Rush Limbaugh, Free Speech, and How Gloria Allred is Being a Jerk

You’ve almost certainly heard about the Rush Limbuagh kerfuffle, in which the talk radio personality spent several days excoriating law student Sandra Fluke for testifying on Capitol Hill about employer-paid health insurance and contraception, and called her (among many, many other things) a “slut” and a “prostitute.” You may not yet have head that the well-known feminist lawyer Gloria Allred has requested that Limbaugh be prosecuted — for violating an obscure Florida statute, stating that anyone who “speaks of and concerning any woman, married or unmarried, falsely and maliciously imputing to her a want of chastity” is guilty of a first degree misdemeanor.

My response to Allred: You have got to be fucking kidding me.

This is a bad idea from just about every angle I look at it. It’s a bad idea legally. It’s a bad idea politically/ pragmatically. It’s a bad idea from a feminist perspective. It’s a bad idea from a sexual politics perspective. And it’s a terrible, horrible, no good, very bad idea morally.

It’s a bad idea legally because it’s a gross violation of the First Amendment. If it doesn’t get smacked down like a bad, bad dog by every court it encounters, I will be very surprised indeed.

It’s a bad idea politically/ pragmatically because it will be seen by the right, and by opponents of feminism, as a hypocritical attempt to silence free speech simply because someone doesn’t like the content. Hell, I see it that way. And I’m a left-wing feminist.

It’s a bad idea from a feminist perspective because it furthers the notion that, in the rough-and-tumble of the marketplace of ideas, women are shrinking violets who can dish it out but can’t take it.

It’s a bad idea from a sexual politics perspective because it furthers the notion that calling a woman’s chastity called into question is an especially terrible crime, worthy of its own statute. And that is bullshit on sixteen different levels. The very fact that this statute makes it a crime specifically to impugne a woman’s chastity, and says nothing of a man’s chastity, should have been a red flag to Allred. She should be campaigning against this statute’s very existence. The idea of a feminist lawyer calling for this law to be enforced makes my skin crawl.

And it’s a bad idea morally because we don’t silence free speech simply because we don’t like its content. Period. As I wrote in my defense of the recent Supreme Court decision about Fred Phelps: The First Amendment, and the right to the free expression of political ideas, is one of most crucial cornerstones of our democracy. We should not be looking for loopholes in it. Our default assumption should always, always, always be that speech should be free, unless there is a tremendously compelling reason to limit it.

If Sandra Fluke genuinely thinks that her reputation and character were defamed by Rush Limbaugh, she should sue him for libel. (I think it’s unlikely that she’d win — she made herself into a public figure when she testified before Congress, and the libels laws about public figures are looser than they are about private citizens — but IANAL, and I don’t know enough about libel laws to say for sure.) But the fact that this law about impugning a woman’s chastity is still on the books? It’s a joke at best and a travesty at worst. And it is beneath Allred, or anyone who genuinely cares about law and the guiding principles behind it, to attempt to use it just to hurt someone we don’t like.

Explaining her call for Limbaugh’s prosecution on this “impugning a woman’s chastity” statute, Allred said: “He needs to face the consequences of his conduct in every way that is meaningful.” I agree. But this is not meaningful. This is meaningless. This is laughable. This is absurd on every level. It is beneath us.

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Rush Limbaugh, Free Speech, and How Gloria Allred is Being a Jerk
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40 thoughts on “Rush Limbaugh, Free Speech, and How Gloria Allred is Being a Jerk

  1. 1

    Much as I despise Limbaugh in general and specifically for his bullying of Fluke, he’s allowed to rant and bluster all he wants. Just as I can say that he’s a blustering jerk and an affront to humanity.

  2. 3

    @Anders
    The way most bad laws were removed is that someone who had the ability to fight back was charged and the law would most likely be nullified. Take the laws about homsexual relationships for example. So how about we charge Rush and let him spend money to help destroy the bad law?

    I like to think that Gloria is using that law to be ironic, a way to turn Rush’s ideals back at him.

    As for Fluke’s case of libel against Rush, I would aruge that merely giving testimony before congress does not along justify a celebraty designation. However Rush turned her into a celebraty by lying about her, ergo he is still guilty but someone else who soke afterwards would not be.

  3. 4

    The only point on which I disagree is that Allred is a feminist lawyer. She represents a lot of women, true, but I haven’t seen her exactly rushing into the forefront of true feminist causes. It seems to me that she’s actually a publicity hound who takes high-profile cases and uses her clients to get herself in the news.

  4. 5

    Yes, the best way to get rid of an absurd law is to attempt to enforce it. That’s how you get people to respond and say “This should not be on the books, let’s repeal it.

    But I’m not sure that this case is the best place to be doing that. (Except for the delicious irony of forcing Rush to fight our battle for us, I would definitely approve of that.) I don’t want any distractions from letting Rush continue dig himself even deeper into his hole. The focus needs to be on how awful Rush is, not on repealing some obscure law.

  5. 6

    It doesn’t seem right that testifying before congress would remove your legal protections as a private citizen. Is this really the case?

  6. 7

    Makes me wonder what on Earth happened to get *that* passed as a law.

    I don’t have a problem with Rush saying whatever he likes. I think it’s also fine for people to choose not to advertise with him, or to choose to boycott people who do advertise with him, or to not listen to him. But I must agree with Greta – trying to use this antiquated law to force him to shut up or whatever is not a good thing. The pressure of the market is far better, and need not impact his free speech.

  7. 8

    It is a stupid and antiquated law and using it is a bad idea, indeed.

    But on the “sue Limbaugh” matter, (and I am also not a lawyer) I hope that Sandra Fluke does sue for libel because I don’t think testifying in congress should make you a public figure any more than writing a letter to the editor or writing a blog comment does.

  8. 9

    Makes me wonder what on Earth happened to get *that* passed as a law.

    It’s really just a species of defamation law. If someone publishes false and destructive statements about you (say, as an egregious example, “John Doe molests children”), you can sue that person for damages in civil court. In some circumstances, it’s the only recourse people have when they are brutally defamed in public—and it’s not a kind of expression that even First Amendment mavens like me worry too much about, as long as the defamation laws in question can’t be used to suppress legitimate speech. (British defamation law, alas, is infamously problematic in this respect.)

    A couple of weeks ago I blathered a little in a comment on Ophelia Benson’s blog about the prospects for Fluke to sue Limbaugh for slander (i.e., defamation by speech, as opposed to writing). Her chances of winning would be surprisingly good, in light of the fact that American law considers falsely accusing a woman of being a prostitute to be one of the clearest, most archetypal varieties of defamation.

    Meanwhile, some jurisdictions have criminal statutes barring defamation as well as (the much more common) laws allowing defamed parties to file civil suits. Apparently Florida is one such jurisdiction, and the “falsely and maliciously imputing to her a want of chastity” bit is the way that several states’ laws, in eras past, dealt with the kind of nasty innuendo Limbaugh has spouted in this case.

    I agree with Greta that Allred’s idea is a terrible one for the purposes of women’s rights and sex-positivity. The notion that it should be a crime to impugn a woman’s chastity is archaic, and it comes from a heavily sexist place (by which I don’t mean Tallahassee). Indeed, the fact that women’s sexual history is a matter for defamation law at all is problematic, to put it mildly.

    There’s plenty of good reason to retain defamation law more generally, though. If Limbaugh’s lies about her have caused provable economic harm to Fluke, I’d say she should have every right to sue him to recover damages for that harm—and I don’t think it threatens free expression at all to hold that position.

  9. 10

    @Alverant

    Testifying before Congress probably doesn’t make her a public figure. However, there are three types of people as far as the First Amendment defamation case law is concerned:

    1. Public figures
    2. Private figures speaking on matters of public concern
    3. Private figures

    #1 requires the plaintiff to prove actual malice. Someone defaming #3 is entitled to little or no First Amendment protection. #2 is somewhere in between, and can vary from state to state. I would say that Fluke probably falls into this category.

    Disclaimer: IAAL, but I am not your lawyer, and this is only information, not advice, so check local laws and consult with a local attorney before doing, you know, anything.

  10. 11

    But you’re missing the most important part–it’s a very good idea from the perspective of Gloria Allred, an inveterate attention seeker who will attach herself like a leech to any case with even a whiff of publicity in order to self-promote, make money, and hear herself talk.

  11. 12

    How the hell are substantially and recklessly false claims of fact about her occupation and sexual history “free speech?”

    What if he’d claimed she had molested a child? Would that be “free speech” too?

  12. 13

    Everybody on the Internet seems to be focused on the fact of his calling her names.

    To me, a much more serious slander is his twisting her testimony from a completely selfless account of a friend’s health issue into a sex-crazed monologue begging for public money and bragging about the number of sex partners she and her friends have had.

    How many people have heard that and taken it as truth that may come into contact with her in the future in her career as a lawyer? That could be VERY damaging! It is much more serious than a few names.

  13. 14

    Suing for defamation for being called a prostitute is kind of an insult to people who work in the sex trade. Honestly, I think that’s probably a bad idea too.

    I dunno. I’m ambivalent about it because on the one hand it could cause harm given that most people do think it’s insulting, particularly with regard to possible impact one’s career. And it was certainly meant as an insult.

    On the other hand, why is this even an insult? Who cares? I wish more prostitutes would testify before Congress. Hell, I wish some would run for Congress.

    ***

    As for the criminal charges, they are completely ridiculous and probably an actionable violation of free speech (as well as an ethical violation). It’s a terrible idea, but it’s not such a bad set-up for a joke.

    So I’m not going to say that I didn’t snicker when I read it. I was really thinking about MRA’s and certain religious people who are always whining about ye olde goode days. Yeah, there was definitely some evil snickering.

  14. 15

    Great.

    Now when someone says ‘but the feminists are trying to silence us’ I can’t say with complete honesty that:

    no-one is saying that.

    I have to, at least to myself, modify that to:

    No-one* is saying that.

    *Except Gloria Allred

    Bugger.

  15. Lee
    16

    @Leni :
    “Suing for defamation for being called a prostitute…”

    ‘Slut’ and ‘prostitute’ were minor parts of what Rush said. Ed Brayton posted a video a couple days back – the embedding has been disabled, so here is a direct link of highlights of Rush’s vile stuff:

    Things like ‘sex addicts, ‘ sex-addict frequency,’ ‘almost three guys a day,’ ‘they’re lined up down the block’, and repeated spat-like-an-epithet outbursts of “SO MUCH SEX!’ are the core of it.

    It makes me wish the people reporting on this would show a minute or two of the worst of that. I think a lot of the people following this still really don’t have an idea just how pervasive and ugly Rush’s attack was.

  16. 17

    What Greta said in great big letters. RL has the right to say all that ugly stuff. We have the right to refuse to buy products that advertise on his vile show. And I agree that his real crime is not calling her a slut or a prostitute or any of the other things he’s called her, but that he lied about what she was saying in her testimony. The absurd claim that “we” are being asked to pay for her contraceptives is a lie that has been deliberately buried in all that vile talk so that no one notices that the lie is being told.

  17. 18

    Rush Limbaugh is every kind of moron that exists and an obscene excuse for a human being.

    There, I’ve exercised my right of free speech, which our Constitution explicitly protects.

    It also protects Limbaugh’s free speech rights, including his right to be every kind of moron…etc.

    As someone once put it (I paraphrase), “If they can take away the rights of the rotten creeps, they can take away your rights, too.”

    We can oppose the Limbaughs (yes, they are also a genre) of this world in any number of ways. But the Allred way is a needlessly divisive and destructive waste of time and energy.

  18. 19

    RL has the right to say all that ugly stuff.

    No, you do NOT have the right to make false and damaging claims of fact about other people. This is the reason slander is actionable.

  19. 20

    To expand a little on what legalskeptic said @#10: there are also different levels of speech. There is protected speech, which includes political speech; there is semi-protected speech, which includes commercial speech; and there is unprotected speech, which includes defamation. The law at issue here seems to go after unprotected speech, which doesn’t have First Amendment protection. Legally, because unprotected speech doesn’t enjoy First Amendment protection, it can be made illegal, or subject to all kinds of restrictions. Now this law seems to me to be outdated from a social standpoint, but it’s still on the books and therefore not outdated legally. Because it targets unprotected speech and is right now enforceable (apparently), using it is probably not legally bad.

    I can’t speak to whether it would be bad from a political, pragmatic, socio-sexual, or feministic perspective, but on those points I believe that there are better ideas than using this law.

    Lastly, except from the point of view of a free speech absolutist, it’s not morally bad, either. Words have meanings. They cause events. Those events can have terrible consequences. That’s why not every kind of speech gets protection. Silencing liars and slanderers through legal means is better than silencing them through violence, certainly, and it’s better than allowing a person to suffer irreparable harm to her reputation because of lies (at least on a case-by-case basis).

  20. 21

    The law at issue here seems to go after unprotected speech, which doesn’t have First Amendment protection. Legally, because unprotected speech doesn’t enjoy First Amendment protection, it can be made illegal, or subject to all kinds of restrictions.

    I don’t think it works this way. The way it’s worded makes it seem it’s referring to defamation, which is largely unprotected, but trying to single out particular groups for special defamation protection is still probably illegal. I’m unaware of cases addressing this, but it seems pretty straightforward based on the standard of content-neutral laws and the 14th Amendment.

    Suing for defamation is likely a good idea, but trying to prosecute on some sexist criminal statue that would likely be overturned if a case ever got to court is not.

  21. 23

    Any statute that even mentions the word “chastity” should just shrivel up and vanish from sheer embarrassment. Gloria Allred, while she shouldn’t shrivel up and vanish, should sit down and have a damn good think. You don’t join 21st century attention wars by firing an arquebus.

    Rush has plenty of rope and a neck-sized loop which he regularly launches himself through. There’s no need to bring fatuous prosecutions.

  22. 24

    I almost completely concur with Greta. It is a bad idea to use bad thing you do not like to slightly annoy someone you dislike. It comes across as hypocritical and strengthens the bad thing you dislike.

    This should be handled with a libel suit if it should be taken to court at all.

    The area were I slighly disagree with Greta is this

    “It’s a bad idea from a sexual politics perspective because it furthers the notion that calling a woman’s chastity called into question is an especially terrible crime, worthy of its own statute. And that is bullshit on sixteen different levels. The very fact that this statute makes it a crime specifically to impugne a woman’s chastity, and says nothing of a man’s chastity, should have been a red flag to Allred. She should be campaigning against this statute’s very existence. The idea of a feminist lawyer calling for this law to be enforced makes my skin crawl.”

    Sadly, it is de facto considered much worse in all cultures I know of to accuse a woman of unchaste behaviour than to do the same about a man. Historically and generally, the worst insults are promiscuity to women and impotence/unmanliness/cowardice/homosexuality to men (or accusing a man’s mother of promiscuity). This is a regrettable double standard. Nevertheless, the difference is very real. Calling a woman by the b-word is worse than calling a man a Casanova. I do not necessarily think that it is a bad idea that the law and/or case law recognize the fact that you do more damage to a woman standing in society by accusing her of unchaste behaviour than to a man and that you do more damage to a man’s standing in society by accusing him of impotence/unmanliness than accusing a woman of frigidity/unmanliness. Libel punishment and/or compensation should fit the real damage done to a person’s social standing, id est how society *does* react to slander (with different reaction for the same accusation depending on the gender of the person talked about), not how we think people *should* react to slander (with insults being equally damaging to both genders). For comparison I imagine that an accusation of idolatry is much more damaging to a person belonging to a strict Moslem community than to an open agnostic and that punishment and compensation should reflect this.

    That said, I suppose this particular Florida law is a relic from a very different time when slander about a woman’s unchastity could make a woman unmarriable or a social pariah and those were sad fates indeed, both per se and because of dire social, legal and economical consequences. Presumably, this Florida law made sense when it was made. Now, it probably doesn’t.

    However, again, generally speaking, it might still be a good idea that case law and law concerning libel matters reflect real damage done to a person’s social standing.

    Sensemaker

  23. 25

    The way it’s worded makes it seem it’s referring to defamation, which is largely unprotected, but trying to single out particular groups for special defamation protection is still probably illegal.

    Which is a very different issue than the risible idea that slander is covered by “free speech.”

  24. 26

    @Lee

    Things like ‘sex addicts, ‘ sex-addict frequency,’ ‘almost three guys a day,’ ‘they’re lined up down the block’, and repeated spat-like-an-epithet outbursts of “SO MUCH SEX!’ are the core of it.

    Fair enough. But my inner slut is still saying “Why should anyone care?”

    I understand why it’s slanderous. I understand that a victim of such slander may deserve some recourse because it *can* be personally and professionally damaging. It just grates on me that something this stupid *is* potentially so damaging.

  25. 27

    My fiance just took the Illinois bar, and Illinois has a similar law. Built into defamation, truth (of the accusation) is always a defense except in 3 certain cases, one of which is defaming a woman’s chastity (I can’t remember the exact word). So, even if it’s true, the defendant is still guilty of defamation.

    She explained it the same way, it’s the old notion of women as a product to be married off by her father, and that the accusation would hurt her market value. (Which is interesting because another exception to defamation had to do with impacting someone’s business. )

  26. 28

    This is like an atheist trying to have someone prosecuted for blasphemy. It’s extremely hypocritical of Allred. One would think she’d be trying to get a law like this repealed, not supporting it when it suits her purposes to do so.

    I am very happy to see Limbaugh’s sponsors pull out, which is an exercise of their own right of free speech, but this execrable attempt to silence him using a very odious law gives tacit support to that law, and what kind of feminist could possibly support a law like this?

  27. 29

    Concerning the Florida law itself, it’s dumb, archaic, and sexist. Most of the states in the union have many laws like that still on the books despite the fact that few of them are enforced on a regular basis (if at all). If you’re bored and in need of a new drinking game sometime, try opening up the state code. Drink every time you encounter a dumb, unenforceable, or clearly obsolete law. You’ll probably be unconscious before you get even one percent of the way through. For variety, try the federal code sometime.

    With regards to slander, though, I have mixed feelings. On the one hand, Limbaugh’s remarks are clearly meant to be insulting and impugn Fluke’s reputation. It is a matter of fact to be determined whether they had a measurable effect in that regard. However, treating those words as prosecutable gives support to traditional sex-negative attitudes.

    It is true, as has been pointed out, that Limbaugh’s tirade was much more than just a couple of words. This went on for days and in all manner of false detail, so that has to be taken into account as well.

    Supposing that a slander suit were brought, I suspect Limbaugh would be able to escape through various tricks. Most likely, claiming his remarks were “merely humorous”, “not intended as a factual statement”, and other similar cop-outs. I don’t know whether his radio show actually has any explicit disclaimers as to the content being purely for an entertainment purpose and should not be perceived as news or the like. If so, that would provide another avenue for him to scurry off like a rat.

    Drawing the line between protected and unprotected speech is always a very messy, very ugly issue to deal with. Here most of the burden seems to rest on whether one can factually demonstrate harm caused by the commentary or not, such as in employment and career prospects. I would find it difficult, but I am not a lawyer.

  28. 31

    I don’t think it works this way

    It does actually work this way.

    The way it’s worded makes it seem it’s referring to defamation, which is largely unprotected, but trying to single out particular groups for special defamation protection is still probably illegal.

    It’s not. It would be illegal to single out particular groups (especially those with suspect or quasi-suspect classifications) for special defamation exemptions, i.e. a law that said that sluts can’t sue for defamation.

    I’m unaware of cases addressing this, but it seems pretty straightforward based on the standard of content-neutral laws and the 14th Amendment.

    Defamation laws aren’t content-neutral. The content of the speech is what is being regulated.

    Suing for defamation is likely a good idea,

    I agree.

    but trying to prosecute on some sexist criminal statue that would likely be overturned if a case ever got to court is not.

    Why not? The statute is criminal, so the state would be the one pushing the case, so there’s no money out of Fluke’s pocket. Assuming Limbaugh would appeal if the state wins at trial, either he will have to pay the fine (state wins) or maybe this antiquated law will get overturned (Rush wins). Win/win, really.

    I again decline to opine on whether using this law is politically, feministically, or socio-sexually bad.

  29. 33

    Right on, Greta. I have been enjoying seeing bombastic Limbaugh writhing in the pain and emabarrassment he brought on himself with his big mouth and hateful attitude.

    Nothing more needs to be done. He stabbed himself.

  30. 34

    The pressure of the market is far better, and need not impact his free speech.

    Would that this was true, but like most “free market” solutions, it only works if everyone in playing fair, and the buyers are not gullible. Otherwise, 54% of a certain state wouldn’t poll “Muslim”, when asked what religion they thought Obama belonged to, and loud mouthed people like Rush wouldn’t gain anything by repeating it, and nearly everything else that comes out of his mouth, which is equally nonsense. I mean, what has the man ever said that is true? Should be inquire as to whether even his name is what he says, because, given his record of creative modification of everything else, I start to wonder… lol

    Personally, its kind of a problematic mess. We require, in many places, that con artists aka “psychics” label their profession as, “for entertainment only”. Supposedly there is some general definition of journalistic ethics, but like homeopathy, its self-administered, and you only get in trouble for breaking it if you manage to break some other law. You can’t have, like a doctor, your license to practice journalism revoked, just because you are literally incapable of actually doing the job properly, instead of either creatively interpreting facts, or worse, making shit up entirely.

    But, there are definite times, especially recently, where I have to ask, “Why the hell not?”

  31. 35

    Why the hell not?
    Because it boils down to saying, yet again, that the law is in control, or has the right to comment on, women’s sexual expression. Women have sex. Many women, married or unmarried, straight or gay, like to have sex. That does not allow anyone, the courts included, to decide if that woman is a “slut” or “promiscuous”.

  32. 36

    Kagehi #34:

    In this case, it’s not that the “free-market” solution is good, it’s that the legislative solution proposed by Mrs. Allred is so abysmally bad.

  33. 37

    The state of Florida should pursue an action against Mr. Limbaugh.

    But first the Attorney General will have to open up an investigation of Ms. Fluke’s sex life in order to determine whether or not she has in fact been slandered.

    Courts can strike down laws of course, but when they are discriminatory courts can instead choose to broaden them. In this case, to also allow prosecution in cases where men have had their chastity falsely called into question.

    I’m sure all readers here will agree that such laws should be sex-neutral at least.

  34. 38

    You’ve got my agreement, Greta. While I can see some irony (or something like it) of Rush being sued under that old law, the cultural and rhetorical cost of carrying out the joke is far too steep. That’s bad enough before the likelihood that the joke would be lost on wingnuts, who can’t grasp irony.

    I think the right action is for us to focus on the fact that Rush knowingly lied about the content of Sandra Fluke’s testimony and that he’s deliberately and maliciously telling these lies just to score political points, raise ratings, and reinforce the absurd notion that it’s wrong for women (or anyone in general) to enjoy sex responsibly.

  35. 39

    Why the hell not?
    Because it boils down to saying, yet again, that the law is in control, or has the right to comment on, women’s sexual expression. Women have sex. Many women, married or unmarried, straight or gay, like to have sex. That does not allow anyone, the courts included, to decide if that woman is a “slut” or “promiscuous”.

    I think you are missing my point. No one confuses the kid down the street, who fixes your computer with someone that has a professional engineering degree, and the former would be harder to sue, on the basis that they failed to live up to their degree. However, there is no “professional” standard, by which one can distinguish, save by opinion, between something like The National Enquirer, and National Geographic, nor any real means to distinguish them with regard to whether one has people with real credentials, instead of just random people, writing nonsense.

    I am not saying you go as far as a doctor, and pull their license to state opinions. I am saying that there needs to be a more legit standard to differentiate people who honestly know how to do news, and commentary, with the intent to *professionally* inform, and those who fail at that standard, not a loose one. Its still possible to get bad medical advice from an opinion column, but no one is letting the people giving it actually perform surgery on you, or function as a doctor. A clear distinction is made. Its a distinction that a) isn’t made at all, in journalism, thus people like Fox News can claim to be journalists, and b) may not matter to some gullible people anyway, as it doesn’t with altie med types and medical advice, but where at least you can say, “Here is the line in the sand, and your expert is on the wrong side of it.”

    Otherwise, without that, you have only “opinions” as to who is and isn’t doing their job properly.

  36. 40

    I agree with Allen C. Dexter (#33). The complete and utter horrible reputation that Rush Limbaugh has brought upon himself (not to mention his loss of several advertisers) is what he deserves.

    Trying to prosecute him would cause the right wing to complain about how horribly persecuted they are (even though they’re being outright hypocritical). Really, I much rather everyone absolutely detest Rush Limbaugh than see him go to jail.

    It does bother me that people such as Rush Limbaugh, due to his job being on the radio giving his opinion about things, can just do things without any consequence of their actions, while those of us in other jobs are actually, you know, held accountable for the consequences of our actions. I guess that depends on the nature of the job, though.

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