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.

Appearances Do Not An Electronic Public Square Make: Ninth Circuit Rejects Assertion that First Amendment Applies to YouTube

Prager University v. Google LLC f/k/a Google Inc. and YouTube, LLC, No. 18-15712.  February 26, 2020.


Like the universe, the internet and its multiple platforms appear to be ever-expanding, even as the law of this new domain runs to catch up with novel features and equally novel claims.  The development of largely open online platforms upon which all and sundry may present their ideas, including their video recordings, gave rise to this suit. Prager University (“PragerU”), an informational resource which is not a true university, presents video discussions about politically conservative ideas.   

PragerU has objected to YouTube’s classification of its content as subject to YouTube’s “restricted” setting and to YouTube’s concomitant limitation on some of PragerU’s advertising.  The “restricted” setting is a user driven device which permits filtering content that some may see as objectionable. YouTube manages the classifications of content. Content providers who object to YouTube’s restricted classification may appeal, but the factors involved in classification and the reasons for decisions remain internal to YouTube.

PragerU has argued that YouTube is subject to the First Amendment because YouTube acts as an electronic public square.  Much as with traditional public squares, speech must be on a come one, come all basis, without hindrance by the platform provider. As such, PragerU has insisted, YouTube’s limitations on the visibility of PragerU’s content violate its First Amendment rights.

Not so, says a panel of Ninth Circuit justices, relying on an observation from the Supreme Court’s last term that the mere hosting of another’s speech will not make a private entity public.  Manhattan Community Access Corp. v. Halleck, 139 S. Ct. 1921, 1930 (2019).  

The First Amendment constrains only the government.  PragerU’s argument that YouTube has assumed a traditionally and exclusively governmental function falls far short of the mark. Inviting the public to avail itself of private property will not make a private property holder a state actor.  Lloyd Corp. v. Tanner, 407 U.S. 551, 569 (1972).  

Unlike the government, which is forbidden by the First Amendment from interfering in citizens’ speech, a private entity may do as it pleases, notwithstanding that its choices may at times displease.  

The panel also rejected PragerU’s assertion that YouTube’s terms of use constituted false advertising in violation of the Lanham Act.  If this were so, the court observed, any agreement could be transformed into marketing material.

Finally, the Ninth Circuit refused to recognize any binding effect to YouTube’s public pronouncement that it aspires to uphold First Amendment principles.  Notwithstanding its legal tone, this statement was mere opinion.  More importantly, there is no “opt-in” feature that would allow a private actor to become a state actor by force of its own will.

JustLawful prognostication:  This decision will not end this matter.  There is simply too much speech at stake and too few platforms of YouTube’s scope to think otherwise.  This is not to suggest that the Ninth Circuit is incorrect, but that further exploration of these issues is expected.  This is particularly so where, as the Ninth Circuit noted, both parties offered that were the court to rule against them, the sky would surely fall (Slip. Op., pp. 13-14).  

Prager University v. Google 9th Cir. February 26 2020