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Honk If You Love Incitement Law:

From Goedert v. City of Ferndale, 2008 WL 928315 (E.D. Mich.), a case decided last year, but just posted on Westlaw — a fun fact pattern, and one that rarely leads to First Amendment litigation. I offer the opinion as an interesting bit of First Amendment analysis for First Amendment buffs; I leave it to you to figure out whether and to what extent you think this is right.

Plaintiffs challenge the City of Ferndale's suppression of automobile horns as a form of expression. The City has enforced an ordinance to prohibit the display of signs asking motorists to "honk" their horns to express their support for the demonstrators, and prohibiting motorists from honking their horns for that purpose. Plaintiffs allege that the City's prohibition violates the First Amendment's guarantee of freedom of speech.

In support for peace in Iraq, Plaintiffs Nancy Goedert, Victor Kittila, and Jim Grimm have participated in a Vigil on the corner of Woodward Avenue and Nine Mile Road in the City of Ferndale on Monday evenings. The Vigil has been conducted at that location for nearly five years. At one point, Vigil participants began to display signs stating "Honk for Peace" and later "Honk if You Want Bush Out." Over the years, hundreds of motorists have communicated their agreement with the demonstrators by honking their horns as they passed by the Vigil. Plaintiffs characterize the honks in support of the Vigil as citizens electing to join in a conversation among the citizens on perhaps the most pressing public issue of the day.

For the first three and a half years of the Vigil, there were no traffic problems or accidents associated with the Vigil. Ferndale changed its approach towards the Vigil in June of 2006, when Police Captain Timothy Collins witnessed the same intersection crowded with health care reform demonstrators. Demonstrators were on every corner of the intersection, the sidewalks, and alongside the median. A concerned Captain Collins felt that the demonstrators were unruly and were causing a safety hazard by leaning into traffic with their signs, and he felt that the honking of vehicle horns was a distraction that could lead to safety problems. The next morning, Captain Collins discovered a Michigan Statute, M.C.L. 257.706(a), which provides that "the driver of a motor vehicle shall when reasonably necessary to insure safe operation give audible warning with his horn but shall not otherwise use the horn when upon a highway." This "Honk Statute," like the rest of Michigan's Motor Vehicle Code, has been incorporated into Ferndale's ordinances....

Captain Collins then contacted the City Attorney's Office to ascertain whether both statutes could be enforced against the demonstrators. The City Attorney's Office approved the enforcement of the statutes against those at the Vigil, and the decision to apply them to ban the use of the word "honk" on any signs at the Vigil. After receiving a warning from the Ferndale police department, Plaintiff Kittila revised his sign to read "Ferndale Cops Say: Don't HONK if you want BUSH OUT." Plaintiff Nancy Goedert was holding a similar sign that read "POLICE SAY DON'T HONK for PEACE." On July 3, 2006 Plaintiff Kittila was arrested for holding his sign, while two weeks later, on July 17, 2007 Nancy Goebert was ticketed by the City for violation of the "Honk Statute ." On October 9, 2006, Officer Carroll stopped and ticketed a motorist who honked in support of the Vigil, Plaintiff Brian Price....

JWHIII (mail):
Honk if you love the First Amendment!
2.25.2009 8:24am
SailorDave (www):
What we need is 2 horn sounds in every car, one for 'polite honk' and one for 'noisy, rude, we're about to collide honk'. horn sounds are stressful and road-rage inducing, even though a lot of them have gentle intents like 'your tire is flat' or 'i love peace'.
2.25.2009 8:24am
Hank:
I would treat the ordinance as a content-neutral time, place, and manner regulation, even though it allows honking for safety purposes. The precedent for this is Renton v. Playtime Theatres, Inc., 475 U.S. 41, 48 (1986), which upheld restrictive zoning of "adult" theaters on the ground that, even though such zoning is content-based, it is "justified without reference to the content of the regulated speech." Such zoning is aimed at combating "secondary effects" such as crime and reduced property values, and therefore receives only intermediate scrutiny. This means that it must serve merely a substantial (not a compelling) governmental interest, and, although it must be narrowly tailored, it need not be the least restrictive means to advance the governmental interest. The anti-honking ordinance is justified on non-speech-related grounds and would easily pass intermediate scrutiny test.
2.25.2009 9:05am
anomdebus (mail):
SailorDave, I have thought the same thing.


The "don't honk" signs are very clever. Doing nothing is purported to be a sign of support. To disagree with the protesters you have to honk, which is illegal.
2.25.2009 9:08am
Matthew K:

The "don't honk" signs are very clever. Doing nothing is purported to be a sign of support. To disagree with the protesters you have to honk, which is illegal.

Reminds me of a time at my school when someone posted signs saying that Friday was "Wear Jeans if you're Pro-Life Day." This proved annoying to many people, until someone posted other signs saying that Friday was also "Wear Jeans if you want to have Sex with Me Day." There were some others "Wear underwear if..." etc, but the sex one was the best.

I wore khakis, just in case. :-P
2.25.2009 9:11am
J. Aldridge:
People should be able to "bring the government and any person in authority to the bar of public opinion" but not to make a public nuisance of themselves in order to draw attention to themselves or their political message.
2.25.2009 9:17am
Happyshooter:
Page Hood ruling in favor of people who hate Bush is like muslims voting in favor of stoning women who act in porn. No deep legal thoughts and soul searching there.
2.25.2009 9:21am
Yankev (mail):
When people were asked to drive with their lights on to protest the Viet Nam war, a Chicago DJ pointed out that there were many other reasons to drive with your lights on, and suggested that protesters drive with their car doors open.
2.25.2009 9:29am
DennisN (mail):
There should be at least intelectual precedent (I don't know if there's anny case law.) for such content based restrictions, based on the "shouting Cinema in a crowded fire station" principal.

But in this case, it is a direct assault on Political speech, which brings it into the category of the strictest scrutiny.
2.25.2009 9:30am
Oren:

What we need is 2 horn sounds in every car, one for 'polite honk' and one for 'noisy, rude, we're about to collide honk'.

Most car horns can accomplish this already, just press lightly and briefly to make a polite bleep.
2.25.2009 9:35am
FlimFlamSam:
I think the court got this wrong. The city's action doesn't seem aimed at any particular political message but the use of nuisance-causing and (potentially) accident-causing car horns. The state statute restricting the use of car horns to road safety purposes--and the city's enforcement of that statute--seems to me to be perfectly reasonable time-place-manner restriction that is content-neutral.
2.25.2009 9:46am
Hank:
But in this case, it is a direct assault on Political speech, which brings it into the category of the strictest scrutiny.

No. The facts of the case happen to involve political speech, but the ordinance is aimed at all non-traffic-hazard speech. The facts of the case could have involved honking if you like chocolate bars and the analysis would be the same.
2.25.2009 9:47am
anomdebus (mail):
Oren,
I don't know if my car has a feature like this ('97 Subaru), but I can get my car to chirp with quick shallow push. It takes alot more attention to try to do this consistently (and doesn't always work, which suggest my car doesn't).
2.25.2009 9:55am
aces:
At least the banners didn't say "BONG HONKS 4 JESUS."
2.25.2009 10:12am
Oren:
anomdebus, '04 Subie 2.5RS and yeah, it takes a bit of practice to get the polite chirp. I find that pressing the very far corner of the steering wheel instead of dead-center helps a lot.
2.25.2009 10:32am
Inane:
Yell 'Honk' for peace!
2.25.2009 10:34am
Inane:
Yell 'Honk' for peace!
2.25.2009 10:34am
KevinM:
I love the "Don't Honk for Peace" lady. Does that mean that by not honking I've expressed solidarity with the peace message? If I remain silent, do I have a Wooley v. Maynard coerced-speech claim? And suppose the sign really honks me off?
2.25.2009 10:44am
ChrisIowa (mail):

anomdebus, '04 Subie 2.5RS and yeah, it takes a bit of practice to get the polite chirp.

So be sure to practice honking your horn so you can preserve the peace.
2.25.2009 10:58am
Houston Lawyer:
A group regularly demonstrates on the overpass over Highway 59 South here in town. This is a heavily travelled freeway with 10 lanes of traffic at this point. Traffic is always backed up when a protest is going on, as people slow down to gawk.

I would propose a city ordinance preventing anyone from staging a demonstration above or adjacent to any freeway. Protestors distract drivers causing accidents. Freedom of speech is not freedom to mess with traffic.
2.25.2009 10:58am
EricPWJohnson (mail):
Was the action of the defendent to uphold fairly an already existing ordinance?

It was.

In the city of Ferndale - repeated honking - is a tickable offense

Was this was enforced against both sides?

It was incumbant upon the plantiff to show that there was a deliberate act by the city to deny them the first amendment

They could have said sing! Wave, roll down your windows, put a fist in the air, turn on your lights etc

Instead they choose a disruptive and potentially dangerous way to garner attention unlawfully to their cause.

Honestly, the stretching of legal arguments here makes one wish for a civilian disbarment board! This was a clear case of civil disobedience

This distorted opinion passage here makes me wonder if any law has any validity


While Defendant Ferndale claims that the sounding of a horn is incapable of being speechno really you mean if someone is a block away they completely understand what the honking is about?, the honks nevertheless convey a particularized message that is understood by those who hear it.really, I'm inside on the john but I understand instantly why all those idiots outside are honkingabout! Do they let people actually say stupid stuff like this in court? In fact, the Ferndale police ticket the motorists purely based upon exactly that, the "particularized message" the motorist is trying to convey.no a Michigan statute gives the mandate to the city to enforce the safety retrictions that were agreed to when the driver/operator signed his license Motorist Brian Price was ticketed by Officer Carroll for the message he tried to convey through use of his horn.again what does statute mean? Does it mean honk for safety or honk for the hell of it? For Ferndale to now claim that a honk is simply a honk, incapable of conveying speech is disingenuous. the what is a honk - what is a fart - what is a backfire? If a honk is incapable of conveying speech,please lets take the jury out to the parking lot and honk horns for half an hour - then ask the plaintiff what message was being conveyed then Ferndale would not be able to discern which honks are unlawful under their "Honk Statute," making the ordinance impossible to apply to motorists. Ferndale's application of the statute, however, is evidence of the ability of the vehicle's horns to convey speech. The "Honk Statute," as written, provides for an inference that a honk may convey speech, that of "warning." ...
2.25.2009 11:13am
Steve P. (mail):
The city's action doesn't seem aimed at any particular political message but the use of nuisance-causing and (potentially) accident-causing car horns.

Instead they choose a disruptive and potentially dangerous way to garner attention unlawfully to their cause.

Did anyone read the opinion?
"Mere speculation of harm does not constitute a compelling state interest."
2.25.2009 11:41am
ArthurKirkland:
Do these vigilant officers and lawyers enforce the honking restrictions when the local pro team wins the Super Bowl or World Series? Do they arrest drivers who honk and clog traffic lanes after the hometown high schoolers win a big game?

I thought not.

That's a problem for their defense of the no-honking policies. Not necessarily dispositive -- maybe they should be fired for ignoring the honks they (and the powers that be in their jurisdiction) like, rather than criticized for challenging the honks they do not like -- but a problem.
2.25.2009 12:08pm
guy in the veal calf office (mail) (www):
This was an awesome post. Thanks, Professor, you're the yeast that leavens the Conspiracy.
2.25.2009 1:32pm
arbitraryaardvark (mail) (www):
I've never met a noise ordinance that wasn't written in decibels, or a police department that knew how to measure decibels.
2.25.2009 1:56pm
BZ (mail):
Same question of ambiguity of message and demand came up in today's Pleasant Grove v. Summum opinion in the context of messages conveyed by objects (rather than actions):


What respondent demands, however, is that the City "adopt" or "embrace" "the message" that it associates with the monument. Id., at 33--34, 57. Respondent seems to think that a monument can convey only one "message"—which is, presumably, the message intended by the donor—and that, if a government entity that accepts a monument for placement on its property does not formally embrace that message, then the government has not engaged in expressive conduct.

This argument fundamentally misunderstands the way monuments convey meaning. The meaning conveyed by a monument is generally not a simple one like " 'Beef. It's What's for Dinner.' " Johanns, supra, at 554. Even when a monument features the written word, the monument may be intended to be interpreted, and may in fact be interpreted by different observers, in a variety of ways. Monuments called to our attention by the briefing in this case illustrate this phenomenon.

What, for example, is "the message" of the Greco-Roman mosaic of the word "Imagine" that was donated to New York City's Central Park in memory of John Lennon? See NYC Brief 18; App. to id., at A5. Some observers may "imagine" the musical contributions that John Lennon would have made if he had not been killed. Others may think of the lyrics of the Lennon song that obviously inspired the mosaic and may "imagine" a world without religion, countries, possessions, greed, or hunger.2

Or, to take another example, what is "the message" of the "large bronze statue displaying the word 'peace' in many world languages" that is displayed in Fayetteville, Arkansas?3

These text-based monuments are almost certain to evoke different thoughts and sentiments in the minds of different observers, and the effect of monuments that do not contain text is likely to be even more variable. Consider, for example, the statue of Pancho Villa that was given to the city of Tucson, Arizona, in 1981 by the Government of Mexico with, according to a Tucson publication, "a wry sense of irony."4 Does this statue commemorate a "revolutionary leader who advocated for agrarian reform and the poor" or "a violent bandit"? IMLA Brief 13.


There is more, but this covers the point of "honk" vs "don't honk" signs.
2.25.2009 2:13pm
Jonah (mail) (www):
I think all un-emergency honking should be ticketed, especially those ridiculous cars that honk whenever you hit the lock button on your keyless entry remotes. And I think car manufacturers who thought these were a good idea in the first place should be fined for every single time anyone has used one.
2.25.2009 4:06pm
LarryA (mail) (www):
Most of these issues could be avoided if proposed laws and ordinances had to go through a "passing this will make you look stupid" review.
2.25.2009 4:47pm
pintler:

I would propose a city ordinance preventing anyone from staging a demonstration above or adjacent to any freeway. Protestors distract drivers causing accidents. Freedom of speech is not freedom to mess with traffic.


OTOH, being allowed to wave your sign only where no one can see it kind of misses the point...kind of like the recent innovation of 'free speech zones' at presidential events.
2.25.2009 6:13pm
Fub:
After receiving a warning from the Ferndale police department, Plaintiff Kittila revised his sign to read "Ferndale Cops Say: Don't HONK if you want BUSH OUT." Plaintiff Nancy Goedert was holding a similar sign that read "POLICE SAY DON'T HONK for PEACE." On July 3, 2006 Plaintiff Kittila was arrested for holding his sign, while two weeks later, on July 17, 2007 Nancy Goebert was ticketed by the City for violation of the "Honk Statute ." ...
Heh. Reminds me of an old Herb Caen line. Back in the Viet Nam war protest days, an SF Bay Area anti-war group was fairly successful in a campaign to persuade drivers to turn on their headlights in the daytime to protest the war. Naturally, pro-war advocates were unhappy with the result. Noting this in his daily SF Chronicle column, Caen suggested that those in favor of the war show their support by driving with their lights off at night. But he wasn't arrested for incitement.
2.25.2009 6:15pm
FlimFlamSam:
Steve P.

You seem to think this statement of the Court is important: "Mere speculation of harm does not constitute a compelling state interest."

The court is wrong, there is no speculation here. It doesn't take a Brandeis brief to understand that horns on car are there to warn of dangers, and that indiscriminate use of the horn in the absence of danger can create harm, both by desensitizing nearby motorists to legitimate horn use and by frightening motorists into believing there is danger when there is none. "Speculation of harm" may not be a compelling state interest, but the harm here is not speculative, it's obvious.

The statute here boils down to "don't honk unless there's a danger," and it reminds me a lot of 911 misuse statutes. What if the honkers were instead incited to dial 911 and say how much they love peace or hate George Bush or whatnot. The harm there is just as "speculative" as in this case, but I bet you would say that 911 misuse statutes are constitutional. Certain modes of communication are clearly designed--and universally understood--to be used in emergencies only. There is clearly a compelling state interest in prohibiting the misuse of these sorts of communication, and any such restrictions are reasonable time-place-manner restrictions.

Maybe there have been no wrecks caused by this situation so far, but so what. You shouldn't confuse "harm that hasn't happened yet" with "speculative harm," the two concepts are not synonymous.
2.25.2009 6:30pm
ArthurKirkland:
How much jail time should those tagged for honking during Super Bowl and state championship celebrations receive?

Given the prevalance, a stout deterrent would be appropriate. What about two years?

I'd let pedestrians who wrongfully commandeer traffic lanes against the light when the high school football game ends off with a month or two. Same for the driver who double-parks outside church, waiting for an elderly passenger. But perhaps I am too much the softie.
2.25.2009 8:05pm
Caliban Darklock (www):
I'd tend to argue that the signs encouraging motorists to honk were encouraging motorists to break an existing law. As such, they constituted incitement, and could be regulated.

One might compare a sign saying "Thumbs up if you want Bush out" to a sign saying "Expose your genitals if you want Bush out". While both encourage a physical gesture to signify agreement, one of those gestures is already a criminal offense. It isn't the SPEECH which the ordinance restricts, but the METHOD of speech. Motorists are free to affirmatively signify their support of the protesters by any and all other, lawful means; so, too, are the protesters free to request the communication of support by other, lawful means.

You can identify all kinds of signs that would be over the line here. "Brandish a weapon if you want Bush out." "Rape someone for peace." "Molest your children if you love Jesus." "Stab a cop if you thought Die Hard was an awesome movie." It's not the political component of the speech which is at issue; only the component which violates the existing law.

By the same token, there's an implied incitement when you reverse it. "Don't stab a cop if you're retarded" clearly implies that you SHOULD stab a cop if you're NOT retarded, which creates the same situation. Compare screaming "NO FIRE" in a crowded theatre.
2.25.2009 10:34pm
Brendanav (mail):
"You shouldn't confuse "harm that hasn't happened yet" with "speculative harm," the two concepts are not synonymous."

They're not? Permit me to fall on my knees and worship before you, oh mighty organizer of the determinate universe!

I guess statistically honking a horn will ultimately cause some dope to run into a traffic light. It's ...well...plausible isn't it? And maybe the Jews are plotting to take over Germany.

What price freedom? Some thought it was worth their lives, but by concealing yourselves within the vast legions of navel-gazing entitled bedwetters, some of you clearly don't think you should be inconvenienced or exposed to risk, for something as silly as Freedom of Speech.

So you parse the nature of harm, and whether it exists or not(global warming, anyone?). Yet it is far more likely that others of the honking hysteria class will certainly run into stoplights for other reasons, such as eating a bowl of cereal while driving with their knees (...incredible, but I have seen it). Having interferred with free speech in the instant case, then why not outlaw milk, or alphabet cereals to forclose the possibility of catastrophe? what have you to say? Yet isn't the right to free speech is more important than a bowl of cereal, or perhaps is it only to those strong enough to stomach it, or who fail to take a little closer look into the bowl, to see that the sugary letters (digested or not) spell out f*** y**. The message is exactly the same for the highly selective "Officer Collins" (vide supra).
I distinctly remember being shaken down by the San Diego police one fine evening at 1 A.M. after a long night in the library. They demanded my ID, and this was back when this was a Republic and not a coven of wienies, afraid of their shadows and terrified by neighbors that look like an explosion in a laundry hamper. Back then it was verboten for cops to harrass citizens in the absence of reason. I told them, as any US Citizen should, to F*** off, since at that time we didn't have to bow and scrape before low-lice (er...lifes) of the new Stasi. Surprisingly they agreed that they had no right to demand my ID, but would arrest me anyway if I refused, since SD Police Chief Bill Kolander had told them to ignore the Constitution. Now, Kolander was undeniably a good man in all ways except for respect for the rights of the People of the United States. You could count on him for the Boy Scout Pancake Breakfast at Mission Bay (but recall that people said Himmler had a fine handshake and Hitler doted on kids. I finally relented and showed them my ID. I still regret giving in. I was poor and had a pregnant wife at home who would worry. Kolender was relying on a Calif statute which sucked (and nothing has changed about the mocking thugs that run California and squeeze these abominations out). Kolander ultimately had his head handed to him by SCOTUS [Lawson vs. Kolander, 461 U.S. 352 (1982)] but I am still ashamed and Kolander got his obscene pension. Let
Right be Done, indeed. One can only hope there is a hell. Hope! Now, that's the ticket!
2.26.2009 12:24am
bbbeard (mail):
Interesting.

I wonder if there is a connection to a recent traffic ticket I earned. After passing a speed trap in my home town, I flicked my headlights at the oncoming traffic: the universal signal to "slow down". A policeman moving in the oncoming traffic took umbrage, fired up his lights and siren, did a prompt U-turn, and hit me up with a ticket for "multiple beams" -- an infraction of which I was previously unaware in 36 years of driving. The officer apparently felt I was interfering with the enforcement of the law by, well, getting people to comply with the law (in a way that didn't generate revenue for the town).

I am still steamed about the ticket because I feel my First Amendment rights are being trampled in the name of revenue. The headlight flash is clearly expressive. Do or do I not have the right to inform fellow citizens of the proximity of police officers? And clearly the effect of the headlight flash is positive for traffic safety -- it gets more people to slow down prudently than the speed trap by itself can. The officer did more to endanger public safety by doing a U-turn on a 40 mph undivided road than I could possibly have accomplished with a flick of the headlights.

So what gives?

BBB
2.26.2009 1:02am
ReaderY:
If the City can't suppress honking as a form of expression, can it suppress ambulance siren sounds? Tornado warning siren sounds?

At some on the spectrum it becomes clear that there is a compelling interest involved, and a serious risk of death, perhaps mass death, exists if government is unable to reserve certain sounds to represent warnings of danger and these sounds become so often used for personal expression people become inured to them

A car horn may be a relatively mild warning on this spectrum compared to some of the others. But is it off it?

We also have here a classic hallmark of morals legislation: laws which prevent a state of affairs none of us have ever seen precisely because we have norms in place to prevent the state from occurring. I doubt most of us could imagine a world where everybody possessed a personal set of tornado warning sirens and blasted them so often that people became completely inured to the sound. Yet that world isn't ours only because most people are held back by social norms from using the tornado warning sound for personal expression. Laws implementing those social norms may seem silly and overreaching if the social norm is so strong that violations are occassional and moderate. They may become much more obvious only when society has so changed, and the norm has become completely eroded, that violations happen all the time.
2.26.2009 1:21am
Henry (mail):
BBB, I agree with your First Amendment analysis, but, before you get to that, I would look up the law in your jurisdiction to see what it says about "multiple beams." Cops are generally not lawyers, you know. I once pulled out from a parking space on the street into traffic without adequately looking and a car going in my direction hit me. The cop gave me a ticket for failure to stop. I looked it up and discovered that that charge meant failure to stop at a stop sign. I got off. I deserved a ticket but it should have been for something else.
2.26.2009 3:05am
ArthurKirkland:
The theoretical debate is worthwhile. But the practical must also be addressed. Unless Police Captain Timothy Collins can establish that his evenhanded concern about honking has generated citations for those honking outside the football stadium or after a wedding ceremony, should his demonstrated taste for unlawful viewpoint discrimination be grounds for dismissal?
2.26.2009 8:47am
DennisN (mail):

If the City can't suppress honking as a form of expression, can it suppress ambulance siren sounds?


Those are usually controlled as are red and blue lights. I can have an amber flasbar on my truck, but not a blue or red one. I think that's a different issue, though. Ambulance sirens and lightbars in traffic are impersonation issues.

A horn is a much more neutral signalling device.

It has valid uses in traffic other than as an emergency signal. A toot to attract someone's attention followed by a hand signal (Not THAT one! ;-) ) is at least valid enough to not get you a ticket.
2.26.2009 6:08pm
fountainpop (mail):
I'm in Michigan. When I read this post:


"Do these vigilant officers and lawyers enforce the honking restrictions when the local pro team wins the Super Bowl or World Series?"



I had to laugh out loud. Ferndale is in suburban Detroit. The notion of the Lions having won the superbowl got my Friday off to a good start.

I concede that when the Tigers/Pistons/Wings have won championships there was probably some un-punished honking.
2.27.2009 8:24am
ArthurKirkland:
That concession indicates that Capt. Collins should be encouraged to find a line of work for which he is suited.
2.27.2009 8:50am
FlimFlamSam:
Brendanav,

To the extent your post was readable, I'll say this in response. "Speculative harm" implies that there is no, or at least little, evidence that harm might result in the absence of the regulation in question. But there are plenty of situations where harm has yet to happen, but that harm is not speculative. Before Chernobyl, no nuclear plant (at least to my knowledge) had ever suffered a meltdown, but the possibility of a meltdown was not "speculative" pre-Chernobyl.

If you don't understand that distinction, you don't understand the English language, or at least you don't understand the word "speculative."
2.27.2009 10:53pm

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