Updated at 5:50 p.m. ET
A federal judge has refused to restore the social media site Parler after Amazon kicked the company off of its Web-hosting services over content seen as inciting violence.
The decision is a blow to Parler, an upstart that has won over Trump loyalists for its relatively hands-off approach to moderating content. The company sued Amazon over its ban, demanding reinstatement.
U.S. District Judge Barbara Rothstein sided with Amazon, which argued that Parler would not take down posts threatening public safety even in the wake of the attack on the U.S. Capitol and that it is within Amazon's rights to punish the company over its refusal.
"The Court rejects any suggestion that the public interest favors requiring [Amazon Web Services] to host the incendiary speech that the record shows some of Parler's users have engaged in," Rothstein wrote on Thursday. "At this stage, on the showing made thus far, neither the public interest nor the balance of equities favors granting an injunction in this case."
Parler's looser rules of engagement also attracted far-right activists among the some 15 million users who, the company says, posted messages before Amazon pulled the plug.
That anything-goes philosophy ran headlong into demands that social media platforms be held accountable for allowing rioters to discuss plans to storm the Capitol on the day Congress was certifying President Biden's election.
Shortly after the Jan. 6 attack, Parler began to feel the squeeze. First, Google and Apple banned it from their app stores, which made it nearly impossible to download the app. Then Amazon's Web-hosting services, Amazon Web Services, terminated Parler's account.
Parler filed a lawsuit, arguing that Amazon's crackdown was driven by "political animus." Parler contended that the tech giant was abusing its power and attempting to kneecap a competitor.
In submissions to the court, Parler said Amazon's severing ties threatened Parler with "extinction."
An attorney for Parler wrote that the last six Web hosts the company has approached have refused to work with the site.
Yet the website recently flicked back on as essentially no more than a welcome page. It promised to return soon with the message: "We will not let civil discourse perish!"
Judge: Amazon doesn't have to host "abusive, violent content"
In defending against the suit, Amazon considered the matter a simple case of breach of contract. The company flagged dozens of posts advocating violence, which is against its policies, and Parler failed to remove the posts, according to Amazon's attorneys. The posts cited by Amazon include violent threats directed at Twitter's Jack Dorsey, Facebook's Mark Zuckerberg and leaders in the Democratic Party.
In defending its decision to boot Parler off its Web services, Amazon pointed to Section 230 of the Communications Decency Act, the much-debated 1996 federal law that prevents people from suing Internet companies over what users post.
The law also lets tech companies create and enforce rules over what is allowed and not allowed on their sites.
"That is precisely what AWS did here: removed access to content it considered 'excessively violent' and 'harassing,' " attorneys for Amazon wrote in a submission to the court.
In her opinion, Rothstein agreed with Amazon, ruling that Parler's antitrust claim is "dwindlingly slight" and that the breach of contract argument "failed." She wrote that it was Parler, not Amazon, that violated the terms of the contract.
She pointed to the rioters who stormed the Capitol and documented their violent acts on Parler.
"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," Rothstein wrote. "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."
Rothstein did not dismiss the lawsuit outright but rather rejected Parler's request for a preliminary injunction. That said, the decision does not bode well for the future of Parler's legal fight.
Parler is expected to appeal.
In a statement, Jeffrey Wernick, Parler's chief operating officer, said Rothstein not dismissing the case outright was notable. "We remain confident that we will ultimately prevail in the main case," he said.
Meanwhile, Parler is struggling to resuscitate its social network.
David Groesbeck, a lawyer representing Parler, told the court that the company's hope that it could quickly find a new Web-hosting service has not come to fruition, creating a dire situation that Parler's CEO has said could spell the death of the site.
"The notoriety and fallout from the break-up have driven away current and potential business partners, utterly frustrating Parler's pre-termination plans to quickly replace and recover from AWS," Groesbeck wrote in a recent filing.
Parler, which is funded in part by Rebekah Mercer, a major donor of former President Donald Trump, has discussed housing its own servers and supporting its own Web hosting. Trump, too, floated the idea of launching his own social media service after Twitter permanently suspended him.
Disinformation researchers said Amazon's shutdown of Parler eliminated a key gathering place for the sharing and discussion of the election-related conspiracies that Trump has often fanned.
"The reason why we're experiencing this corporate denial of service is because there are really no other levers possible to stop this group of people from reassembling and either trying this again or trying something else that's just as dangerous," said Joan Donovan, an expert on online extremism at Harvard. "It's going to be really important that when they make these decisions, they stick and that they don't walk them back once the heat is off."
A new focus on who controls "the guts of the Web"
To experts who study online speech and infrastructure, the predicament Parler finds itself in reveals just how much control over the Internet is vested in Web hosts, an out-of-sight part of the Web that has the power to decide which sites live or die.
"The guts of the Web that no one ever wants to see, or deal with, or think about" is how Greg Falco, a cyber-risk management researcher at Stanford University, describes these service providers. "It is critical infrastructure for our society, but it's been pushed behind a curtain."
In recent months, the biggest social media companies have drawn brighter lines around the limits of online free speech. And in the wake of the attack on the Capitol, they've taken uncharacteristically aggressive actions against groups and accounts that glorified the violence.
But, as the case of Parler shows, the pressure on social media companies to police the speech on their platforms is shared by Web-hosting companies.
"The question becomes tricky: When do you actually take someone down? It's a really gray territory," Falco said. "The reality is, it comes down to understanding when it reaches some public attention, when there's actually some physical implications."
It is hard to find an example more stark than the insurrection on the Capitol, when droves of rioters turned to Parler and other alternative sites to post videos of vandalism, property damage and other violence, as ProPublica recently documented at length.
"When you have something that's outwardly violent or causes some other crisis or tragedy in the world, that's when Web infrastructure tends to come out of the shadows," said Dave Temkin, a former Netflix executive who oversaw the management of the company's servers.
Web-hosting companies, like social media platforms, address content in their terms of service. Violators can be punished.
Back in 2018, GoDaddy, a major player in site-hosting, kicked Gab offline after it was revealed that the man accused of killing 11 people at a Pittsburgh synagogue had posted anti-Semitic messages to the site. Gab, which removed the suspect's account, came back online with the help of Epik, a company with links to the neo-Nazi website the Daily Stormer and theDonald.win, a far-right discussion board created after Reddit banned a forum popular with Trump's most ardent fans. The site recently rebranded as Patriot.win, and Epik supports its domain, the company confirmed.
Evelyn Douek, a lecturer at Harvard Law School, predicts more battles over online speech will erupt between sites that choose a hands-off approach and Web hosts that demand a more aggressive stance. And that troubles her.
"Is that the right place for content moderation to be occurring?" Douek asked. "It's harder to bring accountability to those choices when we don't even know who's making them or why they're being made."
In other words, when a Web host has a problem with content on a client's site, usually these discussions are hashed out between the two parties, far from the public light. And Web hosts, unlike social media platforms, are not used to explaining these decisions publicly.
Another issue, Douek said, is the lack of oversight of Web hosts. She pointed to the 98 pieces of objectionable content Amazon cited in court papers about Parler.
"It sort of made me laugh a little bit," she said. "Has Amazon read the rest of the Internet? Ninety-eight pieces of content or whatever is not that many. I mean, has Amazon read Amazon?"
Editor's note: Amazon is among NPR's recent financial supporters.
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