Popular Post smac97 Posted August 28, 2019 Popular Post Share Posted August 28, 2019 (edited) The Eighth Circuit Court of Appeals is the federal appellate court for a large swath of Middle America (Arkansas, Iowa, Minnesota, Missouri, Nebraska, North Dakota and South Dakota). Lawsuits filed in federal courts start in the "District Court" for a particular state or portion of a state. A losing party then has the option of filing an appeal to the circuit court. Once the circuit court renders a decision, the next stop is the U.S. Supreme Court ("SCOTUS"), which gets to pick and choose which cases it decides to hear. Only a very small percentage of cases are appealed to SCOTUS, and of those, only a very very small percentage (as in less than 1%) are accepted by SCOTUS. Consequently, circuit court decisions can have a pretty big impact. They are binding on all federal courts in the circuit, and are also often influential in other circuits, and also in state trial and appellate courts. With that preamble out of the way, let's take a look at this news item: Quote Court revives St. Cloud couple's lawsuit opposing state's same-sex discrimination lawAlyssa Zaczek, St. Cloud Times Published 1:52 p.m. CT Aug. 23, 2019 | Updated 3:38 p.m. CT Aug. 23, 2019 ST. PAUL — A federal appeals court ruled Friday that a judge should not have dismissed a lawsuit challenging a provision of the Minnesota Human Rights Act that prohibits discrimination on the basis of sexual orientation. In a 2-1 decision, the 8th U.S. Circuit Court of Appeals in St. Paul ruled that Carl and Angel Larsen, the owners of Telescope Media Group, can pursue claims that the provision violates their constitutional rights to free speech and to freely exercise their religious beliefs. I'll try to sum things up a bit (there's a lot to unpack), and also include my thoughts/observations: 1. The Larsens run a wedding videography business. 2. Based on the Larsens' religious beliefs, they do not want to include in their business the videography of same-sex weddings. They have stated: “Angel and I serve everyone. We just can’t produce films promoting every message." This is an important point (and one glossed over, or even deliberately distorted, in the dissenting opinion of the Circuit Court - see below). The Larsens oppose being forced to say things they do not want to say. That is compelled speech. That is antithetical to the Constitution. 3. The Larsens preemptively filed a lawsuit in federal court challenging state laws that, if applied, would punish the Larsens for refusing to photograph same-sex weddings (this issue is very similiar to the Christian bakery case in Colorado from last year). The gist of their argument was/is that the Minnesota Human Rights Act's provision against discrimination on the basis of sexual orientation was "a state effort to stamp out expression opposing same sex marriage." 4. The federal district court (trial judge) dismissed the Larsens' lawsuit, saying that their refusal to photograph same-sex weddings would be "conduct akin to a 'White Applicants Only' sign," and that "{a}s conduct carried out through language, this act is not protected by the First Amendment." 5. Last Friday, the Court of Appeals ordered the federal judge to decide whether the Larsens deserve a preliminary injunction barring enforcement of the law, which subjects violators to fines and possible jail time. Specifically, the Eighth Circuit held that “antidiscrimination laws, as critically important as they are, must yield to the Constitution.” The Circuit Court also held that wedding videos involve editorial judgment and control and “constituted a media for the communication of ideas,” and that the Constitution’s First Amendment allows the Larsens to choose when to speak and what to say. The Circuit Court also observed: “Indeed, if Minnesota were correct, there is no reason it would have to stop with the Larsens. In theory, it could use the MHRA to require a Muslim tattoo artist to inscribe ‘My religion is the only true religion’ on the body of a Christian if he or she would do the same for a fellow Muslim, or it could demand that an atheist musician perform at an evangelical church service.” The Eighth Circuit also held that two of the Larsens' constitutional theories, "free speech" and "free exercise" cannot be dismissed. 6. The Circuit Court's decision was not unanimous. The dissenting opinion states: "That the service the Larsens want to make available to the public is expressive does not transform Minnesota’s law into a content-based regulation, nor should it empower the Larsens to discriminate against prospective customers based on sexual orientation." This is factually and legally wrong. The state law is a "content-based regulation." As applied, the law forces the Larsons to speak content they do not wish to speak. This is also wrong in that it falsely accuses the Larsens of discriminating "based on sexual orientation." The Larsens, as with the Colorado baker, are not discriminating. It's not like they are willing to photograph a same-sex wedding if hired by a heterosexual. They are refusing to photograph a same-sex wedding for anyone. 7. The case is now headed back to the federal district court for further proceedings. The trial judge is now obligated to follow the instructions from the Eighth Circuit, which include some important findings about the Larsens' constitutional rights. What happens next, though, is yet to be seen. 8. I appreciate the Circuit Court's examples of how the anti-discrimination law could - and almost certainly would - play out in other contexts. The potential for misuse and abuse of state antidiscrimination laws is huge. Would a homosexual baker really want to be compelled, under threat of fines and imprisonment, to decorate a cake with messages he finds objectionable? Would an atheist videographer really went to be compelled by force of law to photograph and edit and produce a documentary glorifying the virtues of religion, and also condemning atheism as morally bankrupt and depraved? Quoth the Larsens: “We are thankful the court recognized that government officials can’t force religious believers to violate their beliefs to pursue their passion. This is a win for everyone, regardless of your beliefs.” Just so. Also, kudos to the Alliance Defending Freedom, the legal group that argued the Larsens' case. Thoughts? Thanks, -Smac Edited August 28, 2019 by smac97 10 Link to comment
carbon dioxide Posted August 28, 2019 Share Posted August 28, 2019 The first right explained in the Bill of Rights is the freedom of the exercise of religion. Nobody should be forced in their business to do things against their conscience. Should a Muslim photographer be forced to take pictures of people of people depicting Mohammad in a negative way? Should a Jewish photographer be forced to take pictures at a Nazi wedding? There are enough people in the US who support gay marriage that there is plenty of access for gay couples to hire a photographer for their wedding. Besides, why would a gay couple want someone at their wedding who does not want ot be there and beyond that have that person take the official pictures at that wedding. That person might just take a lot of poor pictures. I would think that the best option is to hire a photographer who actually wants to be there. 1 Link to comment
Popular Post smac97 Posted August 28, 2019 Author Popular Post Share Posted August 28, 2019 (edited) On 8/28/2019 at 9:59 AM, carbon dioxide said: Besides, why would a gay couple want someone at their wedding who does not want ot be there and beyond that have that person take the official pictures at that wedding. I don't think the cake is the point. Nor are the wedding pictures. Rather, I think the purpose and intent being demonstrated in these cases is to subjugate Christians. To punish Christians for their beliefs. Thanks, -Smac Edited August 31, 2019 by smac97 10 Link to comment
Amulek Posted August 28, 2019 Share Posted August 28, 2019 1 hour ago, smac97 said: Thoughts? I ran across this last week and thought it was rightly decided. I could maybe be persuaded that cake decorating shouldn't be considered speech when it comes to first amendment analysis. I've said before that it was kind of an on-the-line case for me. But no way on earth am I going to be convinced that film making shouldn't count as speech. It most definitely is, and it ought to be vigorously defended. I'm pleased to see the majority's holding. It will be interesting to see what comes of this going forward. 4 Link to comment
Ahab Posted August 28, 2019 Share Posted August 28, 2019 1 hour ago, smac97 said: I don't think the cake is the point. Nor is the wedding pictures. Rather, I think the purpose and intent being demonstrated in these cases is to subjugate Christians. To punish Christians for their beliefs. Thanks, -Smac More selfish than that, I think. Not necessarily to punish those who don't do what they want but mainly just to get others to do what they want or think they should do. I think we all would like to see other people do what we think they should do but to try to compel others to do.... whatever? I think that is a very complex issue, but generally I think it's just selfish. Link to comment
smac97 Posted August 28, 2019 Author Share Posted August 28, 2019 3 minutes ago, Ahab said: Quote I don't think the cake is the point. Nor is the wedding pictures. Rather, I think the purpose and intent being demonstrated in these cases is to subjugate Christians. To punish Christians for their beliefs. Thanks, -Smac More selfish than that, I think. Not necessarily to punish those who don't do what they want but mainly just to get others to do what they want or think they should do. I'm not sure about that. There seems to be a fixation on coercing and punishing Christians. Punishing them for WrongThink. Subjugating them. 3 minutes ago, Ahab said: I think we all would like to see other people do what we think they should do but to try to compel others to do.... whatever? I think that is a very complex issue, but generally I think it's just selfish. Selfishness may be a part of it, sure. But I think it goes past that and into vendetta territory. Thanks, -Smac 2 Link to comment
Scott Lloyd Posted August 28, 2019 Share Posted August 28, 2019 3 hours ago, smac97 said: The Eighth Circuit Court of Appeals is the federal appellate court for a large swath of Middle America (Arkansas, Iowa, Minnesota, Missouri, Nebraska, North Dakota and South Dakota). Lawsuits filed in federal courts start in the "District Court" for a particular state or portion of a state. A losing party then has the option of filing an appeal to the circuit court. Once the circuit court renders a decision, the next stop is the U.S. Supreme Court ("SCOTUS"), which gets to pick and choose which cases it decides to hear. Only a very small percentage of cases are appealed to SCOTUS, and of those, only a very very small percentage (as in less than 1%) are accepted by SCOTUS. Consequently, circuit court decisions can have a pretty big impact. They are binding on all federal courts in the circuit, and are also often influential in other circuits, and also in state trial and appellate courts. With that preamble out of the way, let's take a look at this news item: I'll try to sum things up a bit (there's a lot to unpack), and also include my thoughts/observations: 1. The Larsens run a wedding videography business. 2. Based on the Larsens' religious beliefs, they do not want to include in their business the videography of same-sex weddings. They have stated: “Angel and I serve everyone. We just can’t produce films promoting every message." This is an important point (and one glossed over, or even deliberately distorted, in the dissenting opinion of the Circuit Court - see below). The Larsens oppose being forced to say things they do not want to say. That is compelled speech. That is antithetical to the Constitution. 3. The Larsens preemptively filed a lawsuit in federal court challenging state laws that, if applied, would punish the Larsens for refusing to photograph same-sex weddings (this issue is very similiar to the Christian bakery case in Colorado from last year). The gist of their argument was/is that the Minnesota Human Rights Act's provision against discrimination on the basis of sexual orientation was "a state effort to stamp out expression opposing same sex marriage." 4. The federal district court (trial judge) dismissed the Larsens' lawsuit, saying that their refusal to photograph same-sex weddings would be "conduct akin to a 'White Applicants Only' sign," and that "{a}s conduct carried out through language, this act is not protected by the First Amendment." 5. Last Friday, the Court of Appeals ordered the federal judge to decide whether the Larsens deserve a preliminary injunction barring enforcement of the law, which subjects violators to fines and possible jail time. Specifically, the Eighth Circuit held that “antidiscrimination laws, as critically important as they are, must yield to the Constitution.” The Circuit Court also held that wedding videos involve editorial judgment and control and “constituted a media for the communication of ideas,” and that the Constitution’s First Amendment allows the Larsens to choose when to speak and what to say. The Circuit Court also observed: “Indeed, if Minnesota were correct, there is no reason it would have to stop with the Larsens. In theory, it could use the MHRA to require a Muslim tattoo artist to inscribe ‘My religion is the only true religion’ on the body of a Christian if he or she would do the same for a fellow Muslim, or it could demand that an atheist musician perform at an evangelical church service.” The Eighth Circuit also held that two of the Larsens' constitutional theories, "free speech" and "free exercise" cannot be dismissed. 6. The Circuit Court's decision was not unanimous. The dissenting opinion states: "That the service the Larsens want to make available to the public is expressive does not transform Minnesota’s law into a content-based regulation, nor should it empower the Larsens to discriminate against prospective customers based on sexual orientation." This is factually and legally wrong. The state law is a "content-based regulation." As applied, the law forces the Larsons to speak content they do not wish to speak. This is also wrong in that it falsely accuses the Larsens of discriminating "based on sexual orientation." The Larsens, as with the Colorado baker, are not discriminating. It's not like they are willing to photograph a same-sex wedding if hired by a heterosexual. They are refusing to photograph a same-sex wedding for anyone. 7. The case is now headed back to the federal district court for further proceedings. The trial judge is now obligated to follow the instructions from the Eighth Circuit, which include some important findings about the Larsens' constitutional rights. What happens next, though, is yet to be seen. 8. I appreciate the Circuit Court's examples of how the anti-discrimination law could - and almost certainly would - play out in other contexts. The potential for misuse and abuse of state antidiscrimination laws is huge. Would a homosexual baker really want to be compelled, under threat of fines and imprisonment, to decorate a cake with messages he finds objectionable? Would an atheist videographer really went to be compelled by force of law to photograph and edit and produce a documentary glorifying the virtues of religion, and also condemning atheism as morally bankrupt and depraved? Quoth the Larsens: “We are thankful the court recognized that government officials can’t force religious believers to violate their beliefs to pursue their passion. This is a win for everyone, regardless of your beliefs.” Just so. Also, kudos to the Alliance Defending Freedom, the legal group that argued the Larsens' case. Thoughts? Thanks, -Smac Thanks for this. It’s too infrequent these days that we see good news coming out of the federal court system. This is refreshing indeed. Link to comment
Ahab Posted August 28, 2019 Share Posted August 28, 2019 17 minutes ago, smac97 said: There seems to be a fixation on coercing and punishing Christians. Punishing them for WrongThink. Subjugating them. Basically just trying to get them to do whatever they want them to do. And yes also letting them know in no uncertain terms when they are not doing what they want them to do. ...by fines, or coercion, or prison, or whatever they think is necessary to achieve their goal of getting others to do whatever they want them to do. Link to comment
mfbukowski Posted August 28, 2019 Share Posted August 28, 2019 (edited) 3 hours ago, smac97 said: Would a homosexual baker really want to be compelled, under threat of fines and imprisonment, to decorate a cake with messages he finds objectionable? Would an atheist videographer really went to be compelled by force of law to photograph and edit and produce a documentary glorifying the virtues of religion, and also condemning atheism as morally bankrupt and depraved? There you go. THAT is the issue, clearly explained It needed to be put into terms the other side would understand and those are the terms Edited August 28, 2019 by mfbukowski 3 Link to comment
smac97 Posted August 28, 2019 Author Share Posted August 28, 2019 51 minutes ago, mfbukowski said: Quote Would a homosexual baker really want to be compelled, under threat of fines and imprisonment, to decorate a cake with messages he finds objectionable? Would an atheist videographer really went to be compelled by force of law to photograph and edit and produce a documentary glorifying the virtues of religion, and also condemning atheism as morally bankrupt and depraved? There you go. THAT is the issue, clearly explained It needed to be put into terms the other side would understand and those are the terms I hope the bullies lose. For their sake as much as for ours. If they win, it will because they have misused and abused public accommodations and anti-discrimination laws. I would not be in favor of reciprocating that misuse and abuse (the Golden Rule and all that), but I think others out there are so inclined. The bullies would, I think, really not enjoy being given tastes of their own medicine. Thanks, -Smac 1 Link to comment
mfbukowski Posted August 28, 2019 Share Posted August 28, 2019 23 minutes ago, smac97 said: I hope the bullies lose. For their sake as much as for ours. If they win, it will because they have misused and abused public accommodations and anti-discrimination laws. I would not be in favor of reciprocating that misuse and abuse (the Golden Rule and all that), but I think others out there are so inclined. The bullies would, I think, really not enjoy being given tastes of their own medicine. Thanks, -Smac Agreed but I suppose they will have their own passive-aggressive rationale for why that was ok for them and not for others. It WILL come out. Tick, tick tick.... Link to comment
Popular Post smac97 Posted August 28, 2019 Author Popular Post Share Posted August 28, 2019 (edited) 20 minutes ago, mfbukowski said: Agreed but I suppose they will have their own passive-aggressive rationale for why that was ok for them and not for others. It WILL come out. Tick, tick tick.... Oh, this has already happened. The Supreme Court mentioned it in their Masterpiece Cakeshop decision. See here (emphases added): Quote To Phillips, his claim that using his artistic skills to make an expressive statement, a wedding endorsement in his own voice and of his own creation, has a significant First Amendment speech component and implicates his deep and sincere religious beliefs. His dilemma was understandable in 2012, which was before Colorado recognized the validity of gay marriages performed in the State and before this Court issued United States v. Windsor, 570 U. S. 744, or Obergefell. Given the State’s position at the time, there is some force to Phillips’ argument that he was not unreasonable in deeming his decision lawful. State law at the time also afforded storekeepers some latitude to decline to create specific messages they considered offensive. Indeed, while the instant enforcement proceedings were pending, the State Civil Rights Division concluded in at least three cases that a baker acted lawfully in declining to create cakes with decorations that demeaned gay persons or gay marriages. Phillips too was entitled to a neutral and respectful consideration of his claims in all the circumstances of the case. ... As noted above, on at least three other occasions the Civil Rights Division considered the refusal of bakers to create cakes with images that conveyed disapproval of same-sex marriage, along with religious text. Each time, the Division found that the baker acted lawfully in refusing service. It made these determinations because, in the words of the Division, the requested cake included “wording and images [the baker] deemed derogatory,” Jack v. Gateaux, Ltd., Charge No. P20140071X, at 4; featured “language and images [the baker] deemed hateful,” Jack v. Le Bakery Sensual, Inc., Charge No. P20140070X, at 4; or displayed a message the baker “deemed as discriminatory, Jack v. Azucar Bakery, Charge No. P20140069X, at 4. The treatment of the conscience-based objections at issue in these three cases contrasts with the Commission’s treatment of Phillips’ objection. The Commission ruled against Phillips in part on the theory that any message the requested wedding cake would carry would be attributed to the customer, not to the baker. Yet the Division did not address this point in any of the other cases with respect to the cakes depicting anti-gay marriage symbolism. Additionally, the Division found no violation of CADA in the other cases in part because each bakery was willing to sell other products, including those depicting Christian themes, to the prospective customers. But the Commission dismissed Phillips’ willingness to sell “birthday cakes, shower cakes, [and] cookies and brownies,” App. 152, to gay and lesbian customers as irrelevant. The treatment of the other cases and Phillips’ case could reasonably be interpreted as being inconsistent as to the question of whether speech is involved, quite apart from whether the cases should ultimately be distinguished. In short, the Commission’s consideration of Phillips’ religious objection did not accord with its treatment of these other objections. See also this comment from one of the attorneys who represented the baker in the above case: Quote Instead of respecting Phillips’ belief about marriage, the state labeled his beliefs discriminatory. One state official even said that using religious freedom “to justify discrimination” is “a despicable piece of rhetoric,” comparing Phillips’ efforts to protect his freedom to arguments raised by slaveholders and Nazis. And the government ordered Phillips to re-educate his employees, which even included his mother, and teach them that he was wrong to operate his own business consistently with his beliefs. To make matters worse, the same commission that sidelined Jack’s convictions elevated the convictions of other Colorado cake artists, who were faced with requests for messages that they did not want to create, specifically messages that opposed same-sex marriage. By so doing, the commissioners showed their bias and demonstrated a nearly poetic double standard concerning the cake artists’ expressive freedom and their willingness to sell other products to the same customers. Yep. "Freedom of conscience/speech for me and mine, but not for thee and thine." That seems to be what the bullies and their execrable enablers (like the so-called Colorado "Human Rights" Commission) are expecting. Thanks, -Smac Edited August 28, 2019 by smac97 5 Link to comment
Ahab Posted August 28, 2019 Share Posted August 28, 2019 6 minutes ago, smac97 said: Yep. "Freedom of conscience for me and mine, but not for thee and thine." That seems to be what the bullies and their execrable enablers (like the so-called Colorado "Human Rights" Commission) are expecting. Thanks, -Smac So they're saying it's good to say SSM is good but not good to say SSM is bad. They support calling evil good and are calling what is good evil. Pawns, the whole lot of them, I tell you. Link to comment
provoman Posted August 28, 2019 Share Posted August 28, 2019 1 hour ago, smac97 said: I hope the bullies lose. For their sake as much as for ours. If they win, it will because they have misused and abused public accommodations and anti-discrimination laws. I would not be in favor of reciprocating that misuse and abuse (the Golden Rule and all that), but I think others out there are so inclined. The bullies would, I think, really not enjoy being given tastes of their own medicine. Thanks, -Smac Would rather see speech protected. But if not...the law will become a bludgeon. Lawsuits trolls on either side of the issue will easily find targets. Link to comment
Ahab Posted August 28, 2019 Share Posted August 28, 2019 2 minutes ago, provoman said: Would rather see speech protected. But if not...the law will become a bludgeon. Lawsuits trolls on either side of the issue will easily find targets. Just part of what is involved in upholding the Constitution of the United States of America. When people try to violate our freedom of speech, even by court order, we can uphold the Constitution by upholding our rights.. The good guys are supposed to win, though, eventually, and we will. Link to comment
Amulek Posted August 28, 2019 Share Posted August 28, 2019 1 hour ago, smac97 said: I hope the bullies lose. For their sake as much as for ours. Exactly. The same law which protects a Christian videographer's right to not create a film celebrating a same sex marriage is the same law which a gay freelance writer would rely on when turning down a commission to write copy saying positive things about Fred Phelps' church - even though he may happily take money to write positive things about other churchs. Link to comment
Michael Sudworth Posted August 28, 2019 Share Posted August 28, 2019 6 hours ago, smac97 said: Just so. Also, kudos to the Alliance Defending Freedom, the legal group that argued the Larsens' case. I'm surprised you oppose a State's right to regulate commerce. This is one of the (few) legitimate purposes of government. Conflating commerce with speech is going to lead to bad outcomes. Link to comment
Thinking Posted August 28, 2019 Share Posted August 28, 2019 I'm wondering what would happen if an LDS couple solicited the services of a baker to create a cake in the shape of an LDS temple, and the baker refused on the grounds that he doesn't believe in temple marriage. 1 Link to comment
Ahab Posted August 28, 2019 Share Posted August 28, 2019 Just now, Thinking said: I'm wondering what would happen if an LDS couple solicited the services of a baker to create a cake in the shape of an LDS temple, and the baker refused on the grounds that he doesn't believe in temple marriage. I suspect most LDS couples would just bake the cake themselves. It isn't that hard. And if more help was needed it could become a Relief Society project. 2 Link to comment
mfbukowski Posted August 28, 2019 Share Posted August 28, 2019 (edited) 1 hour ago, smac97 said: Oh, this has already happened. The Supreme Court mentioned it in their Masterpiece Cakeshop decision. See here (emphases added): See also this comment from one of the attorneys who represented the baker in the above case: Yep. "Freedom of conscience/speech for me and mine, but not for thee and thine." That seems to be what the bullies and their execrable enablers (like the so-called Colorado "Human Rights" Commission) are expecting. Thanks, -Smac Holy cow!! I seldom follow this stuff- thanks for pointing it out. I could see it coming, and had no idea that it already came and went, but should have. Looks like it is justifiable to have a "phobia" about this political correctness gone amok. It is not a phobia, it is real. That's WAY over the line for anyone fair minded. One rule for me, another for you. What can we do counselor? Edited August 28, 2019 by mfbukowski Link to comment
mfbukowski Posted August 28, 2019 Share Posted August 28, 2019 39 minutes ago, Thinking said: I'm wondering what would happen if an LDS couple solicited the services of a baker to create a cake in the shape of an LDS temple, and the baker refused on the grounds that he doesn't believe in temple marriage. Duh Go somewhere else. How many LDS bakers are there in Utah? Heck there is one major pastry chef in my stake alone. The temple cake business is huge. Link to comment
Amulek Posted August 28, 2019 Share Posted August 28, 2019 41 minutes ago, Michael Sudworth said: Conflating commerce with speech is going to lead to bad outcomes. I'm sorry, but this is plainly a speech issue. As the majority wrote in their decision, "[t]he Larsens' videos are a form of speech that is entitled to First Amendment protection. The Supreme Court long ago recognized that "expression by means of motion pictures is included within the free speech and free press guaranty of the First and Fourteenth Amendments." If you are so inclined, I would highly recommend you read the entire decision. It's really quite good and can be accessed online, here: Telescope Media Group v. Lucero. 2 Link to comment
Amulek Posted August 28, 2019 Share Posted August 28, 2019 46 minutes ago, Thinking said: I'm wondering what would happen if an LDS couple solicited the services of a baker to create a cake in the shape of an LDS temple, and the baker refused on the grounds that he doesn't believe in temple marriage. A wedding cake shaped like a temple? That's really a thing? I've got to be honest, if my wife wanted something like that, I would be grateful for any excuse to have someone other than me shoot that idea down. Link to comment
Michael Sudworth Posted August 28, 2019 Share Posted August 28, 2019 17 minutes ago, Amulek said: I'm sorry, but this is plainly a speech issue. I plainly disagree. They are selling a service. And in the open marketplace they are discriminating. Free and fair markets cannot function well this way. 2 Link to comment
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