“[T]he 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.”
Amazon Web Services took down Parler from its cloud service, allegedly based on threats on the Parler platform, mirroring simultaneous actions by Google and Apple to remove the Parler App.
As previously documented, this appeared to be a pretext as part of a larger anti-Trump effort, The claim that Parler represents some unique risk to public safety is a lie driven by politics.
Parler sued AWS. You can find all the pleadings, affidavits, and other court submission in this post, Parler CEO: Unclear when will be back, sues Amazon Web Services for website takedown (Updates).
Argument on the Motion for a Temporary Restraining Order was held on January 14. It was a bad sign for Parler when it sought immediate emergency injunctive relief, and according to news reports, the judge indicated she was not in a rush to rule.
The federal judge in the Western District of Washington just ruled (Order), denying a preliminary injunction.
MORE TO FOLLOW.
Excerpts from the Order:
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. This motion also does not ask the Court to make a final ruling on the merits of Parler’s claims. As a motion for a preliminary injunction, before any discovery has been conducted, Parler seeks only to have the Court determine the likelihood that Parler will ultimately prevail on its claims, and to order AWS to restore service to Parler pending a full and fair litigation of the issues raised in the Complaint. Having reviewed the briefs filed in support of and opposition to the motion, and having heard oral argument by videoconference, the Court finds and rules as follows.
* * *
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….
* * *
The gravamen of Parler’s breach of contract claim is that AWS terminated the Agreement without providing Parler 30 days to cure any alleged material breach 2….
[fn 2 AWS denies that it “terminated” Parler’s account, claiming it merely “suspended” its services. Opp. Br. at 6. As discussed below, the distinction is not material to Parler’s claim at this stage, however, as the CSA grants AWS the authority to take either action under the same circumstances. See CSA, §§ 6, 7.2(b)(ii).]
… 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.
There is no mention in the Order that AWS submitted any evidence that activity on Parler caused the Capitol Hill riot, but the Judge nonethless raised that possibility in addressing whether the equities favored Parler:
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.
Let this be a lesson. The Capitol Hill riot will be exploited not just politically, but also judicially even as to people and entities not responsible for it.
The Court concluded:
Parler has failed to meet the standard set by Ninth Circuit and U.S. Supreme Court precedent for issuance of a preliminary injunction. To be clear, the Court is not dismissing Parler’s substantive underlying claims at this time. Parler has fallen far short, however, of demonstrating, as it must, that it has raised serious questions going to the merits of its claims, or that the balance of hardships tips sharply in its favor. It has also failed to demonstrate that it is likely to prevail on the merits of any of its three claims; that the balance of equities tips in its favor, let alone strongly so; or that the public interests lie in granting the injunction.
AWS signed a big hosting deal with Twitter, the place where it is documented some of the organizing of the Capitol Hill riot took place.
According to the criminal complaint, Sahady is the vice president of an organization called “Super Happy Fun America,” which allegedly purports to advocate for the “straight community.” Beginning on approximately Nov. 16, 2020, Sahady tweeted statements exhibiting a belief that the presidential election was stolen, and that people need to gather in D.C. on January 6, 2021 to respond. Photos posted on a Twitter account connected to Super Happy Fun America show Sahady on a bus with other individuals with the caption, “Bus 1 of 11 coming to Washington DC. See you there!”
According to the criminal complaint, Ianni is also involved with “Super Happy Fun America.” The complaint alleges that Ianni organized buses for Super Fun Happy America to transport individuals to Washington D.C. for the January 6, 2021 event. Ianni is pictured alongside Sahady in the bus photo on Twitter. Following the Capitol breach, the public and media posted photos and identified people who were at the riot and entered the Capitol. Photographs show Sahady and Ianni standing next to each other inside the U.S. Capitol during the breach.
Yet AWS has not closed Twitter’s use of its hosting platform.
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