As expected, Barbara Jacobs Rothstein, the judge of the American district, easily rejected Parler’s motion to force Amazon to turn on Parler’s digital lights again. The order is quite short and sweet, essentially saying that Parler did not show even remotely a probability of success in this case that would lead to the Amazon court order to recover the social media site.
As for the antitrust allegations, the judge points out that they seem to be a result of Parler’s imagination:
At this stage of the proceedings, Parler has failed to demonstrate that he is likely to succeed on the basis of his Sherman Act claim. Although Parler has not yet had the opportunity to make findings, the evidence he has presented in support of the claim is both small and disputed by AWS. Importantly, Parler did not present any evidence that AWS and Twitter acted together intentionally – or not at all – in restricting trade …
Indeed, Parler has failed to do more than raise the specter of Twitter’s preferential Twitter treatment. The sum of his claims is that “by pulling the plug from Parler, but leaving Twitter alone despite the identical behavior of users on both sites, AWS reveals that the reasons given for suspending Parler’s account are just a pretext.” … But Parler and Twitter are not similarly located, because AWS does not offer online hosting services to Twitter. Parler’s unsupported claim that “AWS provides online hosting services to both Parler and Twitter” is explicitly rejected in an affidavit by an AWS executive … (Twitter’s main social media service ( “Twitter Feed”) is not running on AWS … On December 15, 2020, AWS announced that it had signed an agreement with Twitter for AWS to start serving Twitter Feed for the first time … We are not yet providing Twitter Feed and I am not aware of a certain chronology for this. ”). Thus, as AWS states, “it could not have suspended access to Twitter content” because “it does not host Twitter”.
For what it’s worth, the judge doesn’t even notice the other huge weakness of Parler’s “antitrust claims.” I intended to write a post about this, but now that this order has expired, that post may be debatable: Parler’s CEO, in his own statement, has undermined the entire antitrust lawsuit, acknowledging that there is at least half a dozen others ”Cloud providers beyond Amazon. It is true that none of them wanted to do business with Parler, but he points out that there is competition in the market:
Parler contacted at least six extremely large potential suppliers – all refusing to host Parler for one of two reasons.
The most “strong” (and I use this term in the sense of “highest of ants”) of the claims was probably breach of contract, in which Parler said the AWS terms require 30 days’ notice to terminate. As I wrote, however, the terms also allow for a suspension of the service in much less time, and Amazon insists that the Parler service has been suspended rather than closed. The judge, not surprisingly, read the entire condition of the service, rather than a little conveniently, Parler’s lawyer wanted her to read:
Parler did not deny that the content posted on its platform violated the terms CSA and AUP; only claims that AWS did not provide notice to Parler that Parler violated and did not grant Parler 30 days to heal, as Parler claims is required under section 7.2 (b) (i). However, Parler does not acknowledge, let alone dispute, that Section 7.2 (b) (ii) – the next provision – authorizes AWS to terminate the Agreement “immediately upon notification” and without providing any opportunity to cure “if [AWS has] the right to suspend in accordance with Section 6. ”And Section 6 also provides that AWS may [Parler’s or its] The right of the end user to access or use any portion or all of the service offerings immediately upon notification ”for several reasons, including if AWS determines that Parler is“ in breach of this agreement ”. In short, the CSA grants AWS the right to suspend or terminate, immediately upon notification, if Parler violates.
Parler did not deny that, when AWS invoked its termination or suspension rights in accordance with Sections 4, 6 and 7, Parler violated the Agreement and AUP. Therefore, at this stage of the procedure, it failed to demonstrate a likelihood of success in breach of contract.
Then there is the intentional interference claim, which almost never flies, because it is almost always just an attempt to repeat previous claims with a “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 this claim. Most fatally, as discussed above, it failed to raise more than the slightest speculation that AWS actions were taken for an improper purpose or by improper means. On the contrary, AWS denied that it had acted improperly, justifying its actions as the lawful exercise of its rights under the CSA’s suspension or termination provisions. Moreover, for the reasons set out above, §§ III.B. (1) and (2), Parler failed to demonstrate the likelihood that AWS infringed the CSA. On the contrary, current evidence suggests that AWS’s termination of the CSA was in response to Parler’s material violation. Therefore, Parler did not demonstrate a likelihood of success in this claim.
The judge admits that Parler may be right that there is irreparable harm here, but his failure to plead a win-win case means 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 the public interest favors forcing AWS to host the type of abusive and violent content in question in this case, especially in light of the recent riots in the US Chapter. This event was a tragic reminder that inflammatory rhetoric can – faster and easier than many of us would have hoped – turn a legal protest into a violent insurrection. The court rejects any suggestion that it is in the public interest for the AWS to host the incendiary speech in the file showing that some of Parler’s users have engaged. At this stage, in the presentation made so far, neither the public interest nor the balance of actions favors the granting of an order in this case.
Separately, it is noteworthy that the judge called the fact that it is not a case on freedom of expression or the first amendment, as some have tried to frame it:
It is important to remember what this is not about. Parler does not allege a violation of the rights of the First Amendment, which exists only against a government entity and not against a private company such as AWS. And indeed, Parler did not dispute that at least some of the abusive and violent posts that gave rise to the problems in this case violate AWS’s Acceptable Use Policy.
Overall, the decision was pretty much exactly what most people expected. The case continues, for now, as it rejected the request for a temporary restraining order (effectively forcing Amazon to reinstall Parler). But I would imagine that this is not auspicious for the next step, which is probably a motion to dismiss the entire trial from Amazon, which the judge seems likely to grant for reasons similar to those used for this decision.
The judge easily rejected Parler’s requests to reinstall Parler on Amazon
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