Two weeks ago, Parler went dark after Amazon cut the social media company’s access to the cloud computing services that ran Parler’s app and website. Parler promptly filed suit in a Seattle, Wa. federal court, seeking a court order requiring Amazon to reestablish Parler’s account.
The court ordered expedited briefing, held a hearing, and late last week denied Parler’s demand for a preliminary injunction. The court’s analysis proved solid—and sadly also proved it will be hard for conservatives to counter Big Tech’s stranglehold on the modern public square.
In its complaint, Parler alleged three claims, one federal antitrust claim and two state law claims, one for breach of contract and one for tortious interference with Parler’s contractual relations (or prospective business relations) with third parties. To obtain an injunction, Parler first needed to convince the court that it had “a likelihood of success on the merits” on one of these three claims. Parler was unable to do so, however, and the governing legal precedent makes it unlikely anyone seeking to challenge a deplatforming decision will ever succeed.
Given Amazon’s monopolistic power, the public may think an antitrust claim against the American giant would present a solid avenue for Parler. But Parler alleged a violation of Section 1 of the Sherman Act, and to prevail under Section 1, Parler needed to “allege facts that, if true, will prove: (1) the existence of a conspiracy, (2) intention on the part of the co-conspirators to restrain trade, and (3) actual injury to competition.” While Parler claimed Amazon and Twitter conspired to deny Parler webhosting services, Parler alleged no facts to support that theory.
Rather, Parler merely highlighted that Amazon and Twitter have a close business relationship, with less than a month ago Amazon announcing it will “provide global cloud infrastructure to deliver Twitter timelines.” This deal allows Twitter to “leverage Amazon [Web Service’s] proven infrastructure and portfolio of services to support delivery of millions of daily Tweets.” That relationship between the two conglomerates, along with the exodus of many Twitter’s users to Parler following Twitter’s ban of President Donald Trump, Parler argued, provided “sufficient circumstantial evidence from which a violation may be inferred.”
The court rejected that argument, and rightly so because those facts do not establish a conspiracy. Herein the problem lies for anyone seeking to challenge Amazon, Google, or Facebook, or any of the other Big Tech Powerhouses’ decisions: It will be virtually impossible to prove a conspiracy.
It will also be virtually impossible to prove a breach of contract claim because the tech industry crafts one-sided contracts that grant them nearly unlimited discretion to terminate a customer’s account. Parler’s lawsuit against Amazon illustrates that point perfectly.
In its complaint, Parler argued Amazon breached its contractual obligation to provide 30 days of notice prior to termination of a customer’s account. Specifically, the customer agreement between Amazon and Parler provides the either party may terminate the agreement “for cause if the other party is in material breach of this Agreement and the material breach remains uncured for a period of 30 days from receipt of notice by the other party.”
While Amazon failed to provide Parler 30 days’ notice before cutting off its account, the next clause of the contract rendered Amazon’s commitment to give a month’s notice before terminating an account meaningless: Section 7.2(b)(ii) of the contract authorized Amazon to terminate the agreement “immediately upon notice” and without providing any opportunity to rectify the breach, if Amazon has the right to suspend an account under Section 6.
Section 6 provides that Amazon may “suspend [Parler’s or its] End User’s right to access or use any portion or all of the Service Offerings immediately upon notice” if Amazon determines that Parler is “in breach of this Agreement.” A “breach of this Agreement” includes Parler’s failure to “ensure” Parler users do not post “content that is defamatory, obscene, abusive, invasive of privacy, or otherwise objectionable.” (This broad, subjective language guarantees Amazon will be able to do as it pleases on terminating accounts.)
The court walked through this contractual maze and then concluded that the content posted on Parler violated the terms of service, Amazon had the right to terminate the contract immediately, and without 30 days’ notice. The court further held that because Amazon had a right to terminate Parler’s account, Parler also did not have a likelihood of success on its for tortious interference with contract or with a prospective business relationship claim.
At stage in the litigation, the only question before the court concerned whether Parler had a likelihood of success on the merits of its claims. Having concluded it did not, the court denied Parler a preliminary injunction. (Parler can appeal that decision but would be unlikely to prevail on appeal for the same reasons it lost before the district court.)
For now, Parler’s claims remains pending, but given the court’s analysis, Amazon will likely soon seek to dismiss the complaint—and will likely prevail, leaving Parler without a hosting service, unless, and until, it can find a new provider.
