MANHATTAN (CN) — A pastor who calls himself a “former homosexual” appeared unlikely Thursday to win a second chance at suing the website Vimeo for removing his posts about conversion therapy.
At a Second Circuit hearing held virtually this morning, U.S. Circuit Judge Rosemary S. Pooler pressed for evidence, “even threadbare,” of James Domen’s discrimination claims.
Nada Higuera argued for the pastor that Vimeo’s actions were “not against content, but against James Domen himself, and based on his sexual orientation.”
“But they did target content,” the Clinton-appointed Pooler said, cutting Higuera short. “They said they wouldn’t allow it, and he knew that when he signed up. What did he not understand?”
Vimeo’s terms ban content promoting “sexual orientation change efforts,” and the video-streaming website warned Domen in 2018 that posts on his channel appeared to conflict with those rules.
After Domen failed to take down the videos, Vimeo removed the pastor’s entire library and blocked his account.
Higuera tried to make the case Thursday that the company did so in bad faith as most of the pastor’s library had nothing to do with sexual orientation change efforts and included topics like “cookie baking.”
“The five videos that were allegedly problematic weren’t targeted,” said the lawyer, who is with the firm Tyler & Bursch of Murrieta, California. “It was the users that were permanently banned.”
U.S. Circuit Judge Richard C. Wesley pointed out that Vimeo’s terms allow the company to take down entire video libraries and accounts.
Vimeo’s general counsel Michael A. Cheah meanwhile told the court that the company stands by its policies, and that content is clearly at the heart of the case.
In their own reply brief, Cheah noted, Domen’s attorneys wrote that Vimeo refused to provide service to the plaintiffs because 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. “Vimeo made the editorial decision to remove discriminatory content from its website.”
Cheah also read from his brief, which notes that Vimeo told Domen about his five violative videos on Nov. 3, 2018, then observed 13 days later that the videos were still online.
“At this point, they do what most reasonable service providers do: They remove the entire account, 89 videos and all,” Cheah said.
Domen’s account was removed on Dec. 6.
Domen brought his free-speech suit in Manhattan, where U.S. Magistrate Judge Stewart Aaron ruled it preempted by Section 230 of the Communications Decency Act, a policy that shields internet companies from liability for content posted by users.
Cheah argued Thursday that under Section 230, “Good Samaritan” protections (c)(1) and (c)(2) overlap and both apply to Vimeo. The statutes protect interactive computer companies from liability for blocking and screening offensive material. The goal of the legal shield, Cheah argued, is to encourage self-regulation by tech companies who allow third parties to post material.
In October, after the Supreme Court declined to hear a dispute between cybersecurity software companies Malwarebytes Inc. and Enigma Software Group, Justice Clarence Thomas urged the Supreme Court to soon address Section 230.
Thomas, a George H. W. Bush appointee, said in a concurring opinion that it’s time for the court to decide “whether the text of this increasingly important statute aligns with the current state of immunity enjoyed by internet platforms.”
Domen’s attorneys cited Thomas’ opinion in a letter submitted to the Second Circuit earlier this week. Higuera’s co-counsel Robert H. Tyler challenged the protections in their opening brief, saying they allowed Vimeo to discriminate against his client.
“Under the District Court’s ruling, discrimination that is unconscionable in any other business or consumer context, is allowed if it is committed by an interactive computer service,” Tyler wrote.
Cheah wrote Wednesday that the court should disregard the last-minute filing since denials of certiorari don’t have precedential force and the statement on Enigma Software Group USA LLC v. Malwarebytes Inc was two months old.
Tyler replied to an initial interview request but did not follow up. Vimeo’s legal team said via email Thursday that it “felt the argument went well this morning,” but declined to comment further.
Among those backing Vimeo in the appeal is the Internet Association, whose members include Google, Twitter and Facebook.
The remaining panel judge was Susan L. Carney, another Obama appointee. Wesley is an appointee of President George W. Bush. The panel ended arguments without a ruling.