TRO denied: Parler loses Round One with Amazon in court

Parler has pledged to return its largely unmoderated social-media platform to service soon, but it won’t happen by judicial order. In its suit against former host Amazon Web Services, Parler had requested an order from the court to force Amazon to restore its services. In a ruling that bodes ill for Parler’s prospects, Judge Barbara Rothstein refused, concluding that restoring Parler’s content didn’t fall within her view of “public interest”:

Amazon won’t be forced to immediately restore web service to Parler after a federal judge ruled Thursday against a plea to reinstate the fast-growing social media app, which is favored by followers of former President Donald Trump.

U.S. District Judge Barbara Rothstein in Seattle said she wasn’t dismissing Parler’s “substantive underlying claims” against Amazon, but said it had fallen short in demonstrating the need for an injunction forcing it back online.

Parler has argued that AWS had acted in a monopolistic fashion in deplatforming its portal, and that they had colluded with competitor Twitter to shut down their speech. Rothstein didn’t buy that argument, nor did she demonstrate much sympathy for Parler on the basis of their content:

Judge Rothstein said she rejected “any suggestion that the public interest favors requiring [Amazon Web Services] to host the incendiary speech that the record shows some of Parler’s users have engaged in.” She also faulted Parler for providing “only faint and factually inaccurate speculation” about Amazon and Twitter colluding with one another to shut Parler down.

Parler CEO John Matze asserted in a court filing that Parler’s abrupt shutdown was motivated at least partly by “a desire to deny President Trump a platform on any large social-media service.” Matze said Trump had contemplated joining the network as early as October under a pseudonym. The Trump administration last week declined to comment on whether he had planned to join.

Amazon denied its move to pull the plug on Parler had anything to do with political animus. It claimed that Parler had breached its business agreement “by hosting content advocating violence and failing to timely take that content down.”

One fun but almost certainly irrelevant factoid: Rothstein is a Jimmy Carter appointee. Carter left the presidency almost exactly 40 years ago — this week, in fact. That probably has no bearing on this ruling, as Parler’s demand would have been a longshot in any court, and so too is its lawsuit. Their issues are essentially political, not legal.

In the first place, AWS does not have an obligation to allow any sort of content on its servers. (Neither does Parler, for that matter.) AWS provides access to its servers on its own terms, as one would expect with any private property. That includes the right to set terms about screening violent content or criminal acts such as conspiring to riot to keep those off of their servers. Other provider might or might not be so picky, but that’s on Parler to choose.

If AWS violated its contract with Parler in its cancellation or suspension of service, that’s another matter. However, that doesn’t appear to have been Parler’s argument for the TRO. Instead, the argument appears to have centered on attacking AWS’ move on an anti-trust argument, an allegation for which requires Parler to show substantial proof before any judge would force a provider to allow access to its networks over its own objections to content. As Sidney Powell and Lin Wood demonstrated, having a theory about something does you no good in court without proof to back it up.

It also sounds as though Parler accused AWS of playing political games by preventing Donald Trump from using its platform. In the first place, that puts us back to the private-property argument; AWS is not obligated to give Trump, Parler, or you and I a platform if they don’t want to do so. Even that kind of claim requires evidence from the plaintiff that makes that allegation. Not only does it appear that Parler didn’t have that evidence, AWS had a very rational counter-argument for its decision to cut off Parler in highlighting the unmoderated content that Parler had allowed to appear on the platform. In essence, Parler has supplied AWS with the evidence to defeat both of these arguments.

One has to wonder why Parler chose to emphasize these arguments rather than just approach it as a breach-of-contract case. Rothstein seemed to hint that Parler might still have some argument there, but Gizmodo’s Alyse Stanley wonders if that case is just as thin:

Given the judge’s apparent rejection of these antitrust allegations, it’s a mystery what she’s referring to regarding those supposed “substantive underlying claims” that Parler has against AWS. A major argument in Parler’s suit is that AWS supposedly violated the Sherman Antitrust Act by taking its site down and was “committing intentional interference” to cut off the network’s future growth. Parler’s other leading argument, that Amazon is in breach of contract for failing to give a 30-day notice before yanking its contract, seems even less likely to hold water because AWS’s customer agreement plainly states that the company can revoke service at any time if a platform or its users breach these terms.

What does the user agreement say about content? For one thing, it warns customers about posting content that might violate the law, and explicitly holds them responsible for the content:

4.2 Your Content. You will ensure that Your Content and your and End Users’ use of Your Content or the Service Offerings will not violate any of the Policies or any applicable law. You are solely responsible for the development, content, operation, maintenance, and use of Your Content.

And later, AWS reserves the right to immediately suspend users if their content “poses a security risk” to others:

6.1 Generally. We may suspend your or any End User’s right to access or use any portion or all of the Service Offerings immediately upon notice to you if we determine:

(a) your or an End User’s use of the Service Offerings (i) poses a security risk to the Service Offerings or any third party, (ii) could adversely impact our systems, the Service Offerings or the systems or Content of any other AWS customer, (iii) could subject us, our affiliates, or any third party to liability, or (iv) could be fraudulent;

Legally, it does appear that Parler’s lawsuit is very much a longshot. It’s an even bigger longshot if Parler sticks to political arguments and fails to follow up with valid evidence to back them up. The better argument for Parler will be in the public square, but even then, they have to overcome AWS’ clear property rights in controlling their own space — just as Parler demands respect for its decision not to control its own. Free speech and property rights are both core values in the American experience, and in this case Amazon actually has the better argument on both. So far, anyway.