Vimeo Defeats Lawsuit for Terminating Account That Posted Conversion Therapy Videos–Domen v. Vimeo
Domen characterizes himself as a “former homosexual” who has now embraced heterosexuality. Domen (through his organization Church United) published 89 videos on Vimeo. Vimeo flagged the videos as violating its policy against the promotion of “Sexual Orientation Change Efforts (SOCE),” and after a short warning, it terminated Domen’s account. Domen claims “Vimeo restricted and censored Plaintiffs’ videos because those videos were based on a viewpoint regarding sexual orientation and religion with which Vimeo disagrees.” The court easily dismisses the case on Section 230 and other grounds.
Section 230(c)(1). The court says: “Plaintiffs are seeking to hold Vimeo liable for removing Plaintiffs’ own content….Vimeo plainly was acting as a ‘publisher’ when it deleted (or, in other words, withdrew) Plaintiffs’ content on the Vimeo website.” Cites to Riggs v. MySpace, Ebeid v. Facebook, Lancaster v. Alphabet, and Mezey v. Twitter. The court acknowledges contrary language in e-ventures v. Google but says that ruling isn’t “persuasive since Section 230(c)(2)’s grant of immunity, while ‘overlapping’ with that of Section 230(c)(1), also applies to situations not covered by Section 230(c)(1). ”
Section 230(c)(2). “Plaintiffs are seeking to hold Vimeo liable for the actions voluntarily taken by Vimeo to restrict access to Plaintiffs’ materials that Vimeo finds to be objectionable.” Cite to Dipp-Paz v. Facebook. Objectionable is defined by the defendant’s subjective intent, and the court can resolve Vimeo’s subjective intent on the complaint’s face based on Vimeo’s anti-SOCE policy and the emails it sent to Domen. Domen asserted that Vimeo didn’t act in good faith, but the complaint doesn’t provide any supporting facts, so its assertion is conclusory. Cite to e360insight v. Comcast. In a FN, the court addresses Domen’s claim that Vimeo didn’t equally treat all anti-SOCE videos. The court responds: “the purpose of Section 230 was to insulate interactive computer services from liability for removing some content, but not other content…There simply are no substantive allegations to support the notion that Vimeo somehow was targeting Domen because he is a ‘former homosexual,’ as Plaintiffs posit.”
230’s Application. “State antidiscrimination laws, however, are not exempted from the reach of the CDA.” Cite to NAD v. Harvard and Ebeid. Section 230, as a federal law, also preempts the California state constitution.
Prima Facie Claims. The anti-discrimination claims independently fail because Domen didn’t allege anti-discriminatory intent by Vimeo.
The California constitutional claim fails because:
Plaintiffs seek to have this Court plow new ground and hold that Pruneyard extends beyond California real property owners to website owners like Vimeo. However, “[n]o court has expressly extended Pruneyard to the Internet generally.” hiQ Labs, Inc. v. LinkedIn Corp., 273 F. Supp. 3d 1099, 1116 (N.D. Cal. 2017), aff’d and remanded on other grounds, 938 F.3d 985 (9th Cir. 2019). Like the court in hiQ Labs, Inc., this Court “has doubts about whether Pruneyard may be extended wholesale into the digital realm of the Internet,” given the “reach and potentially sweeping consequences of such a holding,” id. at 1116, and in particular the differences between the U.S. and California Constitutions regarding their treatment of private actors in the free speech context.
The Court finds that Vimeo, a private video-sharing service operator, is not a state actor such that its actions implicate the California’s free speech clause. The Vimeo website is not the equivalent of a California-based shopping center where “large groups of citizens congregate.” Pruneyard Shopping Ctr., 23 Cal. 3d at 910. Rather, it is one of many alternative fora where citizens of many different states can choose to post their videos, so long as they abide by Vimeo’s Terms of Service. There are adequate alternative avenues of communication that Plaintiffs may use and in fact are using to exercise their free speech rights.
Though this case’ result is consistent with many prior cases involving account terminations, this ruling is nevertheless noteworthy for a couple of reasons. First, many of those precedent cases came from California courts. This ruling extends the same principles to a new circuit (a court within the Second Circuit). Second, many of the prior opinions were not published, but this one will appear in F. Supp., so I expect it will become a citation magnet.
Meanwhile, kudos to Vimeo for banning “conversion therapy” videos. Those kinds of videos can be hugely damaging to the community, and it makes sense that some services will voluntarily ban them even if the videos are otherwise fully protected by the First Amendment. This is exactly the kind of editorial policy that Section 230 enables, and our society is better for it.
Case citation: Domen v. Vimeo, Inc., 2020 WL 217048 (SDNY Jan. 14, 2020)