2nd Circuit Blesses Vimeo Clamp on Gay-Conversion Content

The federal panel endorsed immunity for the website, which had banned a pastor over videos in which he identified as a “former homosexual.” 

(Image via Courthouse News)

MANHATTAN (CN) — A pastor who portrays himself as a success story of gay-conversion therapy cannot go to court over the ban of his account by Vimeo, the Second Circuit ruled Thursday.

Holding that the streaming site is immune under Section 230 of the Communications Decency Act, a three-judge panel in Manhattan affirmed dismissal of the suit by Pastor James Domen with the California-based Church United.

Vimeo removed Domen’s entire library and blocked his account after the preacher ignored its warnings that his videos violated its policy against content that promotes “sexual orientation change efforts.”

Domen’s lawyer Nada Higuera had told the court this past December at oral argument that Vimeo had discriminated by punishing the pastor beyond taking down the five videos in which Domen calls himself a “former homosexual.” 

An attorney at Tyler & Bursch, Higuera said Vimeo’s actions were “not against content, but against James Domen himself, and based on his sexual orientation.” 

“But they did target content,” interrupted U.S. Circuit Judge Rosemary S. Pooler. “They said they wouldn’t allow it, and he knew that when he signed up. What did he not understand?” 

Pooler, a Clinton appointee, wrote Thursday’s 20-page opinion, which affirms dismissal under a “Good Samaritan” subsection of section 230, the internet law enacted in the mid-1990s. 

The law takes away liability for interactive computer service providers — like social media and video platforms — publishing or restricting information uploaded by users. 

Specifically, it also covers good-faith steps “to restrict access to or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected.” 

That last part is notable, Pooler wrote Thursday, using italics to companies are granted “significant subjective discretion” with respect to material that a web-service “providers consider objectionable.”

Vimeo’s general counsel Michael Cheah said it is true that the company “does not agree with Church United or Domen’s content.”

“I want to emphasize the word content. We do not disagree with this,” Cheah said during his oral argument. “Vimeo made the editorial decision to remove discriminatory content from its website.”

In an email following Thursday’s decision, Cheah reiterated that stance.

“There is no place on Vimeo for content that is in any way discriminatory or hateful. Our policies explicitly reflect these values,” Cheah wrote.

“We’re pleased by today’s court decision — it affirms our ongoing efforts to keep Vimeo a safe and inclusive place on the internet, and we will continue to be diligent in removing content and accounts that violate our terms.”

Among those backing Vimeo in the appeal was the Internet Association, whose members include Google, Twitter and Facebook. 

“The success of these online businesses — and the vitality of online media generally — depends on being shielded from the risks, burdens, and uncertainty of lawsuits that seek to hold them liable for regulating content on their platforms,” the companies wrote in a 44-page amicus brief

Social media sites have been the target of legal concerns about Section 230, which have bubbled up in recent months. 

Former President Donald Trump was a vocal critic of the statute. In October 2020, he tweeted simply, “REPEAL SECTION 230!!!” 

The same month, after the Supreme Court declined to hear a dispute between cybersecurity software companies Malwarebytes Inc. and Enigma Software Group, Justice Clarence Thomas urged the court to soon address Section 230.

“Courts have long emphasized nontextual arguments when interpreting §230, leaving questionable precedent in their wake,” wrote Thomas, a George H. W. Bush appointee.

“Extending §230 immunity beyond the natural reading of the text can have serious consequences,” he continued. “Before giving companies immunity from civil claims for ‘knowingly host[ing] illegal child pornography,’… or for race discrimination… we should be certain that is what the law demands.”

Neither Domen’s attorneys nor a Vimeo spokesperson responded to requests for comment on the ruling.  

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