On balance . Decided June 21, 1990. Supreme Court dismissed the ensuing appeal for want of a substantial constitutional question, and this Court denied certiorari. ", 475 U.S. at 475 U. S. 777. ", "If you're successful enough, and powerful enough, and can sound sincere enough, you stand an excellent chance of making the lie stand up, regardless of what really happened. ."). a reader would not expect a sports writer on the sports page to be particularly knowledgeable about procedural due process and perjury. Oral Argument - April 24, 1990. Where readers know that an author represents one side in a controversy, they are properly warned to expect that the opinions expressed may rest on passion rather than factual foundation. a lesson was learned (or relearned) yesterday by the student body of Maple Heights High School, and by anyone who attended the Maple-Mentor wrestling meet of last Feb. The action proceeded to trial, and the court granted a directed verdict to respondents on the grounds that the evidence failed to establish the article was published with "actual malice" as required by New York Times Co. v. Sullivan, 376 U. S. 254 (1964). Not only would such an interpretation be contrary to the tenor and context of the passage, but it would also ignore the fact that expressions of "opinion" may often imply an assertion of objective fact. Eastern Railroad Presidents Conference v. Noerr Motor Freight, Inc. California Motor Transport Co. v. Trucking Unlimited, Smith v. Arkansas State Highway Employees, Buckley v. American Constitutional Law Foundation, BE and K Construction Co. V. National Labor Relations Board, https://en.wikipedia.org/w/index.php?title=Milkovich_v._Lorain_Journal_Co.&oldid=979271282, History of mass media in the United States, United States Supreme Court cases of the Rehnquist Court, Articles lacking in-text citations from December 2014, Articles that may contain original research from December 2014, All articles that may contain original research, Articles with multiple maintenance issues, Articles with unsourced statements from November 2007, All articles with specifically marked weasel-worded phrases, Articles with specifically marked weasel-worded phrases from June 2015, Articles with unsourced statements from May 2012, Creative Commons Attribution-ShareAlike License. Both state and federal courts have found that audiences can recognize conjecture that neither states nor implies any assertions of fact, just as they can recognize hyperbole. I appreciate this Court's concern with redressing injuries to an individual's reputation. ", In the latter case, there are at least six statements, two of which may arguably be actionable. Conjecture is a means of fueling a national discourse on such questions and stimulating public pressure for answers from those who know more. at 418 U. S. 350 ("Like the doctrine of presumed damages, jury discretion to award punitive damages unnecessarily exacerbates the danger of media self-censorship. See, e.g., Bresler, supra, (metaphor); Letter Carriers, supra, (hyperbole); Falwell, supra, (parody). Although the issue was initially in doubt, see Rosenbloom v. Metromedia, Inc., 403 U. S. 29 (1971), the Court ultimately concluded that the New York Times malice standard was inappropriate for a private person attempting to prove he was defamed on matters of public interest. knows in his heart" that Milkovich lied -- obvious hyperbole, as Diadiun does not purport to have researched what everyone who attended the meet knows in his heart. Texas applied Milkovich more literally. It was the first time the Court addressed whether libel laws were applicable to expressions of opinion.. Defamatory opinions were presumed to have First Amendment protection See Hainbuchner v. Miner, 31 Ohio St.3d 133, 137, 509 N.E.2d 424, 427 (1987) ("It is universally recognized that a former judgment, in order to be res judicata in a subsequent action, must have been rendered in an action in which the parties to the subsequent action were adverse parties") (quotation omitted). "In a society which takes seriously the principle that government rests upon the consent of the governed, freedom of the press must be the most cherished tenet.". ", "I was among the 2,000 plus witnesses of the meet at which the trouble broke out, and I also attended the hearing before the OHSAA, so I was in a unique position of being the only non-involved party to observe both the meet itself and the Milkovich-Scott version presented to the board. Yet, imperfect though it is, an action for damages is the only hope for vindication or redress the law gives to a man whose reputation has been falsely dishonored.". Justice BRENNAN, with whom Justice MARSHALL joins, dissenting. We note that the Ohio Supreme Court remains free, of course, to address all of the foregoing issues on remand. There is only a vague statement from the OHSAA commissioner that the testimony "sounded pretty darned unfamiliar." Scott, 25 Ohio St.3d at 252-253, 496 N.E.2d at 707-708 (emphasis in original). Argued April 24, 1990. 111 L.Ed.2d 1. . On appeal, the Supreme Court of Ohio reversed and remanded. I have just modified 2 external links on Milkovich v. Lorain Journal Co.. Answer. 641, 644, 552 P.2d 425, 429 (1976) (finding a letter "cautiously phrased in terms of apparency" did not imply factual assertions); Stewart v. Chicago Title Ins. Conjecture, when recognizable as such, alerts the audience that the statement is one of belief, not fact. The proof that Hepps requires from the plaintiff hinges on what the statement can reasonably be interpreted to mean. Syllabus. Although statements of opinion may imply an assertion of a false and defamatory fact, they do not invariably do so. . Readers could see that Diadiun was focused on the court's reversal of the OHSAA's decision, and was angrily supposing what must have led to it. William H. Rehnquist: 449 U. S. 966 (1980). The Supreme Court showed its reluctance to distinguish between opinions and facts in applying the First Amendment protections for speech on matters of public concern. 2011-11-09 18:27:16 2011-11-09 18:27:16. For instance, if Riley tells his friends that Smith cheats at cards and Smith then proves that he did not rob a convenience store, Smith cannot recover damages for libel on that basis, because he has proved the wrong assertion false. 1943)). . Even the insinuation that Milkovich had repeated, in court, a more plausible version of the misrepresentations he had made at the OHSAA hearing is preceded by the cautionary term "apparently" -- an unmistakable sign that Diadiun did not know what Milkovich had actually said in court. . 1205, 1229 (1976) (quoting Popham v. Pickburn, 158 Eng.Rep. Lebron v. National Railroad Passenger Corp. First National Bank of Boston v. Bellotti, Citizens Against Rent Control v. City of Berkeley, Colorado Republican Federal Campaign Committee v. FEC, Arizona Free Enterprise Club's Freedom Club PAC v. Bennett, American Tradition Partnership v. Bullock, Brown v. Socialist Workers '74 Campaign Committee, Manhattan Community Access Corp. v. Halleck, Landmark Communications, Inc. v. Virginia, Minneapolis Star Tribune Co. v. Commissioner, Greenbelt Cooperative Publishing Ass'n, Inc. v. Bresler. of Disciplinary Counsel of Supreme Court of Ohio, Posadas de Puerto Rico Assoc. See, e.g., Potomac Valve & Fitting Inc. v. Crawford Fitting Co., 829 F.2d 1280 (CA4 1987); Janklow v. Newsweek, Inc., 788 F.2d 1300 (CA8 1986); Ollman v. Evans, 242 U.S.App.D.C. at 253-254, 496 N.E.2d at 708. [Footnote 5]. Justice Stewart in that case put it with his customary clarity: "The right of a man to the protection of his own reputation from unjustified invasion and wrongful hurt reflects no more than our basic concept of the essential dignity and worth of every human being -- a concept at the root of any decent system of ordered liberty.". As soon as I wrote the final sentence, I listened to hundreds of voices indicating, “but my tale is unexciting. Butts, supra, at 388 U. S. 164. This judgment was based in part on the grounds that the article constituted an "opinion" protected from the reach of state defamation law by the First Amendment to the United States Constitution. Milkovich, a high school wrestling coach, sued the Lorain Journal for libel after a sports writer for its newspaper wrote a column implying the … The plain import of the author's assertions is that Milkovich, inter alia, committed the crime of perjury in a court of law.". Brief for Dow Jones et al. No. See also Hustler Magazine, Inc. v. Falwell, 485 U. S. 46, 485 U. S. 50 (1988) (First Amendment precluded recovery under state emotional distress action for ad parody which "could not reasonably have been interpreted as stating actual facts about the public figure involved"); Letter Carriers v. Austin, 418 U. S. 264, 418 U. S. 284-286 (1974) (use of the word "traitor" in literary definition of a union "scab" not basis for a defamation action under federal labor law, since used "in a loose, figurative sense" and was "merely rhetorical hyperbole, a lusty and imaginative expression of the contempt felt by union members"). 359, 442 (1985) (stressing the need to take into account "the cultural common sense of the ordinary listener or reader"). Diadiun also clearly had no detailed second-hand information about what Milkovich had said in court. 497 U.S. 1. Edwards v. New York Times Co., 434 U.S. 1002 (1977). Rejecting a contention that liability could be premised on the notion that the word "blackmail" implied the developer had committed the actual crime of blackmail, we held that, liability on such a basis was constitutionally impermissible -- that as a matter of constitutional Jaw, the word 'blackmail' in these circumstances was not slander when spoken, and not libel when reported in the Greenbelt News Review. Milkovich v. Lorain Journal Co., 497 U.S. 1 (1990), was a United States Supreme Court case that rejected the argument that a separate opinion privilege existed against libel. Media for Milkovich v. Lorain Journal Company. See Cianci, supra, at 64. Milkovich appealed to the Ohio Eleventh District Court of Appeals, which found that there was actual malice. There may have been testimony about what happened, and that testimony may have been perjured, but, to anyone who understands the patois of the legal profession, there is no reason to assume -- from the court's decision -- that such testimony must have been given. See 474 U. S. 953 (1985); 449 U. S. 966 (1980). Milkovich v. Lorain Journal, 497 U.S. 1 (1990) Milkovich v. Lorain Journal Co. No. Diadiun never says, for instance, that Milkovich committed perjury. ", "Is that the kind of lesson we want our young people learning from their high school administrators and coaches? It certainly sounded different from what they told us.'". . . Hepps mandates protection for speech that does not actually state or imply false and defamatory facts -- independently of the Bresler-Letter Carriers-Falwell line of cases. . In any event, it is unlikely that it would be found defamatory. Observers and First Amendment law experts had expected that the Court would formalize its observation in Gertz that "there is no such thing as a false idea" into an opinion privilege against libel claims, expanding the traditional fair comment defense. User Clip: Milkovich v. Lorain Journal ", Id. Media for Milkovich v. Lorain Journal Company. Scott v. News-Herald, 25 Ohio St.3d 243, 254, 496 N.E.2d 699, 709 (1986). Diadiun had already characterized the testimony of the two officials before the OHSAA as "obvious untruths." as Amici Curiae 27. For the same reason, the court in Dunlap v. Wayne, 105 Wash. 2d 529, 540, 716 P.2d 842, 849 (1986), concluded: "Arguments for actionability disappear when the audience members know the facts underlying an assertion and can judge the truthfulness of the allegedly defamatory statement themselves.". Milkovich v. Lorain Journal Co., 65 Ohio App.2d 143, 416 N.E.2d 662 (1979). The court never made an evidentiary determination on the issue of respondents' negligence. ... they won't write the opinion. [Footnote 2/8], Although I agree with the majority that statements must be scrutinized for implicit factual assertions, the majority's scrutiny in this case does not "hol[d] the balance true," ante at 497 U. S. 23, between protection of individual reputation and freedom of speech. But there is also another side to the equation; we have regularly acknowledged the "important social values which underlie the law of defamation," and recognize that "[s]ociety has a pervasive and strong interest in preventing and redressing attacks upon reputation." This provides assurance that public debate will not suffer for lack of "imaginative expression" or the "rhetorical hyperbole" which has traditionally added much to the discourse of our Nation. . Respondent Lorain Journal Co., The News Herald, J. Theodore Diadiun . Page 474 U.S. 953, 957. . Such questions are matters of public concern long before all the facts are unearthed, if they ever are. And since that statement could easily be found true or false by comparing Milkovich's statements at the OHSAA hearing with his court testimony (which the column did not do), it was moot whether it was intended as opinion or not since it asserted a matter of objective fact. For nearly fifteen years, the case bounced, back and forth, through Ohio's courts until the Lorain Journal finally secured a summary judgment on the grounds that the sports column was a constitutionally protected opinion. Statements of belief or opinion are like hyperbole, as the majority agrees, in that they are not understood as actual assertions of fact about an individual, but they may be actionable if they imply the existence of false and defamatory facts. The day after the court rendered its decision, respondent Diadiun's column appeared in the News-Herald, a newspaper which circulates in Lake County, Ohio, and is owned by respondent Lorain Journal Co. In turn, the newspaper appealed to the state Supreme Court, which dismissed it on the grounds that there were no significant constitutional issues. Did NASA officials ignore sound warnings that the Challenger Space Shuttle would explode? "), thereby precluding federal review under Michigan v. Long, 463 U. S. 1032 (1983). Of course, if the speculative conclusion is preceded by stated factual premises, and one or more of them is false and defamatory, an action for libel may lie as to them. After a court hearing, the order of censure was nullified. The trial court again granted summary judgment, the appeals court upheld and the state Supreme Court, as it had the first time around, dismissed the appeal. The day after the court's decision, respondent Lorain Journal Company's newspaper published a column authored by respondent Diadiun, which implied that Milkovich lied under oath in the judicial proceeding. MILKOVICH v. LORAIN JOURNAL CO. et al. The First Amendment does not require a separate "opinion" privilege limiting the application of state defamation laws. See Abrams v. United States, 250 U. S. 616, 250 U. S. 630 (1919) (Holmes, J., dissenting) ("[T]he ultimate good desired is better reached by free trade in ideas . Milkovich v. Lorain Journal Company Page 12 Milkovich v. Lorain Journal Company general information. The audience understands that the speaker is merely putting forward a hypothesis. 89-645. Board of Ed. Distinguishing which statements do imply an assertion of a false and defamatory fact requires the same solicitous and thorough evaluation that this Court has engaged in when determining whether particular exaggerated or satirical statements could reasonably be understood to have asserted such facts. CERTIORARI TO THE COURT OF APPEALS OF OHIO. Nor does he complain or proffer proof that Diadiun had not, in fact, concluded from the stated premises that Milkovich must have lied in court. Both he and School Superintendent Scott testified at an investigatory hearing before the Ohio High School Athletic Association (OHSAA), which placed the team on probation. See Milkovich v. The Lorain Journal, 65 Ohio App.2d 143, 416 N.E.2d 662 (1979). See also Bose Corp. v. Consumers Union of United States, Inc., 466 U. S. 485, 466 U. S. 510-511, and n. 29 (1984) (discussing the risks of submitting various questions to juries where freedom of speech is at stake); Gertz, 418 U.S. at 418 U. S. 349 (expressing concern about juries punishing unpopular opinion rather than compensating individuals for injuries sustained by the publication of a false fact); R. Smolla, Law of Defamation § 6.05(3)(a)(c) (1990); Zimmerman, 18 U.C.D.L.Rev. Diadiun then quotes statements allegedly made by Milkovich to the commissioners to the effect that his wrestlers had not been involved in the fight and his gestures had been mere shrugs. at 398 U. S. 13-14. at 418 U. S. 347-348 ("This approach . See App. ", "Fortunately, it seemed at the time, the Milkovich-Scott version of the incident presented to the board of control had enough contradictions and obvious untruths so that the six board members were able to see through it. 23, 24, 128 F.2d 457, 458, cert. But they do contend that, in every defamation case, the First Amendment mandates an inquiry into whether a statement is "opinion" or "fact," and that only the latter statements may be actionable. It certainly sounded different from what they told us" but without citing any specific examples. Among the circumstances to be scrutinized by a court in ascertaining whether a statement purports to state or imply "actual facts about an individual," as shown by the Court's analysis of the statements at issue here, see ante at 497 U. S. 22 and n. 9, are the same indicia that lower courts have been relying on for the past decade or so to distinguish between statements of fact and statements of opinion: the type of language used, the meaning of the statement in context, whether the statement is verifiable, and the broader social circumstances in which the statement was made. Nonetheless, the Court believed that certain significant constitutional protections were warranted in this area. He then describes Milkovich's testimony before the OHSAA, characterizing it as deliberate misrepresentation. Contacting Justia or any attorney through this site, via web form, email, or otherwise, does not create an attorney-client relationship. Meanwhile, Superintendent Scott had been pursuing a separate defamation action through the Ohio courts. Lorain Journal Co. v. Milkovich, 449 U.S. 966 (1980). . In their brief, amici Dow Jones, et al. Wiki User Answered . at 252, 496 N.E.2d at 707. Please take a moment to review my edit. And, as a result, public debate will suffer. Diadiun not only reveals the facts upon which he is relying, but he makes it clear at which point he runs out of facts and is simply guessing. . Rehnquist, joined by White, Blackmun, Stevens, O'Connor, Scalia, Kennedy, This page was last edited on 19 September 2020, at 20:18. User Clip: Milkovich v. Lorain Journal Prior to it, only statements of fact were actionable. 359 (1985). Milkovich sued the newspaper for defamation. Since the Ohio Court of Appeals did not address the public-private figure question on remand from the Ohio Supreme Court in Milkovich (because it decided against petitioner on the basis of the opinion ruling in Scott), the ruling of the Ohio Supreme Court in Milkovich presumably continues to be law of the case on that issue. [Footnote 2], Petitioner commenced a defamation action against respondents in the Court of Common Pleas of Lake County, Ohio, alleging that the headline of Diadiun's article and the, "accused plaintiff of committing the crime of perjury, an indictable offense in the State of Ohio, and damaged plaintiff directly in his lifetime occupation of coach and teacher, and constituted libel per se. Id. Then Diadiun guesses that, by the time of the court hearing, the two officials "apparently had their version of the incident polished and reconstructed, and the judge apparently believed them." See ante at 497 U. S. 18-19. 1001 (1986); Zimmerman, Curbing the High Price of Loose Talk, 18 U C.D.L.Rev. See, e.g., Restatement of Torts § 558 (1938); Gertz. Another certiorari petition made its way to Washington in 1984, and met with the same fate as its predecessor. 5 6 7. ", "Probably as much in distasteful reaction to the chicanery of the two officials as in displeasure over the actual incident, the board then voted to suspend Maple from this year's tournament and to put Maple Heights, and both Milkovich and his son, Mike Jr. (the Maple Jaycee coach) on two-year probation. Who won the case Milkovich v Lorain Journal Co? See ante at 497 U. S. 17. Certain formats -- editorials, reviews, political cartoons, letters to the editor -- signal the reader to anticipate a departure from what is actually known by the author as fact. The court reaffirmed the earlier holding that Milkovich was a public figure for purposes of the New York Times test and granted the motion. While signed columns may certainly include statements of fact, they are also the "well recognized home of opinion and comment." "The destruction that defamatory falsehood can bring is, to be sure, often beyond the capacity of the law to redeem. ", "Instead they chose to come to the hearing and misrepresent the things that happened to the OHSAA Board of Control, attempting not only to convince the board of their own innocence, but, incredibly, shift the blame of the affair to Mentor. See, e.g., Potomac Valve & Fitting Inc. v. Crawford Fitting Co., 829 F.2d at 1290 (explaining that the contents of a company's newsletter would be understood as reflecting the professional interests of the company, rather than as "a dispassionate and impartial assessment" of a test of a competitor's product); Information Control Corp. v. Genesis One Computer Corp., 611 F.2d 781, 784 (CA9 1980) (recognizing that statements in the early weeks of litigation by one side about the other were likely to include unsubstantiated charges, but that these "are highly unlikely to be understood by their audience as statements of fact"). The court then found that, "the statements in issue are factual assertions as a matter of law, and are not constitutionally protected as the opinions of the writer. Thus, the Scott decision was at least "interwoven with the federal law," was not clear on its face as to the court's intent to rely on independent state grounds, yet failed to make a "plain statement . v. Doyle. to reputation, yet shields the press and broadcast media from the rigors of strict liability for defamation"). While the Amendment does limit such application, New York Times Co. v. Sullivan, 376 U. S. 254, the breathing space that freedoms of expression require to survive is adequately secured by existing constitutional doctrine. As Chief .Justice Warren noted in concurrence, "[o]ur citizenry has a legitimate and substantial interest in the conduct of such persons, and freedom of the press to engage in uninhibited debate about their involvement in public issues and events is as crucial as it is in the case of 'public officials.'". . The following day, Ted Diadiun, a sports writer and columnist for the News Herald, Mentor's daily newspaper, wrote about the decision. [Footnote 2/6] For the first time, Diadiun fails. ", "Cianci v. New Times Publishing Co., 639 F.2d 54, 61 (CA2 1980). We now reverse. The actual decision, however, was regarded as having confused the issue somewhat instead. See Restatement of Torts, supra, § 606. Scott, 25 Ohio St.3d at 248, 496 N.E.2d at 704. Docket no. The Supreme Court of Ohio dismissed Milkovich’s appeal. As this statement implies, comment was generally privileged when it concerned a matter of public concern, was upon true or privileged facts, represented the actual opinion of the speaker, and was not made. Similarly, where such a statement involves a private figure on a matter of public concern, a plaintiff must show that the false connotations were made with some level of fault. Mt. 220, 226, 396 N.E.2d 996, 1000 (1979) (finding that, as listeners were told the facts upon which the radio talk show host based her conclusion, they "could make up their own minds and generate their own opinions or ideas which might or might not accord with [the host's]"). An op-ed column in a local newspaper implied that Milkovich lied under oath during a court case. [Footnote 2/7]. 3d 596, 603, 131 Cal. In deciding Milkovich v. Lorain Journal Co., 497 U.S. 1 (1990), the Supreme Court ruled that opinions can be defamatory and that no broad constitutional shield for the expression of defamatory opinions is appropriate. See Bresler, supra; Letter Carriers, supra; Falwell, supra. For the first time, the column quotes a third party's version of events. Michael MILKOVICH, Sr., Petitioner, v. LORAIN JOURNAL CO. et al. . Allegedly, many present believed that Mike Milkovich, then the Maple Heights High School coach, had played a large part in causing the brawl by publicly criticizing decisions made by referees and inciting the crowd. Yet even though clear disclosure of a comment's factual predicate precludes a finding that the comment implies other defamatory facts, this does not signify that a statement, preceded by only a partial factual predicate or none at all, necessarily implies other facts. . The majority opinion, Milkovich v. Lorain Journal, No. In 1979 the U.S. Supreme Court denied certiorari. . Ignorance, without more, has never served to defeat freedom of speech. at 430. . Circuit in Ollman v. Evans, 242 U.S.App.D.C. However, I would think that documentary or eyewitness testimony that the speaker did not believe his own professed opinion would be required before a court would be permitted to decide that there was sufficient evidence to find that the statement was false and submit the question to a jury. This decision balances the First Amendment's vital guarantee of free and uninhibited discussion of public issues with the important social values that underlie defamation law and society's pervasive and strong interest in preventing and redressing attacks upon reputation. Milkovich v. Lorain Journal, 497 U.S. 1 (1990) Milkovich v. Lorain Journal Co. No. Because I would affirm the Ohio Court of Appeals' grant of summary judgment to respondents, albeit on somewhat different reasoning, I respectfully dissent. The common law generally did not place any additional restrictions on the type of statement that could be actionable. leaders arrange for John Fitzgerald Kennedy's assassination? "Whatever is added to the field of libel is taken from the field of free debate." . In Greenbelt Cooperative Publishing Assn., Inc. v. Bresler, 398 U. S. 6 (1970), a real estate developer had engaged in negotiations with a local city council for a zoning variance on certain of his land, while simultaneously negotiating with the city on other land the city wished to purchase from him. For. Argued April 24, 1990Decided June 21, 1990 — Decided. Milkovich, a high school wrestling coach, sued the Lorain Journal for libel after a sports writer for its newspaper wrote a column implying the … ", App. What may be more disturbing to some about Diadiun's conjecture than, say, an editorial in 1960 speculating that Francis Gary Powers was in fact a spy, despite the Government's initial assurances that he was not, is the naivete of Diadiun's conclusion. As noted in the 1977 Restatement (Second) of Torts § 566, Comment a: "Under the law of defamation, an expression of opinion could be defamatory if the expression was sufficiently derogatory of another as to cause harm to his reputation, so as to lower him in the estimation of the community or to deter third persons from associating or dealing with him. In the interim, Scott had been pursuing a separate action which the Ohio Supreme Court considered in 1986. Lower court Ohio Supreme Court . He had been at the original wrestling match and the OHSAA hearing but not at the court hearing. This is not the sort of loose, figurative or hyperbolic language which would negate the impression that the writer was seriously maintaining petitioner committed the crime of perjury. denied, 471 U.S. 1127 (1985). . Id. Both Maple Heights and Mentor are included in the Cleveland standard consolidated statistical area, which in 1980 had a population of 2,834,062. However, Milkovich did not complain of the quotation in his pleadings. . "attempting not only to convince the board of [his] own innocence, but, incredibly, shift the blame of the affair to Mentor." 252-253, 496 N.E.2d at 708 the capacity of the new York Times,,., 398 U.S. at 418 U. S. 780 ( Brennan, J., concurring ) ( quoting v.... Of those who know more that 'legal conclusions ' in such a reader would not expect a writer! To leave purposeful and potent messages S. 953 ( 1985 ) 's state tournament accusation that accusation! 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