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September 13, 1978

Lawrence A. JACKSON, Auburn State Prison, Auburn, New York, Frank Cole, Green Haven State Prison, Stormville, New York, Floyd L. Couse, Auburn State Prison, Auburn, New York, Edward J. Bardo, Attica State Prison, Attica, New York, Thomas Hazelton, Green Haven State Prison, Stormville, New York, Warren Scarberry, Attica State Prison, Attica, New York, the Mattachine Society, the Fortune Society, Plaintiffs,
Benjamin WARD, Commissioner of Correction of the State of New York, Governor Alfred E. Smith Office Building, State Office Building, Albany, New York, Harold J. Smith, Superintendent of the Attica Correctional Facility, Attica, New York, Robert J. Henderson, Superintendent of the Auburn Correctional Facility, Auburn, New York, Leon Vincent, Superintendent of the Green Haven Correctional Facility, Stormville, New York, Individually and in their official capacities, Defendants. Joseph P. LITTLE and Richard Clark, Petitioners, v. Vincent R. MANCUSI, Superintendent of Attica Correctional Facility, and William A. Dickinson, Educational Supervisor and Censor, Respondents. Calvin JOHNSON, Plaintiff, v. Vincent R. MANCUSI, Superintendent, Attica Correctional Facility, Defendant. Application of Carl JONES. Application of Gary R. HAYNES. George NIEVES, Petitioner, v. School Supervisor Mr. DICKERSON, Respondent. Application of Edward VOGT and Charles Jackson

The opinion of the court was delivered by: CURTIN

When this civil rights action under 42 U.S.C. § 1983 was first filed with the court on November 26, 1969, six named inmates and the Mattachine and Fortune Societies challenged the guidelines and procedures of the New York Department of Correctional Services governing the review by corrections officials and the receipt of literature by inmates in New York State correctional facilities. Plaintiffs sought a declaratory judgment and preliminary and permanent injunctive relief against the Commissioner of Correction and the wardens of the Attica, Auburn, and Green Haven State Prisons.

Plaintiffs originally complained that the defendants had continually denied them access to certain books, magazines, newspapers, and other publications including Arthur Koestler's The Ghost in the Machine, Peter Gay's The Enlightenment, Erik Erikson's Youth and Crisis, Claude Levi-Strauss' The Savage Mind, Marshall McLuhan's Understanding Media, Charles Silberman's Crisis in Black and White, the Fortune Society's Newsletter, Psychology Today, and National Geographic. Plaintiffs alleged that such denials were arbitrary, discriminatory, based solely on whim and caprice, and deliberately repressive. The complaint alleged that the denials were not based on any objectively valid criteria and were not rationally related to goals of the prison system. Plaintiffs also alleged that the denials had been made without the establishment of and compliance with any objective and valid procedures for screening publications coming into the penal institutions. In additional causes of action, the plaintiffs alleged that defendants had adopted policies and engaged in practices that prohibited the plaintiffs from corresponding with anyone that was not approved by the defendants and that they had thus been prohibited from corresponding with public figures, religious leaders, governmental units, friends and relatives. Plaintiffs alleged that it was the defendants' regular practice to censor all mail coming into New York's penal institutions, including legal mail and correspondence with the courts. Plaintiffs sought injunctive relief against the continuation of these policies and sought the establishment of objective and rational policies as well as appropriate implementing procedures.

 By my order of December 21, 1970, I recognized that it was appropriate for this lawsuit to proceed as a class action. In the original complaint, plaintiffs had sued on their own behalf and "in behalf of all other inmates in prisons under the authority of the Commissioner of Correction and the other defendants."

 Since the original action was instituted, Benjamin Ward has become the Commissioner of New York State Department of Correctional Services, Harold J. Smith has become the Superintendent of the Attica Correctional Facility, Robert J. Henderson has become the Superintendent of the Auburn Correctional Facility, and Leon Vincent has become Superintendent of the Green Haven Correctional Facility. These individuals, as successors in office of the original and succeeding named defendants, are hereby substituted as the defendants in this action.

 After the original action was filed, related actions were filed by a number of pro se inmate litigants. Extended negotiations among the parties, several meetings with this court, and decisions by other courts led to substantial revisions of the challenged practices and procedures.

 On April 29, 1971, the Department of Correctional Services issued Administrative Bulletin No. 2. This Bulletin stated that it was the policy of the Department of Correctional Services

to allow access by inmates to literature and related materials for either program or private individual use. Accordingly, inmates shall be allowed to subscribe to or to receive from authorized correspondents a wide range of books, magazines, and newspapers.

 However, the Bulletin contained the following proviso:

There are, however, some inmates whose emotional instability and antisocial attitudes are such that the (consumption) *fn1" of certain reading material may lead to individual behavior or behavior by groups of inmates which threaten the safety and security of the institution for both staff and other inmates, and which deter the operation of a therapeutic program.
Administrative Bulletin No. 2 then set forth seven guidelines governing the acceptability of literature for inmates:
1. In general, the materials should be acceptable for regular mailing in the United States.
2. The publication should not appeal predominantly to prurient, shameful or morbid interest in nudity, sex, execretion (sic), sadism, or masochism, or go beyond the customary limits of candor in describing or representing such matters. (See Penal Law § 235.00).
3. The publication should not defame, villify (sic) or incite hatred towards persons because of their race, religion, creed or national origin.
4. The publication should not advocate the violent overthrow of the existing form of government of the United States or of this state. (See Penal Law § 240.15).
5. The publication should not advocate lawlessness, violence, anarchy or rebellion against governmental authority or portray such conduct as a commendable activity.
6. The publication should not incite hatred or disobedience towards law enforcement officers or prison personnel.
7. The publication should not depict the use or manufacture of firearms, explosives and other weapons.
The Bulletin specified that a review committee was to be established by the Superintendent of each correctional facility to consider the publications which had been challenged as unacceptable. This review committee was then to report its recommendations to the Superintendent of the facility who in turn was directed to forward the committee's report and his decision to the Commissioner of Correctional Services. The Commissioner's office would then investigate further and would confer with the Superintendent before a final decision was reached. In the interim, the preliminary decision of the Superintendent was to be in effect. Bulletin No. 2 established certain time limits for the actions by the review committee, the Superintendent, and the Commissioner's office.
Responding to the order of Judge Mansfield in Sostre v. Otis, 330 F. Supp. 941 (S.D.N.Y.1971), the Department of Correctional Services issued a new set of regulations dated September 7, 1971, amending Administrative Bulletin No. 2.
Judge Mansfield had concluded that the procedures set forth in Administrative Bulletin No. 2 "would not satisfy the requirements of due process were it the mechanism by which censorship was imposed on literature in a free society outside prison walls." Id. at 944. He noted that the procedure was deficient in these respects: first, it was completely Ex parte : notice need not be given either to the literature's publisher or to the inmate; second, it failed to place on the censors the burden of showing that censored literature was not "protected" and it seemed to permit a final restraint without any judicial determination; third, those affected by the censorship were not allowed an opportunity to be heard. He recognized that "certain literature may pose such a clear and present danger to the security of a prison, or to the rehabilitation of prisoners, that it should be censored." Id. He then ruled that inmates were entitled to the rudimentary due process protections of (1) notice, (2) some opportunity to object, either personally or in writing, and (3) a decision by a body that could be expected to act fairly. Judge Mansfield concluded that requirement (3) had been satisfied by existing procedures but he found that the essential elements of notice and an opportunity to be heard were lacking.
Administrative Bulletin No. 2, as amended, provided an additional guideline which read:
8. The publication should not be of such a nature as to depict, describe or teach methods and procedures for the acquisition of certain physical manipulations and skills which expertise will, in the opinion of Department authorities, constitute a threat to the safety, welfare and health of other inmates and employees.
Amended Bulletin No. 2 also provided for a revised review procedure for literature coming into the correctional facilities. Under this procedure, the Superintendent or his delegates had the initial responsibility to review incoming literature and to ascertain its acceptability under the eight guidelines. Each institution was directed to establish a "Media review committee." If the Superintendent or his delegate determined that a certain publication should be referred to the media review committee, the inmate to whom the literature was addressed was to be advised in writing immediately that such review would take place. The inmate was allowed an opportunity to provide written reasons, accompanied by book reviews or other material provided by the publisher, to support his claim that the publication should be released to him. After considering the record before it, the review committee would then submit its recommendation to the Superintendent who could uphold or reverse the recommendation. Acceptable literature would then be released to the inmate promptly. If the Superintendent agreed that a certain publication should be rejected, the literature would then be forwarded to the newly-established Departmental Media Review Committee in Albany with the remainder of the record.
The responsibility of the Departmental Media Review Committee was limited to review of those publications rejected for inmate reading by the various institutions' review committees. The Departmental Media Review Committee would evaluate the contested publication in accordance with the eight guidelines of Amended Bulletin No. 2 and would issue a final written determination as to the acceptability of literature referred to it. Each New York State Correctional Facility would then receive a copy of the Media Review Committee's determinations which would be binding on all correctional facilities. As a general rule, literature found to be acceptable for one correctional facility would be acceptable in all correctional facilities in New York State.
Corrections officials were then directed to revise Amended Administrative Bulletin No. 2 further to comply with Judge Gurfein's order of November 8, 1971 in Sostre v. Otis, 70 Civ. 1114 (S.D.N.Y. November 8, 1971) (unreported decision). Judge Gurfein found that the provision of Administrative Bulletin No. 2 that the newly implemented screening procedures must be exercised "in a reasonable period of time" was too vague. He ordered that the entire review procedure, including review by the Commissioner, must be completed within a period of six weeks and that this requirement must be stated in the Bulletin. Judge Gurfein also directed that an inmate was to be informed of the category, by guideline number, under which a contested publication was being withheld.
Trial on the original complaint in Jackson v. McGinnis, Civ-1969-435, began on July 20, 1972. At that time plaintiffs' counsel moved, without opposition, to withdraw the second and third causes of action which had been alleged in the original complaint. These claims related to censorship of inmate correspondence. Plaintiffs then moved to have a three-judge court impaneled to rule on their request for injunctive relief. That motion was taken under advisement, and it was agreed that any testimony presented on July 20, 1972 would be considered by a three-judge court if such a court were to be impaneled. Plaintiffs then offered the testimony of George Bohlinger, who was serving as the Superintendent of the Massachusetts Correctional Institution at Norfolk, Massachusetts, and the testimony of Mr. Thomas Murton, who was a professor of criminology at the University of Minnesota. Defendants offered the testimony of Mr. Edward Elwin, who was employed as Deputy Commissioner of Corrections in charge of programs in New York State. Among Mr. Elwin's duties was coordination of the functions of the media review committees. Defendants also offered the testimony of Gordon Bissegger, an administrative assistant in the Department of Correctional Services, who was also a member of the Departmental Media Review Committee.
Following this testimony, plaintiffs indicated that they intended to file an amended complaint. The hearing was adjourned so that certain depositions could be taken and so that the plaintiffs could file their amended complaint.
An amended complaint was filed on February 14, 1973. The amended complaint challenged the guidelines and procedures which were then in effect for determining the publications that inmates of New York State correctional facilities might receive and read. It also challenged the "publishers only" rule that required that inmates could receive newspapers only directly from the publisher and not by way of a third party. It dismissed the second and third causes of action which had appeared in the original complaint. It also added additional plaintiffs and provided that certain defendants be replaced by their successors in office. Thereafter, it was stipulated that this amended complaint incorporated and consolidated the complaints which had been brought in the following civil actions: Jackson v. McGinnis, Civ-1969-435; Little v. Mancusi, Civ-1971-101; Johnson v. Mancusi, Civ-1971-131; In the Matter of the Application of Carl Jones, Civ-1972-11; In the Matter of the Application of Gary R. Haynes, Civ-1972-12; and Nieves v. School Supervisor Mr. Dickerson, Civ-1972-23. In addition, it now appears that this decision will be dispositive of the claims made in In the Matter of the Application of Edward Vogt and Charles Jackson, Civ-1973-289, and that case is hereby consolidated with the above-listed cases for the purposes of final decision.
More specifically, the amended complaint challenged the guidelines and procedures which are set forth in Administrative Bulletin No. 60, which had superseded Administrative Bulletin No. 2, as amended, on May 30, 1972. Administrative Bulletin No. 60, which is appended to this opinion in its entirety, incorporated much of the procedure and guidelines which had appeared in Administrative Bulletin No. 2. Administrative Bulletin No. 60 also contained the six-week time limitation which had been ordered by Judge Gurfein in Sostre v. Otis, 70 Cir. 1114, Supra. It contained a "publishers only" rule with respect to newspapers, and it provided for a certain amount of reorganization of the procedures of the Departmental Media Review Committee. Administrative Bulletin No. 60 restated the eight guidelines which appeared in revised Bulletin No. 2, with the exception of Guideline No. 2, which reads in Bulletin No. 60 as follows:
2. In general, publications which appeal to prurient interests or which are utterly without redeeming social value, or which clearly depict acts involving necrophilia, masochism, sadism, bestiality, or unnatural preoccupation with excrement, are not acceptable. Otherwise, literature dealing with the subject of sex is to be considered appropriate. *fn2"
Plaintiffs challenged Guidelines Nos. 2 through 6 as being both vague and overbroad on their face, permitting decisions on entry and exclusion of publications that are arbitrary, inconsistent, irrational and discriminatory, and precluding any possibility of a consistent and constitutional application. Plaintiffs alleged that defendants had denied plaintiffs and the class which they represent the right to receive and read various publications without any showing that allowing plaintiffs to receive and read such materials would constitute a clear and present danger to any valid penological goal. Plaintiffs alleged that the procedures set forth in Administrative Bulletin No. 60 were constitutionally deficient in that they failed to provide an adequate opportunity for inmates to support the admissibility of contested items, failed to require corrections officials to provide adequate explanations why certain items had been excluded, and failed to provide for a decision-making body that was sufficiently neutral. Plaintiffs sought declaratory judgment that the policies and practices violated the first, eighth, ninth, and fourteenth amendments, and they sought preliminary and permanent injunctive relief against enforcement of defendants' present policies and procedures and an order directing adoption of constitutional practices and procedures. In an appendix to the complaint, plaintiffs listed the books and other periodicals which were among those which they felt had been unjustifiably excluded under the guidelines. The books excluded under the guidelines were: Black Feeling, Black Talk by Nikki Giovanni, Blood in My Eye by George Jackson, The Pearl, The Room by Hubert Selby, Jr., Die Nigger Die! by H. Rap Brown, The Naked Soul of Iceberg Slim by Robert Beck, and The Black Panthers Speak edited by Philip S. Foner. Particular issues of the following periodicals were alleged to have been excluded: Buffalo Challenger, Rising Up Angry, Right On and Midnight Special. The following newspapers were allegedly excluded under the "Publishers Only" rule: Unidad Latina, Daily World, Black Panther, Rising Up Angry, and Pyongyang Times.
Since plaintiffs sought more than simply declaratory judgment in this action at that time, a three-judge court was impaneled by the Honorable Irving R. Kaufman, Chief Judge, United States Court of Appeals for the Second Circuit, on August 27, 1973.
However, on October 16, 1973, plaintiffs moved to amend their complaint yet again. In this amendment, plaintiffs withdrew their attack on the media review procedures. They indicated that they did not intend to contest the "publishers only" rule. *fn3" They also withdrew their request for injunctive relief, thus obviating the need for a three-judge court. Defendants answered the amended complaint, and the trial continued on November 16, December 7, and December 12, 1973. During these hearings plaintiffs presented the testimony of several literary experts including that of author and critic Leslie Fiedler, professor of American Literature at the State University of New York at Buffalo. Thereafter, the parties completed discovery and submitted their respective memoranda of law to the court.
On October 5, 1976, the Assistant Attorney General, who represents defendants, advised the court that Administrative Bulletin No. 60 continued to govern the media review procedures. The Assistant Attorney General has also advised the court that Guideline No. 3 had been revised effective October 13, 1976, to read:
3. The publication should not incite violence based on race, religion, creed or nationality.
On December 7, 1976, I directed the Assistant Attorney General to resubmit to the Departmental Media Review Committee those items which are set forth in Appendix B of plaintiffs' amended complaint. On January 19, 1977, the Assistant Attorney General filed an affidavit with the court which indicated that, according to J. Kevin McNiff, Chief Program Administrator for the New York State Department of Correctional Services, all of the contested books are now acceptable in New York State correctional facilities. However, in an additional affidavit filed with the court on June 30, 1978, defendants' counsel has advised the court that the periodicals listed in Appendix B of plaintiffs' amended complaint would still not be acceptable for admission into institutions under the jurisdiction of the New York State Department of Correctional Services. With this affidavit, the record in this case was finally closed.
Exclusion of the individual publications was plaintiffs' primary concern. See Affidavit of October 5, 1973, of Herman Schwartz. Plaintiffs have now realized a large part of their goal of having the contested publications admitted to New York State's penal institutions.
At this point, the primary remaining issue in this lawsuit is plaintiffs' request for a declaratory judgment that the policies of the New York State Department of Correctional Services as set forth in Administrative Bulletin No. 60, Guidelines Nos. 2 through 6, are vague and overbroad on their face, that they permit decisions on entry and exclusion of publications that are arbitrary, inconsistent, irrational and discriminatory, and that they preclude any possibility of a consistent and constitutional application. In the course of this discussion, I will address each guideline, as revised effective October 13, 1976, and offer my opinion as to its constitutionality.
However, before doing so, it is appropriate that I briefly summarize the progress and adjustments which the Department of Correctional Services has made in its literature review policy and procedures since the inception of this lawsuit in 1969.
In 1969 plaintiffs alleged that corrections officials had failed to establish and comply with any objective and valid procedures which would insure that constitutional limitations on censorship would not be exceeded. Today, corrections officials are guided by specific regulations and procedures, set forth in Administrative Bulletin No. 60, which govern the literature review process. These regulations provide for a media review committee within each institution as well as for a Departmental Media Review Committee in Albany to monitor and assist each correctional facility review committee. This Departmental Committee also provides master lists of approved literature to assure a degree of uniformity among the facility review committees' decisions.
The regulations contain notice requirements and time limitations which offer additional protections against arbitrary decisions to exclude contested publications. By structuring and raising the visibility of this decision-making process, corrections administrators help to minimize the adverse effects of discretionary decision-making. See K. Davis, Discretionary Justice, 188-189 (1969). The Department of Correctional Services is to be commended for regularizing its procedures and should be encouraged to continue scrutinizing and refining these procedures to assure that arbitrary and capricious action by the review committees is minimized in this sensitive area of first amendment rights. See, e.g., Cofone v. Manson, 409 F. Supp. 1033 (D.Conn.1976).
In 1969 plaintiffs alleged that decisions to bar publications from correctional facilities were not guided by any objectively valid criteria. Today, under Administrative Bulletin No. 60, the Department of Correctional Services has provided each institution with specific guidelines for evaluating publications addressed to inmates. It is noteworthy that the Department has not promulgated a "catch-all" regulation, such as that condemned in Cofone v. Manson, supra at 1040-1041, which would allow the prisons to reject publications which "obstruct rehabilitative objectives." Such a regulation would clearly be impermissibly overbroad. See, e.g., Procunier v. Martinez, 416 U.S. 396, 415, 94 S. Ct. 1800, 40 L. Ed. 2d 224 (1974). While plaintiffs still claim that five of the eight guidelines are both vague and overbroad on their face, a concern which I will address below, the Department of Correctional Services has at least acted to structure its largely discretionary decision-making. See K. Davis, Administrative Law Text 91 Et seq. (1972).
In 1969, works by Erik Erikson, Claude Levi-Strauss, Carl Jung, Marshall McLuhan, Susanne Langer, and Oscar Lewis were allegedly being excluded from correctional facilities by administrators. Today there is no question that all of these works would pass uncontested into inmates' hands. Even publications considered controversial several years ago, including The Autobiography of Malcolm X, Eldridge Cleaver's Soul on Ice, H. Rap Brown's Die Nigger Die!, George Jackson's Blood in My Eye, and Hubert Selby's The Room, are now acceptable and apparently available to inmates. Today, a sampling, taken from a more recent transmittal sheet, of the publications which are being excluded shows that they tend to bear title such as SMUT, Bawdy Brunettes, Corsets, Collars and Chains, Karate Illustrated, and titles of a similar nature (See Review Decisions transmittal sheets of June 3 and June 17, 1975).
Whether or not it is appropriate for corrections officials to bar even these publications is another one of the issues addressed below. However, it does appear that corrections officials have made a qualitative leap forward and have come to acknowledge that no valid penological purpose is served by excluding not only works by Bruno Bettelheim, Norman O. Brown and Charles Silberman, but also those of Nikki Giovanni, Robert Beck ("Iceberg Slim"), Franz Fanon, Malcolm X, and H. Rap Brown.
By making such adjustments in policy and procedure over the years, largely at the prompting of plaintiffs and other inmate litigants, the Department of Correctional Services has acknowledged that inmates of New York's correctional facilities are not stripped of the mantle of their first amendment rights as they enter the prison gates. The evolution of the policies and procedures which govern media review decisions is itself an affirmation of the right of the incarcerated to receive and read a wide range of publications which can expand the imaginations and free the minds of men and women who have been removed from a free and open society and confined, at least temporarily, in a necessarily closed and tightly regulated one.
It has long been recognized that "(a) prisoner retains all the rights of an ordinary citizen except those expressly, or by necessary implication, taken from him by law." Coffin v. Reichard, 143 F.2d 443, 445 (6th Cir. 1944), Cert. denied, 325 U.S. 887, 65 S. Ct. 1568, 89 L. Ed. 2001 (1945). Courts of this and other circuits have held that various first amendment rights survive incarceration. See Wolfish v. Levi, 573 F.2d 118, 129 (2d Cir. 1978); Morgan v. LaVallee, 526 F.2d 221 (2d Cir. 1975); Goodwin v. Oswald, 462 F.2d 1237 (2d Cir. 1972); Sostre v. McGinnis, 442 F.2d 178 (2d Cir. 1971), Cert. denied sub nom. Oswald v. Sostre, 405 U.S. 978, 92 S. Ct. 1190, 31 L. Ed. 2d 254 (1972) (right to possess one's own writings); Larkins v. Oswald, 364 F. Supp. 1374 (W.D.N.Y.1973), Aff'd 510 F.2d 583 (2d Cir. 1975) (right to retain Black Panther Party documents in one's cell); Burnham v. Oswald, 342 F. Supp. 880 (W.D.N.Y.1972) (right to be interviewed by news media representative); Fortune Society v. McGinnis, 319 F. Supp. 901 (S.D.N.Y.1970) (right to receive a newsletter published by former inmates and often critical of prison authorities); Carothers v. Follette, 314 F. Supp. 1014 (S.D.N.Y.1970) (right to send to one's family a letter critical of prison officials and administration). See also Woods v. Daggett, supra at n.3; Aikens v. Jenkins, 534 F.2d 751 (7th Cir. 1976); Nolan v. Fitzpatrick, 451 F.2d 545 (1st Cir. 1971) (right to send letters to news media); Brown v. Peyton, 437 F.2d 1228 (4th Cir. 1971) (right to receive religious literature); Walker v. Blackwell, 411 F.2d 23 (5th Cir. 1969) (right to receive religious literature); Jackson v. Godwin, 400 F.2d 529 (5th Cir. 1968) (right to receive black publications); Taylor v. Perini, 413 F. Supp. 189 (N.D.Ohio, 1976) (right to receive black publications); Laaman v. Hancock, 351 F. Supp. 1265 (D.N.H.1972) (right to receive newspapers and magazines); Payne v. Whitmore, 325 F. Supp. 1191 (N.D.Cal.1971) (right to receive newspapers and magazines).
More recently, the United States Supreme Court has acknowledged that "a prison inmate retains those First Amendment rights that are not inconsistent with his status as a prisoner or with the legitimate penological objectives of the corrections system." Pell v. Procunier, 417 U.S. 817, 822, 94 S. Ct. 2800, 2804, 41 L. Ed. 2d 495, 501 (1974).
In this instance it is not only the interests of prison inmates which are at stake. The one who sends literature also has a fundamental interest in the inmate's access to the information in the published material. Woods v. Daggett, supra at 240. When corrections officials censor publications addressed to inmates, they also place a burden on freedom of the press. Cofone v. Manson, supra at 1039, Citing Grosjean v. American Press Company, 297 U.S. 233, 248-50, 56 S. Ct. 444, 80 L. Ed. 660 (1936).
The Second Circuit Court of Appeals has recognized that the first amendment right to receive information is a preferred freedom entitled to special solicitude:
In the close and restrictive atmosphere of a prison, first amendment guarantees taken for granted in society at large assume far greater significance. The simple opportunity to read a book or write a letter, whether it expresses political views or absent affections, supplies a vital link between the inmate and the outside world, and nourishes the prisoner's mind despite the blankness and bleakness of his ...

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