Pronouns and Principles: Sixth Circuit Holds that University Faculty Member’s Speech and Religious Beliefs Enjoy First Amendment Protections

Meriwether v. Hartop, et al, Jane Doe, and Sexuality and Gender Acceptance, No. 20-2389 (6th Cir.).  March 26, 2021.


The United States Court of Appeals for the Sixth Circuit, observing that the trial court had lost sight of fundamental First Amendment principles, has vacated dismissal of a professor’s case alleging that his employer, state university, impermissibly infringed on his First Amendment speech rights and impinged on his Free Exercise interests.  

 

Accepting solely for purposes of its review that plaintiff Meriwether’s allegations are true, the court recounted that in the course of teaching that Meriwether, a professor at Shawnee State University for 25 years, referred to a student as a male.  That student approached Meriwether after class and demanded to be referred to as a female.  Meriwether demurred based on religious principles and an inability to affirm that which he believes to be untrue.  The student uttered a coarse epithet and promised to have Meriwether fired.

 

After reporting the incident, one colleague opined that religion ought not be taught at the school, knowing that Meriwether had done exactly that for a quarter of a century.   The school insisted that Meriwether conform to its anti-discrimination policies by conforming his language to the student’s preference or by not using pronouns at all.  As Meriwether stated he could not on principle do the first nor in practice do the second, the school administrators attempted to reach a compromise in which Meriwether would address the student with neutral terms.  

 

The student complained repeatedly, prompting Title IX review, which concluded that Meriwether had created a hostile environment in violation of that law, which guarantees equal treatment in education.  Meriwether presented a grievance through the faculty union which prompted laughter from the hearing official, who would later be the reviewing official on appeal.  That reviewing official’s delegate determined that Meriwether was undeserving of an accommodation based on religious principles perceived to be bigoted, and therefore unworthy of legal protection. 

 

Meetings were held and memoranda were generated and the compromise offered to Meriwether was revoked.  He was instructed to conform to the school’s speech policies or face discipline, which might include termination or suspension without pay.  A written warning to that effect was added to his official file.  

 

Meriwether sued and lost in federal district court.  On appeal, the Sixth Circuit has stressed that teachers at public universities do not lose First Amendment rights by virtue of that status. The university’s interest in administration, premised on inchoate fears, did not outweigh the faculty member’s speech rights.  Statutes and policies intended to ensure the fair treatment of all are not superior to all other statutes and policies, the court observed.  The finding of a violation of Title IX was in error where there was no pervasive culture making student life intolerable. 

 

The Sixth Circuit concluded that the school had compelled speech by demanding that Meriwether use pronouns deemed acceptable according to policy, and compelled silence in that speech without pronouns was impossible, and an explanation of his views on his syllabus was denied, as was his request for religious accommodation, none of which, subject to development of the record, may be constitutionally tolerable.  Equally problematic was the school’s failure to treat Meriwether’s beliefs even-handedly.  The court found the hostility displayed toward Meriwether troubling and contrary to Supreme Court precedent.  

 

The case has been remanded to the federal trial court for further proceedings.  

Meriwether v. Hartop, et al. No. 20-3289 (6thCircuit).Opinion March 26, 2021

From Press Immunity to Impunity: Dissenting Senior U.S. Court of Appeals Judge for D.C. Circuit Suggests Overruling New York Times v. Sullivan

Tah and McClain v. Global Witness Publishing, et al., No. 19-7132 (D.C. Cir.) March 19, 2021.

Defendants Global Witness Publishing and Global Witness (“Global Witness”) published an investigation into bonuses paid to plaintiffs as members of a government entity engaged in negotiating to conclusion an oil lease of unprecedented significance for Liberia. Plaintiffs sued Global Witness for libel as Global Witness’ report on Liberian corruption intimated that the bonuses were bribes.

The United States District Court for the District of Columbia dismissed anti-Slapp proceedings, as federal courts are not bound by the District of Columbia Anti-Slapp Act. This conclusion was affirmed on appeal.

Similarly, the trial court’s dismissal of the libel action because the publication was subject to First Amendment protections. Plaintiffs assertions concerning ‘actual malice’ were without foundation in law, the court found. This conclusion, also affirmed on appeal, generated significant debate among the panelists about the meaning and future of the “actual malice” standard for libel actions concerning public figures, as established in New York Times v. Sullivan, 376 U.S. 254 (1964).

New York Times v. Sullivan insulated the press from suit for defamation for publication or broadcast of arguably defamatory material unless the publication was made with “actual malice,” either a knowledge that the published information was false or a reckless disregard of its truth or falsity. Id. Subsequent to the decision, it has been noted that meeting the “actual malice” standard is difficult, to say the least.

The present Global Witness affirmation of dismissal of plaintiffs’ claims prompted Senior Circuit Judge Silberman to dissent with some force, taking aim not only at currents in jurisprudence but also offering concerns about the consolidation of power in the media and in the technological giants engaging in distribution and curation of online publications.

The “actual malice” standard is unworkable and in this case has been erroneously interpreted, Judge Silberman declared, causing a rift between the D.C. Circuit and the Second Circuit. The standard for dismissal is “whether a complaint is plausible, not whether it is less plausible than another alternative explanation,” quoting Palin v. New York Times, 940 F.3d 804, 815 (2nd Cir. 2019). Dissent, Slip. op. at 15.

More significantly, New York Times v. Sullivan, Judge Silberman offered, echoing the views of Supreme Court Associate Justice Clarence Thomas, was a policy decision presented as interpretation of the Constitution. While it can be argued that the decision was necessary to protect the press from an avalanche of libel suits intended to discourage coverage of civil rights activities, the opinion itself is not jurisprudentially sound, as it is lacking in grounding in the facts and as it departs from centuries of common law. Id.

The Silberman dissent brooks activist judges no mercy. By “constitutionalizing” policy, the Supreme Court has embraced the standards of communist regimes. Once a principle is established, it will not be willingly relinquished. Dissent, Slip. Op. a 16. If comparing the Supreme Court’s actions to those of regimes antithetical to United States’ freedoms were not enough, Judge Silberman next ventured into the theological realm, remarking that an Associate Justice of the Supreme Court had scolded him for a perceived deficiency in regard for the Court. This chiding, Judge Silberman wrote, caused him to sense that the Court is more concerned with “maintaining a veneer of infallibility” than in correcting errors, no matter how far afield the Court had wandered or stepped on the toes of correlative branches. Id.

However much the New York Times v. Sullivan decision sought to promote the freedom of the press at the time the case was decided, today there is great concern, in Judge SIlberman’s mind, about the consolidation of media within one political point of view. Where it was once feared that press consolidation would induce bland homogeneity, that is hardly the case currently, he has observed, as hasty publication of extreme material, with the assurance no liability will ensue, causes no small amount of harm for which, for public figures, there is likely no redress.

When press powers are aligned with technological giants that curate material in line with the political iew of the press, the threat of suppression of ideas is, in Judge Silberman’s view, too real to overlook. While private technological companies are not bound by the First Amendment, suppression of disfavored views strikes the judge as “un-American.” Dissent, Slip. Op. at 22. Where history instructs that control of communication is an essential first step in establishing authoritarian control, the need to consider these issues is pressing indeed, Judge Silberman has written. Dissent, Slip. Op. at 23.

JustLawful Two Cents’ Worth: JustLawful shares the concerns expressed about media “hive mind” and about the capacity of online gatekeepers to work great mischief. JustLawful would never question the power and potency of the manner in which New York Times v. Sullivan has, rightly or not, accorded the press an immunity ordinarily reserved for the sovereign. Yet JustLawful questions whether overruling New York Times v. Sullivan would cause the press to be any more open to divergent thought. Moreover, if New York Times v. Sullivan were overruled with the view in mind to cause openness to divergence of thought, would that not be as much a policy decision as Judge Silberman’s criticism suggests the case has always been?

Tah and McClain v. Global Witness Publishing, Inc. and Global Witness, No. 19-7132 (D.C. Cir.) March 19, 2021.

A Few Tweets Does Not Jurisdiction Confer: Court Concludes Tweets Posted Outside Kentucky Concerning Kentucky Residents Insufficient Premise for Exercise of Personal Jurisdiction

Blessing, et al. v. Chandrasekhar, No. 20-5850 (6th Cir. 2021).


Defendants’ Tweets about about plaintiff’s activities in Washington, DC at a pro-life rally in January, 2019, reached the plaintiffs in their state of residence, Kentucky.  The Sixth Circuit Court of Appeals has concluded that this “receipt” of the Tweets,  without more, provides an insufficient premise for the assertion of personal jurisdiction over defendants.  Something more than an online post must be involved for a court to conclude that defendants had contacts with a forum state sufficient to support personal jurisdiction.  

Blessing v Chandrasekhar, No. 20-5850 (6th Cir 2021).

JustLawful Observation: One would think that after a quarter century of ubiquitous internet activity that judicial guidance concerning jurisdiction would by now be defined adequately, if not comprehensively.  This is not the case, and particularly so when considering the incorporeal world of online activity.  Although the U.S. Supreme Court has decided that jurisdiction may be asserted for sales tax purposes where purchases are made (to the distress of many), questions concerning assertion of jurisdiction over non-U.S. entities or intellectual property remain.  

Daniel Canedo, Plus or Minus America: Spanski, Geoblocking Technology, and Personal Jurisdiction Analysis for Nonresident Defendants, 31 Fordham Intell. Prop. Media & Ent. L.J. 339 (2021). Available at: https://ir.lawnet.fordham.edu/iplj/vol31/iss2/1

Jesse Lake, Hey, You Stole My Avatar!: Virtual Reality and Its Risks to Identity Protection, 69 Emory L. J. 833 (2020). Available at: https://scholarlycommons.law.emory.edu/elj/vol69/iss4/5

Hayes R. Holderness, Navigating 21st Century Tax Jurisdiction, 79 Md. L. Rev. 1 (2019) Available at: https://digitalcommons.law.umaryland.edu/mlr/vol79/iss1/2

Niesel, Zoe (2019) “#PersonalJurisdiction: A New Age of Internet Contacts,” Indiana Law Journal: Vol. 94 : Iss. 1 , Article 3. Available at: https://www.repository.law.indiana.edu/ilj/vol94/iss1/3

Not Quite Down Pat: New First Amendment Bivens Action Emerges from TSA Employees’ Interference with Recording of “Pat Down” Search

Dyer v. Smith et al., No. 3:19-cv-921 (E.D. Va.) February 23, 2021


The United States District Court for the Eastern District of Virginia recently denied transportation security agents’ motion to dismiss in a suit precipitated by the agents’ insistence that a travelling couple stop  video recording agents patting down — physically searching outside the clothes — one partner, and that anything already recorded be destroyed. 

The federal district court reviewed and rejected factors cautioning against expansion of Bivens actions, observing that the law is clear not only through decisions but also by custom that there exists a recognized First Amendment right to gather news and, as a corollary proposition, to record officials in the conduct of official business.  The court concluded that in the absence of any available remedy, the couple’s Bivens action may proceed.  

JustLawful Observation:  This straightforward summary may provoke an “of course!” response, but that response might be a bit hasty, given that the court recognized a new Bivens action, when in the wake of Hernadez v. Mesa, 528 U.S. ____ (2020), decided during the last Supreme Court term, it was thought that Bivens actions would soon be unicorns:  fanciful but imaginary.

Counsel for the transportation agents thinks so, too, and is pursuing interlocutory review.E.D. Virginia Opinion:

Dyer v Smith, No. 3:19-cv-921 (E.D. Va.) February 23, 2021

Request for Interlocutory Review:

Dyer v. Smith, No. 3:19-cv-921. Defendants’ Memorandum Supporting Motion to Certify Interlocutory Review

Recent U.S. Supreme Court Consideration of Bivens Actions:

Hernandez v Mesa, 528 U.S. , 140 SCt 735, 206 LEd2d 29 (2020)

Commentary on the Future of Bivens Actions

SCOTUS Sharply Limits Bivens Claims—and Hints at Further Retrenchment. Robertson, C. ABA Practice Points. April, 2020.

When Zeal Outstrips Reason: Second Circuit Upholds Judgment Stemming from Website’s Publication of Allegations of Child Sexual Abuse

Powell v. Jones-Soderman and Foundation for the Child Victims of Family Courts, No. 20-532-CV (2nd Cir.) February 26, 2021.


The United States Court of Appeals for the Second Circuit recently upheld a Connecticut federal court judgment that the founder of a child advocacy foundation had libeled a Connecticut father when, during pending divorce proceedings, she published on her website allegations that the father had committed child sexual abuse. 

On appeal, Jones-Soderman argued that the trial court erred in finding her liable because proof of the falsity of her statements was lacking, and such proof was necessary to overcome her First Amendment defense. Moreover, she said that the trial court failed to give consideration to her good faith belief that she was publishing the truth.  

While the First Amendment may protect commentary on matters of public interest, no such protection extends to demonstrably false statements, which the appellate court found were amply examined by the federal trial court in taking testimony and in admitting to the record state court findings that the allegations of sexual abuse were without merit.  

Jones-Soderman is not entitled to reliance on an “actual malice” standard for publication of defamatory material, the Second Circuit found, but even if she were, that standard would have been met, and it would negate any qualified privilege she might have.  

That Jones-Soderman published statements about the plaintiff when in his ex-wife’s employ in a custody battle and with knowledge that clinicians, state authorities, and the state court had found the abuse claims without foundation.  No qualified privilege may serve as shield in such circumstances, nor may a “good faith belief” in the truth of the published statements be invoked where Jones-Soderman knew of evidence contradicting the claims.

Jones-Soderman’s status as a mandated reporter of child abuse is of no moment with respect to the facts in this case, particularly where no complaint to Child Protective Services was ever made.

Powell v. Jones-Soderberg, No. 20-532 (2nd Cir.)

Going to the Chapel (Again): Supreme Court Enjoins California’s Restriction on Indoor Worship, Chastising Ninth Circuit for Failing to Reach Result “Clearly Dictated” by Supreme Court’s Decision Just Days Earlier

Gateway City Church v. Newsom, No. 20A138 (U.S.) February 26, 2021.

In early February the United States Supreme Court enjoined California’s wholesale preclusion of indoor worship, while leaving in place percentage of capacity limitations and restrictions on singing and chanting indoors during services. South Bay United Petecostal Church v. Newsom, No. 20A136, 592 U.S.       (February 5, 2021).   Four opinions issued, as outlined below

  • Justices Thomas and Gorsuch would grant all the relief sought by the church.  
  • Justice Alito would enjoin the capacity and vocalizing restrictions but would stay the injunction on percentage of capacity restrictions to give California an opportunity to demonstrate that only the restrictions in controversy could halt indoor contagion to the same degree as those in place in activities the state deems essential.  
  • Chief Justice Roberts wrote to reiterate the Court’s earlier expression of the importance of deference to political officials in fashioning pandemic relief, but concluded that “deference has its limits,” observing that the issue of singing indoors may be founded in public health but the conclusion that all indoor public worship is unsafe seems ill-considered.
  • Justices Barrett and Kavanaugh opined that the church had not established entitlement to relief from the singing ban, the scope and applicable tests for which are not, in their views, clear.
  • Justice Gorsuch, with Justices Thomas and Alito, would grant all injunctive relief as California’s imposition of more stringent restrictions on churches than on secular activities cannot survive Free Exercise challenge.
  • Justice Gorsuch opined that California could not demonstrate that its unequally applied measures — including a ban on all indoor worship — were the least restrictive means to achieve the government’s inarguably compelling interest in inhibiting the spread of disease.
  • California cannot demonstrate any cognizable difference between personal crowding and mingling in church versus commercial settings and cannot support a total prohibition of worship, Justice Gorsuch concluded.  
  • The inexplicable imposition of more stringent measures on religious activities than on secular gatherings cannot survive strict scrutiny, Justice Gorsuch opined, commenting that the present case ought not have come before the Court, as the Court’s earlier decisions on the same questions compelled the same results in this case.
  • Justice Gorsuch noted that the focus of the present order is on the wholesale preclusion of indoor worship and that additional challenges might be brought concerning other measures.
  • Justice Gorsuch cautioned against championing the singing exclusion as a reasonable deterrent to disease where the entertainment industry has obtained an exemption from it. 
  • Nor is the scope of the singing exclusion comprehensible:  even if an entire congregation singing together might raise risks, what of a single cantor?  California’s confusing regulations do not deserve particular deference. 
  • Whie California offers that some enterprises have adopted self-help in the form of testing requirements, Calfirnai fails to explain why such adaptations would not be permitted to churches. 
  • In all, Justice Gorsuch concluded, Californaita “must do more to tailor the requirements’ of public health to the rights of its people.”  Statement of Gorsuch, J., slip op. at 6.
  • The ”temporary” justification proffered by California rings hollow where “temporary” bans have been in place for months and the nation is entering a second year of restrictions.
  • Justice Kagan, joined by Justices Breyer and Sotomayor, dissented, observing that as justices they are neither scientists nor experts in public health, into which territory the majority wrongly ventured in this case. The state granted worship parity with similar secular assemblies:  the Court erred in compelling the state to apply rules to churches that apply to less risky gatherings. 
  • The dissenting justices observed that while those who are similarly situated ust be treated similarly, it is not true that those who are not must be compelled to conform to each other, as the Court has done here.  The dissenting justices assert that the same measures such as masking, distancing, singing, and capacity apply to religious and secular activities alike in California.
  • The determination that Free Exercise principles must prevail is faulty in fact, for some religious and secular gatherings are similarly treated, and in law, for the Court has impeded the state in meeting its obligation to promote the health and safety of its people  
  • The Court’s earlier decisions do not compel the present result, the dissent found, because no group was singled out here for inferior treatment  
  • Moreover, as a practical matter, the intrusion of the Court into California’s operations open up entirely new questions to be addressed when time and resources are scarce. If the Court has erred and lives are endangered, the Court will pay no price, the dissent observed, as the justices are insulated by lifetime tenure and physically protected against harm.  

One week after the order was entered in South Bay United Pentecostal Church v. Newsom, supra, the Ninth Circuit denied relief to Gateway City Church, upholding the ban on indoor worship, and concluding that where secular and religious entities were subject to the same restrictions, no constitutional violation could be found, particularly, where houses of worship were not singled out for unfavorable treatment.  Gateway City Church v. Newsom, No. 21-15189 (9th Cir.) February 12, 2021. 

Moreover, the Ninth Circuit found that there had been no showing that the prohibition on indoor gathering was other than a neutral and generally applicable law, requiring no more than rational basis review.  Id.  

Gateway City Church sought relief from the Ninth Circuit’s order in the Supreme Court.  The request was opposed but one day after the opposition was filed that state advised the Supreme Court that the challenged regulations would soon end.

The Supreme Court declined the tacit invitation to allow the church’s request to become moot, and issued an order declaring the Ninth Circuit to have erred, and in particular erred in denying relief to the church when a contrary result was “clearly dictated” by the decision in South Bay United Pentecostal Church.  

South Bay United Pentecostal Church v. Newsom No. 20A136 , 592 U.S. ___(February 5, 2021)

Gateway City Church v. Newsom, 9th Cir. Order February 12, 2021

Gateway City Church v. Newsom, No. 20A138 , U.S. Sup.Ct. Order February 26, 2021

Where Two Or More Have Gathered, Litigation Has Ensued: Maine Church Argues That Recent Decisions Compel The Conclusion That Maine’s Pandemic Capacity Restrictions On Assembly Violate The Religion Clauses of the First Amendment


 

Calvary Chapel of Bangor v. Mills, Governor of the State of Maine, No. 1:20-cv-00156-NT (D. Maine).

Calvary Chapel Church of Bangor, Maine has challenged pandemic-related capacity restrictions on church attendance since shortly after the state imposed those restrictions nearly a year ago.  

The church believes that Maine’s are now the most restrictive assembly limitations in the nation.

Following an appeal to the First Circuit and remand to the federal district court in Maine, Calvary Chapel now argues that recent decisions of the United States Supreme Court and the federal circuit courts of appeals compel the issuance of an injunction against the governor’s restrictions on church attendance.

The church asserts that the state’s pandemic related imposition of limits on church assembly, where similar limits are not imposed on secular entities and activities, unlawfully discriminates against Calvary Chapel of Bangor, in violation of the Free Exercise Clause of the First Amendment.  Moreover, the state’s restrictions impermissibly interfere with the church’s management of its own affairs and, as the restrictions preclude participation in religious services, they violate the Establishment Clause.  

Calvary Chapel of Bangor differs from other congregations that have engaged in challenges to pandemic-related measures.   Calvary Chapel not only serves as a church for community congregants, but also operates a residential program for persons seeking to renew their lives and recover from life-limiting conditions through, among other things, participation in religious assembly.

The pastor of Calvary Chapel of Bangor notes that not only is assembly commanded by scripture, but also that greater fervor is commanded during times of trouble  

The pastor submits that because almost 50 residents are always in place at the residential program, when those residents are called to church services, then community congregants cannot attend, as the gathering would exceed the Governor’s order’s limits.  

Conversely, if congregants were permitted to attend services, the residents would be precluded from doing so. Such a choice diminishes the dignity of all and undermines the effect of the residential treatment program, which envisions full acceptance within the larger community after completion of the program.

The pastor states he finds himself in an untenable situation, as he must choose between violating the law, which has criminal penalties, and violating his beliefs and obligations as minister.

The pastor points out that this choice is an impossible one, and is particularly troubling in a nation founded on principles of freedom of religious worship.

The governor of Maine’s response to the newly filed motion for injunctive relief has not yet been submitted, nor is there any date for hearing established


What follows are links to the Calvary Church brief and the pastor’s declaration and copies of opinions considering challenges to restrictions on Church attendance during the pandemic.

 

Here are links to Calvary Church’s recent submission to the court:

Calvary Chapel v. Mills Renewed Motion for Injunctive Relief

Calvary Chapel v. Mills Declaration of Ken Graves, Pastor

And here are links to recent opinions:

South Bay United Pentecostal Church v. Newsom, 592 US (Feb.5, 2021)

Calvary Chapel Bangor v Mills 1st Cir 2020

S Bay United Pentecostal Church v Newsom (SD Cal 2020) (Dec.)

High Plains Harvest Church v. Polis, 592 U.S. ( ) Dec. 15, 2020

Calvary Chapel Lone Mountain v Sisolak 9th Cir 2020

Calvary Chapel Dayton Valley v Sisolak 9th Cir 2020

Roman Catholic Diocese of Brooklyn v Cuomo 2020

Calvary Chapel Dayton Valley v Sisolak 140 S Ct 2603 2020

S Bay United Pentecostal Church v Newsom 140 S Ct 1613 207 L Ed 2d 154 2020

 

 

The Preacher Talked to Me and He Smiled: Supreme Court Upholds Injunction Permitting Minister’s Presence at Alabama Prisoner’s Execution

Commissioner v. Smith, No. 20A128, 592 U.S. ____ (February 11, 2021).


Justice Kagan, with three others, has opined that Alabama failed to meet the strict scrutiny test applicable under the Religious Land Use and Institutionalized Persons Act (RLUIPA). Alabama’s global prohibition on ministerial presence at execution substantially burdens a prisoner’s religious exercise, and Alabama failed to demonstrate that this preclusion is the least restrictive means of advancing the compelling state interest in prison security.  As such, the injunction permitting the prisoner to have a religious presence at execution is proper and will not be dissolved.

Justice Thomas, without writing separately,  would have granted the petition to dissolve the injunction.

Justice Kavanaugh and Chief Justice Roberts would grant the petition as reflecting a non-discriminatory policy, but would encourage states to implement measures that would fulfill requests such as the inmate’s here and thereby avoid protracted litigation. 

 

Commissioner v. Smith, 20a128, 592 U.S.__(February 11, 2021)




Pour l’instant, ils ne parlent pas: Federal Judge Denies Social Media Platform Parler’s Request that Amazon Web Services Restore Its Service

Parler LLC v, Amazon Web Services, No. 2:21-cv-00031-BJR (W.D. Wash). Order denying preliminary injunctive relief entered January 21, 2021.


A federal court in Washington has denied Parler’s request that Amazon Web Services (AWS) be  ordered to resume web hosting service to social media platform Parler.  

 

The court found that the standards for preliminary injunctive relief, particularly with respect to a likelihood of success on the merits, had not been met. 

 

First, the court found that Parler had not established that it would prevail on an antitrust claim, as neither an agreement between AWS and Twitter, nor a restraint of trade had been shown. AWS has insisted no contact between AWS and competitor Twitter had occurred.   

 

Second, AWS’s pursuit of lawful remedies, such as might be found in the parties’ agreement,  cannot support a claim for tortious interference with business.  

 

Third, Parler was not substantially likely to prevail on its contract claim where Parler was admittedly in breach of its agreement with AWS and suspension or termination was a consequence of a breach under the parties’ agreement.  

 

Counsel admitted at hearing that damages could make Parler whole, making it impossible to perceive that irreparable harm would ensue if an injunction was not issued.  

 

The balance of equities did not favor Parler, as it was admittedly in breach of its contract with AWS. 

 

The court noted that AWS had offered evidence that AWS did not treat Parler and Twitter differently on the same facts, for different services are provided to each company.  

 

Finally, the court noted that no policy supports compelling AWS to provide a platform for speech that might incite violence.

 

Parler LLC v Amazon Web Services 2 21-cv-0031 BJR Order Denying Preliminary Injunction

“Sure sounds like a termination.”–Judge in Parler Dispute With Amazon Web Services Appears to Appreciate Impact, But Questions Need for Injunctive Relief

Parler LLC v. Amazon Web Services, No. 2:21-cv-00031(BJR) (W.D. Wash). Argument concerning injunctive relief held January 14, 2021.


Today the U.S. District Court for the Western District of Washington heard arguments concerning whether Amazon Web Services (AWS) ought to be ordered to restore service to Parler, LLC, whose site was deplatformed on short notice provided on January 9 because, AWS believed, Parler was not ably managing removal of unacceptable content in compliance with its agreement with Amazon.

 

Counsel for Amazon downplayed any non-compliance on Amazon’s part, asserting that Parler had not and could not comply with its obligations whether AWS  had suspended or terminated Parler.

 

AWS noted that as of January 6, 2021, what had been long feared became painfully real in the attacks at the U.S. Capitol. AWS perceived a need for action.  

 

Amazon Web Services noted that AWS’ actions respecting Twitter differ from its actions with Parler because Amazon Web Services does not access or engage with Twitter’s live feed as it does with Parler.

 

Parler submitted that losses to Parler are irreparable.  Advertisers, the site’s sole revenue source, no longer provide income, and fifteen million account holders no longer can access Parler.

 

Although Parler offered that just recently Parler had been discussing adopting AWS’ software and obtaining venture capital, no counsel present would opine concerning whether their respective clients would be interested in further discussions.

 

Parler has admitted that some harms might be remedied by money damages, but pointed to the immediate present losses of income and customers as worthy of injunctive redress.

 

On inquiry by the court, counsel for Parler did not articulate a present emergency which would justify injunctive relief.

 

The court, without elaboration, promised its order would issue promptly.