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

Keep Your Shirt On! Wisconsin Students Successfully Argue that the First Amendment Protects Wearing Controversial T-Shirts in School


N.J. ex rel. Jacob v. Sonnabend, No. 20-C-227; Lloyd v. Kaminski, No. 20-C-276 (E.D. Wis.) November 6, 2020.


Two Wisconsin students attending separate schools came to school wearing clothing advocating individual gun rights.  School authorities took action against the students for violating the schools’ dress codes.  One school rejected a parent’s attempt to provide an alternative t-shirt advocating patriotism.  

In 1969, the Supreme Court recognized that students have some protected expressive rights, the denial of which must be supported by evidence that the expression in question materially interferes with school functioning.  Tinker v. Des Moines Independent Community School District, 393 U.S. 509 (1969). 

In this case the schools did not focus on disruption but argued that the shirts were not protected because no particularized message was conveyed and some messages were advertisements.

The students assert that even if the shirts were commercial they nonetheless merit First Amendment protections.

While clothing itself is not generally protected, the court has rejected the school’s view that a particular and recognizable message must be present for First Amendment protections to attach.  The court noted that while one shire did contain commercial elements, the message concerning the right to bear arms was clear.  The court also rejected the argument that the message was not clear because the messages themselves are what precipitated the school’s intervention.

The shirts are entitled to First Amendment protection, the court concluded, but not absolute protection. The dimensions of any proper time and place restrictions remain open for exploration, but judgement that constitutional protection is lacking is denied.  

N.J. ex rel. Jacob v. Sonnabend (E.D. Wis. 2020)

You Cannot Take It With You: First Amendment Speech Protections Do Not Reach U.S. Entities’ Foreign Affiliates

Agency for International Development, et al. v. Alliance for Open Society International, et al., No. 19-177 (June 29, 2020).


Justice Kavanaugh delivered the opinion of the Court.  In 2003, the United States determined that certain recipients of federal funding for international public health initiatives must have an express policy opposing prostitution and sex trafficking. United States Leadership Against HIV/AIDS, Tuberculosis, and Malaria Act, known as the Leadership Act. 117 Stat. 711, as amended, 22 U. S. C. §7601 et seq.  

In 2013, the Supreme Court agreed with the Alliance for Open Society International (AOSI) that the Policy Requirement, as it came to be known, imposed an unconstitutional condition on AOSI’s First Amendment rights.  

The Policy Requirement remained in effect against AOSI’s separate foreign affiliates, resulting in the present challenge.

The Court acknowledged that foreign citizens in the United States may enjoy some constitutional protections.  The U.S. Constitution may also apply in U.S. territories or places wholly controlled by the U.S. government.  The U.S. may enact legislation granting rights against the U.S. abroad or giving U.S. citizens abroad certain rights, but the government is generally otherwise constrained against attempting to affect activities abroad.

The law traditionally holds that separate corporations have separate rights and responsibilities.  The separate corporations in issue here were incorporated outside the U.S. and, although affiliated, are distinct from the U.S. corporations.  

The Court held that the United States, which. provides more foreign aid than any nation on earth,  may do so by applying conditions such as those in issue here mandating that aid recipients as a matter of policy condemn sex trafficking and prostition.  

Foreign corporations operating abroad enjoy no First Amendment rights.  

In light of both principles, the plaintiffs cannot complain of constitutional error in requiring the Policy Statement of foreign entities. 

Arguments about speech misattribution fail because the cases cited by plaintiffs concern forced affiliations, whie the choice of affiliations here are wholly voluntary.  Plaintiffs are free to affiliate as they please and they may disclaim support for the policy statements that their foreign affiliates must make.

Justice Thomas concurred to restate his discontent with the “forced speech” holding of the 2013 case.  Justice Thomas observed that the Constitution does not compel a viewpoint neutral government nor does conditioning funds tied to affirmations of a belief involve compulsion where entities are free to decide not to apply for or participate in federal funding.  The First Amendment does not protect the conditions in issue at all, without reference to the domestic or international status of the corporation or its affiliates.

Justices Breyer, Ginsburg and Sotomayor dissented, asserting that the First Amendment rights of the U.S. entities and not the foreign corporations are in issue.  By asking the wrong question, they observe, the Court arrives at the wrong answer

Where close affiliates are concerned, answers to questions of compelled speech ought not be distinguished based on whether the affiliated entities are domestic or foreign.  If the government demands speech contrary to the speaker’s message, the mechanism for so doing cannot cure the constitutional infirmity.

The aim of the domestic corporations is to speak abroad. From a structural standpoint, It ought not matter how this is accomplished.  Moreover, the impact of the present decision on U.S. media abroad cannot be disregarded.

The issue of the territorial reach of the U.S. Constitution is of no moment because exploration of the issue comes in response to the wrong question. The speech rights of domestic corporations with respect to closely identified foreign affiliates, not the foreign affiliates in themselves, are in issue.  Additionally, the idea that separate corporations are inviolably so is contrary to law, which can and does at times disregard corporate forms and recognize close corporate relationships.  

U.S. A.I.D. v. Alliance for Open Society No.19-177 S.Ct. June 29 2020

The Tale of the Tell All: Federal District Court Refuses to Enjoin Publication Said to Contain Sensitive National Security Information


United States v. John R. Bolton, No. 1:20-cv-01580-RCL Order denying temporary restraining order entered June 20, 2020.


Former National Security Advisor John R. Bolton complied with the pre-publication review process of his account of his days in the Trump administration up to the point when, following required agency review that had provided assurances that his manuscript was free of classified information, counsel for the White House and National Security Council advised that further review was ongoing.

Bolton’s publisher, Simon & Schuster, has printed and distributed Bolton’s book to re-sellers in anticipation of publication on June 23.  Excerpts are currently available online.

The government’s advanced prohibition of publication — “prior restraint” — is anathema to the First Amendment except in limited circumstances.  The publication of classified information harmful to national security interests is one such circumstance, requiring that those accessing such information agree not to disclose or publish such information absent review.

The United States has sought and has been denied an injunction which would temporarily restraining Bolton from full publication.

The United States District Court for the District of the District of Columbia determined that the law governing injunctions no longer permits flexibility or a “sliding scale” approach but demands that all four prongs of the requirements for injunctive relief must be met.  To obtain such relief, a party must demonstrate a substantial likelihood on the merits, that it will suffer irreparable harm if relief is not granted, that there will be no substantial harm to other parties if relief is granted, and that the extraordinary relief sought serves the public interest.

Following in camera review of the United States’ declarations and submissions supporting its position, the court did not look kindly on what it characterized as Bolton’s “gamble” with national security, surmising that Bolton had weighed the financial and publicity benefits of truncating the review process against the costs to the nation and to himself of the possible disclosure of classified information.

The court found the government’s insistence that irreparable harm would ensue if injunctive relief were denied fell short of the mark where the harm to be prevented has in essence already occurred.   Any further harm that the government fears cannot likely be overcome by a grant of a temporary restraining order where the internet would permit worldwide publication in an instant of materials already disclosed.

The court observed that a toothless injunction could hardly cause harm to others and that an award of such relief would only nominally serve the public interest.

While the court’s analysis and conclusions on the matter of injunctive relief disfavored the government, particularly as the court thought little of the request that the court order recall of materials already in the publisher’s and resellers’ possession, the court did not hesitate to proffer his prediction of the merits:  “[d]efendant Bolton likely jeopardized national security by disclosing classified information in violation of his national security obligations.”  (June 20th Order, Docket No. 27, at p. 6.)

The court recited potential costs if Bolton loses on the merits are not insignificant:  loss of profits, exposure to criminal liability, and harm to national security.

Justlawful observation:  A federal district court does not have time and may lack the inclination to explore institutional ramifications when ruling on a time-sensitive motion for a temporary restraining order.  Suffice it to say that it remains to be debated what ends, positive and negative, the classification of information serves, and what institutional erosion may occur where former officials determine of their own accord what processes will be respected, and what conditions will be abandoned, particularly in service of self interest.

This is not to say that the government wears a ten-gallon white hat in this case.  The government may not be on solid ground if it seeks to preclude embarrassment accompanying publication, and this is a widely held public perception of the government’s position.  Publication of embarrassing information may diminish the United States and its President in the eyes of the world, but without more this cannot be a true national security concern.  Moreover, the bureaucratic obstreperousness perceived in the imposition of additional hurdles to publication diminishes the justification for the extant exception to the constitutional prohibition of prior restraints.

Nonetheless, the court included in its considerations the reality that classification and security interests are not necessarily the subject of single source review, particularly where the author “was entrusted with countless national secrets and privy to countless sensitive dealings.”  (June 20th Order, Docket No. 27, at p. 6).  It is in this that the government’s extension of the review process may stand on firmer ground.

United States v. John R. Bolton No. 20-cv-01580-RCL Order June 20 2020

 

 

 

 

 

Eternal Vigilance: Depictions of Press Freedoms and Hazards Around the World

A bit out of the ordinary for JustLawful, but the link below, created by VisualCapitalist.com, provides striking depictions of the ease (or not!) of disseminating information around the world.  Moreover, for those accustomed to observing the lives of the White House Press Corps (i.e., find seat, observe, report), it is deceptively easy to form the belief that reporting is always that cozy.  Not so!

And in further discoveries, the oft-repeated phrase alluded to here, i.e., “Eternal vigilance is the price of liberty,” has not been confirmed by the keepers of the Jeffersonian flame, who offer that the expression was in widespread use in the 19th century.  With no pride of authorship found to reside in founding father Jefferson, the phrase may be more accurately attributed to Irish lawyer, judge, and firebrand John Philpot Curran.  Those dismayed by the unending onslaughts of the digital age may find respite in the slower, yet potent, pace of the 1817 Curran memoir linked below.

Mapped:  Press Freedom Around the World.  Routley, N. Visual Capitalist.  May 2, 2020

Thomas Jefferson Foundation:  “Eternal Vigilance” May Be  a Spurious Quotation

Minnesota Legal History Project_.Memoirs of the Legal, Literary & Political Life of John Philpot Curran

 

 

 

 

 

 

 

 

 

 

 

Massachusetts Trial Court Considers the Constitutional Contours of End of Life Care

Kligler and another v. Attorney General Maura T. Healy and another, No. 2016-03254-F (December 31, 2019)


Two physicians, one terminally ill and one whose practice includes care for the terminally ill, sought declaratory relief upholding as constitutional the prescription of fatal doses of medication for patient self-administration, called Medical Assistance in Dying (MAID) and upholding as constitutional discussion of such assistance and referrals to sources competent and capable of providing such prescriptions.

The physicians were wholly successful in obtaining, with no opposition from the state, the court’s opinion that the discussion of assistance in dying and the making of referrals to obtain such assistance is protected by the First Amendment.  In that no prosecution is likely to ensue from such discussions, the court declined to enjoin the state from so doing.

The court declined to find the characterization of medical assistance in dying as involuntary homicide to be unconstitutional or to find the application of involuntary manslaughter statutes to such aid to be unconstitutionally vague.  The United States Supreme Court has twice stated that substantive due process principles do not protect a physician’s right to participate in assisting in dying. Moreover, concepts of criminal law have long traditions leaving no one to guess what is proscribed within the meaning of “involuntary manslaughter.”

In the absence of a fundamental constitutional right, the state need only show that the prohibition of prescriptive assistance in dying serves and is reasonably related to an important government interest.  The preservation of life, the prevention of suicide, the protection of vulnerable populations, and the maintenance of sound medical practices and ethics are such interests, the court observed. In light of the irrevocability of administration of fatal medications, the court concluded that the proscription against such prescriptions is not unreasonable.

The court rejected the physicians’ arguments that a patient’s ingestion of the fatal doses of medications would serve as an intervening cause of death, relieving the physician of liability, where death is the known outcome at the time of issuing the prescription.  Nor was the court persuaded that the absence of coercion could change the result where, as before, death would be the known and intended outcome of the act of prescription.

The court likewise rejected equal protection challenges, observing that the law can and does respect the privacy and autonomy rights that attach to the refusal of medical treatment while concomitantly finding no corollary in any right to administer death.  Moreover, the active prescription of lethal doses of drugs differs from the permissible cessation of extraordinary treatments, the voluntary cessation of eating and drinking, or the provision of palliative pain management. The first produces death as a result of active physician intervention,  while the latter permits death to ensue as a natural result of underlying disease or debility.

The trial court noted that as social thought changes, so too may the law.  The trial court articulated its decision according to current precedent, yet noted change has occurred in the thirty years since the controlling decisions issued.  Of equal if not greater importance, the court concluded, the determination of the parameters of end of life care are not best addressed by the courts, but should be undertaken by the legislature.  

2019 12 31 Kligler v. Healy (Suffolk Sup. Ct.)

Communications Breakdown: Political Consultants and the United States Both Sought — and Obtained — Certiorari Review of the Constitutionality of Exceptions to the Federal Ban on Automated Cell Phone Calling

William P. Barr, Attorney General, et al. v. American Association of Political Consultants, No. 19-631.  Petition for Certiorari granted January 8, 2020.


The near-universal adoption of cell phone telephony thirty years ago ushered in a new era of liberation from landline tethers, but not of freedom from unsolicited, unwanted, and not infrequently noisome automated calls and messages.  Called (among other things) robo-calls, the perceived nuisance of such practices by telemarketers and others prompted Congress to enact the 1991 Telephone Consumer Protection Act, Pub. L. No. 102-243, 105 Stat. 2394.  

The TCPA prohibits calling cell phones without consent absent an emergency.  This gesture of federal consideration of individual interests has spawned a cavalcade of lawsuits challenging its meaning, including the instant case, in which certiorari was granted to determine whether an exception to the act which permits calls to collect a federal or federally guaranteed debt violates the First Amendment Free Speech Clause.   

The Fourth Circuit, in an opinion issued in April, 2019 perceived that the TCPA and its government debt exception created constitutionally unacceptable content based restrictions but did not conclude that the entire statute was invalid, determining only that the federal debt exception ought to be severed and the rest of the statute left intact.

The federal government asserts that there is no First Amendment violation, as strict scrutiny analysis does not apply where the economic purpose of a federal debt call is grounded in the relationship between the federal government and a debtor and where the privacy protections foundational to the TCPA remain intact.  Government speech not constrained by the First Amendment, should not be hamstrung by imposing the highest level of constitutional scrutiny where in essence commercial speech, subject only to limited review, is in issue.

The federal government argues that severability is wholly appropriate as the entire statute need not be done away with in order to address an exception to its general applicability.  

The American Association of Political Consultants’ views are diametrically opposed on both grounds.  The group asserts that it defies reason to classify debt collection calls as “purpose” based where the content of such calls is grounded in satisfying a debt.  Where calls linked to federal debts are permitted and those linked to private debts are not, this, the association advocates, makes a distinction based on the content of calls.  

It cannot be that severability is apt where the Fourth Circuit found the statute to be unconstitutional, the political consultants submit.  Severing an exception to an unconstitutional statute works no remedy, they argue.

A scheduling order has not yet been published.  There are two other petitions for certiorari pending in on related issues for which no action has been taken.

Petition for Certiorari: Barr, Attorney General, et al. v. Am. Assoc. of Political Consultants

Respondents Brief in Support of Certiorari: Barr, Attorney General, et al. v. American Association of Political Consultants

Petitioners’ Reply in Support of Certiorari: Barr, Attorney General, et al. v. American Association of Political Consultants