November/December 2010 - an ACLU of Rhode Island Newsletter

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November/December 2010 Newsletter

Volume: XVI, Issue Number: 5

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Newsletter Contents

2010 Annual Dinner Was A Great Success

The Rhode Island ACLU’s 2010 Annual Dinner Celebration on November 4th was a
great success! Over 100 guests attended the event to celebrate the past year’s achievements, visit with colleagues and friends, and recharge for the year ahead.

Richard A. Sinapi was awarded the William G. McLoughlin First Amendment
Award. He was honored for his dedicated defense of the First Amendment in the
courtroom as an ACLU volunteer attorney for more than twenty years, and for regularly educating the public about their free speech rights. His cases include three successful suits defending the rights of residents to post political signs without government interference. Additionally, he frequently accepts speaking engagements and appears on the Affiliate’s monthly public access cable show to promote public awareness of constitutional rights.

Elizabeth V. Earls, the head of the Rhode Island Council of Community Mental Health Organizations (RICCMHO), was honored as the Raymond J. Pettine Civil Libertarian of the Year for her tireless and diligent dedication to civil liberties and for her staunch and committed advocacy for persons with mental illness. Among other issues, the ACLU and RICCMHO have worked together for improved training of police officers in dealing with mentally ill suspects, and have collaborated in supporting legislation that strengthens the state’s health care confidentiality act and improving civil rights laws in employment, housing, and public accommodations. Ms. Earls is also a co-founder of the Rhode Island Children’s Policy Coalition.

Keynote speaker Jim Hightower, best-selling author, radio commentator, columnist, and editor of “The Hightower Lowdown,” capped off the evening with a speech that was both humorous and motivational. While commending the ACLU for its diligent work, he noted that we must continue to be vigilant in order to uphold, protect and advance the rights and freedoms that are guaranteed by the U.S. Constitution.

The Affiliate would like to thank Jennifer Doucette and Penny Fisher with Books on the Square for their help in handling Mr. Hightower’s book signing, and Feifan Zhou for providing the beautiful music during our cocktail receptions. This year’s Annual Dinner was a wonderful way to commemorate the past year’s hard work and to reenergize for the work ahead in the coming year.

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From the Desk of the Executive Director

Heading into the new year, there are more changes than usual at the RI ACLU. We are bidding a fond farewell to Program Coordinator Amy Vitale, who for four years, thanks to her skills, helped keep the General Assembly at least a relatively safe place for civil liberties. We all owe her a debt of gratitude for that, and it is with sorrow that we see her go.

At the same time, we are welcoming a new Development and Communications
Associate, Meg Armstrong, whom you will be sure to meet at future ACLU events.

Leaving aside personnel changes, this has certainly been a busy year. During the 2010 Legislative Session, the Affiliate lobbied on hundreds of pieces of legislation. Our work helped enact a handful of pro-civil liberties bills while blocking dozens of dangerous bills.

As you can see in the enclosed 2010 Docket, we were just as busy in the courts, involved in 40 cases covering such diverse issues as disability discrimination, student rights, open meetings, privacy rights, open access to records, immigrants’ rights, and First Amendment freedoms.

We plan to continue this dedication and hard work in 2011. To that end, please consider making a tax-deductible, year end donation to the ACLU Foundation of Rhode Island. With your help, we can continue to advance the cause of civil
liberties in our state.

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RI ACLU Files Discrimination Complaint Against State Police for Lack of Adequate Language Interpreter Services

The RI ACLU has filed a federal civil rights complaint against the Rhode Island State Police (RISP) for violating a law that requires agencies receiving federal funding to provide meaningful access to programs, services, and communication for individuals with limited English proficiency (LEP). The ACLU’s complaint, filed with the Civil Rights Division of the U.S. Department of Justice (DOJ), alleges that RISP has failed to adequately assess the needs of LEP populations in Rhode Island, and has also failed to adequately address these needs. As the complaint notes, the failure to sufficiently communicate effectively leads to unequal access to benefits, services, and knowledge of one’s rights for LEP persons.

Last year, after RISP applied to the federal government to assist in the enforcement
of immigration law, the ACLU filed an open records request with the agency for documents relating to RISP’s compliance with its legal obligations to provide appropriate interpreter services. The ACLU’s review of those documents, performed by volunteer attorney Jennifer Doucleff, concluded that RISP’s activities in that regard were insufficient, leading to the filing of the complaint.

The Civil Rights Act of 1964, specifically a provision known as “Title VI,” requires any agency receiving federal funding to determine the scope of interpreter services needed for that particular agency and to take adequate steps to provide them. According to the documents received by the ACLU, it does not appear that the RISP has ever conducted any analysis of Rhode Island’s LEP population, nor does the agency have policies in place to do so.

Among other things, the ACLU’s complaint to the DOJ calls the language services provided by RISP “of questionable quality.” Despite the “breadth of programs and services” the agency routinely provides to the public in a variety of contexts, RISP was able to produce only six forms that it uses in the Spanish language, and of those six, translation errors appear in four. Furthermore, there is no evidence that RISP employs any language interpreters, Spanish or otherwise, or that there are enough sufficiently bilingual state police officers to satisfactorily address the needs of the significant LEP population in Rhode Island.

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ACLU Sues on Behalf of Protester Illegally Threatened With Arrest

The RI ACLU has filed a federal lawsuit charging Providence police with violating the free speech rights of a local resident in February when she was stopped from peacefully leafleting in front of a building where Mayor David Cicilline was speaking. Judith Reilly was distributing flyers on a public sidewalk adjacent to the building where Cicilline was scheduled to give his annual “State of the City” address. The flyers, prepared by the Olneyville Neighborhood Association, were critical of a Mayoral appointee. Reilly was threatened with arrest if she did not move across the
street.

The lawsuit, filed by volunteer attorney Richard Sinapi, argues that the officers’ conduct was a violation of Reilly’s “clearly established” free speech rights and that the City and the Police Chief should be held liable for failing to “properly select, train, instruct, supervise and/or discipline officers in the City Police Department...relative to the constitutionally protected right of people to peacefully distribute political flyers on public sidewalks and in other public forums.” The lawsuit also seeks a court order preventing further interference with Reilly’s exercise of her free speech rights.

While leafleting, Reilly (along with another ONA supporter) was confronted by two police officers who ordered her to move across the street with her leaflets or else face arrest. She reluctantly moved, but then returned to the front of the auditorium, where she was again ordered to move. She noted that doing so would prevent her from handing flyers to her intended audience – people entering the auditorium. However, after again being threatened with arrest, she moved back across the street.

Reilly filed a complaint with the police department’s internal affairs division, complaining about the police officers’ actions. Over a month later, she received an email from internal affairs inspector Francisco Colon expressing uncertainty as to whether their actions even constituted misconduct. The ACLU then wrote to Colon, pointing out that the U.S. Supreme Court had clearly established more than seventy
years ago the First Amendment right of individuals to peacefully distribute literature on public sidewalks. Reilly has to this day heard nothing further from the internal affairs division.

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Restraining Order Issued in Challenge to North Kingstown Political Sign Ordinance on Behalf of Congressional Candidate

The Town of North Kingstown has agreed to the entry of a temporary restraining order limiting enforcement of a constitutionally problematic political sign ordinance that the Rhode Island ACLU challenged in federal court. The RI ACLU suit was filed by volunteer attorney Richard A. Sinapi on behalf of independent Congressional candidate John O. Matson, who was forced to take down a number of his election signs after being notified that they violated the town’s zoning restrictions on the size and placement of such signs.

Under the restraining order, the Town has agreed it will not subject political signs “to more stringent size or other limitations than that imposed on non-political signs.” The order further provides that the Town won’t enforce another provision of the ordinance banning the posting of political signs on trees.

Under the challenged ordinance, political signs may not be larger than six square feet in a residential zone or 20 square feet in a non-residential zone; nor may signs of any size be posted on trees. However, the lawsuit notes that in residential areas, construction and contractor signs, holiday signs, banners, and many other signs may be larger than six square feet, and that in a business or industrial district, non-political signs of up to 50 square feet are allowed. The lawsuit argues that because the ordinance imposes size limitations on political signs “greater than that placed on
non-political signs, it impermissibly infringes on freedom of speech based on content and is therefore unconstitutional on its face.”

The ACLU is hopeful that a settlement agreement can be reached with the town, permanently halting enforcement of the challenged ordinance provisions.

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Judge Finds That Barrington School Committee Violated Open Meetings Law

Ruling in a lawsuit brought by the RI ACLU and the Barrington Times, R.I. Superior Court Judge Brian Stern has held that Barrington School Committee meeting agendas often violate the Open Meetings Act (OMA) by “patently disregard[ing] the spirit and purpose” of the Act and “the public’s statutorily-protected right to be advised of the workings of its governmental bodies through appropriate notice.” Another portion of the ruling, which upheld the closure of a meeting in 2009 to discuss the merits of instituting a mandatory breathalyzer policy for all students attending school dances, established significant limitations on what can constitute a valid basis for meeting with legal counsel in executive session.

The lawsuit, filed in August of last year by RI ACLU cooperating attorney Howard Merten, a partner at Partridge Snow & Hahn LLP, raised three major issues: that the
school committee unlawfully met in closed session in February 2009 to discuss the breathalyzer issue; that it failed to properly advise the public that the subject would be discussed in executive session; and that school committee agendas routinely used “vague boilerplate terminology” that failed to provide adequate notice about the items to be discussed at its meetings. The suit noted that many of the committee’s agendas contained such items as “Discussion [of] School Committee Policies,” without providing any specificity of the actual policies that might be discussed at the meeting. Judge Stern agreed that these notices were clearly deficient, and he affirmed the obligation of public bodies to provide notice that will fairly inform the public of their activities. He also indicated that he would schedule a hearing to determine whether the school committee should be subject to fines for engaging in a “knowing and willful” violation of the notice requirements.

Last year, the ACLU wrote a letter to school officials raising policy concerns about adoption of a mandatory breathalyzer policy. The school committee justified meeting
in secret about it by relying on the OMA’s “litigation” exemption, claiming that the ACLU letter could be deemed a “threat of litigation.” The Barrington Times filed a
complaint with the Attorney General about the legality of the closed session, but was rebuffed, prompting the suit.

Judge Stern rejected the committee’s position that as long as members subjectively viewed the ACLU letter to be a threat of litigation, it could go into closed session. He also held that the OMA does not allow public bodies to convene in executive session based solely on the invocation of attorney-client privilege.

However, he concluded that the committee’s views were nonetheless entitled to deference, and its decision to close the meeting was not arbitrary or unreasonable. The ACLU and the Times may appeal that aspect of the ruling.

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ACLU Adds More School Districts to Truancy Court Lawsuit

Just weeks after R.I. Superior Court Judge William Carnes denied a motion by Family Court Judges to dismiss the ACLU’s class-action lawsuit challenging various Truancy Court practices and procedures, the ACLU has amended its complaint in the case, adding four new school districts as defendants - East Providence, South Kingstown, Burrillville and Smithfield.

The ACLU’s lawsuit charges that school districts fail to follow proper procedures in referring students to Truancy Court and disproportionately refer children who have either special educational needs that the districts are not adequately addressing or medical needs that prevent them from attending school or completing schoolwork. It further charges that the Truancy Courts are frequently punitive in nature, and that Truancy Court magistrates threaten vulnerable children and their parents with baseless fines and imprisonment, remove children from the custody of their parents
without legal justification and fail to keep adequate records of court hearings.

The amended complaint adds five parents and their children from the four school districts and describes in detail their troubling experiences with the Truancy Court program. According to ACLU Senior Staff Attorney Robin Dahlberg: “Since we filed this lawsuit in March, we have received literally dozens of complaints from other parents across the state about the way they and their children have been treated in Truancy Court. This amended complaint only highlights the systemic nature of the problems with the Court and the need for broad, system-wide relief.” In the meantime, the defendants have appealed to the R.I. Supreme Court Judge Carnes’ decision refusing to dismiss the case.

In addition to attorney Dahlberg, the case is being handled by RI ACLU volunteer attorneys Thomas W. Lyons and Amy R. Tabor and Deborah N. Archer of New York Law School.

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Affiliate Testifies on Court Rules Affecting Public Access

In an effort to promote public access to federal court proceedings, the Rhode Island ACLU has submitted testimony seeking amendments to proposed court rules that could have the effect of significantly restricting such access.

Almost all court documents are now routinely filed online and available in electronic format. However, one of the proposed rules would indefinitely postpone the electronic
posting of court transcripts if a party argued that any portion of it should remain private. The transcript would not be available electronically until the court made a ruling on the request for redaction of the transcript, which could take months.

The ACLU urged limits to the open-ended proposal, suggesting, among other things, that an “interim” transcript, temporarily redacted with the proposed deletions sought by the party, be available online at the usual timeframe until the Court rules on the motion and decides whether requested redactions should remain that way.

A second proposed rule appears to prohibit any “tweeting,” posting to the social media network Twitter, in the courtroom by reporters. The ACLU’s testimony noted
that courts across the country have begun allowing members of the media to tweet from the courtroom, subject to reasonable restrictions to prevent distractions. The ACLU expressed concerned that the Court’s proposed amendment to the rules “may stop use of this technology in its tracks without the careful consideration it deserves on a case-by-case basis.”

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RI State Police Seek to Limit Arrest Reports

Although Rhode Island’s Access to Public Records Act provides that “records or reports” pertaining to the “initial arrest of an adult” are to be made public, the Rhode Island State Police (RISP) has proposed regulations that, if approved, would significantly limit the information from arrest reports that would be available to the public.

Under the newly proposed policy, the police could remove any information from an arrest report that it deems to “fall within any public record exemption,” which could include such broad categories as protecting “privacy” or a defendant’s right to a fair trial. However, the open records act explicitly provides that arrest reports are public records, not subject to balancing interests, precisely because of the strong public interest in monitoring police department use of its arrest powers.

Two years ago, RISP redacted from public view, for alleged privacy reasons, a paragraph of an arrest report for a person arrested for disorderly conduct. In the course of the trial, the ACLU obtained the arrest report in full. The paragraph that had been omitted reported the defendant had yelled “free speech!” to a reporter photographing the arrest.

Of all the public bodies in the state that have responsibility for complying with the open records law, law enforcement agencies have been the biggest offender in violating the statute. A hearing on the proposed rules was scheduled for December 16th, and the ACLU, media representatives and open government organizations were expected to testify against them.

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ACLU Testifies Before Cyberbullying Commission

The Senate has convened a special commission on cyberbullying, to examine the problem of children and teenagers using email, text messaging, and social networking to harass or intimidate their peers. At a public hearing held this month in North Providence, RI ACLU volunteer attorney Jennifer Azevedo urged the commission to focus on educational, rather than punitive or criminal, solutions to the problem. Many of the educational experts testifying at the hearing seemed to agree, but the head of the commission, Sen. John Tassoni, seemed to think otherwise.

Sen. Tassoni discussed pushing legislation that would allow police to obtain computer account information without a search warrant, a proposal that the ACLU has objected to for many years. Another bill introduced this year on the subject, also opposed by the Affiliate, would drag into court proceedings any children who engaged in “sexting.”

The Affiliate is hopeful that the commission will avoid recommendations that involve police and the courts, and will instead examine best practices in terms of training, education and other non-punitive approaches.

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Affiliate Opposes Central Falls Receivership Decision

The Rhode Island ACLU sharply criticized a Superior Court ruling in October upholding the constitutionality of a state law, aimed at Central Falls, authorizing the state to appoint a “receiver” to “distressed” municipalities. The ACLU was one of only two organizations to raise concerns about enactment of the statute passed in June by the General Assembly.

The legislation was introduced, heard, voted on and signed into law within the space of less than 72 hours. In criticizing the decision, the ACLU argued that the law gives the state unprecedented and open-ended authority to take over the running of a city or town. Although Judge Mark Silverstein argued that the law was narrow in scope, the opinion itself belies any such claim. For example, the judge held that the Receiver’s powers supersede those of the Mayor and City Council in making appointments to the city Housing Authority—an entity that is directly overseen by a federal agency and funded solely by the federal government. As a result of the decision, the entire citizenry of Central Falls has effectively been disenfranchised, and no longer has any say in the running of its municipality.

In fact, shortly after the decision was issued, the Receiver, former Superior Court Judge Mark Pfeiffer, essentially abolished the City Council, stating that they could act only in an advisory capacity. The ACLU may seek to file a court brief in the City’s appeal of the ruling to the state Supreme Court.

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News Briefs

CRANSTON "SCHOOL PRAYER COMMITTEE" MEETS


In July the ACLU sent a letter to the Cranston school district demanding that a prayer on the wall of Cranston High School West’s auditorium be removed. The prayer has been there for over 50 years, but was only brought to the ACLU’s attention that month by a concerned parent. In its letter, the ACLU noted that it has been abundantly clear for decades that the First Amendment prohibits public schools from promoting such religious activities.

The ACLU’s objection prompted significant controversy in the community. In response, the school committee established a subcommittee to review the dispute, and that group held its first meeting this month. The working group has sought a formal legal opinion and also decided to examine offers from some right-wing organizations to defend the school district in any lawsuit the ACLU brings.

The ACLU has agreed to temporarily hold off taking legal action in the hope that school officials will ultimately recognize that their constitutional obligations require them to remove the prayer.

CHAFEE TO REVOKE CARCIERI'S EXECUTIVE ORDER ON IMMIGRATION 


Governor-Elect Lincoln Chafee has indicated he plans to follow through on a campaign promise and rescind Governor Donald Carcieri’s Executive Order on Immigration. The ACLU has been a vocal opponent of the two-year old order, which authorized the State Police to assist in the enforcement of federal immigration law, and required all contractors with the state to participate in a flawed employment eligibility verification program. A commission established by Carcieri had found that the order had created a deep level of fear and mistrust in the immigrant community.

Governor-elect Chafee said he agreed that the Executive Order has “ostracized” Hispanic communities in the state and proved more harmful than helpful. Revocation of the order will end the mandate that state agencies and vendors use the E-Verify program to electronically verify that new hires are eligible for employment; this will render moot a pending ACLU lawsuit challenging that mandate.

HIGH-STAKES GRADUATION TESTING MAY BE ON THE HORIZON 


In the past, the R.I. Department of Education has rejected proposals to require students to earn a certain score on a standardized test in order to graduate from high school. However, the Board of Regents is planning to vote in January on a policy that will turn a standardized test, known as the New England Common Assessments Program (NECAP), into a high-stakes test for Rhode Island students. Students who fail to earn at least a “partially proficient” score on the test would not be eligible for a diploma.

The ACLU and many other groups are concerned that this approach to student assessment especially leaves special education students and students learning the English language at an unfair disadvantage. The groups have noted that NECAP was never designed to be a high-stakes test. Statistics show that nearly half of Rhode Island’s high school seniors would not graduate under the testing standards being proposed by the Board. The ACLU will continue lobbying against the proposal in the coming weeks.

CYBERSTALKING CHARGES DISMISSED 


Shortly after the RI ACLU raised numerous constitutional concerns about it, the Narragansett Police Department dismissed “cyberstalking” charges that officers had brought against two residents.

In separate incidents, Themistocles “Tim” Faraone and Michael Handrigan had been charged with this crime after they made crude and offensive, but non-threatening, comments about a former police officer and candidate for Town Council, in one case, and a three-term member of the town council in another. The comments had been posted on Craiglist’s “rant and rave” page.

The ACLU had argued there was no legal basis for invoking the “cyberstalking” statute against the two residents, and that the criminal charges were themselves “a troubling form of governmental bullying designed to stifle speech against public officials.” The ACLU formally protested the charges on the grounds that they had a “chilling” effect on the First Amendment rights of free speech; the charges have since been dismissed.

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Organizational Notes

Notice to Members on Label Exchanges

The Rhode Island ACLU does not rent the names of members to other organizations. However, we occasionally arrange to send members a mailing piece from another organization, either because of its relevance to civil liberties or as part of a membership recruitment exchange. We guard the anonymity of our membership
very carefully, and other organizations never actually see your name. However, if you object to having your label used for non-ACLU mailings even in this fashion— or if you don't wish the National ACLU to similarly exchange your label with other organizations— just let us know and we can eliminate your name from any such arrangements.

Tune in to the ACLU’s Monthly Cable Access Show


During the month of November, the ACLU‘s cable access show “Rights of a Free People” will feature Bruce Reilly from Direct Action for Rights and Equality, Nick Horton from Open Doors, and RI ACLU plaintiff Jessica Gianfrocco (see cover story) who will all be discussing the issues faced by those with a criminal record, including obstacles to employment, housing, and volunteering.

Showtimes:


  • Channel 13: Tuesdays 10:00pm & Fridays 3:30pm (Channel 32 on Verizon FIOS)
  • 
Channel 18: ( In Providence & N. Providence) Wednesdays 9:00pm (Channel 38 on Verizon FIOS)
Volunteer Opportunity: Cable TV Show

The Affiliate is always accepting volunteer forms to keep on file for when-ever we may need a little extra help around the office. We are currently looking for people who are interested in learning about TV production to help with our cable access program. We are on a break from filming until January, but will be needing people to help operate cameras, the sound board and the director‘s board be-ginning after the first of the year. We film on the evening of the fourth Tuesday of each month and volunteers would need to first attend a training to familiarize themselves with the equipment. If this interests you, please call the office for more details!

Have You Become a Fan?

Not a fan yet on Facebook? Then become one and join the over 250 fans the Affiliate already has! Search for us as “Rhode Island ACLU.” The Affiliate’s page is a great place to get updates on cases, news releases, and upcoming events; it’s also a great place to meet others who share the same passion for the work that the ACLU does.

Best Wishes to Amy Vitale

The Affiliate bids a sad farewell this month to Program Coordinator Amy Vitale, who is leaving the Affiliate after four years to pursue other interests. During her tenure, Amy became a well-known and widely-respected lobbyist for the RI ACLU at the State House. Her legislative lobbying, research and testimonial skills will be deeply missed. The Affiliate wishes her the best in her future endeavors.

Welcome to Meg Armstrong 


At the same time, the Affiliate is pleased to welcome Meg Armstrong as the office’s new Development and Communications Associate. Meg, a Virginia native and a graduate of the College of Wooster in Ohio, comes to the Affiliate from Africa Action, a non-profit organization based in Washington, D.C., where she had worked on development and fundraising.

Affiliate Receives Award for LGBTQ Work

In November, Equity Action awarded the RI ACLU the Julie Pell Justice Award for Community Leadership for our decades- long work defending and promoting the civil liberties of LGBTQ Rhode Islanders. In giving the award to the Affiliate, Equity Action noted our work as far back as 1976, winning a lawsuit that allowed the first gay pride parade to occur in Providence, up to this year, where the Affiliate helped make the process of changing one’s gender on a driver’s license at the Department of Motor Vehicles much easier for transgendered people.

Make A Year-End Donation to the ACLU Foundation of Rhode Island

As you can tell from the enclosed 2010 legal docket, the RI ACLU has been keeping extremely busy! Please help us meet the growing need for our assistance. Send your checks to:

ACLU Foundation of Rhode Island
128 Dorrance Street, Suite 220
Providence, RI 02903

If you’re looking for a way to give year-round, consider participating in a payroll deduction plan. If you’re a state employee, you can contribute through the State Employees Charity Appeal (SECA) Campaign. Our designated SECA number is 3980. If you’re a private employee, you can give via the United Way or the Fund for Community Progress by writing ACLU Foundation of RI in the space provided on either pledge form.

Thank you! (Note: Your tax-deductible donations are separate from your membership dues.)

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