Contributing Author: Bryan Sullivan
The shocking events of the Trump-fueled January 6, 2021 Capitol Riot had very visible and, in some cases, unexpected consequences. Within days of the violent Capitol insurrection, some social media and web service platforms suspended the accounts of Donald Trump and many of his supporters, who participated in inciting and organizing the Capitol breach. The sweeping suspensions included over 70,000 Twitter accounts, as well as the ban of “free speech” social media platform Parler by Amazon
In some instances, the suspensions were a surprise – most social media platforms had bent over backwards NOT to remove Trump or his followers’ accounts and posts, slowly and reluctantly adopting content disclaimers and warnings. The reaction was far more expected, as many conservative voices began to rail against social media and tech giants. Among the claims: that this is a violation of free speech, and that a private company restricting access to its services is somehow either illegal or even unconstitutional. Neither of these is true.
The First Amendment to the Constitution of the United States of America is one sentence and, fittingly, 45 words. It restricts only what Congress may do as far as making a law that infringes on freedom of speech. A private company cannot violate this amendment by disallowing access to its platform(s). More importantly, in the case of extremism, “deplatforming” has been shown to be an effective tool, including in a 2016 Brookings Institute study on ISIS. Notably, the vocal minority who are decrying their deplatforming had no problem with the deplatforming of ISIS, and likely wouldn’t have an issue if Congresswoman Alexandria Ocasio-Cortez and other members of the “Squad” were deplatformed.
Twitter cited two inflammatory Trump tweets in its decision to remove his account. One of Twitter’s rules states “You may not threaten violence against an individual or a group of people. We also prohibit the glorification of violence.” Trump violated Twitter’s glorification of violence policy on January 8, 2021, two days after the Capitol was stormed: “The 75,000,000 great American Patriots who voted for me, AMERICA FIRST, and MAKE AMERICA GREAT AGAIN, will have a GIANT VOICE long into the future. They will not be disrespected or treated unfairly in any way, shape or form!!!” (Capitalization in original.) He later tweeted: “To all of those who have asked, I will not be going to the Inauguration on January 20th.”
While these tweets are relative tame compared to some of Trump’s other far more boisterous tweets, Twitter still rightfully pointed to its Terms of Service and the global context in which these tweets were made. Twitter stated: “Due to the ongoing tensions in the United States, and an uptick in the global conversation in regards to the people who violently stormed the Capitol on January 6, 2021, these two Tweets must be read in the context of broader events in the country and the ways in which the President’s statements can be mobilized by different audiences, including to incite violence, as well as in the context of the pattern of behavior from this account in recent weeks. After assessing the language in these Tweets against our Glorification of Violence policy, we have determined that these Tweets are in violation of the Glorification of Violence Policy and the user @realDonaldTrump should be immediately permanently suspended from the service.”
Parler’s agreement with Amazon Web Services (AWS) falls under two different agreements that are included in any new account signup, a Customer Agreement and an Acceptable Use Policy. In addition to the right to modify or change the terms (and services) with applicable notice, AWS’ Customer Agreement includes Section 4, on responsibilities of the account-holder (in this case Parler). Section 4.2 states “You will ensure that Your Content and your and End Users’ use of Your Content or the Service Offerings will not violate any of the Policies or any applicable law.” This question of violating any policies or applicable law is of the utmost importance in addressing Parler’s dismissal from the hosting platform. Section 8.2(c) of the Customer Agreement goes on to say that the accepting party represents that “none of Your Content or End Users’ use of Your Content or the Service Offerings will violate the Acceptable Use Policy.”
That Acceptable Use Policy begins as follows:
“No Illegal, Harmful, or Offensive Use or Content
You may not use, or encourage, promote, facilitate or instruct others to use, the Services or AWS Site for any illegal, harmful, fraudulent, infringing or offensive use, or to transmit, store, display, distribute or otherwise make available content that is illegal, harmful, fraudulent, infringing or offensive.”
Certainly inciting, organizing, and then attempting to cover up an armed insurrection and forceful seizure of a government building, with the intent to detain, harass, and harm people must qualify as a violation of these terms. Moreover, it has been reported that various conversations on Parler involved people openly advocating the overthrow of President Biden and alluded to the assassination of Democratic politicians and Republican politicians who were not supportive enough of Trump.
Parler’s lawsuit, which accuses AWS of acting based on “political animus” and violating antitrust law by cutting off their service, has been dismissed by Amazon in a statement as having “no merit.” “It is clear that there is significant content on Parler that encourages and incites violence against others, and that Parler is unable or unwilling to promptly identify and remove this content, which is a violation of our terms of service,” the company said. As far as an antitrust claim, Parler could argue that the tech giants conspired, but the conspiracy would have to be aimed at overall market disruption, not targeting a single company.
It is understandable that Trump, Parler, et. al. would attempt to take legal routes, regardless of viability. Rejection sucks. But in this case it is legal and just.
Bryan Sullivan, Partner at Early Sullivan Wright Gizer & McRae, advises and represents his clients as a legal strategist in all their business affairs. He has significant experience on the litigation and appeals side of the practice, as well as with entertainment and intellectual property contracts, investment and financing agreements, and corporate structure documents on the dealmaking side.