into the first year of law school without being fully an adult, and think that telling mom is the right response.

    Ironically for Syracuse, this would make the senior law student's defense of "satire" even more obvious, since no one would believe the young keener was a slut.

    And it isn't meant to be a defense of Syracuse, which could've just done a "knock it off" to the senior law student and gotten fine results. It wouldn't have given the petty dictators a chance to exercise their muscles, though.

    FD: I haven't read all of FIRE's archives.

  19. Wind Rider  •  Dec 20, 2010 @10:20 am

    I think this makes the case as to why Germain is in academia, instead of private practice. Unless he's engaging in an academic exercise of how not to effectively handle something. In that case, I'd have to applaud him for risking his reputation for the benefit of his students. Somehow, I don't think I'll be doing that.

  20. mojo  •  Dec 20, 2010 @1:31 pm

    A college "disciplinary council" issuing gag orders? Or "orders" on any damn thing, for that matter? Who do they think they be?

    It is to laugh.

  21. Ken  •  Dec 22, 2010 @10:17 am

    Please note today's update to this post.

  22. Mark David Blum, Esq.  •  Dec 24, 2010 @4:49 am

    I am Audaer's attorney. What should cause the greatest ire at this entire issue is that while the University has a policy defining the term "harassment" (a definition, btw, which does not comport to the facts of this case), the College of Law has no such definition. According to the prosecutor, though he acknowledges there is no definition of the term harassment, he claims that the terms thereof can be discerned because the word is a common word subject to the fresh bread test … "I know it when I see it". This is a fundamental due process violation as how can anybody know the parameters of acceptable behavior and be able to conform therewith.

    The gag order is an issue that is completely stunning. Notwithstanding the contents of the allegations, there is an implied assumption that coming forward as a complainant or a witness automatically subjects a person to attack if their names are disclosed. This comes from the "pulling it out of my ass" school of rhetoric. I can only dream of having the ability to foresee the future as does my opponent, the prosecutor.

    Lastly and most worthy of consideration is that if law students do not learn early on and quickly to grow skin as thick as concrete, then their future is already in tatters. My business has degenerated to a world where the lawyer is constantly attacked, and not in satire, but in motion practice, open court, and in day to day contact. The game of "kill the lawyer" is constantly the tactic of BigLaw and if you are not tough enough to endure the constant assault upon your good name and to rise above it to represent your client, then go to medical school.

    Audaer is going to come through this the victor. The only question remaining at this juncture is how much more the University and College of Law is going to subject itself to public shame and embarassment as it proceeds down this slippery slope.

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