Second Circuit Rejects an Account Termination Lawsuit…Again (Phew!)–Domen v. Vimeo

Domen posted videos advocating for sexual orientation change efforts (SOCE). Vimeo terminated his account. Domen sued Vimeo for the termination, alleging that it discriminated against him. The district court dismissed Domen’s complaint. The Second Circuit affirmed, in a precedent-setting opinion relying on Section 230(c)(2)(A).

Domen sought a rehearing, and Vimeo didn’t file opposition papers. Last week, the panel issued a brief order granting the rehearing and vacating its prior opinion. This announcement caught many people’s attention. Did Domen somehow found a way to win an account termination case, something that dozens of prior plaintiffs have failed to do? The pro-censorial Internet critics started salivating at the prospect.

Yesterday, the Second Circuit issued its amended opinion and…it’s a nothingburger….? The panel reaches the same outcome for the same reasons: Vimeo wins and Domen loses because of Section 230(c)(2)(A). So why did the Second Circuit issue its cryptic rehearing order, only to follow up a week later with revisions that didn’t change the result? Given the short time period between the order and the amended opinion, it seems like the Second Circuit have sequenced this so that the amended opinion came out at the same time it announced the rehearing.

The revised opinion covers some new ground, including a discussion about the (lack of) merits of various claims that probably should have been in the opinion initially. The revised opinion also makes minor error corrections and numerous stylistic edits, like someone decided to polish up the draft. Seriously, what’s going on here? Everything about this process feels sloppy.

The Prior Opinion

In the prior opinion, the panel said that Section 230(c)(2)(A) is 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….Vimeo is statutorily entitled to consider SOCE content objectionable and may restrict access to that content as it sees fit.” Domen unsuccessfully argued that Vimeo’s termination wasn’t in “good faith.” The panel replied that “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.” As a result, the panel found that Section 230(c)(2)(A) could support Vimeo’s motion to dismiss, despite Domen’s allegation that Vimeo didn’t act in good faith.

The prior opinion was the most enthusiastic embrace of Section 230(c)(2)(A) by any federal appellate court. It added a valuable tool to the Internet services’ defensive toolkit. Many services already rely on Section 230(c)(1) to protect their account termination and content removal decisions. Having Section 230(c)(2)(A) as a robust defense gave them an extra layer of protection.

Changes in the Amended Opinion (see a redline comparing the amended opinion to the prior opinion):

[reminder: the opinion made edits throughout, some clearly stylistic, so I’m going to highlight what I think are the most noteworthy changes]

In characterizing Section 230, every reference to “immunize” is changed to “‘protect.” The amended opinion deletes the footnote explaining why Section 230 should be characterized as an immunity. The word substitution was done as an automatic global replace, so the amended opinion even incorrectly changed a quotation from Green v. AOL. More sloppiness.

The prior opinion contained two references to Section 230 as “broad.” Both are struck in the amended opinion.

The amended opinion deletes this line: “It is unclear from only the titles that these videos or their creators promoted SOCE.” I’m not sure what prompted that change.

The amended opinion adds a footnote: “We do not reach the district court’s conclusions regarding Section 230(c)(1).” This was clear from the prior opinion, but now it’s even clearer.

The amended opinion adds several qualifications to Section 230’s scope, including:

• “Changes in the use of internet platforms now far outpace a law enacted before the invention of the smartphone.” [Why say this? What basis does the court have to draw this inference? The drafters of the Section 230 emphatically disagree with this sentence.]
• The prior opinion said that Section 230(c)(2) grants “significant subjective discretion” to Internet services. The amended opinion says they get “some degree of subjective discretion.”
• The prior opinion said that Vimeo is entitled to consider SOCE to be objectionable. The amended opinion waters this down, saying “Vimeo’s removal of Appellants’ videos and account for posting pro-SOCE content in violation of the Terms of Service is well within the scope of Section 230(c)(2)’s protection from suit.”
• The amended opinion says that Vimeo clearly considered SOCE “harassing,” but later it says Vimeo “removed Appellants’ account for expressing pro-SOCE views which it in good faith considers objectionable.” [So was Vimeo relying on the “harassment” or “objectionable” language in Section 230(c)(2)(A)? Or both? Given the controversy over the scope of the word “objectionable,” would it be an easier case if Vimeo relied on the “harassment” language?]
• The amended opinion removes the provision, citing Nemet Chevrolet, that it’s appropriate to decide this case at the pleading stage. [But the appeals court again resolved this case at the pleading stage, even if it didn’t expressly so say.]
• The amended opinion adds the following dicta: “Our decision should not be read to confer immunity on providers acting in circumstances far afield from the facts of this case. Courts have rejected Section 230 defenses against claims for false advertising, deceptive trade practices, and tortious interference. See, e.g., E-Ventures Worldwide, LLC v. Google, Inc., 188 F. Supp. 3d 1265 (M.D. Fla. 2016); Nat’l Numismatic Certification, LLC v. eBay, Inc., No. 6:08-cv-42-Orl-19GJK, 2008 WL 2704404 at *24 (M.D. Fla. July 8, 2008). Judges, commentators, and the executive branch alike have expressed concern about Section 230’s potential to protect companies engaging in anti-competitive conduct. See, e.g., Zango, 568 F.3d at 1178 (Fisher, J., concurring); Berin Szoka & Ashkhen Kazaryan, Section 230: An Introduction for Antitrust & Consumer Protection Practitioners, GLOB. ANTITRUST INST. REP. ON DIGIT. ECON. 29 (2020); U.S. DEP’T. OF JUST., DEPARTMENT OF JUSTICE’S REVIEW OF SECTION 230 OF THE COMMUNICATIONS DECENCY ACT OF 1996 (2020). Certain claims sounding in contract or tort may be beyond the reach of Section 230(c)(2)’s protection from suit. Our decision applies to the limited circumstances of this case and analogous claims.” [Ugh. So unhelpful. Among other problems: The e-ventures opinion has been repeatedly criticized by subsequent courts. For example, Murphy v. Twitter called it “unpersuasive.” I personally think it’s no longer good law. Also, the DOJ’s Section 230 “review” was a clownish recapitulation of Section 230 corrupted by brazen Trumpism.]

The amended opinion deletes the following language (which, as you can see from my summary above, I thought was some of the most defense-favorable language):

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. Indeed, the fundamental purpose of Section 230(c)(2) is to provide platforms like Vimeo with the discretion to identify and remove what they consider objectionable content from their platforms without incurring liability for each decision

The amended opinion adds a brand new section independently dismissing the claim on its lack of merits. The amended opinion notes how Vimeo is just enforcing its TOS. It adds a sentence that “Appellants implicitly acknowledge that their content violated the Vimeo’s Terms of Service,” and another sentence that Domen made “no allegation suggesting that Vimeo removed their content for any reason other than this violation of the Terms of Service.” A footnote adds: “Vimeo only took action after Church United ignored a warning about posting SOCE content in violation of the Guidelines. This further undermines Appellants’ position that Vimeo was acting in bad faith or with discriminatory intent.”

The amended opinion also rejects Domen’s allegations that similar videos weren’t treated consistently because “the allegations about these ‘similar videos’ in the amended complaint are vanishingly thin and lack the substance required to support an inference of discriminatory intent….Only one ‘similar video’ identified by the Plaintiffs could plausibly be understood to promote SOCE, and it is identified only as ‘Gay to Straight,’ with no further explanation about its content, when it was uploaded, how long it remained on the site, or the characteristics of the user who uploaded it.”

Implications

The amended opinion is outshined by its atmospherics, but don’t lose sight of the big picture. In the amended opinion, the Second Circuit ruled that Domen lost on a motion to dismiss because of Section 230(c)(2)(A) AND because his discrimination claims independently failed on their lack of merit. This is a complete victory for Vimeo.

Unfortunately, all of the opinion’s skepticism towards Section 230 provides a plethora of ideas for plaintiffs to plead around Section 230. In my blog post on the prior opinion, I mentioned four possibilities:

• allege anti-competitive animus (rephrased in the amended opinion as “anti-competitive conduct”)
• allege “self-serving behavior”
• provide better evidence of inconsistent content moderation decisions
• look for more evidence that suggests lack of good faith in content moderation

This opinion tacks on more ideas: false advertising, deceptive trade practices, tortious interference, and “claims sounding in contract or tort.”

The big mystery: why did the panel amend its opinion? I don’t know, but it sure looks like another Second Circuit judge complained to the panel about the prior opinion’s breadth and perhaps threatened to push for en banc review if the panel didn’t amend it to that judge’s satisfaction. (I might have suspected Judge Katzmann, who wrote a dissent in Force v. Facebook that excoriated Section 230, but he tragically died in June). If the panel did amend its opinion to stave off the threat of an en banc rehearing, then it seems unlikely that the Second Circuit would grant the en banc rehearing now in light of the watered-down opinion. If so, the next stop could be a Supreme Court petition for certiorari. It would be weird to have a Section 230(c)(2)(A) case be the Supreme Court’s first review of Section 230, but I hope it won’t get that far.

Unless something totally unexpected happens in this case, this case adds to the unbroken streak of 60+ failed attempts to hold Internet services liable for their account termination/content removal decisions. The pro-censorship boobirds can stop salivating.

Case citation: Domen v. Vimeo, Inc., 2021 WL 3072778 (2d Cir. amended opinion July 21, 2021)