Parler's Laughably Bad Antitrust Lawsuit Against Amazon
As you may have heard, over the weekend Amazon removed Parler from its AWS cloud hosting services, causing the website to shut down. I've been working on a longer piece about all of this, but in the meantime, I did want to write about the laughably bad antitrust lawsuit that Parler filed against Amazon in response. Notably, this came just days after Parler's CEO claims that his own lawyers quit (would these be the same "lawyers" who stupidly advised that the company doesn't need Section 230?). Instead, they found a small time independent practitioner who doesn't even have a website* to file what may be the silliest antitrust lawsuit I've seen in a long time. It's so bad that by the end of it, Parler may very well be paying Amazon a lot of money.
There are so many other things I'd rather be writing about, so I'll just highlight a few of the problems with Parler's very bad, no good, horrible, stupidly ridiculous lawsuit. If you want more, I recommend reading Twitter threads by Akiva Cohen or Neil Chilson or Berin Szoka or basically any lawyer with any amount of basic knowledge of antitrust law. The lawsuit is dumb and bad and it's going to do more harm to Parler than good.
The key part of the lawsuit is that Parler, without evidence, claims that Amazon had "political animus" against it, and that it conspired with Twitter to shut down a competitor. It provides no proof of either thing, and... even if it did show proof of political animus, that's... not against the law. And that's kind of a big deal. They're basically saying it's an antitrust violation to dislike Parler. Which it's not. But even if it were, they are simply making up false reasons for why AWS booted Parler.
AWS's decision to effectively terminate Parler's account is apparentlymotivated by political animus. It is also apparently designed to reduce competitionin the microblogging services market to the benefit of Twitter.
I mean, even just this paragraph makes no sense. You may have noticed that Amazon and Twitter are different companies. The complaint is against Amazon. Amazon doesn't compete with Parler. None of this makes any sense. The next paragraph demonstrates how rushed and stupid and bad this lawsuit is:
Thus, AWS is violating Section 1 of the Sherman Antitrust Act incombination with Defendant Twitter. AWS is also breaching it contract withParler, which requires AWS to provide Parler with a thirty-day notice beforeterminating service, rather than the less than thirty-hour notice AWS actuallyprovided. Finally, AWS is committing intentional interference with prospectiveeconomic advantage given the millions of users expected to sign up in the nearfuture
With Defendant Twitter? Let's scroll back up and look at the caption again:
There's only one defendant. And it's not Twitter.
The complaint goes on and on about how there's also bad stuff on Twitter, as if somehow that makes it wrong for AWS to be upset about Parler. But... Parler's whole entire claim to fame is that it moderates differently than Twitter, so claiming that there's the same stuff on Twitter is meaningless. Even worse, the example that Parler uses of how Twitter and Parler have similar content is around people suggesting that political officials including Congressional Representatives, Senators, and VP Mike Pence should be hanged. But the evidence that Parler itself provides undermines its own case, and in some cases directly contrasts its own claims. That's not just bad lawyering, that's legal malpractice.
Here is what Parler says:
What is more, by pulling the plug on Parler but leaving Twitter alonedespite identical conduct by users on both sites, AWS reveals that its expressedreasons for suspending Parler's account are but pretext. In its note announcing thepending termination of Parler's service, AWS alleged that [o]ver the past severalweeks, we've reported 98 examples to Parler of posts that clearly encourage andincite violence." Exhibit A. AWS provide a few examples, including one that stated,How bout make them hang?", followed by a series of hashtags, including #fu--mikepence."...
AWS further stated to Parler that the violent content on your website. . . violates our terms." Id. Because, AWS declared, we cannot provide services toa customer that is unable to effectively identify and remove content that encourages or incites violence against others," AWS announced the pendingtermination of Parler's account.
However, the day before, on Friday, one of the top trends on Twitterwas Hang Mike Pence," with over 14,000 tweets. See Peter Aitken, Hang MikePence' Trends on Twitter After Platform Suspends Trump for Risk of Incitement ofViolence', Fox News (Jan. 9, 2021), https://www.foxnews.com/politics/twittertrending-hang-mike-pence. And earlier last week, a Los Angeles Times columnistobserved that Twitter and other social media platforms are partly culpable for theCapital Hill riot, by allowing rioters to communicate and rile each other up. SeeErika D. Smith, How Twitter, Facebook are Partly Culpable for Trump DC Riot,LA Times (Jan. 6, 2021), https://www.latimes.com/california/story/2021-01-06/howtwitter-facebook-partly-culpable-trump-dc-riot-capitol. Yet these equivalent, if notgreater, violations of AWS's terms of service by Twitter have apparently beenignored by AWS
This leaves out some fairly important context. For one, the "Hang Mike Pence" trend was driven mainly by people calling out the insurrectionists who were saying that -- and which Twitter very quickly removed under their content moderation practices. Parler, on the other hand, made it clear that it was still trying to figure out how to moderate, and hoped to rely on volunteers. That's in Parler's evidence. That it didn't have a real plan in place yet. And that is why Amazon kicked it off.
On top of that, Parler's lawsuit claims that AWS needed to give it 30 days notice, but really only gave it a couple of days. Yet, in the evidence that Parler itself provides, Amazon mentions to Parler's policy chief that it has been sending dozens of examples of content that violate its policy for several weeks.
Amazon, for its part, appears to have not even waited to be served by Parler, but hit back hard with a very damning response to Parler that just dismantles Parler's argument bit by bit in fairly explicit terms.
This case is not about suppressing speech or stifling viewpoints. It is not about aconspiracy to restrain trade. Instead, this case is about Parler's demonstrated unwillingness andinability to remove from the servers of Amazon Web Services (AWS") content that threatensthe public safety, such as by inciting and planning the rape, torture, and assassination of namedpublic officials and private citizens. There is no legal basis in AWS's customer agreements orotherwise to compel AWS to host content of this nature. AWS notified Parler repeatedly that itscontent violated the parties' agreement, requested removal, and reviewed Parler's plan to addressthe problem, only to determine that Parler was both unwilling and unable to do so. AWSsuspended Parler's account as a last resort to prevent further access to such content, includingplans for violence to disrupt the impending Presidential transition.
As Amazon says, the antitrust claims are obviously silly, but even the breach of contract claims are ridiculous because if anyone breached the contract, it was Parler:
Despite Parler's rhetoric, its lawsuit is no more than a meritless claim for breach ofcontract. But the facts are unequivocal: If there is any breach, it is Parler's demonstrated failureand inability to identify and remove such content. AWS was well within its rights to suspendParler immediately for those failures. Parler also cannot hold AWS liable in tort for enforcingthe agreement's express terms. And there is no antitrust claim where, as here, Parler cannotplausibly plead an agreement to cause it harm and the complained-of conduct is undeniablycompatible with a legitimate purpose.
Compelling AWS to host content that plans, encourages, and incites violence would beunprecedented. Parler has no likelihood of prevailing on the merits, and the balance of equitiesand public interest strongly tip against an injunction. The motion for a temporary restrainingorder should be denied.
In the Amazon filing, the company notes that it began sending breach reports to Parler in November of last year and detailed the nature of the content that it was concerned about, often directly calling for violence. They include a ton of screenshots of the kind of violent speech that was on Parler, that goes way beyond what you'd see on other platforms, and which other platforms would remove.
Amazon also notes that the exhibit is only a small sampling:
The content AWS provided to Parler is merely representative of volumes of content thatposes a security risk and harms others, in direct violation of the AUP. See id. Exs. E-F(examples). That content includes, but is not limited to, calls for violence against a wide rangeof individuals, including elected officials, law enforcement officers, and teachers. People haveacted on these calls: Parler was used to incite, organize, and coordinate the January 6 attack onthe U.S. Capitol. See Doran Decl. Exs. F-G. AWS reported to Parler, over many weeks, dozensof examples of content that encouraged violence, including calls to hang public officials, killBlack and Jewish people, and shoot police officers in the head. Executive 2 Decl. Exs. D-F.Parler systematically failed to suspend access" to this content, much less to do so immediately,and demonstrated that it has no effective process in place to ensure future compliance.3Executive 2 Decl. 7. Parler itself has admitted it has a backlog of 26,000 reports of content thatviolates its (minimal) community standards that it had not yet reviewed. Id. Parler's ownfailures left AWS little choice but to suspend Parler's account.
As for Amazon treating Twitter differently? Turns out (beyond everything I mentioned above) there's a bigger problem: Twitter doesn't use AWS:
Parler's Complaint is replete with insinuations that AWS had equal grounds to suspendTwitter's account and thus discriminated against Parler. For example, Parler cites the hashtag#hangmikepence," which briefly trended on Twitter. ... But AWS does not hostTwitter's feed, so of course it could not have suspended access to Twitter's content.
Finally, Amazon notes that Section 230 also protects its practices here:
In addition to their facial deficiencies, Parler's interference and antitrust claims also failunder Section 230(c)(2) of the Communications Decency Act. Under that statute, the provider ofan interactive computer service" is immune for acting in good faith to restrict access to materialthat is excessively violent, harassing, or otherwise objectionable.
This is actually interesting, in that rather than using 230(c)(1) like nearly every case, Amazon recognizes this is one of those rare (c)(2) cases, giving it the right to restrict access to violent, harassing, or otherwise objectionable content. This part of the law is rarely tested, as (c)(1) handles most moderation claims, but probably doesn't fit here, given the fact that Amazon was denying overall service to Parler, not just moderating specific speech.
Parler's going to lose this lawsuit. And it's going to lose badly.
* In a very, very strange set of circumstances, there is another lawyer with the identical name, David J. Groesbeck, (including middle initial) who is a patent lawyer, also based in Washington state and registered to practice in NY, but they are different, and the patent lawyer (who does have a website) had to put a notice on his website saying he's not the same David J. Groesbeck who has Parler for a client, and giving that lawyer's phone number, since he's being inundated with calls, yelling at him for representing Parler.
