433 F.Supp.3d 592
S.D.N.Y.2020Background
- Church United (a California religious nonprofit) and its founder James Domen (a pastor who identifies as a former homosexual) maintained a Vimeo Pro account and posted ~89 videos, including five videos addressing Sexual Orientation Change Efforts (SOCE) and opposing California Assembly Bill 2943.
- Vimeo notified Church United in Nov. 2018 that certain videos were flagged for promoting SOCE; Vimeo removed the account in Dec. 2018 for violating its Guidelines (harassing/ discriminatory speech).
- Plaintiffs sued asserting (1) California Unruh Act discrimination, (2) New York Human Rights Law discrimination, and (3) a California Constitution free‑speech claim (state action/public‑forum theory). Plaintiffs had earlier dropped a federal First Amendment claim.
- The case was transferred to SDNY; Vimeo moved to dismiss under Rule 12(b)(6) arguing Section 230 immunity and other defenses.
- The magistrate judge held all claims are barred by the Communications Decency Act (47 U.S.C. § 230), alternatively found state statutory and state constitutional claims insufficient on the merits, and denied leave to amend as futile. Case dismissed with prejudice.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Section 230(c)(1) precludes liability for deleting plaintiffs’ own content | Domen: claim targets Vimeo’s discriminatory conduct in removing account, not mere publication decisions | Vimeo: removal is a publisher/editorial decision protected by §230(c)(1) | Court: §230(c)(1) bars the claims; removal is publisher conduct |
| Whether Section 230(c)(2) bars claims for restricting access to ‘‘objectionable’’ material | Domen: Vimeo acted in bad faith and discriminatorily when removing videos | Vimeo: §230(c)(2) protects voluntary good‑faith removal of material provider deems objectionable; policies expressly ban SOCE | Court: §230(c)(2) applies; plaintiffs plead no nonconclusory facts showing lack of good faith |
| Whether state antidiscrimination statutes (Unruh Act; NY Exec. Law) are preempted by §230(e)(3) | Domen: state laws protect against private discrimination by platforms | Vimeo: §230 preempts inconsistent state law causes of action against interactive computer services | Court: State statutory claims preempted by §230 and alternatively fail for lack of plausible discriminatory intent |
| Whether California Constitution free‑speech clause applies to private platforms (Pruneyard extension) | Domen: Vimeo functions like a public forum; Pruneyard should extend to websites | Vimeo: private actor; allowing claim would improperly convert private websites into state actors | Court: Pruneyard not extended to internet; Vimeo is not a state actor and claim fails; claim also preempted by §230 |
Key Cases Cited
- Walker v. Schult, 717 F.3d 119 (2d Cir.) (Rule 12(b)(6) pleading standard)
- Ashcroft v. Iqbal, 556 U.S. 662 (pleading must state plausible claim)
- Bell Atl. Corp. v. Twombly, 550 U.S. 544 (plausibility standard for complaints)
- Force v. Facebook, Inc., 934 F.3d 53 (2d Cir.) (purpose and scope of §230; Good Samaritan protections)
- LeadClick Media, LLC v. 883? Teamsters? (See below), 838 F.3d 158 (2d Cir.) (broad construction of §230 immunity)
- Zeran v. America Online, Inc., 129 F.3d 327 (4th Cir.) (§230 protects interactive service from publisher liability)
- Ricci v. Teamsters Union Local 456, 781 F.3d 25 (2d Cir.) (discussion of §230 purpose and preemption)
- Barnes v. Yahoo!, Inc., 570 F.3d 1096 (9th Cir.) (publication decisions include removing third‑party content; distinction between (c)(1) and (c)(2))
- Pruneyard Shopping Ctr. v. Robins, 447 U.S. 74 (1979) (California may grant broader free‑speech rights on private property)
- Lloyd Corp. v. Tanner, 407 U.S. 551 (1972) (private actors generally not state actors for First Amendment)