by Paul Alan Levy
In a decision issued his afternoon, Judge Barbara Rothstein has denied a motion by the infamous web site Parler seeking a preliminary injunction compelling Amazon to reverse its decision to terminate its hosting of Parler's web site. The judge agreed with Amazon that, under its hosting contract, Parler was subject to suspension, and to termination without notice, if it allowed contents that are “illegal, that violate the rights of others, or that may be harmful to others,” including “content that is defamatory, obscene, abusive, invasive of privacy, or otherwise objectionable.” The judge noted further that Parler had never denied that content on its platform violated the terms to which it had agreed, and that, regardless of Parler’s claimed effort to improve its content moderation system, both at the time of its suspension, and during the litigation, Parler was demonstrably unable to implement moderation sufficient to protect the public from the dire consequences of its users’ violent rhetoric.
The judge rejected, on the merits, the conclusory allegation that Amazon was engaged in some sort of antitrust conspiracy with Twitter to disadvantage Parler as a competitor to Twitter. She thus did not reach (or even discuss) some of the broader (and disturbing) arguments in Amazon’s brief suggesting that section 230 could be a basis for denying antitrust claims based on the deliberate removal or obscuring of content with the (alleged) objective of harming competition.
Given that Parler has been claiming publicly that it expects to be back online soon, indeed by the end of January, it seems likely that its claim for preliminary injunctive relief will shortly become moot. If so, it will be unable to appeal the denial of a preliminary injunction. Parler’s reply brief strongly suggested that its arguments were moving in the direction of a defamation or business disparagement claim: it asserted that Amazon’s rejection of hosting has rendered Parler toxic, that is, had harmed its reputation, by leading other hosting services to believe, allegedly falsely, that Parler could not be trusted to moderate its users advocacy of political violence.
Plainly Judge Rothstein concluded from the record before her that Parler’s failure to moderate its users could properly be thought to share some blame for the riots at the US Capitol.
“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.”
Even Parler that could produce further evidence to persuade her otherwise, and come up with evidence of actual malice sufficient to get its case to a jury, Parler also argued at the preliminary injunction hearing that one reason why it was suffering irreparable injury was that it could not afford to litigate the case to judgment. Thus, it contended that only a preliminary injunction could get it effective relief. That was an imaginative argument for injunctive relief, but it is hard to see how pursuing a damages claim for defamation would be consistent with that representation to the court.
There is much debate to be had about the danger of private Internet platforms having the ability to disadvantage one side or the other of legitimate public debate, and to act together to marginalize unpopular voices. (for example here, here, and here). But from all that the record shows, Amazon’s action against Parler is not a case study of the exercise of such power, and those worried about such issues might be better advised to focus on other examples.