Case 2:21-cv-00031-BJR Document 34 Filed 01/21/21 Page 1 of 14
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`PARLER LLC ,
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`2:21-cv-0031-BJR
`CASE NO.
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`Plaintiff,
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`ORDER DENYING MOTION FOR
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`v.
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`PRELIMINARY INJUNCTION
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`AMAZON WEB SERVICES, INC.,
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`Defendant.
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`____________________________________)
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`INTRODUCTION
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`This matter comes before the Court on a Motion for Temporary Restraining Order
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`UNITED STATES DISTRICT COURT FOR THE
`WESTERN DISTRICT OF WASHINGTON
`AT SEATTLE
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`I.
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`(“TRO”), filed by Plaintiff Parler LLC (“Parler”). Dkt. No. 2. Parler is seeking to have the Court
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`order Defendant Amazon Web Services, Inc. (“AWS”) to reinstate AWS’s web-hosting services
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`that AWS provided Parler under the parties’ Customer Services Agreement. Parler initially filed
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`the motion as one requesting a TRO, but after the Court ordered Parler to serve AWS notice,
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`ordered additional briefing, and held a hearing, the parties agree that the motion has been
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`converted to one for a preliminary injunction.
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`In its Complaint, Parler asserts three claims: (1) for conspiracy in restraint of trade, in
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`violation of the Sherman Act, 15 U.S.C. § 1; (2) for breach of contract; and (3) for tortious
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`Case 2:21-cv-00031-BJR Document 34 Filed 01/21/21 Page 2 of 14
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`interference with business expectancy. AWS disputes all three claims, asserting that it is Parler,
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`not AWS, that has violated the terms of the parties’ Agreement, and in particular AWS’s
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`Acceptable Use Policy, which prohibits the “illegal, harmful, or offensive” use of AWS services.
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`It is important to note what this case is not about. Parler is not asserting a violation of any
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`First Amendment rights, which exist only against a governmental entity, and not against a private
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`company like AWS. And indeed, Parler has not disputed that at least some of the abusive and
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`violent posts that gave rise to the issues in this case violate AWS’s Acceptable Use Policy. This
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`motion also does not ask the Court to make a final ruling on the merits of Parler’s claims. As a
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`motion for a preliminary injunction, before any discovery has been conducted, Parler seeks only
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`to have the Court determine the likelihood that Parler will ultimately prevail on its claims, and to
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`order AWS to restore service to Parler pending a full and fair litigation of the issues raised in the
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`Complaint. Having reviewed the briefs filed in support of and opposition to the motion, and
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`having heard oral argument by videoconference, the Court finds and rules as follows.
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`II.
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`BACKGROUND
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`Parler was founded in 2018, and describes itself as “a conservative microblogging
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`alternative and competitor to Twitter.” Compl., ¶ 1. Parler—like Twitter, Facebook, and other
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`social media entities referenced in this action—is an online platform that allows third-party
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`users, sometimes anonymously, to express thoughts and ideas for other users to read and
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`comment on. Parler takes a laissez faire or “reactive” approach to moderation of its users’
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`speech. See, e.g., Parler’s December 4, 2020 Community Guidelines, Decl. of Ambika Doran,
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`Ex. B (“We prefer that removing community members or member-provided content be kept to
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`the absolute minimum.”). At the time of the filing of its Complaint, Parler claims to have had 15
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`million end-user accounts and a million downloads of its app per day. Decl. of John Matze, ¶ 3.
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`Case 2:21-cv-00031-BJR Document 34 Filed 01/21/21 Page 3 of 14
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`AWS, an Amazon.com, Inc. company, offers “computing services for businesses,
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`nonprofits, and government organizations globally.” Decl. of Amazon Exec. 2, ¶ 3 (“Exec. 2
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`Decl.”). According to Parler, “AWS is the world’s leading cloud service providers [sic],
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`capturing a third of the global market.” Compl., ¶ 11. In June 2018, Parler entered into a
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`Customer Services Agreement (“CSA” or “Agreement”) with AWS for the latter to provide “the
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`cloud computing services Parler needs for its apps and website to function on the internet.”
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`Compl., ¶¶ 12, 13; see CSA, Exec. 2 Decl., Ex. A.
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`In recent months, Parler’s popularity has grown rapidly, and around the time of the 2020
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`presidential election, according to Parler, millions of users were abandoning Twitter and
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`migrating to the Parler platform. See Compl., ¶ 17. During this same time period, AWS claims
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`that it received reports that Parler was failing to moderate posts that encouraged and incited
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`violence, in violation of the terms of the CSA and AWS’s Acceptable Use Policy (“AUP”).
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`Exec. 2 Decl., ¶ 4; Ex. C (AUP). The AUP proscribes, among other things, “illegal, harmful, or
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`offensive” use or content, defined as content “that is defamatory, obscene, abusive, invasive of
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`privacy, or otherwise objectionable.” AUP at 1. AWS claims that in recent weeks, it repeatedly
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`communicated with Parler its concerns about third-party content that violated the terms of the
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`CSA and AUP, and that Parler failed to respond to those concerns in a timely or adequate
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`manner. Id., ¶ 5.
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`AWS has submitted to the Court multiple representative examples, reflecting content
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`posted on Parler during this period, that AWS claims violated the terms of the AUP and the
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`parties’ Agreement.1 See Opp. Br. at 3-4. Parler has not denied that these posts are abusive or
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`that they violate the Acceptable Use Policy. Parler does claim, however, that AWS knew Parler
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`1 The Court will not dignify or amplify these posts by quoting them here.
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`Case 2:21-cv-00031-BJR Document 34 Filed 01/21/21 Page 4 of 14
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`was attempting “to address content moderation challenges,” and that AWS appeared to be
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`willing to cooperate in Parler’s efforts. Matze Decl., ¶¶ 6, 7 (asserting “AWS’s actions and
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`communications led Parler’s corporate officers to believe that, far from being concerned about
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`remaining in a contractual relationship with Parler, AWS wished to expand that contractual
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`relationship”).
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`On January 6, 2021, supporters of President Donald Trump, seeking to overturn the
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`results of the presidential election, marched on Congress, resulting in a violent and deadly riot at
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`the U.S. Capitol. See Doran Decl., Ex. F. On January 8, Twitter and Facebook banned President
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`Trump from their platforms. Compl., ¶ 18. Parler claims that in response to speculation that the
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`President would move to Parler, there was a mass exodus of users from Twitter to Parler and a
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`355% increase in installations of Parler’s app. Id., ¶¶ 2, 8. Parler also claims that the surge during
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`this time was responsible for its failure to deal with a backlog of some 26,000 posts that it
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`acknowledges “potentially encouraged violence” in violation of the AUP. See Rep. Br. at 4
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`(acknowledging “backlog of 26,000 instances of content that potentially encouraged violence”).
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`On January 9, 2021, AWS notified Parler that it intended to “suspend all services” as of
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`11:59 p.m. Sunday, January 10. Ex. 1 to Compl., January 9, 2021 email from AWS to Parler
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`(“It’s clear that Parler does not have an effective process to comply with the AWS terms of
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`service. . . . Given the unfortunate events that transpired this past week in Washington, D.C.,
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`there is serious risk that this type of content will further incite violence. . . . Because Parler
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`cannot comply with our terms of service and poses a very real risk to public safety, we plan to
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`suspend Parler’s account effective Sunday, January 10th, at 11:59PM PST.”). At some time
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`during the night between January 10 and 11, AWS suspended its services and Parler went dark.
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`Case 2:21-cv-00031-BJR Document 34 Filed 01/21/21 Page 5 of 14
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`On the morning of January 11, Parler filed its Complaint and the instant motion, seeking
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`ex parte a TRO from this Court prohibiting AWS from suspending services. Parler failed,
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`however, to provide the certification required under the Federal Rules, verifying that its counsel
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`made an effort to serve AWS notice of the motion, or in the alternative, why notice should not be
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`required. See Fed. R. Civ. P. 65(b)(1)(B); LCR 65. The Court therefore ordered Parler to provide
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`notice of its motion to AWS. Further, the Court set a briefing schedule. As directed, AWS filed
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`its opposition on January 12, and Parler filed a reply on January 13. On January 14, 2021, the
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`Court held a hearing on the motion by videoconference. The Court and the parties agree that the
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`motion for a temporary restraining order is now essentially one for a preliminary injunction, and
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`is ripe for this Court’s consideration.
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`III. DISCUSSION
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`A. Standard for Issuance of Preliminary Injunction
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`As courts have repeatedly emphasized, an injunction represents an “extraordinary
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`remedy” that is never awarded as a matter of right. See Winter v. Natural Res. Def. Council, 555
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`U.S. 7, 22 (2008). For a preliminary injunction to issue, the moving party has the burden of
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`demonstrating all four of the following elements: (1) that it is likely to succeed on the merits; (2)
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`that it is likely to suffer irreparable harm in the absence of preliminary relief; (3) that the balance
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`of equities tips in its favor; and (4) that an injunction serves the public interest. Winter, 555 U.S.
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`at 20.
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`In the wake of Winter, in which the Supreme Court narrowed the path to an injunction,
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`the Ninth Circuit has maintained that a preliminary injunction “may also be appropriate if a
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`movant raises ‘serious questions going to the merits’ and the ‘balance of hardships tips sharply
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`towards’ it, as long as the second and third Winter factors are satisfied.” Disney Enters., Inc. v.
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`Case 2:21-cv-00031-BJR Document 34 Filed 01/21/21 Page 6 of 14
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`VidAngel, Inc., 869 F.3d 848, 856 (9th Cir. 2017) (quoting All. for the Wild Rockies v. Cottrell,
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`632 F.3d 1127, 1134–35 (9th Cir. 2011)). Further, in the Ninth Circuit, “the elements of the
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`preliminary injunction test are balanced, so that a stronger showing of one element may offset a
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`weaker showing of another.” Hernandez v. Sessions, 872 F.3d 976, 990 (9th Cir. 2017)
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`(quotation omitted).
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`B. Likelihood of Success on the Merits
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`Parler’s motion asserts three distinct claims. The Court reviews each in turn.
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`1. Sherman Act Claim
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`Parler alleges that AWS’s termination of services is “apparently designed to reduce
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`competition in the microblogging services market to the benefit of Twitter,” and therefore
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`violates Section 1 of the Sherman Act. Mot. at 3; 15 U.S.C. § 1 (prohibiting “[e]very contract,
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`combination in the form of trust or otherwise, or conspiracy, in restraint of trade or commerce”).
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`To prove a violation of Section 1, Parler must show: “(1) the existence of an agreement, and (2)
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`that the agreement was in unreasonable restraint of trade.” Fed. Trade Comm'n v. Qualcomm
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`Inc., 969 F.3d 974, 989 (9th Cir. 2020) (citing, inter alia, Am. Needle, Inc. v. Nat'l Football
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`League, 560 U.S. 183, 189–90 (2010)).
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`At this stage in the proceedings, Parler has failed to demonstrate that it is likely to
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`succeed on the merits of its Sherman Act claim. While Parler has not yet had an opportunity to
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`conduct discovery, the evidence it has submitted in support of the claim is both dwindlingly
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`slight, and disputed by AWS. Importantly, Parler has submitted no evidence that AWS and
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`Twitter acted together intentionally—or even at all—in restraint of trade. See Bell Atlantic Corp.
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`v. Twombly, 550 U.S. 544, 127 (2007)(“[A]n allegation of parallel conduct and a bare assertion
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`Case 2:21-cv-00031-BJR Document 34 Filed 01/21/21 Page 7 of 14
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`of conspiracy will not suffice.”). In contrast, AWS has submitted the sworn declaration of an
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`AWS executive, explicitly denying the existence of any such agreement:
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`To my knowledge, AWS and Twitter have never discussed, much less agreed upon,
`any policy, practice, or act directed at Parler. To the contrary, we have an internal
`policy never to discuss matters involving one customer with another customer.
`Nobody in my organization would be authorized to discuss Parler with Twitter
`without my authorization, knowledge, or involvement. I have not authorized any
`AWS employee to discuss Parler with Twitter, and I have not been involved
`personally in any such discussion.
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`Decl. of Amazon Exec. 1, (“Exec. 1 Decl.”), ¶ 8.
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`Indeed, Parler has failed to do more than raise the specter of preferential treatment of
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`Twitter by AWS. The sum of its allegation is that “by pulling the plug on Parler but leaving
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`Twitter alone despite identical conduct by users on both sites, AWS reveals that its expressed
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`reasons for suspending Parler’s account are but pretext.” Compl., ¶ 26. But Parler and Twitter are
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`not similarly situated, because AWS does not provide online hosting services to Twitter. Parler’s
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`unsupported allegation that “AWS provides online hosting services to both Parler and Twitter” is
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`explicitly denied in a sworn declaration by an AWS executive. See Exec. 1 Decl., ¶¶ 5, 6
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`(“Twitter’s principal social-media service (the “Twitter Feed”) does not run on AWS. . . . On
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`December 15, 2020, AWS announced that it signed an agreement with Twitter for AWS to begin
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`servicing the Twitter Feed for the first time. . . . We do not yet service the Twitter Feed, and I am
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`not aware of any particular timeline for doing so.”). Thus, as AWS asserts, “it could not have
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`suspended access to Twitter’s content” because “it does not host Twitter.” Opp. Br. at 7; see
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`Exec. 1 Decl., ¶¶ 5, 7 (“Because the Twitter Feed does not run on AWS, the Twitter Feed (and
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`any tweets on the Twitter Feed) are not subject to, and thus cannot violate, Amazon’s Acceptable
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`Use Policy.”).
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`Case 2:21-cv-00031-BJR Document 34 Filed 01/21/21 Page 8 of 14
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`In short, Parler has proffered only faint and factually inaccurate speculation in support of
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`a Sherman Act violation. AWS, in contrast, has submitted sworn testimony disputing Parler’s
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`allegations. Parler therefore has failed to demonstrate at this stage a likelihood of success on its
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`Sherman Act claim.
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`2. Breach of Contract Claim
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`The gravamen of Parler’s breach of contract claim is that AWS terminated the Agreement
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`without providing Parler 30 days to cure any alleged material breach.2 Mot. at 9. Parler claims it
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`is entitled to the 30-day cure period based on a provision in the CSA that provides “[e]ither party
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`may terminate this Agreement for cause if the other party is in material breach of this Agreement
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`and the material breach remains uncured for a period of 30 days from receipt of notice by the
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`other party.” CSA § 7.2(b)(i). As noted above, Parler alleges that AWS notified Parler that the
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`latter was in material breach, for the first time, only hours before suspending or terminating
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`services. See Matze Decl., ¶ 10.
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`AWS responds that it is Parler, not AWS, that has breached the Agreement. In particular,
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`AWS claims that Parler breached Section 4.2 of the CSA, which requires Parler to “ensure that
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`[Parler’s] Content and [Parler’s] and End Users’ use of [Parler’s] Content . . . will not violate any
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`of the Policies,” including AWS’s Acceptable Use Policy. That AUP, as noted above, proscribes
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`“activities that are illegal, that violate the rights of others, or that may be harmful to others, our
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`operations or reputation” and “content that is defamatory, obscene, abusive, invasive of privacy,
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`or otherwise objectionable.” AUP, Exec. 2 Decl., Exs. A, C; see CSA ¶ 14; Opp. Br. at 6-7.
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`AWS cites multiple examples of content posted on Parler’s site that undeniably meet this
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`2 AWS denies that it “terminated” Parler’s account, claiming it merely “suspended” its services. Opp. Br. at 6. As
`discussed below, the distinction is not material to Parler’s claim at this stage, however, as the CSA grants AWS the
`authority to take either action under the same circumstances. See CSA, §§ 6, 7.2(b)(ii).
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`Case 2:21-cv-00031-BJR Document 34 Filed 01/21/21 Page 9 of 14
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`definition. See AWS Opp. Br. at 3-4 (citing Exec. 2 Decl., ¶ 5; Ex. E at 1-3, 6-7, 13, 17, 28, 32,
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`49, 53-54).
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`Parler has not denied that content posted on its platform violated the terms of the CSA
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`and the AUP; it claims only that AWS failed to provide notice to Parler that Parler was in breach,
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`and to give Parler 30 days to cure, as Parler claims is required per Section 7.2(b)(i). However,
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`Parler fails to acknowledge, let alone dispute, that Section 7.2(b)(ii)—the provision immediately
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`following—authorizes AWS to terminate the Agreement “immediately upon notice” and without
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`providing any opportunity to cure “if [AWS has] the right to suspend under Section 6.” And
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`Section 6 provides, in turn, that AWS may “suspend [Parler’s or its] End User’s right to access
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`or use any portion or all of the Service Offerings immediately upon notice” for a number of
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`reasons, including if AWS determines that Parler is “in breach of this Agreement.” In short, the
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`CSA gives AWS the right either to suspend or to terminate, immediately upon notice, in the
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`event Parler is in breach.
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`Parler has not denied that at the time AWS invoked its termination or suspension rights
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`under Sections 4, 6 and 7, Parler was in violation of the Agreement and the AUP. It has therefore
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`failed, at this stage in the proceedings, to demonstrate a likelihood of success on its breach of
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`contract claim.
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`3. Intentional Interference with Business Expectancy Claim
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`Under Washington law, in order to establish a tortious interference claim, Parler must
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`prove: (1) the existence of a valid contractual relationship or business expectancy; (2) that
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`defendants had knowledge of that relationship; (3) an intentional interference inducing or
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`causing a breach or termination of the relationship or expectancy; (4) that defendants interfered
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`for an improper purpose or used improper means; and (5) resultant damage. See Leingang v.
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`Case 2:21-cv-00031-BJR Document 34 Filed 01/21/21 Page 10 of 14
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`Pierce Cty. Med. Bureau, Inc., 131 Wn. 2d 133, 157 (1997); Pleas v. City of Seattle, 112 Wn.2d
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`794, 800 (1989). Exercising in good faith one’s legal interests is not improper interference.
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`Leingang, 131 Wn. 2d at 157.
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`Parler has failed to allege basic facts that would support several elements of this claim.
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`Most fatally, as discussed above, it has failed to raise more than the scantest speculation that
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`AWS’s actions were taken for an improper purpose or by improper means. Conversely, AWS has
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`denied it acted improperly, justifying its actions as a lawful exercise of rights it had pursuant to
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`either the suspension or the termination provisions of the CSA. Further, for the reasons outlined
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`supra, §§ III.B.(1) & (2), Parler has failed to demonstrate the likelihood that AWS breached the
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`CSA. To the contrary, the evidence at this point suggests that AWS’s termination of the CSA
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`was in response to Parler’s material breach. Parler has therefore not demonstrated a likelihood of
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`success on this claim.
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`C. Irreparable Injury
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`Because likelihood of success is a threshold inquiry, when “a plaintiff has failed to show
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`the likelihood of success on the merits, the Court “need not consider the remaining three Winter
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`elements.” Garcia v. Google, Inc., 786 F.3d 733, 740 (9th Cir. 2015)(internal citation omitted).
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`Given the gravity of the issues presented, the Court nevertheless will do so. As noted above, a
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`plaintiff seeking a preliminary injunction must establish that it is likely to suffer irreparable harm
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`in the absence of preliminary relief; importantly, a showing of a mere “possibility” of harm is not
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`enough. See Winter, 555 U.S. at 20, 22 (“[T]he Ninth Circuit’s “possibility” standard is too
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`lenient.”). Irreparable injury is traditionally defined as harm for which there is no adequate legal
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`remedy, such as an award of damages. See Rent–A–Ctr., Inc. v. Canyon Television & Appliance
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`Rental, Inc., 944 F.2d 597, 603 (9th Cir.1991).
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`Case 2:21-cv-00031-BJR Document 34 Filed 01/21/21 Page 11 of 14
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`In support of its claim to irreparable injury, Parler alleges that AWS’s suspension or
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`termination renders Parler unable to deliver the services it promises its users, and “entirely
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`unable to function online.” Mot. at 5. Furthermore, Parler claims, the actions are a direct blow to
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`its mission and reputation, and has caused a loss of user loyalty, advertising revenue, and the
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`ability to raise capital. In short, Parler alleges, these actions have threatened it with “extinction.”
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`Rep. Br. at 11.
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`The injuries Parler alleges in its Complaint and its motion may be irreparable. See hiQ
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`Labs, Inc. v. LinkedIn Corp., 938 F.3d 985, 993 (9th Cir. 2019)(“The threat of being driven out
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`of business is sufficient to establish irreparable harm.”)(citing Am. Passage Media Corp. v. Cass
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`Commc'ns, Inc., 750 F.2d 1470, 1474 (9th Cir. 1985)). But in Winter, the Supreme Court
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`explicitly rejected the “possibility” of irreparable harm as “too lenient” to support a preliminary
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`injunction, and in the hearing the Court held on this motion, AWS vigorously disputed that
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`Parler has shown that its extinction is “likely” in the absence of an injunction. See Winter, 555
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`U.S. at 22; Trans. 1/14/21 Hrg., Dkt. No. 33, 15:8-23. The Court makes no finding on this issue,
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`but notes that Parler’s claims to irreparable harm are substantially diminished by its admission
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`“that much of that harm would be compensable by damages.” Rep. Br. at 11.
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`Parler’s showing of a likelihood of irreparable injury, particularly in light of its failure to
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`demonstrate a likelihood of success on the merits, is insufficient to support a preliminary
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`injunction.
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`D. “Serious Questions Going to the Merits” and “Balance of Hardships”
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`In the Ninth Circuit, a plaintiff may alternatively be awarded an injunction where it has
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`raised “serious questions” going to the merits of its claims, and the balance of hardships, as
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`between the two parties, “tips sharply” in its favor. See Cottrell, 632 F.3d at 1134-35 (“A
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`Case 2:21-cv-00031-BJR Document 34 Filed 01/21/21 Page 12 of 14
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`preliminary injunction is appropriate when a plaintiff demonstrates that serious questions going
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`to the merits were raised and the balance of hardships tips sharply in the plaintiff’s favor.”). This
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`analysis does not, however, aid Parler’s cause. First, as discussed above, the likelihood of Parler
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`prevailing on its claims is not a close call. Parler’s allegations at this time are both inaccurate and
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`unsupported, and are disputed by evidence submitted by AWS. Thus, its motion does not, on this
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`record, raise “serious questions” going to the merits of its claims.
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`Second, while the “balance of hardships” may fall heaviest on Parler in the form of
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`potential monetary loss, AWS has convincingly argued that forcing it to host Parler’s users’
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`violent content would interfere with AWS’s ability to prevent its services from being used to
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`promote—and, as the events of January 6, 2021 have demonstrated, even cause—violence. Opp.
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`Br. at 11; Exec. 2 Decl., Ex. F. It cannot be said, therefore, that the balance of hardships “tips
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`sharply” in Parler’s favor.
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`E. The Balance of Equities and the Public Interest
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`“In exercising their sound discretion, courts of equity should pay particular regard for the
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`public consequences in employing the extraordinary remedy of injunction.” Winter, 555 U.S. at
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`24. Parler argues that the public interest favors the consistent enforcement of contractual
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`obligations, and lies “in fair and robust market competition.” Mot. at 7-8. But Parler has not at
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`this stage demonstrated a likelihood that it will prevail on its breach of contract, Sherman Act, or
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`tortious interference claims. It therefore necessarily follows that the claims do not support a
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`finding that the public interest weighs in favor of granting the injunction.
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`On the other hand, AWS argues that an injunction forcing it to continue hosting the Parler
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`platform would pose a risk to public safety. Opp. Br. at 11; Exec. 2 Decl. Ex. F. Parler attempts
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`to discount this interest by claiming that at the time AWS cut off its services, Parler was “already
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`Case 2:21-cv-00031-BJR Document 34 Filed 01/21/21 Page 13 of 14
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`taking steps” to develop a more effective content moderation system. Rep. Br. at 12. There is no
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`debate, however, that forcing AWS to reinstate its services now, before such system can be
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`implemented, would result in the continued posting of the kind of abusive, violent content that
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`caused AWS to shut Parler down in the first place.
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`The Court explicitly rejects any suggestion that the balance of equities or the public
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`interest favors obligating AWS to host the kind of abusive, violent content at issue in this case,
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`particularly in light of the recent riots at the U.S. Capitol. That event was a tragic reminder that
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`inflammatory rhetoric can—more swiftly and easily than many of us would have hoped—turn a
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`lawful protest into a violent insurrection. The Court rejects any suggestion that the public interest
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`favors requiring AWS to host the incendiary speech that the record shows some of Parler’s users
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`have engaged in. At this stage, on the showing made thus far, neither the public interest nor the
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`balance of equities favors granting an injunction in this case.
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`IV. CONCLUSION
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`Parler has failed to meet the standard set by Ninth Circuit and U.S. Supreme Court
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`precedent for issuance of a preliminary injunction. To be clear, the Court is not dismissing
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`Parler’s substantive underlying claims at this time. Parler has fallen far short, however, of
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`demonstrating, as it must, that it has raised serious questions going to the merits of its claims, or
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`that the balance of hardships tips sharply in its favor. It has also failed to demonstrate that it is
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`likely to prevail on the merits of any of its three claims; that the balance of equities tips in its
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`favor, let alone strongly so; or that the public interests lie in granting the injunction.
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`///
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`Case 2:21-cv-00031-BJR Document 34 Filed 01/21/21 Page 14 of 14
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`For these and the remaining reasons articulated above, Parler’s motion for a preliminary
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`injunction is DENIED.
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` A
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`Barbara Jacobs Rothstein
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`U.S. District Court Judge
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`Dated this 21st day of January, 2021.
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