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Gary T. Marx
Abstract: Secrecy and censorship involve norms about the control of information. Censorship of communication in the modern sense is associated with large, complex urban societies with a degree of centralized control and technical means of effectively reaching a mass audience. It involves a determination of what can, and can not, (or in the case of non-governmental efforts should and should not) be expressed in light of given political, religious, cultural, and artistic standards. The appearance of new communications (e.g., the printing press or the Internet) technologies invariably create demands from conflicting groups for greater openness and freedom of communication and demands for greater control. Authorities try (often in vain) to control new techniques of mass communication. Three major means of direct censorship (pre-publication review, licensing and registration, and government monopolization) are preventive in nature. Among democracies there is considerable variation in censorship by content, media of communication, place, time period and across societies. There are degrees of censorship and individual interests are balanced against those of the community, however hard the latter is to define. More common than outright prohibition, is the segmentation of material involving time, place and person restrictions. Direct government means of censorship must be considered separately from the availability of resources to create and distribute information, the activities of private groups and from informal censorship, including exclusion from sources of information and self-censorship. In a democratic society secrecy and openness exist in a continual dynamic tension.
Secrecy involves norms about the control of information, whether limiting access to it, destroying it, or prohibiting or shaping its’ creation. Secrecy is a general and fundamental social process known to all societies. It can characterize interaction at any level --from information an individual withholds, to secret rites of passage of pre-industrial societies, to the secrets of contemporary fraternal or business organizations, to state-held information on national security. Secrecy norms are embedded in role relationships and involve obligations and rights to withhold information, whether reciprocal or singular. In preventing or restricting communication, the legally supported form of censorship discussed here involves secrecy. Yet most secrecy (e.g., concealing information about a surprise party or aspects of one’s past) does not involve formal law and the law involves secrecy in many other ways.
In a democratic society secrecy and openness reflect conflicting values and social needs and exist in an ever-changing dynamic tension. Efforts to control information occur in a rich variety of contexts. Norms about the concealment of information and restrictions on communication ideally should be considered alongside of their opposites –norms mandating the revelation of information and protecting the freedom to know and communicate. Such norms may involve formal legal rules such as Britain’s Official Secrets Act or the United States’ Freedom of Information Act, non-legally binding formal policies such as a bank’s refusal to reveal client information in the absence of a warrant or the consumer information voluntarily provided on some product labels, or it may involve informal expectations (close friends are expected not to reveal shared secrets to outsiders but are expected to reveal certain personal details to each other, such as true feelings about shared interests). The correlates and consequences of such variation offer rich material for analysis of the sociology of secrecy. This article reviews some selected social forms, processes and consequences of secrecy and the law as applied to censorship.
There is no widely agreed upon general theoretical or conceptual framework for considering secrecy issues. Given their social importance, there is a surprising lack of empirical or explanatory research seeking to understand the contours of secrecy and openness and why, and with what consequences, some forms have the support of law. Nor has there been much research contrasting different forms of legal secrecy.
Philosophers have considered ethics, (Bok 1989) students of politics the implications for democracy, (Shils 1956, Laquer 1985, Donner 19 Moynihan 1998) and other social scientists have studied the patterning, processes and correlates of information control rules across institutions and societies. (Simmel 1964, Goffman 1969, Tefft 1980, Wilsnak 1980, Scheppele 1988).The largest body of work is by legal scholars emphasizing jurisprudence in often related areas such as the First Amendment, obscenity and pornography, national security and executive privilege, freedom of information, trade secrets, privacy and confidentiality, informant identities, fraud and implied warranties, but generally ignoring explanation or broader social processes.
2.1 Definitions and Differences
Censorship of communication in the modern sense is associated with large, complex urban societies with a degree of centralized control and technical means of effectively reaching a mass audience. It involves a determination of what can, and can not, (or in the case of non-governmental efforts should and should not) be expressed to a broader audience in light of given political, religious, cultural, and artistic standards. Censorship may involve withholding or editing existing information, as well as preventing information from being created. In the interest of keeping material from a broader audience, content deemed to be offensive or harmful to public welfare is suppressed or regulated.
At the most general level any rule, whether codified or customary, proscribing self-expression (e.g., nudity, hair styles, body adornment, language use) or the surveillance and suppression of personal communication (phone, mail) can be seen as a form of censorship. But our focus is primarily on state-supported efforts to control mass communication justified by claims of protecting the public interest, a form with profound implications for a democratic society.
Censorship assumes that certain ideas and forms of expression are threatening to individual, organizational and societal well-being as defined by those in power, or those involved in a moral crusade and hence must be prohibited. It presupposes absolute standards which must not be violated.
Much censorship assumes that all individuals, not just children, are vulnerable and need protection from offending material --whether pornography or radical criticism of existing political and religious authority. Individuals can not be trusted to decide what they wish to see and read or to freely form their own opinions.
Some censorship is largely symbolic, offering a way to enhance social solidarity by avoiding insults to shared values (e.g., a prohibition on flag burning). It may be a form of moral education as with prohibitions on racist and sexist speech. Or masquerading under high principles of protecting public welfare and morals, it may simply involve a desire to protect the interests of the politically, economically and religiously powerful by restricting alternative views, criticism and delegitimating information.
Among the most common historical rationales are political (sedition, treason, national security), religious (blasphemy, heresy), moral (obscenity, impiety), and social (incivility, irreverence, disorder). These of course may be interconnected. What they share is a claim that the public interest will be negatively affected by the communication. Censorship may be located relative to other legal forms of secrecy. Censorship is justified by the protection of public welfare. Rationales for other legally supported forms include: the protection of private property for trade secrets; economic efficiency and fairness justifications in common law disputes over secret information; the encouragement of honest communication and/or protection from retaliation underling forms such as lawyer-client and doctor-patient confidentiality, the secret ballot, and a judge’s en camera ruling that the identity of an informant need not be revealed; the protection of intimate relations in the case of spousal privilege; the protection against improperly elicited confessions underlying the 5th Amendment; the strategic advantage justification of sealed warrants and indictments and the respect for the dignity and privacy of the person justification for limits on the collection and use of personal information, whether involving census, tax, library or arrest (as against conviction) records. There has been little empirical research on whether, how well and with what consequences and under what conditions these justifications are met.
Censorship is involuntary, unlike a non-disclosure agreement that parties to a court settlement voluntarily agree to. Censorship is unitary and non-discretionary --those subject to it don’t have the option of communicating. In contrast the dyad of a confidential professional relationship is discretionary for one party such as the client and with the client’s permission, a doctor or lawyer may reveal confidential information. Censorship seeks to withhold information from a mass audience, rather than a given individual, as with controversial laws preventing revelation of the identity of birth parents to adoptees. Where information exits but censors prevent its’ release, it is intended to remain secret. In contrast are legal secrets involving a natural cycle of revelation such as sealed indictments and search and arrest warrants which become known when executed, or an industry confidentiality agreement which may expire after a few years. Censorship as a form of secrecy stands alone. It is not reciprocally and functionally linked with its’ opposite –the legal mandate to reveal. For example some civil grand juries compel testimony, but then promise to keep it confidential.
Censorship is distinct from government regulation of fraudulent or deceptive commercial communication, which, unlike opinion and artistic expression, offers a clearer basis for empirically determining truth, as with the Federal Trade Commission’s truth in advertising requirements. Censorship is separate from restrictions on communication based on copyright infringements where the issue is not secrecy, but wrongful use. It is also distinct from editorial gate-keeping based on other criteria such as quality, cost, demand, and relevance and in the case of regulating public demonstrations and entertainment, public safety and order. These can of course mask a desire to censor which would not otherwise be legally supported.
Government legitimated censorship is distinct from censorious outcomes that may result from the actions of private groups. With the separation of church and state, only censorship by government has the support of law. Non-governmental organizations such as a religious group or social movement may prohibit, or attempt to dissuade, members and others from producing, disseminating, or reading, listening to or viewing material deemed objectionable. They may request editorial changes, advocate boycotts and lobby school boards, libraries, book stores and theaters to exclude such material.
When we look at social processes of information control such as withholding information and selective presentation, a form of censorship may sometimes be seen in propaganda, public relations and advertising, as public and private sector actors pursue their interest in creating favorable public impressions. Consider for example cigarette companies withholding information on the health risks of smoking or tire manufacturers not revealing the knowledge that their tires are unsafe.
2.2 Historical Development
Interest in the topic is strongly related to developments in communications technology and current events. In the modern period, continuing a trend that began with the printing press, new technologies involving newspapers, mass produced books and magazines, radio, telegraph, telephone, television, film, audio-cassettes, video, fax and the internet, with their unprecedented ability to relatively easily, inexpensively, and efficiently reach large numbers of people, have created demands from conflicting groups for greater openness and freedom of communication and greater control over it. The conflict and debate continues –note conflicts over cable tv and efforts to regulate content and access to the internet . Following the 1970s revelations in the Unites States about Watergate and government spying and disruption of the civil rights and anti-war movements, the ground breaking Freedom of Information Act was passed and the Supreme Court strongly re-affirmed the principle of no prior restraint on the press in the Pentagon Papers case (New York Times 1971).
As shown by the example of Socrates who chose to die rather than to have his ideas censored (or Plato who argued for censorship of the arts), the Romans who censored plays and banished offending poets, Pope Gelasius in the fifth century who issued the first papal list of prohibited books and the Inquisition beginning in 1231 indicate, technology is hardly needed to spur censorship.
However demands for censorship of religious and political ideas gained significant momentum in the 15th century with the appearance of that most subversive of technologies (after the invention of writing) --the printing press and the subsequent spread of literacy. This broke the historic monopoly, however limited, of religious and government institutions on communication with the masses. Authorities tried and are still trying (often in vain) to control the new techniques of mass communication. Later with the separation of church and state and the increased power of the nation state, the reach of religious censorship declined (e.g., prosecution for blasphemy) while political censorship gained in importance, as did ideas of free expression which both countered and provoked censorship.
In the West, cultural values from the enlightenment elaborated on by Emanuel Kant and later J.S. Mill and others stressed the importance of freedom of expression and openness as central to finding the truth and for the stability and effectiveness of democratic government. Individuals were optimistically assumed to be responsible and rational beings who would reach the best conclusions, whether involving normative or empirical truth, with full information and discussion. Scientific ideals involving the ability to question and the freedom to communicate fit here as well. For both government and science, visibility or transparency is believed to be a central factor in accountability. Later arguments emphasized that the psychological well-being and dignity of the person were best served by the freedom to express one’s self and form one’s own opinions. The argument based on personality has been stronger in Europe than in the United States.
In the last half of the 20th century, with the allies’ victory over fascist governments in WWII, the fall of colonialism and the ending of the cold war, the cultural force of democratic ideals involving freedom of inquiry and expression have grown stronger. The principle of freedom of expression is contained in the First Amendment to the United States Constitution, various United Nations documents, European Constitutions and documents such as the European Convention on Human Rights and Fundamental Freedoms. In the United States, the Supreme Court’s extension of the protection of the First Amendment to the states, meant that numerous 19th and early 20th century state and local laws sanctioning censorship were in principle unconstitutional, although in practice there was often strong local support for such laws. This can be seen in struggles over education (e.g., the Skopes “monkey” trial involving the teaching of Darwinism in Tennessee in 1925), the routine denial of First amendment rights to labor protestors up to the 1930s and civil rights protestors through the 1960s and various local struggles over efforts to ban books from libraries.
For western style pluralist democracies, formal government censorship is the exception rather than the rule, at least relative to absolutist authoritarian regimes which believe they have the only truth (whether political, religious or moral) and do not permit opposing views. In 2000, an annual survey of press freedom found that 80% of the world’s population live in nations with less than a free press. About one-third of the countries were considered to have free press and broadcast systems and one-third had systems with strong government control. (Freedom House 2000) An extreme example is from the government of Iran where Salaman Rushdie’s book Satanic Verses was not only banned for being blasphemous, but a reward was offered for Rushdie’s death.
Direct organizational means of government censorship must be considered separately from the availability of resources to create and distribute information and from informal means of censorship, whether by government or private interests, including self-censorship. While freedom of expression is a central component of the modern democratic state, among democracies, there is considerable variation in censorship by content, media of communication, place and time period. Constitutional and legislative guarantees of the individual’s right to freedom of expression are not absolute. In considering the social consequences of exercizing a right, courts and legislatures balance it against other rights and community needs and standards, such as the presence of the clear and present danger Justice Holmes wrote of in (Schenck 1919). In the 1968 case of United States v. O’Brien the Supreme Court held that local laws could regulate time, place and manner of expression if done in a content neutral fashion, narrowly tailored to serve substantial government interests and if alternative channels of expression were left open.
There is often disagreement about the social consequences of expression and how material should be defined. Thus does exposure to sexually or violently explicit words and images result in incitation and mimicry as some research claims (Itzin 1993, National Academy of Sciences 2000) or is it a safety valve and alternative to expressing these, as others claim (Segal and McIntosh 1993, Hein 1993)? Does the prevalence of violent and sexual content reflect or create public demand? Can a reasonable consensus be reached on the distinction between pornography and erotic art? Can heterogeneous, rapidly changing societies with multiply porous borders meaningfully talk of community standards?
There has been little research on variation in censorship. Political and religious expression has generally received greater legal support than other forms such as sexual expression. Printed matter has greater protection than other media. Film, live audience presentations, the internet and cable tv have greater protection than conventional television and radio where there is a scarcity of spectrum. Artistic expression likely to raise the concerns of censors is generally ignored until it seeks to reach a mass audience via the media or museums. Material appropriate for adults may not be for children. Freedom of expression and access to information generally have greater protection in the United States than in Europe (e.g., greater tolerance of hate and other offensive speech, and stronger freedom of information laws and protections against libel suits).
2.3 Methods of Censorship
Three major means of direct censorship are preventive in nature. Their goal is to stop materials deemed unacceptable from appearing, or if that is not possible, from being seen or heard by prohibiting their circulation:
Formal pre-publication review requires would-be communicators to submit their materials for certification, before publicly offering them. Soon after the invention of the printing press, the Church required review and approval before anything could be printed. However impractical and difficult to enforce in the contemporary period, to varying degrees such “prior restraint” is found in authoritarian societies, whether based on secular political (as in Cuba) or religious doctrines (as in Iran and Afghanistan ) at the turn of the century. It may be seen in democracies during emergency periods such as a war. There may be formal review boards or censors may be assigned directly to work at newspapers and broadcasting stations.
Government or interest group monopolization of publication. Here the censors in effect are the producers and are the only ones allowed to offer mass communication. For much of its history the church was intertwined with government and in effect was the only publisher. In the former Soviet Union the press and media were government controlled and private means were prohibited.
Licensing and registration. The means of production and transmission of information may be limited to trusted groups who agree to self-censorship in light of prior restrictions. In England in the 16th century printing was restricted to one official company and all books had to be cleared by religious authorities prior to publication. Four centuries later China required that all internet content providers be registered with the government and abide by vague content restrictions. Permission may be required to own a printing press, and in some countries even ownership of a typewriter has been regulated.
Government subsidized programs for the arts and journalism may come with political and cultural strings attached. In the Soviet Union sponsorship of artists and writers associations stressed “socialist realism”, a doctrine which held that art should serve the purposes of the state. Those rejecting this were neither subsidized, nor offered access to the public, and risked prosecution, as with Nobel Prize winning author Alexander Solzhenitsyn.
In the United States in 1990 The National Endowment for the Arts, under prodding from Congress, required that grant recipients sign a non-obscenity oath and that artistic merit be determined by taking into account general standards of decency. A federal court (Karen 1992) held that the decency clause was too broad and that public funding of art was entitled to First Amendment protection.
A related aspect involves an informal de-licensing in which individuals deemed to be untrustworthy relative to the official standards are prohibited from communicating. For example during the 1950s, Hollywood film writers suspected of communist sympathies were prohibited from working in the industry via a blacklist.
A more subtle form of exclusion involves denying access, as when government officials provide information only to favored journalists believed to put an acceptable slant on their reports. Even where the means of communication are freely available in a legal sense, inequality in resources often means that many potential voices go unheard. Journalist A.J. Leibling has observed, “freedom of the press is assured to those who own one”. A related issue involves the trend toward consolidation of newspapers, magazines, television and motion pictures under fewer and fewer owners. Such monopolies are unlikely to express as wide a spectrum of viewpoints as would be found with more decentralized ownership. A related area of licensing can be seen in local requirements that those wishing to hold a public demonstration obtain a permit. Given Constitutional protections, such permits are usually granted in the United States, although there may be restrictions justified by the need to maintain public order.
In Western democracies broadcast media (e.g., radio and television), unlike print media are subject to licensing. The scarcity of band-width requires government regulation and depending on the criteria used, can be an invitation to censorship. The U.S. Federal Communications Commission for example has ambiguous rules regarding the control of broadcast content. The use of certain four letter words deemed to be indecent is prohibited. Although rarely exercised there is the possibility of license revocation or non-renewal for violations.
After comedian George Carlin used the word "fuck" in a late night broadcast in 1973, the offending radio station received a warning letter from the FCC. The station then sued, claiming that FCC regulations on indecent speech violated the First Amendment. The Supreme Court (FCC v. Pacifica Foundation 1978) upheld the FCC and added an additional controversial, very broad censorship rationale known as the “pervasiveness doctrine”. Regulation is required because, “the broadcast media have established a uniquely pervasive presence in the lives of all Americans” and offensive and indecent material delivered over the airwaves confronts the citizen, “not only in public, but also in the privacy of the home”. Given the ease with which indecent communications may enter the home, children must be protected from unwillingly or willingly encountering them.
The elastic quality of a standard such as “pervasiveness” could be used to justify censorship of any form, even books and newspapers which also pervade society. Indeed when Congress passed the Communications Decency Act in 1996 to regulate internet content, a medium not characterized by spectrum scarcity, it was argued that the internet pervades the home just as the radio and television do and hence must be regulated. However the Supreme Court found this Act unconstitutional in ACLU v. Reno in 1997. As the internet evolves, and to the extent that it becomes a platform for delivering voice and video communications that parallel traditional broadcasts, conflicts over the appropriateness of its regulation will likely intensify.
In contrast are means applied after the fact which seek to literally block or destroy communications or to punish and deter. A classic example, likely seared on the memory of anyone who has seen it on film, is the Nazi’s burning of books in 1933. Materials originating from suspect sources that do not cooperate with censors and/or are from outside a country may be categorically blocked. This may happen through technical means as when the former Soviet Union electronically jammed communications of Radio Free Europe or through the seizure of material at borders. China has created an electronic wall around its internet to block access to material from non-approved sources (e.g., among sites blocked are the New York Times and CNN). Until the United States Supreme Court (U.S. 1934) found that James Joyce’ Ulysses was a work of art, even though it contained “dirty words”, U.S. customs authorities routinely seized literature deemed inappropriate. The U.S. Postal Service prohibits the importation and domestic transmission of certain forms of obscene communication. With the 1934 decision we see the seeds of later Supreme Court rulings such as in Miller (1973) which held that work could be prohibited only if taken as a whole it had no redeeming value as art or science, was patently offensive, and was not in keeping with local community standards.
The conflict between the principle of no prior restraint and any modern society’s legitimate need to control some communication has resulted in a variety of after-the-fact sanctions (e.g., criminal offenses involving espionage, revealing national secrets, obscenity, pornography, and incitement, injunctions to cease publication and administrative sanctions, and civil remedies such as invasion of privacy, libel, and defamation).
In the United States in 2000, in contrast to Britain which has an Official Secrets Act, the disclosure of properly classified information (with certain exceptions such as information on the design of nuclear weapons and the names of intelligence agents) is not a crime. However disclosing such information can result in losses of security clearance, dismissal and fines.
Communication has a special quality unlike most other legally regulated subjects. There is a paradox and some uncertainty and risk for communicators, particularly those pushing boundaries, in that while most communications can not be legally prohibited before they are offered, once offered legal penalties may apply. The goal here, beyond punishment for the infraction in question, is to warn and deter others in the hope of encouraging self-censorship.
On a statistical basis the major form of censorship in western societies is self-censorship. Publishers, editors, and producers of mass communications are aware of borders not to be crossed, even though there are many gray areas. Communicators generally stay within the borders, whether to avoid prosecution or law suits, to avoid offending various social groups, to keep the channels of government information open, to please stockholders and advertisers, or out of their sense of patriotism and morality.
Press and broadcast organizations (e.g., The National Association of Broadcasters) and the major newspapers and television networks have codes of ethics and voluntary standards. Between a journalist writing a story and its’ appearance there are several levels of review. The large broadcasting companies have internal units that review everything from advertisements to program content before they appear. When Elvis Presley appeared on national television for the first time, only his upper body was shown, given censors’ concern with what was then considered to be his prurient hip shaking.
Another prevalent non-governmental means, often undertaken to avoid the threat of more stringent government controls, involves voluntary rating systems. Here the goal is not to ban the material but to give consumers fair warning so they can make up their own mind. In the 1920s the Motion Picture Association of America created a seal of approval for films meetings its standards. In 1968 it created its rating system (expanded in 2000) for films based on nudity and violent content. Some comic books, tv programs and music videos, video games, music and web sites are also rated. This may be welcomed as consumer information or seen as censorship that can chill expression and create an undesirable climate, opening the door to greater control.
Technical means of information control such as the v-chip which permits programming a television set so it will not receive material deemed objectionable and various software filters which screen web cites for sexual and violent content facilitate private control. Such means are seen as more efficient than a heavy handed government censor and more consistent with an open, highly heterogeneous society. Those who want such material have access while those who might be offended can avoid exposure.
There are degrees of censorship. More common than outright prohibition, particularly in the case of erotic material (which has received increased legal protection in recent decades in the face of local legal prohibitions that appeared in the 19th century), are time, place, manner and person restrictions –whether required by government or undertaken voluntarily. Potentially offensive material is segmented and walled off from those for whom it is deemed inappropriate. For example pornographic material may be restricted to red light districts, to adults and to late night programming when minors are presumed not to be watching, children may be prohibited from certain concerts and stores may refuse to sell them violent videos.
2.4 Limitations of Censorship
While government censorship makes a symbolic statement, it is often rather impractical beyond the short run, given the ubiquitous nature and continual improvements in mass communication technologies and the leaky nature of most social systems. Of course computer based technologies may make it easier to track whom an individual communicates with and what material they access. But on balance, technology appears more likely to be on the side of freedom of expression than the side of the censors. The ease of modern communications, in particular remote forms whose transmission can transcend national borders such as the radio, television, fax and the internet and means of reproduction that are inexpensive and relatively easy to use and conceal such as photo-copiers, scanners, audio and video taping and printing through a computer, limit the ability of censors. The internet, if available, has the potential to make everyone a publisher. Its’ “many to many” communication through labyrinthian networks (chat rooms, bulletin boards and e-mail) is far more difficult to censor than the traditional “one to many” communication of the newspaper or television station.
Given the expanding scale of published material and the diffusion of communications technology that began with the printing press, government and religious bodies are forever trying to catch up. This is the case even in modern highly authoritarian settings. For example in China during the Tiananmen Square protest, fax technology kept China and the world informed of the events. In Iran the fall of the Shah was aided by smuggled audio tapes urging his overthrow. Strong encryption which protects messages also makes the censor’s task more difficult.
Beyond technical factors, censorship is often accompanied by demand for the censored material. Censoring material may call attention to it and make it more attractive (the forbidden fruit/banned in Boston effect). Black market demand for such material makes it likely that some individuals will take the risk of creating and distributing it, whether out of conviction or for profit. Potential communicators often find ways to avoid or deceive censors whether using satire, parable, code language, changing the name of prohibited publications and through simply defying the law, as with the many underground “samizdat” presses that challenged communist rule in Eastern Europe.
It is also the case that sometimes, “the truth will out”. In a democracy illegitimate political censorship in the name of National Security or executive privilege is vulnerable to discovery –note Watergate and the Iran-Contra affair. In spite of its dependence on government sources, the mass media may play an important counter-balancing role here, watching those who seek to watch. Beyond investigative reporters often using the Freedom of Information Act, such “dirty data” may be revealed by the legal procedure of “discovery” in court cases, by leaks, experiments or tests, whistleblowers and participants with a Dostoyevskyian compulsion to confess and by uncontrollable contingencies such as accidents (e.g., the crash of an airplane carrying Watergate “hush” money). The more complex and important a cover-up or illegal conspiracy, the more vulnerable it is to revelation. Even most legitimately classified government secrets have a shelf life and must be revealed after 75 years.
In the long run it is also difficult for censors to deny pragmatic outcomes and those which are empirically obvious. This raises the intriguing sociology of knowledge question of the relationship between culture with its significant, but not unlimited, elasticity and a level of reality or truth that, when in conflict with culture, may erode it over time. No matter what the power of the Church to prosecute Galileo for heresy and ban his work, or the amplitude of its’ megaphone to assert the earth was flat, it could not suppress the truth for long.
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