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Fighting Words: The Battle Between Free Speech Protections and Connecticut Law

In August of 2022, a 14-year-old Black football player from Enfield High School was going door to door in town selling raffle tickets to support his team. When he ventured onto the property of one home in the largely white town, a woman began screaming at him to get off her property and her son opened a window, calling the boy a racial slur and reportedly threatening to shoot him.

The incident was investigated by police who confirmed the racial slur was used but were unable to confirm the threat of violence. Over the following days, the story blew up in both the town and across Connecticut media, sparking protest rallies, condemnation by local government officials and a community conversation about diversity and inclusion.

The police were unable to bring charges regarding the threat of violence because there was not enough evidence. The use of a racial slur against the teenager, however, was not in dispute. During the community meeting, Enfield Police Chief Alaric Fox reportedly told the community that use of a racial slur, while ugly, was not against the law.

Most of Connecticut’s laws regarding bigotry and bias crimes are tied to actual violent acts — or at least the credible threat of violent acts through intimidation and harassment — that cause damage to either one’s person or their physical property.

But there is a law on Connecticut’s books that makes “ridicule on account of creed, religion, color, denomination, nationality or race” a Class D misdemeanor. 

According to CGS 53-37, “Any person who, by his advertisement, ridicules or holds up to contempt any person or class of persons, on account of the creed, religion, color, denomination, nationality or race of such person or class of persons, shall be guilty of a class D misdemeanor.”

It is the only law that would potentially be applicable in the Enfield case since the threat of violence was not confirmed, but that law is currently in legal limbo due to a federal lawsuit that has Connecticut’s statute banning ridicule bumping up against the First Amendment.

And the way the statute is written has many experts saying it will not hold up to the challenge.

“Generally speaking, I would be very surprised that if someone challenged that law, they would not win in court,” said Frank Harris III, a professor of journalism at Southern Connecticut State University who teaches a class on freedom of speech and has studied the use of racial slurs throughout history.

“One of the things that many students and many people are not aware of is that the First Amendment protects hate speech, and there have been a number of cases where it’s been upheld that people do have the right to use hate language, whether it’s the n-word or antisemitic statements or even to make fun of somebody, not just for racial reasons but for any reason,” Harris said. 

“I understand what the intention is, in regards to the law,” Harris continued. “But it’s really hard to enforce that and have it hold up if it was to truly be challenged in a federal court or challenged on First Amendment grounds.”

That challenge to 53-37 has come, and it is working its way through the judicial system at a time when inflamed national tensions over race, sexual and gender orientation, and nationality have some questioning the limits of free speech in a society that seems hell-bent on not being nice to each other.

In 2019, two University of Connecticut students were arrested for reportedly yelling the N-word while walking back to their apartment after a night of drinking. The language, although not directed at anyone in particular, was caught on video and posted to Twitter, prompting an investigation that resulted in their arrests under the 53-37 statute and the university attempting to get them kicked out of school for violating campus conduct codes. 

Arguing on behalf of one of the students in his criminal case, attorney and free speech advocate Mario Cerame wrote in his brief that 53-37 was unconstitutional because it regulated the content of speech, rather than criminalizing “how or when some speech is made,” and that the language of the statute is “facially vague” with an “unascertainable standard.”

Perhaps sensing that 53-37 wasn’t right legal vehicle for prosecuting the students, prosecutors dropped the charges under Connecticut’s ridicule law and instead moved forward with second degree breach of peace and disorderly conduct.

According to Eugene Volockh, Distinguished Professor of Law at UCLA, in his column for Reason, the 53-37 statute enacted in 1917 was specifically meant for business advertisements but said that Connecticut had been “mostly enforcing the statute to punish people for race or religion based ‘fighting words.’”

In researching Connecticut’s law Volokh found Connecticut prosecutors had utilized the statute to obtain a conviction once per year on average between 2000 and 2016 but were not prosecuting “advertisements” by businesses or politicians, probably because no one in their right mind would do that in the present day. Most of the insults were directed at Black individuals and a few against police officers.

“The statute, though, is pretty obviously unconstitutional,” Volokh wrote, “because it suppresses speech based on its content (and viewpoint), and because there’s no First Amendment exception for speech that insults based on race or religion.”

In 2020, as the UConn case made its way through the legal system, a bill came before the General Assembly’s Judiciary Committee aimed at repealing the law. There was only a smattering of public testimony during the public hearing, mostly in support of the bill.

The Connecticut chapter of the American Civil Liberties Union wrote that even in the face of rising hate crimes, the law should be repealed because 53-37 “is not the solution” for such acts of discrimination.

“This law represents a false promise – it cannot actually hold people accountable for hateful violence and intimidation, because the law is clearly unconstitutional content-based speech restriction,” the CT ACLU wrote. “While ridicule on the basis of race or any other protected class is inherently harmful, Connecticut law already provides for numerous remedies when harmful speech rises to the level of a true threat or incitement to violence.”

“Nonetheless, because Section 53-37 of the Connecticut General Statutes is an unconstitional restriction on speech and is vague, repealing this law is necessary,” the Civil Liberties Union concluded.

However, the Connecticut Commission on Human Rights and Opportunities (CHRO), a state agency tasked with mitigating claims of discrimination in housing and employment argued against repealing the statute, saying the law was necessary to combat rising incidents of bias.

“This statute aims to combat the bias and harassment that individuals may face on the basis of race and religion,” the CHRO wrote. “At a time when hate and bias incidents are on the rise, it is crucial that the state not remove these types of prohibitions that aim to deter or punish this unacceptable behavior.”

The bill died without coming to a committee vote, but in November of 2021, the attorney who represented one of the UConn students, decided to pursue his own case against Connecticut’s statute.

Cerame filed a pro se federal lawsuit challenging 53-37 as facially unconstitutional, arguing that he regularly violates the code as part of his personal conversations, his free speech advocacy, his criticism of certain religions and postings to social media pages that include stand-up comedians. 

According to the court complaint, “Cerame believes that through such speech described in the foregoing paragraphs, he violates the statute on a weekly, if not daily, basis, and that many citizens of this state do as well. Though he believes most prosecutors and police conduct themselves in good faith, he further believes such speech could subject him to enforcement of the statute based on the arbitrary whims of a prosecutor or law enforcement officer.”

“I think it’s wrong, it’s an unconstitutional statute on the books,” Cerame said in an interview regarding his case. “It’s being used a lot and I’m challenging it because it makes me angry and I believe very strongly that free exchange of ideas is a fundamental right, it’s something that makes America great, it’s what makes us Americans and it’s really important. If no one else is going to stand up for it, then I’m going to stand up for it.”

“I’m doing it for principle. Someone needs to do it and I’m doing it,” Cerame continued.

Ivelisse Correa, a board member of Black Lives Matter 860, disagrees. She believes that there should be a law against the use of racial slurs like the n-word, which she says is inherently violent and dehumanizing toward Black and brown people.

“I am absolutely on board with people who sit there and yell slurs at children getting charged,” Correa said in an interview. “This is not about free speech, it’s about protecting their right to dehumanize Black and brown people and nothing more, and they’re hiding it under the guise of free speech.”

Despite the fairly minor potential punishment of a Class D misdemeanor and small fine, Correa believes that the offending individual having to go into court and admit what they did in front of friends and family and the media – and the concurrent embarrassment that goes along with all that — is part of ensuring that such language eventually dies off.

“If people are afraid to say the n-word to Black people, it’s not going to happen, and, if it does, they know the consequences,” Correa said. “It doesn’t really concern me that people are going to be afraid to say it, that’s the point and that’s what I want. This is not infringing on your free speech, you can still say everything else you want about Black people, you just can’t dehumanize them and deprive them of their American right to live.”

“I think shame only goes so far,” Harris said. “I believe that sometimes just pointing out that someone is doing something wrong or doing something that’s considered to be unfair or despicable or unjust will right the wrong perhaps more effectively than this bill, particularly if people are not really taking it to court or not being arrested for it or, if they are being arrested for it, it’s not really enforceable.”

Cerame says he filed the lawsuit on his own behalf because if he did it on behalf of a client, it would put his client at risk in the court of public opinion. 

“If anyone is going to get called something nasty, let it be me. That’s fine,” Cerame said. “I’ve already made that choice and freedom of speech is my hill to die on. If you want to call me horrible names, you can do that. You can look at my record, look at what I’ve done, you can look at where I was a teacher, look at who I associated with. You can make that choice and call me what you want, but I think my record is fine.”

The federal court has requested the Connecticut Supreme Court define the word “advertisement” in the statute to move forward and is awaiting that opinion, but Harris says that’s not the only term in the statute that lacks definition.

“What is considered ridicule?” Harris asked. “Certainly, you can ridicule someone racially without using the n-word and I think when this statute was first created, they were covering a broad range of different things.”

“When I’m pushing for this, I know what the consequences are,” Correa said regarding statute 53-37, adding that the language of the statute “should be tightened up a little bit,” to specifically target situations like the one that occurred in Enfield.

Statute 53-37, however, remains enforceable, despite the court case against it, Cerame says, adding that the judge for his case pointed out that someone was convicted under 53-37 just earlier this year. Cerame says he didn’t file an injunction or restraining order against the law because there was no pressing need to for his case and he didn’t want to muddy the legal waters. 

“I’m chill about this. I’m going to do this the grown-up way, I’m going to be really simple about everything,” Cerame said. “This is a facially unconstitutional law; it shouldn’t be around anymore and it’s interfering with how people talk.”

But Cerame is also involved in a second federal court case that he says is interfering with how lawyers talk, after the Connecticut Bar Association voted for a change to its professional rules of conduct that took effect in 2022.

Cerame is a co-plaintiff in a lawsuit against Michael Bowler, Connecticut’s Statewide Bar Counsel, and Matthew G. Berger, chair of Connecticut’s Statewide Grievance Committee. Bowler and Berger are tasked with reviewing and overseeing attorney misconduct complaints, with the grievance committee ultimately issuing a final decision.

The lawsuit concerns a change made to the CT Bar Association’s rules of professional conduct that became effective in 2022 following approval by Connecticut Superior Court judges.

The new rule states that it is professional misconduct for a lawyer to engage in conduct that a lawyer “knows or should reasonably know” is harassment or discrimination based on race, religion, color, ancestry, gender or sexual orientation, sex, marital status, disability or veteran status “in conduct related to the practice of law.”

The new rule is modeled off the American Bar Association’s (ABA) rule 8.4(g) adopted in 2016.

“It’s a speech code for lawyers,” Cerame said. “Its intention is good, there is a problem with historical access to justice for minorities. The was a time when almost everybody in the bar was horribly racist. There was a time for that and there’s still people on the bar who are racist and there’s still a problem. And the system itself is horribly racist, as I’ve had to educate my clients, but regulating how lawyers talk to their clients is not going to help.”

“It interferes with my ability to explain to clients why the situation they’re in is so dire or it interferes with my ability to educate other people about problems in the justice system because I have to start thinking about am I going to accidentally say something that’s disparaging?”

Attorney Mario Cerame

According to the complaint, Cerame’s co-plaintiff, attorney Timothy Moynahan of Waterbury, “is particularly concerned with restrictions on speech and expression of opinion on school campuses.”

“In his speeches and publications, Moynahan often speaks in forceful terms when criticizing opposing points of view,” the complaint says. “Those expressing opposing points of view may well on occasion construe Moynahan’s criticisms as personally derogatory or demeaning. For example, he has repeatedly criticized the race-based educational practices of the Waterbury Board of Education, practices he views as harmful to society.”

Reached for comment, Daniel Horgan, president of the Connecticut Bar Association said the rule change “was initially developed by a dedicated working group of bar association leaders concerned that harassment and discriminatory conduct by lawyers was becoming a problem in our profession and lawyers that were engaging in that conduct needed to be held accountable.”

“The working group led by immediate past president Cecil Thomas (now a Superior Court Judge) took the ABA model rule 8.4(g) and reworked the language to avoid triggering First Amendment concerns that led a number of states to reject it,” Horgan wrote in an email.

The commentary included in the CT Bar Association’s rules of conduct states, “A lawyer’s conduct does not violate paragraph (7) when the conduct in question is protected under the first amendment to the United States Constitution or article first, 4 of the Connecticut constitution.”

According to an ABA article by Dennis Rendleman, the former ethics counsel at the American Bar Association’s Center for Professional Responsibility, Vermont is the only state to have adopted 8.4(g) outright, although 25 other states have implemented similar rules of conduct.

In his commentary, Rendleman says that opposition to the rule falls along two arguments: religious liberty and the First Amendment. Rendleman attributes the religious liberty argument to those seeking to discriminate against LGBTQ citizens, similar to the various cake-baking controversies, and argues that lawyers already agree to limit some of their First Amendment rights upon becoming lawyers, saying the fear of chilling free speech is a “red herring.”

Rendleman writes that drafters of rule 8.4(g) heard from women who testified they have been harassed and discriminated against at law firm events and outings and were therefore related to the practice of law. However, he says that actions outside of the practice of law would not qualify as violating 8.4(g).

Cerame contends the rule change in Connecticut was made to target attorney Norm Pattis, an outspoken and sometimes controversial attorney known for taking on big cases defending well-known and controversial clients, and whose speech outside of the courtroom has landed him in hot water.

According to both the lawsuit complaint and a May 2021 Superior Court Rules Committee public hearing, one of the lead proponents of Connecticut’s rule change, attorney Aigne Goldsby, said that she had experienced discrimination from other attorneys.

“As a Black woman in a profession where less than 2 percent of lawyers look like me, I have suffered my fair share of discrimination and harassment,” Goldsby said. According to both Goldsby’s testimony and the court complaint, Goldsby was called a “race-pandering nitwit” who was “suffering from Black entitlement,” by a white attorney during a bar association-related event. The attorney who made the comments is not named.

“This conduct was never and should never be okay,” Goldsby testified. “All forms of discrimination and harassment have no place in the practice of law in Connecticut.”

Cerame and Moynahan argue, however, that such speech is still protected by the First Amendment.

 Attorney General William Tong argued that the plaintiffs lacked standing, and the judge agreed, noting that neither plaintiff has shown that the rule adoption will actually chill their right to free speech. The case was dismissed in late August. Attorneys for Cerame and Moynahan have since filed a motion to amend their complaint.

“I think a little more sensitivity is needed on how we as a profession treat one another and hold ourselves out to the public,” Horgan said. “We can restore the belief that we work in a noble profession, and it is the upholder and protector of the Rule of Law.”

In 2014, Greenwich resident David Liebenguth was issued a parking citation by Michael McCargo, a Black parking enforcement officer for the Town of New Canaan. Liebenguth, upset by the parking ticket and claiming that McCargo had blocked in his car with his own vehicle, accused McCargo of targeting him because he was white and then said, “Remember Ferguson,” a reference to the death of Michael Brown during a police stop in Ferguson, Missouri.

As both men entered their vehicles, Liebenguth yelled a racial slur twice at McCargo before leaving the parking area. McCargo reported the incident to his supervisor who advised him to report the incident to the police. The police arrested Liebenguth for Breach of Peace and, later, was charged with witness tampering after Liebenguth emailed McCargo’s supervisor trying to get her to convince McCargo to not pursue the case and threatening to bring his own charges against McCargo.

Liebenguth was ultimately found guilty on both counts and sentenced to 4 years probation. In the court’s decision, the judge found that Liebenguth’s use of racial slurs was not protected under the First Amendment.

“In light of this country’s long and shameful history of state-sanctioned slavery, Jim Crow segregation, state-sanctioned racial terrorism, financial and housing discrimination, the word simply has no – no understanding under these circumstances other than as a word directed to incite violence. The word itself is a word likely to provoke a violent response,” the judge wrote, according to court documents.

In essence, the racial slur in this case was considered “fighting words,” or words meant to incite violence that may not be protected under the First Amendment. The term was first coined in a 1942 decision by the U.S. Supreme Court but over the course of numerous decisions, the fighting words exception to the free speech rights has been adjusted to involve more than content of speech but also time, place, and physical proximity.

However, the court’s decision in Liebenguth’s case wasn’t upheld when he filed an appeal.

The Appellate Court decision rendered in April of 2018, determined Liebenguth’s words could not be considered fighting words as Liebenguth was in his car at the time and that “a reasonable person acting in the capacity of a parking official would be aware that some level of frustration might be expressed by some members of the public who are unhappy with receiving tickets and would therefore not be likely to retaliate with immediate violence during such an interaction.”

Basically, the fact that McCargo was a parking enforcement officer and not just a random person on the street, meant that his response would be tempered by his official position. The State of Connecticut, however, took the matter to the Connecticut Supreme Court, which in 2020 then reversed the Appellate Court’s decision. 

The Supreme Court justices disagreed with the Appellate Court’s take on whether someone in McCargo’s position would be incited to violence and therefore Liebenguth’s words were fighting words. “This court disagreed that the average African-American parking official would have been prepared for and responded peaceably to the kind of racial slurs and threatening behavior with which M was confronted.”

In the Connecticut Supreme Court’s view, fighting words came down to a matter of context and content, something that can be difficult to parse out. The case was the focus of a 2020 panel discussion by the CT Bar Association regarding hate crimes, which also included a study by Prof. Frank Harris III.

“The word itself, it does make a difference who says the word and the context in which it’s said, but at the same time there is a time when just saying the word itself can be threatening and provocative and provoke fear in someone,” Harris said. “The question is how to distinguish the difference.”

Harris says that although racial slurs like the n-word used by Liebenguth could certainly incite someone to violence, it wouldn’t necessarily make a good defense if the responder was arrested for assault. “It would not necessarily be a solid defense if you’re arrested for responding,” Harris said. “Although certainly some words and some situations you think it might be, but it’s not one of those things you can count on.”

Liebenguth petitioned the U.S. Supreme Court to review the case but was denied. In 2022, however, Liebenguth — now represented by attorney Norm Pattis — filed a petition in federal court to overturn his breach of peace conviction, arguing again that his speech was protected under the First Amendment.

“I would be surprised if the federal court didn’t really side with Liebenguth on this, as much as I don’t like it,” Harris said. “It’s one of those things where I don’t like it, I don’t like what he said, and I understand the parking attendant and his feelings on it, but I would be surprised if Liebenguth didn’t come out with having his right to say that supported.”

Most are familiar with the limitation of free speech to not cover yelling “fire” in a crowded theater because of the potential to create a panic, possibly injuring theater attendees. Essentially, it would be a breach of peace, similar to the fighting words doctrine.

The question at hand before federal courts in all these cases is where to draw the line on freedom of speech when it comes to racial and discriminatory language when it doesn’t involve physical violence or the imminent and credible threat of violence.

“I believe in the First Amendment, I believe in freedom of expression,” Harris said. “But I also understand that just because you have the right to say and do something, it doesn’t mean you should do that and there is no absolute right to do everything just because you have it. We have a right to free speech but there are limits to that right and the question is where do we draw that line?”

“I don’t think freedom of speech means freedom to make any utterance whatsoever,” Cerame says, using the hypothetical situation of plotting to rob a bank or assassinate the president. “There’s a reason that kind of conversation is not protected because that conversation is not really about an idea but punishing a crime that is about to happen.”

“Speech is really about ideas,” Cerame said. “It was originally about religious freedom, the freedom to write blasphemous libel, that you couldn’t be punished for writing things against the state religion.”

“Should there be limitations on being rude? I think there are, I don’t think the government should do that though,” Cerame said. “There are some things the government is really bad at doing and I think monitoring ideas is one of them and trying to cut out bad ideas – ideas that the government or majority think are bad – is one place the government is really bad at and historically afraid of the tyranny of the majority.”

“Most people believe that racism is a stupid idea, so let those racist ideas fight and die in the marketplace of ideas, let them die under their own weight,” Cerame said, warning that regulating and legally punishing such ideas, relegates them to an underground marketplace, creating echo chamber and making those ideas “more valuable than they should be.”

But in the case of the Enfield incident or Liebenguth’s case, what idea is really being expressed or presented?

“It was an expression of ‘I hate you, I’m angry at you, I don’t like the situation, I don’t like what the government is doing to me,’” Cerame said. “He tried to make the other person feel as bad as he felt. That’s an expression. That’s not a necessarily nice idea, it’s not the idea that I’m going to go around spreading, but it’s still an idea.”

Correa, however, disagrees. “Basically, he’s saying that he would like to keep people saying racial slurs out in the open so that can be an example for other people to know that they can keep it out in the open, rather than knowing that it’s not acceptable in society and people like that must be shunned.”

“If you’re not Black and you used that word and you’re not reading out of a Mark Twain book or something else for an educational purpose, why are you using that word in the first place?” Correa said. “There is nothing that can be gained from being able to sit there and dehumanize a group of people other than perpetuating white supremacy and nothing more.”

Those caught on tape or in public using racial slurs certainly pay some price. Media reports, online shaming, embarrassment and having entire community meetings conducted because of the behavior. The question remains for some, however, is that enough?

Whether in the verbal, racial outbursts of angry men and women, or in the high-minded and technical legal arguments in courts, or in the rallies held by anti-racism activists, it seems all are willing to test the permissiveness and limitations of the First Amendment in a country fueled by social media and political division as it tries to reconcile with its racial history.

The two UConn students filed an injunction against the university’s efforts to oust them from campus and by the time the matter came before the court they had already graduated and agreed to accelerated rehabilitation to have the charges dismissed. After having their names and pictures splashed all over the internet, they were eager to put the incident behind them, according to Cerame. 

For Free Speech advocates, public shaming is punishment enough, and they worry that any law restricting free speech will create a slippery slope where the cure becomes worse than the disease, arming the government with the ability to arrest and convict people for speech deemed offensive – a “tyranny of the majority.” 

“We protect the thought to hate, as [Supreme Court Justice] Alito said, but hatred is okay,” Cerame said. “It’s part of how we work through things, to be frustrated and angry, those are legitimate things.”

“I think the court of public opinion has come around and they have a lot more power,” Cerame said. “If the goal is to punish people for hatred, I don’t think that’s a legitimate end. I understand why you want to do that. I do. Perhaps the better way to fight hatred is to persuade people that the idea is a stupid idea.”

While Cerame acknowledges that “die-hard haters” will likely never be persuaded he says there are countless more people watching on the sidelines as these ideas play out who can be persuaded. “That idea [racism] fails when it comes into contact with merit and equity and justice and those fundamental, much stronger ideas,” Cerame said. “I you want to change people’s perspective, the way you do it is by allowing speech, not silencing speech.”

For those directly affected by such language, they hope that Connecticut’s few laws criminalizing such speech may be reworked to make them more of a deterrent. Putting a particular incident in the past is difficult because new incidents and threats keep occurring. 

Several organizations have noted rising incidents of hate speech over the last several years. Connecticut has certainly seen its share: a white nationalist group from Massachusetts has made incursions into Connecticut, leaving flyers around towns or staging impromptu rallies in places like Hartford. In another incident, letters were mailed from Florida to barber shops in West Hartford urging people to donate to a white nationalist group in Minnesota.

Such incidents cause Correa to worry about her own safety and the safety of her children, particularly in light of some of the racially-motivated mass shootings that have occurred throughout the country, most recently in Buffalo, New York.

“I don’t have time to feel scared because I need to worry about my kids. I don’t have time to worry about myself. I want to sit down and feel scared and cry but they’re watching me, they watch my every move, I can’t break down in front of my kids,” Correa said. “I feel unsafe when things like that happen and I feel angry afterwards because they’re testing me, and it pushes me harder.”

And in Enfield, activist groups are not planning to let these incidents be forgotten easily. The group Showing Up for Racial Justice (SURJ) planned a “Rally for Justice” at the Enfield town hall on September 19. 

On that day outside Enfield’s town hall, a few Black youths played a pickup basketball game, and a young mother pushed her child on the swing at a playground as jetliners soared into and out of Bradley International Airport overhead. It was a peaceful scene, but there was no one there for the rally – it had been canceled and rescheduled for the following week due to the weather forecast. 

“I don’t want to pass this work onto my kids, I want this to die with my generation so that kids after me won’t have to do this,” Correia said. “I’m hoping the curse ends with us. Wishful thinking, of course.”

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Marc E. Fitch, Senior Investigative Reporter

Marc E. Fitch

Marc worked as an investigative reporter for Yankee Institute and was a 2014 Robert Novak Journalism Fellow. He previously worked in the field of mental health is the author of several books and novels, along with numerous freelance reporting jobs and publications. Marc has a Master of Fine Arts degree from Western Connecticut State University.

1 Comment

  1. ROBERT LAVIANA
    September 25, 2022 @ 9:30 pm

    Well researched and presented example of journalism. Not biased, objective, refreshing, in fact. Wish more media content was this comprehensive and non-slanted.

    Reply

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