Speech/Music Amplification Legality

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Amplification Ethics

by Stephen H. Baird

1982-2021 by Stephen Baird

I wrote the editorials enclosed below for the Street Performers’ Newsletter in 1982 Court decisions have been inconsistent, but are growing in supporting the right to use amplification.  The battle rages on repeatedly in state and federal courts including

these newer cases Turley vs NYC was favorably decided in May 1997, including a substantial financial settlement Turley v. NYC 988 F.Supp, 667 & 675 (1997). See US 2nd Cir Appeal 98-7114 (1999) web site decision: http://www.tourolaw.edu/2ndCircuit/January99/98-71141.html

A text version of the Turley decision is available on this site by clickinghere

Ocean City Boardwalk 2013 amplification case: Hassay v. Mayor, 955 F.Supp.2d 505 (2013)“The violinist, William Hassay, asserted that the restriction prevented him from communicating any emotion with his music, and therefore he had stopped playing on the boardwalk. Id. at 512. During a hearing on the plaintiff’s motion for a preliminary injunction, two of the Plaintiffs in this case, Mark Chase and Alex Young, testified that they had also been warned and/or cited for violating the restriction. Id. at 513-14. In addition, an expert provided unrebutted testimony that on the boardwalk, a musician needed to play at a level of at least seventy decibels for the music to be intelligible to an audience fifteen feet away. Id. at 524. At seventy decibels, however, the music would also be “easily audible” at a distance of thirty feet and accordingly violate the restriction. Id.

Applying intermediate scrutiny[10] Judge Hollander held that the plaintiff had established a likelihood of success on the merits with respect to his First Amendment claim. Specifically, the restriction was not narrowly tailored to prevent excessive noise and did not leave open ample alternative channels for communication given that, “[i]n effect, the 30-Foot Audibility Restriction [wa]s tantamount to a complete ban on the use of musical instruments and amplified sound on the boardwalk.” Id. at 524. Accordingly, this Court entered a preliminary injunction against the enforcement of the restriction as applied to the boardwalk. Id. at 527. Ultimately, the parties jointly requested that the injunction be made permanent. Hassay, 955 F.Supp.2d 505 at ECF No. 43″.

Venice Beach Boardwalk musician legal battle – US District Judge Pregerson blocks Venice boardwalk lottery permit system and amplification ban in Dowd and all vs City of Los Angles – October 21, 2010 (Dowd v. City of Los Angeles, No. CV 09-06731 (C.D. Cal. Oct. 21, 2010)

“Other courts have struck down amplified sound restrictions  less sweeping than the total ban on amplified sound on the Venice  Boardwalk. See, e.g., Deegan v. City of Ithaca, 444 F.3d 135 (2d  Cir. 2006) (holding noise regulation as applied to prohibit any  sound that could be heard 25 feet from its source in downtown  pedestrian mall was not narrowly tailored); Doe, 968 F.2d at 89  (holding regulation prohibiting operating an audio device in a manner exceeding 60 decibels at 50 feet was not narrowly tailored  as applied to Lafayette Park because “[b]y no reasonable measure  does Lafayette Park display the characteristics of a setting in  which the government may lay claim to a legitimate interest in  maintaining tranquility”); Beckerman v. City of Tupelo, Miss.,  664 F.2d 502, 516 (5th Cir. 1981) (holding ban on amplified sound  in residential zones overbroad because “the ordinance extends its  total and non-discretionary prohibition to areas which have not  been shown to be incompatible with sound equipment”); Reeves v.  McConn, 631 F.2d 377, 384 (5th Cir. 1980) (holding amplified sound  ban in downtown business district was not narrowly tailored because “there is probably no more appropriate place for reasonably amplified free speech than the streets and sidewalks of a downtown business district”); Burbridge v. Sampson, 74 F. Supp. 2d 940, 951 (C.D. Cal. 1999) (Collins, J.) (granting preliminary injunction against rule banning amplified sound on community college campus except in three “preferred areas” because the defendants “failed to rebut Plaintiffs’ claim that the ‘preferred areas’ do not meet the ‘ample alternatives for communications’ requirement for reasonable content-neutral, time place, and manner regulation”); Lionhart v. Foster, 100 F. Supp. 2d 383 (E.D. La. 1999) (holding that law “regulat[ing] the production of sound in excess of 55 decibels within 10 feet of  hospitals or churches during posted services” was “unreasonably  overbroad in the context of normal activities on public streets  and in public parks”).

Of course, even in a traditional public forum, reasonable  restrictions on the use of amplified sound are permitted, so long  as they are narrowly tailored to serve a significant government  interest. But, because “streets, sidewalks, parks and other similar public places are so historically associated with the exercise of First Amendment rights access to them for the purpose of exercising such rights cannot constitutionally be denied broadly and absolutely.” Hudgens v. NLRB, 424 u.s. 507, 515 (1976) (quotation marks and citation omitted). The Cit:y’s absolute ban on the use of amplified sound twenty-four hours per day on the Boardwalk except in a limited number of specially designated spaces simply sweeps too broadly and does not materially advance the City’s proffered interest. Because Plaintiffs are likely to succeed on their claim that  the amplified sound ban is facially overbroad (and because, as mentioned earlier, the balance of hardships and the public interest weigh in favor of enjoining regulations that violate the First Amendment), the Court GRANTS Plaintiffs’ motion for  preliminary injunction with respect to LAMC § 43.15 (F) (5).”

United States District Judge

Federal Court 2002 case protecting amplification: Casey v. City of Newport 308 F.3d 106. 110 (1st. Cir. 2002)  Google Scholar TextLaw Resource Text

…amplifiers are also used to create new “messages” that cannot be conveyed without amplification equipment. Amplification enables performers to boost the relative volume of quiet instruments, such as the bass and the lower registers of the human voice, [*29] and to adjust the tonal qualities of voices and instruments without necessarily increasing the overall volume of the performance.

Much modern music simply cannot be performed without the use of amplifiers. Thus the ban on amplification has a direct and immediate effect on the expression at issue. The record therefore does not support the district court’s conclusion that appellants “could still convey their . . . messages” without amplification. Without amplification, some of the messages are not conveyed at all.

In restating its conclusion about the total ban on amplification, without additional analysis, the district court repeated its error of neglecting to consider the viability of the less-burdensome alternative of enforcing the City’s noise ordinance. We therefore remand to the district court for consideration [*34] of appellants’ challenge to the no-amplification-of-instruments restriction under the framework described in this opinion.

We have held that the district court erred in finding that the total ban on amplification was narrowly tailored to serve a significant governmental interest. We conclude likewise with respect to the ban on amplification of instruments. In restating its conclusion about the total ban on amplification, without additional analysis, the district court repeated its error of neglecting to consider the viability of the less-burdensome alternative of enforcing the City’s noise ordinance.

CONCUR: McAULIFFE, District Judge (concurring)

In the world of modern music, “amplified” is not synonymous with “made louder.” Electronic musical instruments can only produce sound through a process of electronic amplification, but those instruments are not inherently louder than acoustic or unamplified instruments. A modern synthesizer, for example, can make sound only by means of electronic amplification, yet that amplified instrument easily and faithfully mimics the sounds produced by a wide range of acoustic instruments such as pianos, harps, flutes, acoustic guitars, violins, drums, etc. Moreover, the synthesizer can reproduce those musical sounds as softly and quietly as desired. Yet, the synthesizer falls within the City’s ban. An electronically amplified Aeolian Harp can produce the same “soft floating witchery of sound” as nature’s own, but the volume is more easily controlled on the amplified version.

Note: Periodically the courts hint about possible new areas to challenge in their opinions when they were not directly asked to review the issue in the current case. I’ve bolded, for emphasis, this hint from the Turley vs NYC, US 2nd Cir Appeal 98-7114 (1999):

Although we are concerned about the silencing of performers while their amplifiers are in police custody – and assume, without deciding, that in some circumstances a sound amplifier and similar equipment could be considered speech as opposed to its instrumentality – we affirm the district court’s ruling. In supplemental briefing on this issue, the City explained that the confiscation policy is necessary. Second note:  The above cited case did make this challenge in 2002 see: Casey v. City of Newport 308 F.3d 106. 110 (1st. Cir. 2002)

This case Carew-Reid v. Metropolitan Transportation Auth., 903 F2d 914 (2nd Cir. 1990) on amplified music on New York City subway platforms did allow a complete ban of amplification.A text version of the Carew-Reid decision is available on this site by clickinghere

By contrast, in the instant case the source of the “evil” is the medium of expression itself. Appellants have determined, after their experience under the experimental guidelines, that amplified music routinely produces excessive noise. The incidental effect of the amplifier ban, obviously, is that those musicians who previously used amplifiers on subway platforms will be forced to alter their performances or to perform elsewhere. Nevertheless, this restriction on the manner of their expression is justified because it is the manner itself that produces the evil that is the object of regulation, and, based on appellants’ showing, the regulation would be less effective absent this restriction. The amplifier ban therefore meets the narrow tailoring requirement….

The First Amendment, however, does not guarantee appellees access to every or even the best channels or locations for their expression. See Taxpayers for Vincent, 466 U.S. at 812. Appellees can perform in some of the subway mezzanines and above ground and still reach similar, if not the same, audiences that they could perform for on the subway platforms.

New Orleans street performers in Lionhart v. Foster 100 F.Supp.2d 383 (E.D.La.,1999) (Court Opinion PDF) won federal case that declared sound level of 55db to be unconstitutional. The judge refereed to cases which gave amplification First Amendment protection and cited cases in Houston 631 F.2d at 381 n. 1. The court noted that “there is probably no more appropriate place for reasonably amplified speech than the streets and sidewalks of a downtown business district.” District of Columbia Circuit struck down a federal regulation which prohibited the playing of musical instruments at a level higher than “60 decibels measured on the A-weighted scale at 50 feet.” (The last case also included the playing of drums in front of the White House)

Lionhart v. Foster 100 F.Supp.2d 383 (E.D.La.,1999) (Court Opinion PDF) Case Quote:

When First Amendment freedoms are implicated, the Court must place these freedoms in a preferred position. See id.; accord Reeves, 631 F.2d at 383. The government bears the burden of justifying its regulation as narrowly tailored. See Doe, 968 F.2d at 90.

The state’s asserted interest in preserving the tranquility of the community against excessive noise is clearly legitimate. See Ward, 491 U.S. at 796, 109 S.Ct. at 2756; Kovacs, 336 U.S. at 87-88, 69 S.Ct. at 453-54; Reeves, 631 F.2d at 384. However, the importance of First Amendment freedoms necessitates that the state regulate in this area only with narrow specificity.

When the government chooses to prohibit sound levels in public places that are not demonstrably disturbing, the courts will reject the regulation as overly broad. For example, in Reeves v. McConn, the Fifth Circuit invalidated a Houston ordinance prohibiting the operation of sound amplifying equipment in excess of 20 watts within 100 yards of any hospital, school, church, or courthouse. 631 F.2d at 381 n. 1. The court noted that “there is probably no more appropriate place for reasonably amplified speech than the streets and sidewalks of a downtown business district.” Id. at 384. See also Beckerman v. City of Tupelo, 664 F.2d at 516 (“Because this ordinance extends its total and non-discretionary prohibition to areas which have not been shown to be incompatible with sound equipment, it is unconstitutionally overbroad.”). The court stated that, in addition to the “narrowly tailored” requirement, the number of watts chosen as the point of regulation must also be reasonable. See Reeves, 631 F.2d at 387. The city could not broadly prohibit reasonably amplified speech simply because it feared that disruption might sometimes result. See id. at 388. Relying on the plaintiff’s uncontroverted expert testimony that sound amplification in excess of 20 watts could be non-disruptive, the court held the ordinance unconstitutionally overbroad to the extent that it limited the sound level to 20 watts. See id. at 387-88. The Fifth Circuit stated that “there is no valid state interest in prohibiting amplified sound that does not actually cause, or imminently threaten to cause, material disruption at these [schools, churches, courthouses] locations.” Id. at 385.

On similar facts, the District of Columbia Circuit struck down a federal regulation which prohibited the playing of musical instruments at a level higher than “60 decibels measured on the A-weighted scale at 50 feet.” Doe, 968 F.2d at 89-90. Defendants there were arrested under the regulation for chanting and beating drums in Lafayette Park across from the White House during a war protest. See id. at 87. The court observed that ” ‘excessive’ noise by definition means something above and beyond the ordinary noises associated with the appropriate and customary uses of the park.” Id. at 89. The defendant proffered evidence that loud conversations exceed 60 decibels, and the government offered nothing to show that the chosen decibel level prohibited only disturbing or excessive speech activity. See id. at 90-91 (“Where constitutionally protected activity is implicated, we cannot simply defer to the Park Service’s unexplained judgment.”). The court therefore found that the government failed to carry its burden of showing that the regulation was narrowly *388 tailored to further its interest in preventing excessive noise in a traditional public forum. See id. See also U.S. Labor Party v. Pomerleau, 557 F.2d 410, 413 (4th Cir.1977) (invalidating city anti-noise ordinance when decibel level prohibited noise no greater than person speaking slightly louder than normal); Maldonado v. County of Monterey, 330 F.Supp. 1282, 1286 (N.D.Cal.1971) (finding unconstitutional county ordinance prohibiting any amplification of human voice above normal speaking level from all public highways). [7]

Here, La.Rev.Stat. § 14:103.2 regulates the production of sound in excess of 55 decibels within 10 feet of hospitals or churches during posted services. Unlike the cited cases, however, the Louisiana statute does not flatly prohibit the production of sound in excess of the stated decibel level. Rather, producing sound above this level in these locations can be prosecuted if one does so “in a manner likely to disturb, inconvenience, or annoy a person of ordinary sensibilities.” La.Rev.Stat. § 14:103.2. The Court concludes, however, that because the 55 decibel level threshold is so unreasonably overbroad in the context of normal activities on public streets and in public parks, the added requirement that the sound be made in a manner that is likely to annoy or disturb someone does not save it.

Lionhart v. Foster, 100 F.Supp.2d 383 (E.D.La.,1999) (Court Opinion PDF)

New Orleans artists also received a preliminary injunction restraining order on May 31, 1996 when the city tried to impose a inaudible at 25 foot requirement Case 96-1869 (E.D.La.,1996) 

ROSELYN LIONHART, et al versus CITY OF NEW ORLEANS, et al;1996 U.S. Dist. LEXIS 18903 (December 13, 1996).  The City of Ithica, New York also had an inaudible at 25 foot volume restriction that was challenged by a street preacher in DEEGAN v. CITY OF ITHACA, 444 F.3d 135 (2006).

We find that the challenged noise ordinances, as interpreted, construed, and enforced by Defendants against Deegan cannot withstand constitutional scrutiny. Therefore, we remand the case to the District Court with instructions to enter judgment in favor of Deegan and award him appropriate relief.

[T]he Court finds that Katra made his measurements in February at the same place and time of day as the October 9, 1999 incident in issue; that 56 decibels was the maximum noise level at which a person could speak and still be in compliance with the ordinance 50 percent of the time; that this decibel level is lower than that generated by the clicking of high-heeled boots, conversations between two or three people, a shop door opening and closing, a small child playing on a playground and a cellular telephone; that most normal human activity would be clearly audible at a distance of 25 feet; and that a spirited conversation between two people would be clearly audible at a distance of 25 feet. The Court further finds that there is no evidence regarding how many people were in “close proximity” (six to eight feet) of plaintiff while he was preaching; that Katra did not measure the decibel level of plaintiff’s preaching; that the duration of a loud sound is an important factor in whether it is annoying or alarming; and that factors such as annoyance and alarm cannot be scientifically measured.

Quite simply, a noise regulation that prohibits “most normal human activity,” including a spirited conversation by only two people, is not narrowly tailored to serve the City’s interest in maintaining a reasonable level of sound, at least in a public forum like the Commons.

DEEGAN v. CITY OF ITHACA, 444 F.3d 135 (2006). http://law.justia.com/cases/federal/appellate-courts/F3/444/135/546275/  or https://law.resource.org/pub/us/case/reporter/F3/444/444.F3d.135.html

Freedom is a Constant Struggle– Keep the Faith

Stephen H. Baird, August 2006

Amplification Ethics

The use of loud speakers and amplifiers on the streets is a volatile issue. The United States Supreme Court and the lower courts have ruled on the issue many times. See the American Law Review, 10 ALR2d 627-634 for a general overview. The court cases: Saia v New York, 334 US 558 (1948); Kovacs v Cooper, 336 US 77 (1949); Phillips v Township of Darby, 305 F. Supp. 765 (1969); Maldonada v County of Monterey, 330 F. Supp. 1282 (1971); US Labor Party v Rochford, 416 F. Supp. 204 (1975); US Labor Party v Pomerleau, 557 F2d 410 (1977); and Reeves v McConn, 631 F2d 337 (1980); Ward v. Rock Against Racism, 109 S. Ct. 2746 (1989); Carew-Reid v. Metropolitan Transportation Auth., 903 F2d 914 (2nd Cir. 1990) should be seen for specific information.

A prior restraint involves discretion over some form of protected expression, and Madison contends that only speech, not amplified speech, enjoys First Amendment protection. This is incorrect. The First Amendment protects effective speech, not merely uttered words, and effective speech sometimes requires that ideas be transformed into musical speech, loud speech, financial speech or other forms of expression that a casual reading of the First Amendment might not reveal as “speech.”

Stokes v City of Madison

United States Court of Appeals Seventh Circuit., 930 F.2d 1163, 59 USLW 2652, (1991)

In general, the courts have suggested amplification should be allowed, but regulated by wattage (power) or decibels (volume). The US Supreme Court, however, has let stand a blanket prohibition of sound trucks. In the Carew-Reid v. Metropolitan Transportation Auth, 903 F2d 914 (2nd Cir. 1990) the 2nd Circuit court considered electronic music on subway platforms as a unique artistic medium covered by the First Amendment. but still allowed a total ban of amplified music. This court specifically rejected the less restrictive alternative offered by decibel meter enforcement, because “electronic amplifiers…carry the potential for producing sound above the regulation’s limits with as little effort as a simple twist of a knob.”

The abusive use of amplification by a few individuals can and has caused considerable damage to the free use of public spaces for the dissemination of artistic ideas. Police and public officials often will ban street performances altogether instead of assuming the responsibility of selective enforcement when confronted by excessive use of amplifiers. Munich, Amsterdam, and other European cities banned street performances because some street artists from the U.S. incessantly kept their amplifiers too loud. Several cities in the U.S., including Boston for a while, were closed for the same reason.

Large corporations, institutions, churches and governmental organizations can and have used amplification devices on streets and parks. Individual street performers can not possibly compete if money, volume in this case is left unchecked. The amplification devices will just get bigger and bigger until only one or two performances can be heard. The louder the amplifiers the fewer artists can survive. Read “For Sale: Freedom of Speech,” by Charles Rembar, Atlantic Monthly, March, 1981, pp. 22-32, or Lawrence H. Tribe’s Constitutional Choices, Harvard University Press, 1985, for a comprehensive discussion about the imbalance of money and First Amendment issues in Supreme Court decisions.

The “double standard” and bias toward state sponsored amplified events and parades, large organization amplified demonstrations, mass transportation, construction and other commercial activities such as air conditioners and building ventilation systems which all exceed decibels levels of 80-100db is to be expected. Over 90% of the Federal Judges have been appointed by conservative administrations and they have reversed the previous long standing least restrictive analysis precedents. Court cases will not help on this issue and the battle will have to won politically. The political battle can not be won if the street performing community is divided by the few individuals who abuse their amplifiers and if those same individuals are allowed to antagonize the residents and local businesses.

The political strategy is to keep maximum sound levels below the background noise which is usually 80db on a busy city street (measured at 25 feet which gives an artist a 50 foot circle to communicate with a crowd). It is ethically hard for residents, businesses and public officials to protest a sound level that is at the same level of sound they themselves create. This will not work unless there are ways to enforce and fine artists who exceed the sound levels. The background sound levels decrease in the evenings (less traffic) and these sound levels will be more discernible at greater distances, which can cause more complaints (It is not louder but can be more intrusive because of less “white” background noise as a cover.). It is therefor harder to get performances past 11:00 pm unless it is a commercial area with few residences. All these issues point to a comprehensive and complicated street performance ordinance with volume regulations. Courts do not write laws and these issues must be won through the legislative process (It has been done in Cambridge, MA with provisions for amplification at 80 db at 25 feet and protection for residents with 60 db daytime or 50 db at night provided the background noise is exceeded by 10 db(A)).

While conducting research for my book, “The History and Cultural Impact of Street Performing,” I have interviewed street audiences and have found the audiences preferred a varied and diverse group of street acts to choose from. They would be less likely to stop and stay, or bring their friends, if one street performer or group dominated an area. The audiences were more likely to donate to performers who were approachable and not to performers that intimidated them with volume (walls of sound).

Questions immediately arise: Are messages being forced upon the public through ever increasing amplification? Is the lack of audience due to the inability of being heard or by the style of presentation, or by the actual ideas themselves?

There is no question that electronic music is a protected contemporary form of First Amendment expression, which necessitates some form of amplification. However, the courts and public officials are often unwilling to distinguish between those who use amplifiers sensitively and those who abuse them. While these officials must be pressured and educated to make discerning instead of absolute judgments, there is no substitute for awareness and sensitivity by the street artists who use amplifiers.

Final note: I often campare sound levels measurements by decibel meter with speed measurements of cars by radar devises. The failure of municipal, state and federal legislatures to require current technology and science to measure sound in noise ordinances leaves the government workers, police and courts into a quagmire of linguistic uncertainty over the definitions of “annoying” and “unreasonable” sound enforcement definitions. I wonder how many judges, legislators and even police would accept being convicted for speeding with no radar readings and just the observation that they were going unreasonably to fast.

Two Views of a Saturday Night

First View: On a Saturday night in Harvard Square thirty different artists- two jugglers, two magicians, one mime, three clowns, a five person musical group from South America, a three person blues band, a storyteller, a three piece jazz band, a solo rock act, three solo folk acts, and a three piece rock band are playing. Each group has about 50-200 people watching (1500-6000 people total). During the breaks the crowd shifts between all the different groups. Over 300-400 people will visit each artists in the evening during these shifts. There is a lot of excitement. The crowds are generous and they come back with their friends. “If you like this act wait till you see the next one!”

Second View: On a Saturday night in Harvard Square thirty different artists set up. One rock band sets up in the middle of Brattle Square and turns the volume so loud that all other acts have to stop their show. Immediately 300-400 people who like rock music and other curious people converge. The crowd expands and then reduces to the number who can see and participate (300-400 people total). During the breaks there is no crowd shifts because there are no other crowds. When the second show begins the audience consists of many the same people and donations go down dramatically. There is no diversity. There is no excitement. People do not come back. Weeks later the crowds will continue to grow smaller (Note: It is now easier for businesses and governmental authorities to curtail street music because less people will protest.). “I’ve seen that group before. They’re here all the time. Let’s go to a movie”

Conclusion: The first view it is a real cultural movement- full of diversity, different cultures, conflicting opinions and ideas, a real community that cares about and for each individual. A community that understands the interdependence between people.

The second view is the usual problem of poverty’s blind rage. Rock music is one of the primary vehicles for expressing that rage. And clearly rage needs to be expressed. The streets are in fact one of the best forums. However, did burning down the ghetto cure poverty? Is the message of rock street music going to say we don’t care about other street artists- tough luck if that storyteller is too old to compete, so what if that classical duo is expecting a baby, I don’t care if the clubs are so racist that the Hispanic artists can’t play anywhere else…. Are we as a community going to allow rock music to be used as a tool of oppression?

Street Artists Code of Ethics

1. We acknowledge each individual’s First Amendment/Self Expression Rights with mutual respect and in cooperative spirit.

2. Spaces are allocated on a first-come-first-serve basis. Artists are encouraged to share spaces.

3. Artists should not set up within 50 feet of another artist(s) without first consulting with that artist(s). Rotating sets are encouraged in crowded situations.

4. Artists should generally not be heard more than a 50 foot radius from their performance site. Loud and amplified instruments/voices heard beyond 50 feet are considered an infringement upon other artists’ First Amendment/Self Expression Rights.

5. Artists using loud and amplified instruments/voices are encouraged to:

a. Find locations that conflict or interfere with the fewest artists and cause fewest community complaints.

b. Turn amplifiers/drums/loud instruments in toward walls and/or baffle with blankets to dampen and confine sounds to immediate area.

c. Schedule and/or rotate performance times that conflict or interfere with the fewest artists and cause fewest community complaints.

d. Consult with other street artists in immediate performing area about volume and seek mutual solutions.

6. Street artists acknowledge the importance of the streets and parks as an historic forum for all artists and community members, acknowledge the importance of the cultural diversity expressed on the streets and in parks, and acknowledge the importance of the street arts in the continuing growth of a world community.

Street Arts and Buskers Advocates

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