As might be expected, US District Court Judge Barbara Jacobs Rothstein outrightly rejected Parler’s motion to force Amazon to turn Parler’s digital lights back on. The order is very short and kind, basically saying that Parler has not even remotely demonstrated a likelihood of success in the case that would lead the court to send Amazon back to the social media site.
Regarding the antitrust claims, the judge points out that these appear to be an invention of Parler’s imagination:
At this stage in the process, Parler has failed to demonstrate that he is likely to succeed on the merits of his complaint about the Sherman Act. Although Parler has not yet had the opportunity to make the discovery, the evidence he has presented in support of the claim is increasingly diminished and contested by AWS. It is important to note that Parler did not present any evidence that AWS and Twitter acted together intentionally – or even in any way – in restricting trade….
In fact, Parler did nothing more than raise the spectrum of preferential treatment for Twitter by AWS. The sum of his claim is that “pulling Parler’s plug, but leaving Twitter alone, despite the identical behavior of users on both sites, AWS reveals that its expressed reasons for suspending Parler’s account are just an excuse. ” … But Parler and Twitter are not similarly situated, because AWS does not provide online hosting services for Twitter. Parler’s unsupported claim that “AWS provides online hosting services for Parler and Twitter” is explicitly denied in a sworn statement by an AWS executive…. (“Twitter’s main social media service (the“ Twitter Feed ”) does not work on AWS …. On December 15, 2020, AWS announced that it has signed a contract with Twitter for AWS to start serving Twitter Feed for the first time … We have not yet provided services to the Twitter Feed and I am not aware of any specific timetable for doing so. ”). So, as AWS says, “I couldn’t have suspended access to Twitter content” because “it doesn’t host Twitter”.
For what it’s worth, the judge doesn’t even notice another major weakness in Parler’s “antitrust claims”. I intended to write a post about it, but now that this order has been released, that post may be debatable: Parler’s CEO in his own statement undermined the entire antitrust claim by admitting that there were at least half a dozen other “big ones” ”Cloud providers in addition to Amazon. It is true that none of them wanted to do business with Parler, but this shows that there is competition in the market:
Parler reached 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 “tallest of the ants”) of the claims was probably the breach of contract claim, in which Parler said that AWS terms require 30 days notice to termination. As we write, however, the terms also allow suspension of the service in much less time, and Amazon insists that Parler’s service has been suspended rather than terminated. The judge, not surprisingly, read all the terms of the service, rather than just the convenient part that Parler’s lawyer wanted her to read:
Parler did not deny that the content posted on his platform violated the terms of the CSA and AUP; it merely states that AWS did not notify Parler that Parler was in violation and gave Parler 30 days to remedy, as Parler claims to be required by Section 7.2 (b) (i). However, Parler does not acknowledge, let alone dispute, that Section 7.2 (b) (ii) – the immediately following provision – authorizes AWS to terminate the Agreement “immediately upon notice” and without providing any opportunity to remedy “if [AWS has] the right to suspend under Section 6. ”And Section 6 provides, in turn, that AWS may“ suspend [Parler’s or its] The End User’s right to access or use any part or all of the Service Offerings immediately upon notification “for a number of reasons, including if AWS determines that Parler is” in violation of this Agreement. “In short, CSA gives AWS the right to suspend or terminate, immediately upon notification, in the event of a Parler violation.
Parler did not deny that, at the time AWS invoked its rights to terminate or suspend under Sections 4, 6 and 7, Parler violated the Agreement and the AUP. Consequently, it was unable, at this stage of the procedure, to demonstrate the likelihood of success in its claim for breach of contract.
Then there is the claim of intentional interference, which almost never flies, because it is almost always just an attempt to repeat the previous claims with an “and this is serious”. Here, it’s just pathetic. And the judge knows that.
Parler failed to claim basic facts that would support several elements of that claim. Most fatally, as discussed above, it failed to raise more than the smallest speculation that AWS actions were taken for an improper purpose or by improper means. On the other hand, AWS denied having acted improperly, justifying its actions as a legal exercise of the rights it had under CSA’s suspension or termination provisions. In addition, for the reasons described above, §§ III.B. (1) and (2), Parler was unable to demonstrate the likelihood that AWS would violate the CSA. Rather, the evidence at this point suggests that AWS’s termination of the CSA was in response to Parler’s material breach. Parler, therefore, has shown no likelihood of success in this claim.
The judge admits that Parler can be sure that there is irreparable damage here, but his failure to plead a winnable case means that it doesn’t matter much. Finally, there is an interesting paragraph about the public interest arguments in the case:
The Court explicitly rejects any suggestion that the balance of actions or public interest favors AWS ‘obligation to host the type of violent and abusive content in question in this case, particularly in light of the recent US Capitol riots. This event was a tragic reminder that fiery rhetoric can – more quickly and easily than many of us would expect – turn a legal protest into a violent uprising. The Court rejects any suggestion that the public interest favors the requirement that AWS host the incendiary speech that the record shows that some of Parler’s users have engaged. At this stage, in the exhibition made so far, neither the public interest nor the balance of the actions favor granting an injunction in this case.
Separately, it is important to note that the judge highlighted the fact that this is not a case on freedom of expression 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 declaring a violation of any First Amendment rights, which exist only against a government entity, and not against a private company like AWS. And, in fact, Parler did not dispute that at least some of the abusive and violent posts that gave rise to the problems in this case violate the AWS Acceptable Use Policy.
Overall, the decision was basically exactly what most people expected. The case is still going on, for now, as it was just a question of rejecting the request for a temporary precautionary measure (effectively forcing Amazon to reinstall Parler). But I imagine that this does not bode well for the next step, which is probably a motion to reject the entire Amazon lawsuit, which the judge will likely grant for reasons similar to those used for this decision.
The judge easily rejects Parler’s demands for Amazon to reinstate Parler
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