5 ms·

Without addressing the specifics of the TRO (which is simply an early stage request for injunctive relief, asking the court to compel AWS to reinstate services

Without addressing the specifics of the TRO (which is simply an early stage request for injunctive relief, asking the court to compel AWS to reinstate services pending litigation): Packinghan v North Carolina (2017) - Access to social media and digital infrastructure cannot be prohibited by the state. Marsh v Alabama (1946) - Constitutional protections of 1st and 14th amendments applicable within confines of “town” owned by a private entity. Packinghan, viewed in combination with Marsh, provides an interesting lens for issues concerning a digit company owned town. If data storage and/or social media can be viewed as critical digital infrastructure and a private organization provides those services, an argument can and will likely be made that the services are tantamount to a digital company owned town. As Justice Ginsburg said during oral argument regarding private digital networks, “the point is that these people are being cut off from a very large part of the marketplace of ideas. And the First Amendment includes not only the right to speak, but the right to receive information.” And as Justice Kagan stated during Packinghan oral argument, "whether it’s political community, whether it’s religious community... these sites have become embedded in our culture as ways to communicate and ways to exercise our constitutional rights.” Moreover, AWS's behavior may be viewed as an antitrust issue, acting in conjunction with a cartel. A party does not need to have majority market share to function in coordination with other dominate players in order to form a cartel that can manipulate the market. Also, they may or may not have provided sufficient notice (a contract issue). Either way, it's definitely relevant to industry and likely to be litigated on appeal following the trial court's ruling (whatever it is).

Someone1234 6y ago
> Packinghan v North Carolina (2017) - Access to social media and digital infrastructure cannot be prohibited by the state. Amazon isn't the state. > Marsh v Alabama (1946) - Constitutional protections of 1st and 14th amendments applicable within confines of “town” owned by a private entity. Which doesn't apply here, as Amazon isn't a company town/acting in a quasi-governmental capacity. > AWS's behavior may be viewed as an antitrust issue, acting in conjunction with a cartel. The court ruled on this, and pointed out that the accusations were factually erroneous. > Moreover, they may or may not have provided sufficient notice (a contract issue). The court ruled on this, and sided with Amazon (zero notice in this circumstance). If anything Amazon giving them 24 hours was above what the contract required. I suggest reading the court's opinion before replying, since it undercuts many/most of the points you've tried to make.
- mercurialshark 6y ago
  There has been no ruling by the court on the merits of the case. A TRO is simply a request for injunctive relief, asking the court to compel AWS to reinstate services pending litigation. -- > Packinghan v North Carolina (2017) - Access to social media and digital infrastructure cannot be prohibited by the state. Amazon isn't the state. - Correct. My point is that Packinghan, viewed in combination with Marsh, provides an interesting lens for issues concerning potentially monopolistic behavior. IF data storage and/or social media can be viewed as critical digital infrastructure, an argument can and will likely be made that the services are tantamount to a digital company owned town. We'll see! Either way it's very interesting and highly relevant to the industry.
  - joshuamorton 6y ago
    > There has been no ruling by the court on the merits of the case. Correct, but as part of the TRO process, the court is asked to view the merits of the case given what it knows, as part of the determination of granting a preliminary injunction is whether the plaintiff is likely to succeed on the merits. The courts opinion, quite plainly, is that Parler is unlikely to succeed on the merits: > In short, Parler has proffered only faint and factually inaccurate speculation in support of a Sherman Act violation. > Parler has not denied that at the time AWS invoked its termination or suspension rights under Sections 4, 6 and 7, Parler was in violation of the Agreement and the AUP. > Parler has failed to allege basic facts that would support several elements of this claim. Most fatally, as discussed above, it has failed to raise more than the scantest speculation that AWS’s actions were taken for an improper purpose or by improper means. > IF data storage and/or social media can be viewed as critical digital infrastructure, an argument can and will likely be made that the services are tantamount to a digital company owned town. This argument will fail, for reasons I outlined in a previous comment: https://news.ycombinator.com/item?id=25781560 https://news.ycombinator.com/item?id=25781560. To briefly reiterate: Marsh v. Alabama concerned a privately owned town using state force (e.g. police) to enforce trespassing law. But nothing about those rulings prevents the town from putting up a fence and a gate, and banning people from re-entering. Twitter (and AWS) have a fence and a gate, and a guard who checks your ID anytime you try to enter the area.
timdev2 6y ago
I don't see how Packingham or Marsh are likely to be relevant here. While the former has some lofty language about central social media has become in society, it's still a decision about state action. Marsh seems like a reach as well - PragerU tried that and it didn't work. I'm not convinced Parler would fare any better here.
JackC 6y ago
Regarding Marsh v Alabama: "Recently the case has been highlighted as a potential precedent to treat online communication media like Facebook as a public space to prevent it from censoring speech. However, in Manhattan Community Access Corp. v. Halleck [2019] the Supreme Court found that private companies only count as state actors for first amendment purposes if they exercise 'powers traditionally exclusive to the state.'" https://en.wikipedia.org/wiki/Marsh_v._Alabama#Subsequent_history https://en.wikipedia.org/wiki/Marsh_v._Alabama#Subsequent_hi... Manhattan Community Access Corp. finds that _public access television stations_ aren't subject to the First Amendment, let alone private web hosts. I mean, as an attorney, I think it would be kind of interesting to see what happened if the Supreme Court ruled that private web hosts in general, or Amazon in particular, are somehow state actors. It would be one of the most practically disruptive-to-society court decisions I can think of, about as interesting to watch as declaring that all warehouses are now public parks. But it's against both recent precedent and common sense.
- someguydave 6y ago
  >or Amazon in particular, are somehow state actors They operate under the extremely valuable liability protection granted them in section 230 of the CDA. If I were to take government funds to build my warehouse, there's a pretty decent case that it is at least a public forum, if not a park.
  - tptacek 6y ago
    No, that would not be a decent case that your warehouse is a public forum. That's a risible argument. Hundreds of warehouses around the country are built on government funds, none of which are public property. Try telling General Dynamics they're a theme park operator and see how far that gets you.
    - someguydave 6y ago
      https://www.csbj.com/premier/businessnews/lawsuit-arises-from-petitioning-at-costco-store/article_d687a792-4477-11eb-9399-9732838ca64a.html https://www.csbj.com/premier/businessnews/lawsuit-arises-fro... >“In sum, the financial participation of the City in the Mall’s progress, the arrangements with the City police substation, and the active presence of other governmental agencies in the common areas of the Mall, constitute governmental involvement in the operation of the Mall,” the court noted. Thus, it concluded the mall’s “open and public areas ... effectively function as a public place,” and that mall owners couldn’t restrict distribution of political pamphlets or signature gathering in the mall’s common areas without violating the state Constitution. Also, General Dynamics absolutely operates under many contractual obligations in which the federal government directly dictates how they shall run their business.
toast0 6y ago
You may want to add Pruneyard Shopping Center v. Robins (1980) providing a right to first ammendment speech on private property. Although follow on cases have narrowed the prescedent quite a bit.
- amanaplanacanal 6y ago
  That’s not what the decision said, you have misread it. It was not the first amendment, but rather the California constitution that required allowing the speech.
mumblemumble 6y ago
I fail to see how either of these cases you cite are the slightest bit relevant to Parler v AWS. Judge Rothstein stated it quite plainly in today's order: "It is important to note what this case is not about. Parler is not asserting a violation of any First Amendment rights." (Page 2, lines 4-5)
fl0wenol 6y ago
The analogies for the digital town/community break down when we consider certain practical and physical barriers that exist in company towns that do not exist in the digital realm. For example, the travel expenses and time required to purchase goods. You could go outside the company town, but it requires much more resources to do so, which is doubly impacted by pay being docked accordingly to bundled company town services (utility, rent, etc.), which traps residents. This is why they have been looked upon unfavorably. But digital communities do not trap individuals, there is no practical limit except of mental effort to the number of accounts or social media networks a person can simultaneously use. Instead, the costs are borne by the networks themselves, which scales with the number of users. This is an inversion of the scenario as the public is a passive participant, nothing is forced upon them. This is why I think the argument is not a good fit. Parler and AWS, as business entities, can only act in their own interests as there is no duty between a corporation and the general public, only their customers through either a uniform or contractual relationship. Wouldn't you agree? It would be dangerous to assume that a corporation has a specific duty to the general public beyond existing customers. That is, AWS only has to deal with Parler, not Parler's customers. That is on Parler. And I don't think the state enters into this at all.

Someone1234 6y ago

> Packinghan v North Carolina (2017) - Access to social media and digital infrastructure cannot be prohibited by the state. Amazon isn't the state. > Marsh v Alabama (1946) - Constitutional protections of 1st and 14th amendments applicable within confines of “town” owned by a private entity. Which doesn't apply here, as Amazon isn't a company town/acting in a quasi-governmental capacity. > AWS's behavior may be viewed as an antitrust issue, acting in conjunction with a cartel. The court ruled on this, and pointed out that the accusations were factually erroneous. > Moreover, they may or may not have provided sufficient notice (a contract issue). The court ruled on this, and sided with Amazon (zero notice in this circumstance). If anything Amazon giving them 24 hours was above what the contract required. I suggest reading the court's opinion before replying, since it undercuts many/most of the points you've tried to make.

mercurialshark 6y ago
There has been no ruling by the court on the merits of the case. A TRO is simply a request for injunctive relief, asking the court to compel AWS to reinstate services pending litigation. -- > Packinghan v North Carolina (2017) - Access to social media and digital infrastructure cannot be prohibited by the state. Amazon isn't the state. - Correct. My point is that Packinghan, viewed in combination with Marsh, provides an interesting lens for issues concerning potentially monopolistic behavior. IF data storage and/or social media can be viewed as critical digital infrastructure, an argument can and will likely be made that the services are tantamount to a digital company owned town. We'll see! Either way it's very interesting and highly relevant to the industry.
- joshuamorton 6y ago
  > There has been no ruling by the court on the merits of the case. Correct, but as part of the TRO process, the court is asked to view the merits of the case given what it knows, as part of the determination of granting a preliminary injunction is whether the plaintiff is likely to succeed on the merits. The courts opinion, quite plainly, is that Parler is unlikely to succeed on the merits: > In short, Parler has proffered only faint and factually inaccurate speculation in support of a Sherman Act violation. > Parler has not denied that at the time AWS invoked its termination or suspension rights under Sections 4, 6 and 7, Parler was in violation of the Agreement and the AUP. > Parler has failed to allege basic facts that would support several elements of this claim. Most fatally, as discussed above, it has failed to raise more than the scantest speculation that AWS’s actions were taken for an improper purpose or by improper means. > IF data storage and/or social media can be viewed as critical digital infrastructure, an argument can and will likely be made that the services are tantamount to a digital company owned town. This argument will fail, for reasons I outlined in a previous comment: https://news.ycombinator.com/item?id=25781560 https://news.ycombinator.com/item?id=25781560. To briefly reiterate: Marsh v. Alabama concerned a privately owned town using state force (e.g. police) to enforce trespassing law. But nothing about those rulings prevents the town from putting up a fence and a gate, and banning people from re-entering. Twitter (and AWS) have a fence and a gate, and a guard who checks your ID anytime you try to enter the area.

timdev2 6y ago

I don't see how Packingham or Marsh are likely to be relevant here. While the former has some lofty language about central social media has become in society, it's still a decision about state action. Marsh seems like a reach as well - PragerU tried that and it didn't work. I'm not convinced Parler would fare any better here.

JackC 6y ago

Regarding Marsh v Alabama: "Recently the case has been highlighted as a potential precedent to treat online communication media like Facebook as a public space to prevent it from censoring speech. However, in Manhattan Community Access Corp. v. Halleck [2019] the Supreme Court found that private companies only count as state actors for first amendment purposes if they exercise 'powers traditionally exclusive to the state.'" https://en.wikipedia.org/wiki/Marsh_v._Alabama#Subsequent_history https://en.wikipedia.org/wiki/Marsh_v._Alabama#Subsequent_hi... Manhattan Community Access Corp. finds that _public access television stations_ aren't subject to the First Amendment, let alone private web hosts. I mean, as an attorney, I think it would be kind of interesting to see what happened if the Supreme Court ruled that private web hosts in general, or Amazon in particular, are somehow state actors. It would be one of the most practically disruptive-to-society court decisions I can think of, about as interesting to watch as declaring that all warehouses are now public parks. But it's against both recent precedent and common sense.

someguydave 6y ago
>or Amazon in particular, are somehow state actors They operate under the extremely valuable liability protection granted them in section 230 of the CDA. If I were to take government funds to build my warehouse, there's a pretty decent case that it is at least a public forum, if not a park.
- tptacek 6y ago
  No, that would not be a decent case that your warehouse is a public forum. That's a risible argument. Hundreds of warehouses around the country are built on government funds, none of which are public property. Try telling General Dynamics they're a theme park operator and see how far that gets you.
  - someguydave 6y ago
    https://www.csbj.com/premier/businessnews/lawsuit-arises-from-petitioning-at-costco-store/article_d687a792-4477-11eb-9399-9732838ca64a.html https://www.csbj.com/premier/businessnews/lawsuit-arises-fro... >“In sum, the financial participation of the City in the Mall’s progress, the arrangements with the City police substation, and the active presence of other governmental agencies in the common areas of the Mall, constitute governmental involvement in the operation of the Mall,” the court noted. Thus, it concluded the mall’s “open and public areas ... effectively function as a public place,” and that mall owners couldn’t restrict distribution of political pamphlets or signature gathering in the mall’s common areas without violating the state Constitution. Also, General Dynamics absolutely operates under many contractual obligations in which the federal government directly dictates how they shall run their business.

toast0 6y ago

You may want to add Pruneyard Shopping Center v. Robins (1980) providing a right to first ammendment speech on private property. Although follow on cases have narrowed the prescedent quite a bit.

amanaplanacanal 6y ago
That’s not what the decision said, you have misread it. It was not the first amendment, but rather the California constitution that required allowing the speech.

mumblemumble 6y ago

I fail to see how either of these cases you cite are the slightest bit relevant to Parler v AWS. Judge Rothstein stated it quite plainly in today's order: "It is important to note what this case is not about. Parler is not asserting a violation of any First Amendment rights." (Page 2, lines 4-5)

fl0wenol 6y ago

The analogies for the digital town/community break down when we consider certain practical and physical barriers that exist in company towns that do not exist in the digital realm. For example, the travel expenses and time required to purchase goods. You could go outside the company town, but it requires much more resources to do so, which is doubly impacted by pay being docked accordingly to bundled company town services (utility, rent, etc.), which traps residents. This is why they have been looked upon unfavorably. But digital communities do not trap individuals, there is no practical limit except of mental effort to the number of accounts or social media networks a person can simultaneously use. Instead, the costs are borne by the networks themselves, which scales with the number of users. This is an inversion of the scenario as the public is a passive participant, nothing is forced upon them. This is why I think the argument is not a good fit. Parler and AWS, as business entities, can only act in their own interests as there is no duty between a corporation and the general public, only their customers through either a uniform or contractual relationship. Wouldn't you agree? It would be dangerous to assume that a corporation has a specific duty to the general public beyond existing customers. That is, AWS only has to deal with Parler, not Parler's customers. That is on Parler. And I don't think the state enters into this at all.