Is the “Goldwater rule” a good ethical guide for therapists, and does it violate Americans’ freedom of speech?

November 23, 2020 • 10:45 am

The 25th Amendment of the Constitution provides a way for the Vice President to replace the President if the latter becomes unable to fulfill the duties of his office. I won’t give the whole Amendment, but the relevant parts for this piece concern Trump’s erratic behavior, which many psychiatrists have diagnosed as a mental illness serious enough to have him removed from office.

Section 1

In case of the removal of the President from office or of his death or resignation, the Vice President shall become President.

. . .

Section 4

Whenever the Vice President and a majority of either the principal officers of the executive departments or of such other body as Congress may by law provide, transmit to the President pro tempore of the Senate and the Speaker of the House of Representatives their written declaration that the President is unable to discharge the powers and duties of his office, the Vice President shall immediately assume the powers and duties of the office as Acting President. . .

Now Section 4 is a bit unclear as to exactly who will provide the written declaration of the President’s unfitness, though it seems that a majority of the Cabinet, acting with the Vice President, could do the deed. However, a number of psychologists and psychiatrists have, over the last few years of the Trump Presidency, decided and declared that the man is palpably unfit for office—indeed, according to their remote diagnoses, he’s mentally ill—and should be given the boot forthwith.

I agree that Donald Trump is mentally ill, but I’m not a professional, and thus am not bound by the strictures of professional associations to avoid diagnosing someone you haven’t personally examined. And those strictures exist most prominently in the American Psychiatric Association’s (APA’s) “Goldwater rule“, created after a number of psychiatrists pronounced Barry Goldwater unfit for office in 1964. Here’s the rule from the APA’s “Principles of Medical Ethics,” and this rule is still in force:

On occasion psychiatrists are asked for an opinion about an individual who is in the light of public attention or who has disclosed information about himself/herself through public media. In such circumstances, a psychiatrist may share with the public his or her expertise about psychiatric issues in general. However, it is unethical for a psychiatrist to offer a professional opinion unless he or she has conducted an examination and has been granted proper authorization for such a statement

There doesn’t seem to be a penalty for psychiatrists who flout this rule, however, as psychiatrists who have diagnosed Trump as ill, or even lobbied Congress to proceed with the Trump Dump, have suffered no penalties.

The many writings and activities of the therapeutic community—psychiatrists, their subset of psychoanalysts, as well as psychologists and medical doctors—to depose the President are detailed in Wikipedia as well as in the op-ed below that just appeared in USA Today. The author, Bandy X. Lee, is a forensic psychiatrist at Yale who’s spent a lot of her time trying to promote Trump’s removal on mental-health grounds. I wrote about her activities, and those of other therapists, in October of this year. (She also edited a book:  “The Dangerous Case of Donald Trump: 37 Psychiatrists and Mental Health Experts Assess a President). But now that all of the professionals have failed to get Trump removed—and, anyway, the voters have done what the shrinks couldn’t—she’s back, this time arguing, too late for this case, that the Goldwater Rule violates the First-Amendment right of psychiatrists to speak up, and also (her usual line) that psychiatrists have a duty to speak up because of the danger that Trump poses to America.

Click on the screenshot to read:



Perhaps Dr. Lee is now concerned about future deranged Presidents, and maybe that’s why this appeared when Trump is already on the way out. As for my own opinion, well, yes, I think he’s a narcissist and a sociopath or psychopath, but I am not a professional therapist. If I were, I would not give my professional opinion, for I happen to believe that the Goldwater Rule is correct. Just as a medical doctor won’t give an opinion about what illness a public figure has if that hasn’t been revealed, so a psychiatrist (they’re all M.D.s) should keep mum about mental illness. There is of course a difference, as mental illness could render a President dangerous or ineffectual. But so could many diseases, like stroke or dementia. (Woodrow Wilson was rendered unfit to run the country by a stroke.)

That’s why the APA restated and supported the Goldwater Rule in 2018, a ruling that was even supported by the New York Times:

The psychiatrists say they have a duty to warn the public about what they see as a serious threat to the nation. That’s commendable, but they should consider how their comments will be taken by the vast majority of Americans, particularly in a highly politically polarized time. The language of mental health and illness is widely used yet poorly understood, and it comes loaded with unwarranted assumptions and harmful stereotypes. There’s a good reason the profession established an ethical guideline in 1973, known as the Goldwater Rule, that prohibits psychiatrists from offering professional judgment on public figures they have not personally examined.

The paper broached the correct solution: (impeachment didn’t work):

The best solution is the simplest: Vote, and organize others to register and to vote. If you believe Donald Trump represents a danger to the country and the world, you can take action to rein in his power. In November, you can help elect members of Congress who will fight Mr. Trump’s most dangerous behaviors. If that fails, there’s always 2020.

And, YES WE DID.  Lee herself seems a bit obsessive in publishing the same old same old at this late date, especially when there’s really no penalty for psychiatrists violating the Goldwater Rule. In her closing, she also says that the APA’s rule about keeping mum is a breach of the First Amendment:

We need to get back to basics. Painter stated at our conference: “the Goldwater rule … is a violation of your First Amendment rights, and a violation of your duty to your country and to human civilization.” It is a basic understanding that to remain silent against a critical medical need is a violation of our professional “responsibility to society,” as outlined in the first paragraph of the preamble of our ethics code. The APA should no longer mislead the public and the media into believing that its guild rule of restricting speech on public figures, which no other mental health association has and is not admissible on any state licensing board, is universal. The truly universal Declaration of Geneva says that we must prevent harm and injustice, especially when they are coming from a destructive government.

Lee is dead wrong about “other associations not having similar regulations,” for the American Psychological Association (another APA), has very similar rule:

Of course a psychiatrist or psychologist can give their opinion without government penalties, for such penalties do constitute censorship and it’s a violation of the First Amendment for the government to sanction anyone for saying that Trump is a loon. But the APA’s penalty (were it enforced) would be a sanction by a professional organization, so the First Amendment doesn’t come into play.

Is it a duty to America for therapists to say that Trump is mentally ill and unfit for office? Well, given what the NYT said, I doubt that such warnings would have any effect. In fact, they didn’t, because thousands of Democratic non-therapists have offered the same opinion, and none of it had any effect. Somehow Dr. Lee thinks that she and her colleagues have the unique medical power to pry Trump out of the Oval Office. They don’t—not with Pence and Trump’s cabinet being who they are. And the speech of Dr. Lee and her colleagues is not restricted. They had their say, and even wrote a book. It did no good, and that’s what you’d expect.

Were I a Democratic, anti-Trump psychiatrist or psychologist, I’d keep my gob shut about diagnoses and just say that Trump is endangering America—without tendering a professional opinion about his mental health. You can palpably point out how the man has damaged America without speculation about what in his brain made him do it.

h/t: Randy

54 thoughts on “Is the “Goldwater rule” a good ethical guide for therapists, and does it violate Americans’ freedom of speech?

  1. “You can palpably point out how the man has damaged America without speculation about what in his brain made him do it.” – Very true, although the use of the past tense is a little premature unfortunately.

  2. I don’t think the Goldwater Rule is as much a matter of free speech as it is a matter of public exposure. There is more than enough video of Trump in a wide variety of contexts to indicate he has a one or more personality disorders(This is certainly not as true for many other public figures). Enough to provde a reasonable guage of his general mental health and congitive status, too. Indeed, most mental health referrals are made because of behaviors that others observe and are concerning. A personality disorder is not a mental illness and the criteria for a medical diagnosis need not be the same. A psychiatrist having a sit-down with Trump would not come to a different conclusion, I’m sure.

    1. “A personality disorder is not a mental illness and the criteria for a medical diagnosis need not be the same.”

      Aren’t they? Narcissistic Personality Disorder, Borderline Personality Disorder, Antisocial Personality Disorder…

      Those were off the top of my head. I just looked up what other personality disorders are listed in the DSM-5, and they include the above, as well as Obsessive-Compulsive, Avoidant, and Schizotypal. And, of course, there’s the category of “Personality Disorder Trait Specified,” which simply requires a combination of traits that don’t fall neatly into the other categories; in fact, as the DSM-V says, “Paranoid, Schizoid, Histrionic, and Dependent personality disorders fall under this category now,” unlike in the DSM-IV, where they were listed separately.

      1. These days, the DSM (especially in in its current fifth incarnation) is largely geared to ensuring that the conditions commonly treated by psychiatrists will be covered by the patient’s insurance policy.

        1. (1) That still doesn’t mean that what I said is true.

          (2) i doubt that listing something like Nacissistic Personality Disorder is for the benefit of insurance.

          (3) Most or all of these were listed in the previous DSM.

            1. Psychologist here.

              The DSM 5 got rid of the muliaxial diagnosis to get rid of the distinction between personality disorders and mental illness.

              In previous editions Axis I disorder s(schizophrenia, bipolar, etc); while Axis II – personality disorders were considered separately. With the latest edition that distinction was removed.

              So personality disorders ARE mental illnesses.

    2. Publicly available video is pretty much guaranteed have a sample selection bias, since he knows he’s in public and on camera.

    3. At least to the Mayo Clinic, a personality disorder is a mental disorder. It states:

      “A personality disorder is a type of mental disorder in which you have a rigid and unhealthy pattern of thinking, functioning and behaving. A person with a personality disorder has trouble perceiving and relating to situations and people. This causes significant problems and limitations in relationships, social activities, work and school.”

      A British publication differentiates between a mental illness and a mental disorder:

      “People with personality disorder seem to have a per¬sistent pervasive abnormality in social relationships and social functioning in general.2 More specifically, there seems to be an enduring pattern of perceiving, relating to, and thinking about the outside world and the self that is inflexible, deviates markedly from cultural expectations, and is exhibited in a wide range of social and personal con¬texts. People with personality disorder have a more limited range of emotions, attitudes, and behaviours with which to cope with the stresses of everyday life.”

      It goes on:

      “Personality disorder is viewed as different from mental illness because it is more persistent throughout adult life, whereas mental illness results from a morbid process of some kind and has a more recognisable onset and time course.”

      So, in the psychiatric world there seems to be a difference between a mental disorder and a mental illness. But, does this make any real difference in discussing Trump? The important point is that his mental condition causes severe danger not only to people he knows, but to the entire world. Anyone who has observed Trump over the past four years and is not part of his cult knows that there is something seriously wrong with him, even if the exact psychiatric diagnosis cannot be named. Because his mental disability is so severe, I do not fault those mental health professionals that have helped us to better understand what a menace he has been. I doubt that if Trump were on the couch, the psychiatrist would have learned much more than has been revealed by the extraordinary coverage Trump has received during his presidency.

  3. Seems like a very reasonable guideline to prevent the politicization of the fields (of psychology and psychiatry). However it’s going to happen whether they like it or not. Probably every single election cycle, regardless of whether the President is a Dem or GOPer. There’s always going to be some psychologist willing to go on TV and say the President is certifiably crazy.

    Still, I guess the benefit of the guideline is to keep the numbers of such talking heads down sufficiently that the field itself doesn’t garner a reputation as politically corrupt.

  4. I disagree with the Goldwater rule. Psychologists and psychiatrists should be able to give their opinions. There should be a procedure set up by Congress to define how to accomplish the 25th amendment section 4.

    1. I tend to agree with you on this. If the Donald Trump story does not make you say out loud, this guy is unfit for the office then I guess no one is unfit. Not only has he done several things that should have gotten him impeached, there are many professionals in the mental health field who agree, this guy should not be there. We need go no further than Mary Trump, also a professional in the mental health field and close relative of Trump who confirms the same about this guy. I think about the Commander from Doctor Strangelove when these things come up. When I was in the Air Force and a crew chief on jet aircraft, we had what they called human reliability requirements for those in such positions. This means if we did anything considered unusual, such as even drinking too much, we could lose our human reliability to be around aircraft with nuclear weapons. I think someone like the president, with the nuclear codes should also be under the human reliability requirements. This president would have been gone in a minute.

  5. It’s difficult to know whether Trump is mad, bad or both. However, as each day passes I become more convinced that Rudy Giuliani is bonkers.

  6. It’s difficult to know whether, and to what extent Trump is mad, bad or both. However, as each day passes I become more convinced that Rudy Giuliani is quite bonkers.

      1. On the other hand, Yezhov has been immortalized, in a way. The worst part of the Great Purge, year ’37-38, is named the Yezhovshchina in his honor.

  7. A) He’s not gone yet. If he’s forced to concede, I expect him to take revenge on the nation that rejected him. He can do an awful lot of damage during transition.

    B) He’s not gone yet. People have underestimated Trump for years. They said he’d never get elected. They said the Billy Bush tape was the end of him. They were wrong. I still think he’ll go, but don’t underestimate his determination. If there is a way, he will find it.

    For both of those reasons, Dr Lee’s warning is still relevant. I feel that they are going to have to sit him down in order to make way for an orderly transition.

    1. If he’s forced to concede, I expect him to take revenge on the nation that rejected him.

      Such as having his Treasury secretary tell the Federal Reserve that they should stop a lending program that supports the economy during this Covid-induced recession?

      Yeah, that’s already begun.

  8. I believe the Goldwater Rule is a good idea. It should be fine for a psychiatrist or psychologist to say, “based on my observations, I believe [X] to exhibit some symptoms of [Y] disorder,” but they should not be diagnosing from afar. There are many reasons for this, from stopping medicine from becoming a political tool, to the fact that nobody can truly make such claims with any serious accuracy without having interviewed the person. Particularly in the case of politicians and celebrities, they are people who often cultivate a public persona that is different from who they really are (though I sincerely doubt that is the case with Trump), so diagnosing them based on their public appearances seems irresponsible. Finally, as it’s illegal for a doctor to disclose medical information about their patients and even any other patient not in their care, I don’t see why they should be able to disclose what they believe to be medical information about people who aren’t their patients just because they’ve made their assessments based on public appearances, or because the person they’re discussing is an important figure.

    Again, to be clear, I think it’s fine for a doctor to say that they think someone possibly exhibits a trait or symptom of some illness, but I don’t think they should be allowed to provide a full diagnosis, and they especially shouldn’t do so in a manner that implies complete confidence in their diagnosis.

  9. If the APA is like the AMA, then it’s not a licensure nor a certification organization, but more of a lobbying and educational/fraternal organization. They have no power to sanction anyone for not following rules, nor do they have any legal authority over their members…though I suppose they could blackball them and make that fact public. Otherwise, I don’t see how the Goldwater Rule interferes with First Amendment type free speech any more than the rule “You don’t talk about Fight Club” does.

    I do think it is largely unethical (and scientifically questionable at best) to try to do diagnose someone with a psychiatric disorder in third person, based on their public persona. Psychiatry is highly inexact and difficult even WHEN you have a patient in front of you, in the office or in a hospital. There are no blood tests, no antibody tests, no imaging studies that are pertinent to most disorders, there are no “Gold Standards” for most disorders, which is part of why the DSM is so voluminous and constantly updated. What we even consider a disorder changes from edition to edition. I suppose it might be reasonable to recommend that someone be evaluated “from a distance” but to attempt to make an actual, legitimate diagnosis is pretty much unsupportable.

  10. Is the “Goldwater rule” a good ethical guide for therapists, and does it violate Americans’ freedom of speech?

    Yes to both. I think the Goldwater rule provides a sound ethical suggestion that mental-health professionals eschew remote diagnoses. But to the extent it can be interpreted to prohibit (or to impose sanctions upon) them for speaking out on a matter of grave national importance, it would violate the First Amendment’s Free Speech clause (to the extent that the sanctioning body constitutes a governmental entity or needs to enlist the assistance of the courts to secure the rule’s enforcement).

    1. ” But to the extent it can be interpreted to prohibit (or to impose sanctions upon) them for speaking out on a matter of grave national importance, it would violate the First Amendment’s Free Speech clause…”

      I’m not sure I understand this point. Are you saying that rules that would normally not be an infringement on the right to free speech become an infringement when the speech in question is regarding “a matter of gave national importance”? What if, as a lawyer, you had represented someone who, in the course of your representation, communicated to you that he had done or was doing terrible things.If that client then became President and the things he communicated to you in the course of representation were things that could possibly harm the nation, are you saying that your duty to the country to speak out about what you discovered would override attorney-client privilege? Is there a law or ruling regarding this?

      The key here is that you only believe that these things could be harmful to the nation; it is a personal belief of your own that is compelling you to disclose the information, rather than something definite (e.g. previously working as a spy for another country).

      1. What if, as a lawyer, you had represented someone who, in the course of your representation, communicated to you that he had done or was doing terrible things. that client then became President and the things he communicated to you in the course of representation were things that could possibly harm the nation, are you saying that your duty to the country to speak out about what you discovered would override attorney-client privilege? Is there a law or ruling regarding this?

        I believe that, under the circumstances you’ve posed, the information would be exempt from the lawyer’s duty of confidentiality to the client under Model Rule of Professional Conduct 1.6(b)

        I think more relevant to the issues at hand, however, regarding the “grave national interest” at stake and the motivation of the psychiatrist for speaking out and the strength of the resulting First Amendment interest would be Daniel Ellsberg’s decision to release classified materials in the Pentagon Papers case.

        1. I’ll have to read those later in the day, as this is a very interesting question I’ve never thought about before.

          However, for now, I’d like to pose a hypothetical:

          You were Rod Blagojevich’s attorney. You somehow managed to get a ruling of not guilty, but you knew that he did try to sell Obama’s Senate seat, and he even revealed to you during your employment as his attorney that he engaged in additional corrupt dealings. Some time after the case ended, you were released from his employ as his attorney, and some time after that, he rose to a higher office where his corruption could, in your personal opinion , be a danger to the nation. Would you have a First Amendment right to disclose your kmowledge, which you gained solely while employed as his attorney, and based solely on your personal opinion of the information’s importance?

          1. I think not. The exemption to the attorney-client duty of confidentiality pertains to specific information about future crimes and grave danger to other persons — not merely to generalized feelings that the client is a sleaze or has a propensity for lawlessness.

            1. Very interesting, Ken. As always, thank you for sharing your legal knowledge with us! One thing I like about this place is that we have a lot of experts in various fields who can answer questions for us.

  11. “Perhaps Dr. Lee is now concerned about future deranged Presidents”, which could include Trump himself in 2024, or any one of his bizarre brood.

  12. Ethical rules for a profession do not violate the First Amendment. They are optional, insofar as the choice of occupation is a choice. The seal on the confessional and attorney-client privilege do not violate the first amendment.

  13. … to depose the President …

    I think “depose” is too strong a term under the circumstances.

    Section 5 of the 25th Amendment contemplates either a temporary relinquishment of the president’s powers or — if the president and the VP/majority of cabinet members cannot agree that the president is fit to resume his powers — a prompt determination by congress of the president’s fitness vel non.

    1. Here is another one to think about besides what I said earlier. The FBI right now is standing in wait to receive Biden’s names for lots of positions in the cabinet and other top jobs. These people will be processed for top secret security clearances and this takes time. Yet we think nothing of doing any checking on the president. He automatically is cleared for everything. It makes no sense. He also has the power to automatically clear anyone else such as he did for his daughter and son in law. Also ridiculous but that is the current rules. If we haven’t learned from this current experience, we never will.

      1. Yet we think nothing of doing any checking on the president. He automatically is cleared for everything.

        This is encompassed by the old saw that “elections have consequences.” You’ve hit here upon one of the most crucial.

        Given his history of sketchy conduct as a private citizen, there’s no way Donald Trump ever could have passed the full-field FBI background investigation required to obtain a top-secret security clearance (let alone for access to the code-word classified materials routinely included in a President’s Daily Brief).

        Given the nature of the materials he’s had access to, Trump will be a huge risk to US national security after he’s left office.

  14. It’s touching how the Framers believed that the VP and cabinet would remove an unfit president. Minor detail: a mentally unfit president would (and did) appoint a VP and cabinet who place loyalty to the boss above all else.


    1. Another minor detail…that is not the way it’s suppose to be. All of these people take an oath to the constitution not to a person. That loyalty crap may apply in the case of Trump but that is cowardice plain and simple.

      1. The failure of congressional Republicans to speak out loudly and clearly against Trump’s refusal allow the GSA to proceed with an orderly transition of power to the new president-elect is the greatest exhibition of collective cowardice in modern American history.

    2. The 25th Amendment was ratified in 1967. It addressed ambiguities that arose after Kennedy’s assassination. Congress can pass a law putting the power in the hands of another body, like a committee for example, as provided by section 4.

  15. I do not think the analogy between psychiatric analysis and a medical opinion about physical fitness is of much value. The two are different.
    The proper method for diagnosing physical health involves many tests of such things as blood, urine, condition of skin, eyes, ears, MRI, etc. This is impossible to do without a clinical setting. Psychological diagnosis requires none of these kinds of tests, so I think if you have thousands of hours of speech, and many written tweets, a psychological diagnosis is certainly possible. DT’s mental processes are not a secret. If anything,they are probably more evident than almost any patient diagnosed in a clinical setting.
    Furthermore, it does seem to me responsible for professionals not to offer an opinion. Whether they be 80% or 95% confident. It should be one factor to be weighed during an impeachment process. It may very well be, as in the case of DT, that such a diagnostic warning would have little effect. Many people are not too bothered by having a psychopath in the White House. So, a psychiatric opinion is not a death warrant. It’s simply an important fact that should be considered during impeachment or election.

  16. My guess is that the Goldwater Rule is more about the APA trying to protect its brand than trying to protect the public from bad diagnoses due to diagnosis-from-a-distance. Observing the speech and actions of Trump for four years seems to me more diagnostic of his condition than asking him about his mother in a psychiatrist’s office. But to admit this, the APA would be admitting that practically everyone can do as good a diagnosis from their armchairs and don’t need to pay their members for office visits.

    That said, I doubt that such a diagnosis should be cause enough to remove a president from office. I doubt psychiatry has reached anywhere near the level needed to be certain of this kind of thing and the potential for misuse makes me leery of setting this precedent.

  17. Dr. Lee distinguishes between diagnosis and public health duty. The latter does not require a diagnosis, she even said. That she and others were effective in the beginning and then ineffective since being shut down shows the difference. The APA expanded the Goldwater rule to include not just diagnosis but any objective comment with the Trump administration. It is the only organization that limits speech on a public figure, which is why it must go on public campaigns to shut people down, not ethics or licensing boards.

  18. Now that Tweet’s court challenges appear to be winding down(?), Plan B might be to get 25:4 invoked for mental issues, so that he can argue incapacity (Just look – Congress said so!) when the lawsuits start.

    1. So that he can be pardoned by Pence would perhaps be more straightforward.

      But yes, that is a risk too.

      Let’s hope Giuliani will become his defense lawyer as the accusations proceed/further stack up in court.

    2. Illness is weakness, and not something that Trump would ever try to use as a shield. He would not feign it, nor would he be likely to admit it. His lawyers might go against his wishes though. That may be the most fitting end to this disgraceful man.

  19. In case of the removal of the President from office or of his death or resignation, the Vice President shall become President.

    Don’t do that. Maybe Pence will a less harmful president at this point. But the unique singular harm he can do is pardoning the current president.

    And whether or not that president is mentally ill, he should stand trial.

    1. Pence can’t pardon him for state crimes. New York is investigating tax fraud. That may be all we can look forward to. A federal prosecution of a previous president is something that should really be avoided if at all possible. Especially this one. We cannot afford to turn Trump into a political martyr. To some extent, he already is.

  20. I’m not sure how much it even applies in this case, as psychological issues are, when you get right down to it, social constructs. That a person behaves a certain way is a matter of fact, that behaving such a way should be considered a disorder is a matter of intersubjective agreement (outside, of course, of metaphysical codes of ethics). If half a nation thinks a person’s way of being is just peachy, well, it’s hard to say it’s too far outside of societal norms anyways. You can slap a label on it but outside any meaningful social consensus, it doesn’t mean much.

  21. My first degree is in psych and politics – I write about both but have not practiced either. I am a lowly attorney/writer.

    I think (just me here) that the Goldwater Rule was put in place for another reason entirely. I think it exists so that in defamation suits (brought by politicians called “mentally ill” by the APA’s members) the APA doesn’t get enjoined as co-defendants. Calling somebody mentally ill can be actionable, moreso by a professional and the APA is wound up in that.
    So it is more legal ass covering by the APA than anything.

    I don’t think the First Amdt comes into it.
    Just my take.

    D.A., NYC

  22. How would the Goldwater rule have worked in 1938 in Germany? Could WW11 been prevented by the acknowledgement of Hitler’s many mental Heath issues ? If Trump’s many mental issues are left to let the “ let the voters decide” rule, who is gonna step up and prevent the US from going down that same path , but wrapped up in a different package ? I realize that hindsight is 20/20 but we as a nation can not afford to look back and say they were right he’s too dangerous of an individual to have lead this country to its brink of its demise just to feed his ego .
    The brain is an organ in the body just like any other body part . If the presidents need medical exam’s that should involve the workings of the brain as well .

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