from the nicely-done dept
As was totally expected, US district court judge, Barbara Jacobs Rothstein, has handily rejected Parler’s motion to force Amazon to turn Parler’s digital lights back on. The order is pretty short and sweet, basically saying that Parler hasn’t even remotely shown a likelihood of success in the case that would lead to having the court order Amazon to take the social media site back.
On the antitrust claims, the judge points out that these appear to be a figment of Parler’s imagination:
At this stage in the proceedings, Parler has failed to demonstrate that it is likely to succeed on the merits of its Sherman Act claim. While Parler has not yet had an opportunity to conduct discovery, the evidence it has submitted in support of the claim is both dwindlingly slight, and disputed by AWS. Importantly, Parler has submitted no evidence that AWS and Twitter acted together intentionally?or even at all?in restraint of trade….
Indeed, Parler has failed to do more than raise the specter of preferential treatment of Twitter by AWS. The sum of its allegation is that ?by pulling the plug on Parler but leaving Twitter alone despite identical conduct by users on both sites, AWS reveals that its expressed reasons for suspending Parler?s account are but pretext.?… But Parler and Twitter are not similarly situated, because AWS does not provide online hosting services to Twitter. Parler?s unsupported allegation that ?AWS provides online hosting services to both Parler and Twitter? is explicitly denied in a sworn declaration by an AWS executive…. (?Twitter?s principal social-media service (the ?Twitter Feed?) does not run on AWS. . . . On December 15, 2020, AWS announced that it signed an agreement with Twitter for AWS to begin servicing the Twitter Feed for the first time. . . . We do not yet service the Twitter Feed, and I am not aware of any particular timeline for doing so.?). Thus, as AWS asserts, ?it could not have suspended access to Twitter?s content? because ?it does not host Twitter.?
For what it’s worth the judge doesn’t even note the other huge weakness in Parler’s “antitrust claims.” I had intended to write a post about this, but now that this order is out, that post may be moot: Parler’s CEO in his own declaration undermined the entirety of the antitrust claim by admitting that there were at least half a dozen other “large” cloud providers beyond Amazon. It’s true that none of them wanted to do business with Parler, but it sort of highlights that there’s competition in the market:
Parler reached out to at least six extremely large potential providers?
all of which refused to host Parler for one of two reasons.
The “strongest” (and I use that term in the sense of the “tallest of the ants” meaning) of the claims was probably the breach of contract claim, in which Parler said AWS’s terms require 30 days notice for termination. As we wrote, however, the terms also allow for a suspension of service in much less time, and Amazon insists that Parler’s service was suspended rather than terminated. The judge, not surprisingly, did read the whole of the terms of service, rather than just the convenient bit Parler’s lawyer wanted her to read:
Parler has not denied that content posted on its platform violated the terms of the CSA and the AUP; it claims only that AWS failed to provide notice to Parler that Parler was in breach, and to give Parler 30 days to cure, as Parler claims is required per Section 7.2(b)(i). However, Parler fails to acknowledge, let alone dispute, that Section 7.2(b)(ii)?the provision immediately following?authorizes AWS to terminate the Agreement ?immediately upon notice? and without providing any opportunity to cure ?if [AWS has] the right to suspend under Section 6.? And Section 6 provides, in turn, that AWS may ?suspend [Parler?s or its] End User?s right to access or use any portion or all of the Service Offerings immediately upon notice? for a number of reasons, including if AWS determines that Parler is ?in breach of this Agreement.? In short, the CSA gives AWS the right either to suspend or to terminate, immediately upon notice, in the event Parler is in breach.
Parler has not denied that at the time AWS invoked its termination or suspension rights under Sections 4, 6 and 7, Parler was in violation of the Agreement and the AUP. It has therefore failed, at this stage in the proceedings, to demonstrate a likelihood of success on its breach of contract claim.
Then there’s the intentional interference claim, which almost never flies, because it’s almost always just an attempt to repeat earlier claims with a “and this is serious.” Here, it’s just pathetic. And the judge knows that.
Parler has failed to allege basic facts that would support several elements of this claim. Most fatally, as discussed above, it has failed to raise more than the scantest speculation that AWS?s actions were taken for an improper purpose or by improper means. Conversely, AWS has denied it acted improperly, justifying its actions as a lawful exercise of rights it had pursuant to either the suspension or the termination provisions of the CSA. Further, for the reasons outlined supra, §§ III.B.(1) & (2), Parler has failed to demonstrate the likelihood that AWS breached the CSA. To the contrary, the evidence at this point suggests that AWS?s termination of the CSA was in response to Parler?s material breach. Parler has therefore not demonstrated a likelihood of success on this claim.
The judge does admit that Parler may be right that there are irreparable harms here, but its failure to plead a winnable case means that doesn’t much matter. Finally, there’s an interesting paragraph on the public interest arguments in the case:
The Court explicitly rejects any suggestion that the balance of equities or the public interest favors obligating AWS to host the kind of abusive, violent content at issue in this case, particularly in light of the recent riots at the U.S. Capitol. That event was a tragic reminder that inflammatory rhetoric can?more swiftly and easily than many of us would have hoped?turn a lawful protest into a violent insurrection. The Court rejects any suggestion that the public interest favors requiring AWS to host the incendiary speech that the record shows some of Parler?s users have engaged in. At this stage, on the showing made thus far, neither the public interest nor the balance of equities favors granting an injunction in this case.
Separately, it’s worth noting that the judge called out the fact that this is not a case about free speech or the 1st Amendment, as some have tried to frame it:
It is important to note what this case is not about. Parler is not asserting a violation of any First Amendment rights, which exist only against a governmental entity, and not against a private company like AWS. And indeed, Parler has not disputed that at least some of the abusive and violent posts that gave rise to the issues in this case violate AWS?s Acceptable Use Policy.
Overall, the ruling was basically exactly what most people were expecting. The case still moves on, for now, as this was just rejecting the request for a temporary restraining order (effectively forcing Amazon to rehost Parler). But I would imagine this does not bode well for the next step, which is likely a motion to dismiss the entire lawsuit from Amazon, which the judge seems likely to grant on similar grounds as was used for this ruling.
Filed Under: antitrust, aws, breach of contract, temporary restraining order
Companies: amazon, parler, twitter