Important Second Circuit Opinion Says Section 230(c)(2)(A) Protects Online Account Terminations–Domen v. Vimeo

Vimeo is a video hosting service. Domen is a “former homosexual.” He posted videos to Vimeo that allegedly violated Vimeo’s policy against “the promotion of sexual orientation change efforts” (SOCE). Vimeo notified Domen of the violation and gave him 24 hours to remove the videos or Vimeo would take action. Domen didn’t remove the videos, so Vimeo subsequently deleted Domen’s account. Domen sued Vimeo for violations of California’s Unruh Act, New York’s Sexual Orientation Non-Discrimination Act, and the California Constitution. The lower court dismissed all of the claims.

The Court’s Ruling

The Second Circuit affirms the dismissal, relying solely on Section 230(c)(2)(A) (Domen didn’t pursue the CA Constitutional claim on appeal). This is unexpected, because many courts have recently used Section 230(c)(1) to protect content removal/account termination decisions. In comparison, Section 230(c)(2)(A) has languished because it requires the defendant act in “good faith,” which plaintiffs can often plead around to survive a motion to dismiss. However, the appeals court applies Section 230(c)(2)(A) on a motion to dismiss in this case, perhaps revitalizing Section 230(c)(2)(A)’s utility as a defense.

The court doesn’t expressly say why it relied only on Section 230(c)(2)(A) instead of Section 230(c)(1). Still, the court says Section 230(c)(2)(A) a “broad provision” which “provide[s] platforms like Vimeo with the discretion to identify and remove what they consider objectionable content from their platforms without incurring liability for each decision.” In particular, Section 230(c)(2)(A) protects the removal of content that the service subjectively considers “objectionable.” Accordingly, “Vimeo is statutorily entitled to consider SOCE content objectionable and may restrict access to that content as it sees fit.” The court says this protection extends to the decision to delete the entire account, not just remove specific videos, especially because Vimeo warned Domen of this possibility.

But what about the precondition that Vimeo make its removal decision “in good faith”? Distinguishing the Ninth Circuit’s (terrible) Malwarebytes decision (a Section 230(c)(2)(B) case, but that detail apparently doesn’t matter to this court), the court says:

Vimeo’s deletion of Appellants’ account was not anti-competitive conduct or self-serving behavior in the name of content regulation. Instead, it was a straightforward consequence of Vimeo’s content policies, which Vimeo communicated to Church United prior to deleting its account.

Domen pointed to other unmoderated videos that allegedly violated its SOCE policy as evidence of bad faith. The court replies:

the mere fact that Appellants’ account was deleted while other videos and accounts discussing sexual orientation remain available does not mean that Vimeo’s actions were not taken in good faith. It is unclear from only the titles that these videos or their creators promoted SOCE…Given the massive amount of user-generated content available on interactive platforms, imperfect exercise of content-policing discretion does not, without more, suggest that enforcement of content policies was not done in good faith.

Elsewhere, the court says “Section 230(c)(2) does not require interactive service providers to use a particular method of content restriction, nor does it mandate perfect enforcement of a platform’s content policies.” Finally, the court endorses the Nemet Chevrolet language that Section 230 is an immunity that “is effectively lost if a case is erroneously permitted to go to trial.”

Implications

In the short run, Internet services have a lot to celebrate about this ruling. First, the court revitalizes Section 230(c)(2)(A) as a tool in the defense toolkit, which increases the odds of a successful defense. Second, the court accepts that content moderation will never be perfect, so plaintiffs aren’t going to win simply by pointing out examples of imperfect content moderation. Third, the court grants Section 230(c)(2)(A) on a motion to dismiss, emphasizing that it’s an immunity and not just a safe harbor. This ruling isn’t novel, but a clean and decisive statement from the Second Circuit about Section 230(c)(2)(A) applicability to motions to dismiss will surely encourage future courts to do the same. Fourth, though not explicitly addressed, the court held that Section 230(c)(2)(A) preempted claims that the services had violated anti-discrimination laws–a critical issue given that majority communities are weaponizing anti-discrimination laws to perpetuate their majority status.

Unfortunately, all of the defense gains from this case could be easily wiped away through one of three developments: Congressional amendment, bad court interpretations, and different pleading tactics.

Amendments to Section 230. Both Democrats and Republicans have proposed amendments that would overturn this result.

Some Democrats have proposed bills that would categorically remove anti-discrimination claims from Section 230. Counterproductively, that would benefit Domen, who is posting content that harms minority communities that should normally should be helped by anti-discrimination laws. Also, the SAFE TECH Act would expressly say that Section 230 is an affirmative defense, not an immunity, overturning the central procedural benefit of this ruling.

Meanwhile, several Republican bills have proposed that services can only remove “unlawful” content, not “objectionable” content, under Section 230(c)(2)(A). That single-word change would overturn this case, because it’s unlikely that Domen’s content was illegal. In fact, it’s almost certainly constitutionally protected, no matter how odious it may be.

Thus, when Congress is done mucking with Section 230, I wonder how much of this ruling will be left. Indeed, I wonder if this opinion will spur countermoves on both sides of the Congressional aisle.

Court Interpretations. The opinion sidesteps the role, if any, of Section 230(c)(1) for this fact pattern. Though it would be a misreading of this opinion, courts might nevertheless conclude that only Section 230(c)(2)(A) applies to content removals or account terminations. That would be a net strategic loss for defendants, because Section 230(c)(1) has been so effective in those cases and Section 230(c)(2)(A) may not be as effective.

Furthermore, the court repeatedly says that Vimeo had an express anti-SOCE policy, that it warned Domen of the violation before taking action, and that it took action only when Domen didn’t correct the alleged policy violations. Future courts might misread this opinion to say that all three of those steps are preconditions to Section 230(c)(2)(A). In that case, it would add more grounds for future litigation battles over Section 230(c)(2)(A) and possibly disqualify defendants who didn’t follow these three steps even if their decisions were appropriate.

Pleading Tactics. The opinion lays out some breadcrumbs for plaintiffs to plead around Section 230(c)(2)(A), at least for purposes of a motion to dismiss. Some of the allegations that seemed most promising:

• allege anti-competitive animus. Virtually every content producer can claim indirect competition with every content distributor. After all, they are both in the content business. We’ve seen many allegations like this in the antitrust space, especially with respect to Google’s search engine indexing decisions.
• allege “self-serving behavior,” whatever that means. Every removal/termination decision by a for-profit company is necessarily self-serving because they want to increase profits in the end.
• provide better evidence of inconsistent policy decisions. The court said Domen couldn’t just rely on the titles of other videos, but that could be easily fixed through more careful review of the videos still up. The court also says that imperfect moderation, “without more,” isn’t evidence of bad faith. Plaintiffs could do more to raise suspicions about the imperfections, such as the kinds of statistical analyses that we routinely see in employment discrimination cases that provide circumstantial evidence of discriminatory animus.
• identify other statements made by the defendant that suggest a lack of good faith. This could be in statements made to the plaintiff or in published materials.

In the end, I fear this opinion will still produce far more wasted litigation motion than a clean and decisive Section 230(c)(1) dismissal would have produced.

Case citation: Domen v. Vimeo, Inc., 2021 WL 922749 (2d Cir. March 11, 2021)