991 F.3d 66
2d Cir.2021Background
- Church United (founded by James Domen) hosted videos on Vimeo about religion and “former homosexuality” / SOCE (sexual orientation change efforts); Vimeo flagged five videos and warned Church United to remove them.
- After Church United did not remove the videos, Vimeo deleted the organization’s entire account, notifying them that it does not allow content that promotes SOCE or that is harassing or discriminatory.
- Church United sued in the Southern District of New York alleging discrimination (based on religion and sexual orientation) under state statutes and a California constitutional free-speech claim; the district court dismissed under Fed. R. Civ. P. 12(b)(6).
- The district court held Section 230(c)(1) and (c)(2) of the Communications Decency Act preempted the state-law claims and that Appellants’ bad-faith and discrimination allegations were conclusory; it also found Vimeo was not a state actor.
- The Second Circuit affirmed, holding Section 230(c)(2) grants interactive computer services immunity for good-faith content-restriction decisions, and Appellants’ allegations failed to plausibly plead bad faith or overcome CDA immunity.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Section 230(c)(2) bars claims for deleting content/account | Domen: Section 230 doesn’t shield enforcement of platform policies; Vimeo’s deletion is actionable | Vimeo: §230(c)(2) immunizes good-faith actions to restrict access to content it deems objectionable | Held: §230(c)(2) immunizes Vimeo’s removal; dismissal affirmed |
| Whether state anti-discrimination claims survive §230 preemption | Domen: Deletion was religious and sexual-orientation discrimination (Unruh Act, NY law) | Vimeo: Claims are preempted by §230 and, in any event, lack plausible bad-faith intent or discriminatory motive | Held: State statutory claims preempted/dismissed under §230 and for failure to plead liability |
| Whether alleged selective enforcement (other homosexuality videos remained) shows bad faith | Domen: Presence of other videos and deletion of entire account show discriminatory bad faith | Vimeo: Titles alone don’t show those videos promoted SOCE; imperfect enforcement doesn’t equal bad faith | Held: Allegations are conclusory; do not plausibly show bad faith |
| Whether deleting the entire account (vs. individual videos) defeats §230(c)(2) immunity | Domen: Full-account deletion shows punitive, discriminatory conduct beyond permissible moderation | Vimeo: §230 doesn’t require a specific remediation method; account removal for repeated violations is permitted | Held: Method of restriction (account vs. videos) is irrelevant to §230(c)(2) immunity |
Key Cases Cited
- FTC v. LeadClick Media, LLC, 838 F.3d 158 (2d Cir.) (describing CDA’s purpose and broad Section 230 immunity)
- Zango, Inc. v. Kaspersky Lab, Inc., 568 F.3d 1169 (9th Cir.) (applies §230 immunity to filtering software/operator decisions)
- Enigma Software Group USA, LLC v. Malwarebytes, Inc., 946 F.3d 1040 (9th Cir.) (limits §230 where defendant’s conduct is anticompetitive or involves false/misleading acts)
- Bennett v. Google, LLC, 882 F.3d 1163 (D.C. Cir.) (recognizes §230 allows removal of some but not all offensive material)
- Zeran v. Am. Online, Inc., 129 F.3d 327 (4th Cir.) (emphasizes massive scale of online content and purpose of §230 to permit content policing)
- Nemet Chevrolet, Ltd. v. Consumeraffairs.com, Inc., 591 F.3d 250 (4th Cir.) (immunity defenses like §230 are addressed at earliest logical point to avoid subjecting defendants to suit)
- Green v. Am. Online (AOL), 318 F.3d 465 (3d Cir.) (§230(c)(2) protects good-faith efforts to restrict access to objectionable material)
- Barnes v. Yahoo!, Inc., 570 F.3d 1096 (9th Cir.) (discusses §230’s publisher/speaker protections and editorial functions)