Litigation update: Parler

Although proof of service has yet to be filed, Amazon filed their response to Parler's motion for a temporary restraining order. It's short and looks like it's a "take no prisoners" approach, at least based on the 1st paragraph. https://www.courtlistener.com/recap/gov.uscourts.wawd.294664/gov.uscourts.wawd.294664.10.0_1.pdf

And when I say "take no prisoners" I'm not kidding.

If Amazon can prove what they say in this paragraph, it is extremely likely (given the AWS terms of service) that Parler winds up paying not just the solo they hired, but also Davis Wright Tremaine.

Paragraph 1 of the 3-paragraph intro was "Parler is bad."

Paragraph 2 is "also, Parler is the only one who did anything wrong here and their case is total hot garbage."

The 3rd, and last, paragraph of the introduction is "oh, and this TRO? LOL no."

The "factual background" section is well laid-out, and continues to work the "no, really, Parler's got issues" theme quite well, starting out with a quick overview of Parler's approach to content moderation.

Also, as AWS points out, Parler agreed that Parler was responsible for its users' content when they contracted with AWS.

To put it another way, Parler contracted away its right to run its content moderation the way they see fit, and gave Amazon a say in their moderation decisions.

That might not have wanted to admit that to themselves or their users, but that's what they did.

And, yes, you can contract away your ability to do content moderation the way you want.

Also, it seems they got warnings. In fact, quite a few. AWS alerted them to the issues in mid-November, and kept sending them "representative pieces of content advocating violence."

And they have receipts. Lots of receipts. Including more than this - there are more in exhibits.

I could quibble over the extent to which a couple of those actually advocate violence, but only a couple of them. The vast majority are advocating violence, and all of them are products of a cesspool that makes me much happier with Twitter, which is merely a toxic hellsite.

I mean, yeah, it's superfund toxic here, but that was - yikes.

Little out of date here - the figure from the earlier press conference was quite a bit higher - but a solid point.

Oh, and they kept talking to Parler about the issues and tried to work with them.

Parler was apparently - I mean, volunteers? Have you looked at your own site? And you thought that would work?

Anyway, sure they pulled Parler's account. Wouldn't you?
(Is the message this sends.)

And anyway those are the facts, judge. Please notice that none of them in any way support any of the claims - and neither do any of the facts those bozos alleged.

Also, those bozos are wearing like size 75 shoes which is why they keep falling down in the *most* embarrassing ways imaginable.

The next few pages, which have the actual legal argument, might feel gratuitous given how thoroughly Parler just got pantsed in the first two sections, but it's really necessary to go through the motions even though the outcome is very clear at this point.

"You have no likelihood of success on your breach claim because we didn't breach, you did" isn't exactly the most uncommon argument in a contract dispute. But it seems unusually well-supported here.

None of the exhibits referred to in this filing appear to have made their way to the docket yet. I strongly suspect that AWS is going to be seeking to file some of it - including the identity of the executive who gave the declaration ("Executive 2") - under seal.

I am usually EXTREMELY skeptical of under-seal filings, particularly in cases that have a great deal of public visibility, but it does strike me that there's a good argument here. Parler's user base is violent and threaty. AWS's lawyers and staff will be harassed and threatened.

Not might - will. This is beyond inevitable at this point.

Oh - and as far as the thing with that Twitter hashtag goes? The one where Parler was all "but they did it too, mommy"?

Yeah, AWS doesn't host the feed. And that was like their whole antitrust argument.

Clown-duckfucking-shoes.

Also, for those who didn't know, Tortious Interference requires independently wrongful conduct - something more than the interference itself.

This will come as no surprise, of course, to those who were following me before Thanksgiving, but that's another story.

In other news, it also turns out that "hosting these toxic skidmarks is gonna scare our other customers away" is a legitimate reason to terminate an account. And also if you want to claim a conspiracy you probably should at least allege that the conspirators talked to each other.

I mean, the antitrust claim was really, really, monumentally really bad.

This bit gets filed under "Injury: Insults Added Thereto"

The balance of the equities and the public interest elements for an injunction get combined into a very effective public policy argument for not making Amazon take Parler back.

And, as @AkivaMCohen @apark2453 and many others have already noted, you don't get injunctions when your harm, if any, can be fixed by a big enough check.

With that, they're done.

Thoughts:
1: Professional and thorough. Not the best possible writing, but very good and certainly much more than needed to do the job.

2: The TRO motion will be denied, possibly by this time tomorrow, almost certainly by Thursday morning.

3: If Parler is smart, they'll voluntarily dismiss shortly thereafter.

4: If Parler is not smart, Davis Wright Tremaine will continue to repeatedly pants them over the next couple of months, until the court dismisses the case for them.

/fin