Judge Declines To Force Private Web Company To Host Murderous Threats We Mean 'Free Speech'
Is it a good sign when the judge refers to your evidence as "dwindlingly slight and disputed"? How about "the scantest speculation"? Or "faint and factually inaccurate speculation"? Asking for a bunch of dipshits who set themselves up as a rightwing Twitter knockoff and didn't bother to read the terms of service in their web-hosting contract.
You will be shocked, shocked to find that Parler did not get that ex parte restraining order forcing Amazon to continue hosting the site on its servers back on January 11. After the company finally worked out how to serve Amazon Web Services (AWS) with a copy of its complaint, US District Judge Barbara J. Rothstein decided to interpret their motion as a request for a preliminary injunction forcing Amazon to turn the lights back on. And, hey Spoiler Alert: They didn't get that one either.
Parler originally filed suit claiming breach of contract, tortious interference with a business expectancy, and, most bizarrely, a violation of the Sherman Anti-Trust Act.
In the first instance, the site points to Section 7.2(b)(i) of its contract with AWS, which allows for termination if a "material breach remains uncured for a period of 30 days from receipt of notice by the other party." Only Parler was so busy whining that Amazon should have given it more time to deal with all the threats to murder public officials its users were posting that it failed to read Section 7.2(b)(ii), which specifies 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." Whoopsie!
Tortious interference with Parler's business relationship with its users would require Amazon to have committed A TORT. Clearly canceling the contract isn't going to do it, but maybe Parler can get there on those Sherman anti-trust claims. All it has to do is plausibly allege that Amazon colluded with Twitter to destroy its big, scary rival Parler. Can they do it???
That was a little joke — these numbnuts couldn't organize a three car parade. Their complaint relies on supposed smoking gun evidence that Amazon forced Parler to take down "Parleys" threatening to hang Mike Pence when "Hang Mike Pence" was trending on Twitter (because we were all tweeting "Holy shit, those terrorists are inside the Capitol screaming 'Hang Mike Pence!'"), and how is that even legal?
The problem with this "evidence" is that Twitter only signed a contract with Amazon on December 15, 2020, and hasn't moved over to its servers yet. So even if Amazon had some legal obligation to treat all its clients the same (and it doesn't, because that's not a thing), there was no Twitter content that violated Amazon's terms of service on AWS servers. Because there was no Twitter content at all on AWS servers.
As Judge Rothstein put it, "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."
In a last ditch effort, Parler argued that it was in the public interest to put the platform back online. So in its response, Amazon helpfully supplied the court with a sample of the content which got it knocked offline in the first place.
"We are going to fight in a civil War on Jan.20th, Form MILITIAS now and acquire targets."
"On January 20th we need to start systematicly [sic] assassinating #liberal leaders, liberal activists, #blm leaders and supporters, members of the #nba #nfl #mlb #nhl #mainstreammedia anchors and correspondents and #antifa. I already have a news worthy event planned."
"Shoot the police that protect these shitbag senators right in the head then make the senator grovel a bit before capping they ass."
Three guesses how that one went over.
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.
Yesterday's order was just a denial of injunctive relief. The case goes on, but you can bet your bottom dollar that Amazon's lawyers are already drafting their motion to dismiss for failure to state a claim. Also, we'd note that Parler does seem to have found a Russian company to host its bile, so the argument that getting knocked off by Amazon was a killing blow may run into some headwinds.
So good luck Parler! You Nazi-coddlers are gonna need it.
[Parler LLC v. Amazon Web Services Inc. docket at Court Listener]
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Liz Dye lives in Baltimore with her wonderful husband and a houseful of teenagers. When she isn't being mad about a thing on the internet, she's hiding in plain sight in the carpool line. She's the one wearing yoga pants glaring at her phone.