Case Information
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
1/15/2020 James Domen et al.,
Plaintiffs, 1:19-cv-08418 (SDA) -against- OPINION AND ORDER Vimeo, Inc. et al.,
Defendants.
STEWART D. AARON, United States Magistrate Judge:
Pending before the Court is a motion by Defendant Vimeo, Inc. (“Defendant” or “Vimeo”), pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, to dismiss the First Amended Complaint filed by Plaintiffs James Domen (“Domen”) and Church United (collectively, the “Plaintiffs”). (10/11/19 Not. of Mot., ECF No. 42.) For the following reasons, Defendant’s motion is GRANTED.
PROCEDURAL HISTORY
This case was commenced by the filing of a Complaint on June 25, 2019 in the U.S. District Court for the Central District of California. (Compl., ECF No. 1.) The case arose out of the termination of Church United’s account on Vimeo’s video-sharing website, which account displayed (among others) videos of Domen, a “former homosexual” who now “identif[ies] as heterosexual.” ( See Compl. ¶¶ 16, 18, 25, 38.) The account was terminated because certain videos “allegedly violated the following Vimeo guideline: ‘Vimeo does not allow videos that harass, incite hatred, or include discriminatory or defamatory speech.’” ( Id . ¶ 38.) In their Complaint, Plaintiffs asserted “that Defendant violated California law by restraining Plaintiffs’ speech and expression in violation of Article One, Section 2 of the California Constitution . . . and by discriminating against Plaintiffs based on religious, sexual orientation, or other discriminatory animus in violation of the Unruh Civil Rights Act , section 51, et seq. of the California Civil Code (the ‘Unruh Act’).” ( Id . at pp. 1-2 (italics in original).) Plaintiffs also asserted a “Free Speech Claim” under the First Amendment to the U.S. Constitution. ( See id ., Second Cause of Action.)
Defendant moved to dismiss this case for improper venue under Fed. R. Civ. P. 12(b)(3) or 28 U.S.C. § 1406(a), or in the alternative to transfer to this Court, pursuant to 28 U.S.C. § 1404(a). (7/19/19 Motion, ECF No. 12.) Defendant argued that Plaintiffs were bound by the forum-selection clause in the Vimeo Terms of Service to which they assented upon creation of their video-sharing account and again upon upgrading their subscription, which called for any action arising out of or relating to “use of the Vimeo Service” to “be commenced in the state or federal courts located in New York County, New York.” ( Id . at 4-13; Terms of Service, ECF No. 12- 1, at 30.)
District Judge Wilson granted Defendant’s motion to transfer to this Court, and denied
the motion to dismiss for improper venue.
Domen v. Vimeo, Inc
., No. 19-CV-01278 (SVW) (AFM),
Upon transfer to this Court, this case was assigned to District Judge Torres. On October 1, 2019, the parties consented to conducting all proceedings in this case before me. (Consent, ECF No. 31.) On October 4, 2019, Plaintiffs filed a First Amended Complaint (“FAC”). (FAC, ECF No. 35.) Plaintiffs did not assert a First Amendment claim in the FAC, but added a “Sexual Orientation Non-Discrimination Act” claim under New York Executive Law § 296. (FAC, Second Cause of Action.)
On October 11, 2019, Defendant filed the instant motion to dismiss. (10/11/19 Not. of Mot.) Plaintiffs filed their opposition on November 1, 2019 (Pl. Opp.) and Defendant filed its reply on November 15, 2019. (Reply.) Oral argument was held on January 13, 2020.
RELEVANT FACTS
I. Parties
Church United, which was founded in 1994, is a “California non-profit Religious Corporation.” (FAC ¶¶ 6-7.) “Church United aids pastors in advocating for public policy based on a biblical worldview.” ( Id . ¶ 11.) “Church United and its affiliated pastors desire to positively impact the State of California and the nation with hope and to preserve their individual rights as pastors to exercise their faith without unlawful infringement.” ( . ¶ 12.)
Domen, a California resident who is a pastor and has a “masters of divinity degree,” is the President and Founder of Church United. (FAC ¶¶ 2, 13.) “For three years, James Domen was a homosexual[; h]owever, because of his desire to pursue his faith in Christianity, he began to identify as a former homosexual.” ( Id . ¶ 15.) Domen “is like many others in California who were formerly homosexual but now identify as heterosexual.” ( Id . ¶ 17.)
Vimeo is a Delaware corporation with a principal place of business in New York. (FAC ¶ 21- 22.) Vimeo is an online forum that “allows users to upload, view, share, and comment on videos.” ( Id . ¶ 24.)
The FAC also names as Defendants “Does 1 through 25” (FAC ¶ 28), but contains no substantive allegations against them. During oral argument, Plaintiffs explained that Does 1 through 25 were named as place-holders for potential, yet unknown, parties, in accordance with counsel’s normal practice in California courts. (1/13/2020 Tr., ECF No. 54, at 23.) Plaintiffs also acknowledged that no additional parties had been identified. (1/13/2020 Tr. 23-24.) II. Plaintiffs’ Vimeo Account And Videos
In or about October 2016, Plaintiffs created a Vimeo account “for the purpose of hosting various videos, including videos addressing sexual orientation as it relates to religion.” (FAC ¶ 29.) Plaintiffs initially had created their account with a free basic membership, but later “upgraded to a Pro Account.” ( Id . ¶ 31.) Plaintiffs used Vimeo’s video hosting service to publish about 89 videos. ( . ¶ 30.)
On November 23, 2018, Vimeo sent an email to Church United (addressed to jim@churchunited.com) stating:
Hello Church United,
A Vimeo moderator marked your account for review for the following reason: Vimeo does not allow videos that promote Sexual Orientation Change Efforts (SOCE)
You need to take the following action as soon as possible:
Please download your videos within the next 24 hours, as this will assure that you will be able to keep them upon closure of your account.
After 24 hours, we will review your account again to make sure this action has been taken. lf not, your videos and/or your account may be removed by a Vimeo moderator.
For more information on our content and community policies, please visit https://vimeo.com/help/guidelines
lf you have questions or believe you received this warning in error, please respond to this message and a Vimeo Community Manager will get back to you.
(FAC, Ex. A, ECF No. 35-1.)
Plaintiffs allege that the foregoing email “cited five (5) videos ‘that espouse this theory,’” presumably referring to SOCE, and that these five videos were “flagged for review.” ( See FAC ¶¶ 33-38.) The five videos, which Plaintiffs allege “involved an effort by Church United to challenge California Assembly Bill 2943 . . ., which aimed to expand California’s existing prohibition on SOCE to apply to talk therapy and pastoral counseling” ( id . ¶ 41), are as follows:
1) Video “wherein [Domen] briefly explained his life story, his preferred sexual orientation, the discrimination he faced, and his religion.” (FAC ¶ 34; see also Jud. Not. Req. at 2 (containing embedded link to video).)
2) A “promotional video for Freedom March Los Angeles. Freedom March is a nationwide event where individuals like [Domen], who identify as former homosexuals, former lesbians, former transgenders, and former bisexuals, assemble with other likeminded individuals.” (FAC ¶ 35 see also Jud. Not. Req. at 2 (containing embedded link to video).)
3) An “NBC produced documentary segment titled, Left Field, which documented and addressed SOCE.” (FAC ¶ 36; see also Jud. Not. Req. at 2 (containing embedded link to video entitled, “One Man[’]s quest to Ban Conversion Therapy NBC Left Field”).) 4) A “press conference with Andrew Comiskey, the founder of Desert Stream, relating to his religion and sexual orientation.” (FAC ¶ 37; see also Jud. Not. Req. at 2 (containing embedded link to video in which Comiskey “ask[s] that [California Assembly Bill 2943] would be struck down before it comes into law” (6:29-6:33)).) 5) An “interview with Luis Ruiz, a survivor of the horrific attack at the Pulse Nightclub in Florida in March 2018. In the video, Luis Ruiz shares his background as a former homosexual and his experience as a survivor of the attack.” (FAC ¶ 38; see also Jud. Not. Req. at 2 (containing embedded link to video).)
On December 6, 2018, Vimeo sent an email to Church United advising that Plaintiffs’ account had been removed by the Vimeo staff for violating Vimeo’s “Guidelines.” (FAC, Ex. B, ECF No. 35-2.) The email states as the reason for removal: “Dear Church United, . . . Vimeo does not allow videos that harass, incite hatred, or include discriminatory or defamatory speech.” ( .) Although the email does not refer to the five videos above, the FAC alleges that Vimeo found that these videos violated the foregoing “Vimeo guideline.” (FAC ¶ 39.) Plaintiffs challenge the decision by Vimeo to remove their account, alleging that “Vimeo restricted and censored Plaintiffs’ videos because those videos were based on a viewpoint regarding sexual orientation and religion with which Vimeo disagrees.” (FAC ¶ 47.)
III. Vimeo’s Terms of Service And Guidelines
Vimeo’s Terms of Service, which are referenced in the FAC (FAC ¶ 3), prohibit, among other things, content that “[c]ontains hateful, defamatory, or discriminatory content or incites hatred against any individual or group.” (Cheah Decl., Ex. A, ECF No. 44-1, ¶ 7.) The terms of service incorporate by reference Vimeo’s Guidelines. ( . (“All videos you submit must also comply with the Vimeo Guidelines, which are incorporated into this Agreement.”).)
In a section of the Guidelines entitled, “How does Vimeo define hateful, harassing, defamatory, and discriminatory content?,” the Guidelines state that Vimeo moderators will “generally remove” videos that:
• Make derogatory or inflammatory statements about individuals or groups of people
• Are intended to harm someone’s reputation
• Are malicious
• Include someone’s image or voice without their consent (Exception! Public figures and/or political officials are generally fair game.)
We also forbid content that displays a demeaning attitude toward specific groups, including:
• Videos that offer seduction training or teach Pickup Artist (PUA) techniques • Videos that promote Sexual Orientation Change Efforts (SOCE) • Videos that use coded or veiled language to attack a particular group like an ethnic or religious minority
(Cheah Decl., Ex. B, ECF No. 44-2, at 5-6.)
DISCUSSION
As explained below, the Court finds that Plaintiffs’ claims are preempted by Section 230 of the Communications Decency Act (“CDA”). Thus, the Court grants Vimeo’s motion to dismiss in its entirety.
I. Rule 12(b)(6) Legal Standards
When ruling on a motion to dismiss, pursuant to Rule 12(b)(6) of the Federal Rules of Civil
Procedure, district courts are required to accept as true all factual allegations in the complaint
and to draw all reasonable inferences in plaintiff’s favor.
See Walker v. Schult
,
“In considering a motion to dismiss for failure to state a claim pursuant to Rule 12(b)(6),
a district court may consider the facts alleged in the complaint, documents attached to the
complaint as exhibits, and documents incorporated by reference in the complaint.”
DiFolco v.
MSNBC Cable L.L.C
., 622 F.3d 104, 111 (2d Cir. 2010). “Even where a document is not
incorporated by reference, the court may nevertheless consider it where the complaint ‘relies
heavily upon its terms and effect,’ which renders the document ‘integral’ to the complaint.”
Chambers v. Time Warner, Inc
.,
II. Preemption Of Plaintiffs’ Claims Under Federal Communications Decency Act of 1996
Vimeo argues that Plaintiffs’ claims are preempted by Section 230 of the CDA. (Def. Mem.
at 10-18; Reply at 4-9.) As discussed below, the Court agrees.
A. Legal Standards
There are two types of immunity provided under Section 230 of the CDA— i.e ., “publisher” immunity under Section 230(c)(1) [5] and immunity to “police content” under Section 230(c)(2). [6] The Court finds that Plaintiffs’ claims are preempted under both (c)(1) and (c)(2). The Second Circuit [7] recently described the purpose behind Section 230 of the CDA, as follows:
The primary purpose of the proposed legislation that ultimately resulted in the [CDA] “was to protect children from sexually explicit internet content.” FTC v. LeadClick Media, LLC ,838 F.3d 158 , 173 (2d Cir. 2016) (citing 141 Cong. Rec. S1953 (daily ed. Feb. 1, 1995) (statement of Sen. Exon)). Section 230, though—added as an amendment to the CDA bill, id .—was enacted “to maintain the robust nature of Internet communication and, accordingly, to keep government interference in the medium to a minimum,” Ricci [ v. Teamsters Union Local 456 ], 781 F.3d [25,] 28 [(2d Cir. 2015)] (quoting Zeran v. Am. Online, Inc .,129 F.3d 327 , 330 (4th Cir. 1997)). Indeed, Congress stated in Section 230 that “[i]t is the policy of the United States—(1) to promote the continued development of the Internet and other interactive computer services and other interactive media; [and] (2) to preserve the vibrant and competitive free market that presently exists for the Internet and other interactive computer services, unfettered by Federal or State regulation.” 47 U.S.C. § 230(b)(1)-(2).
. . .
The addition of Section 230 to the proposed CDA also “assuaged Congressional concern regarding the outcome of two inconsistent judicial decisions,” Cubby, Inc. v. CompuServe, Inc .,776 F. Supp. 135 (S.D.N.Y. 1991) and Stratton Oakmont, Inc. v. Prodigy Servs. Co ., No. 31063/94,1995 WL 323710 (N.Y. Sup. Ct. May 24, 1995), both of which “appl[ied] traditional defamation law to internet providers,” LeadClick ,838 F.3d at 173 . As we noted in LeadClick , “[t]he first [decision] held that an interactive computer service provider could not be liable for a third party's defamatory statement . . . but the second imposed liability where a service provider filtered its content in an effort to block obscene material.” Id . (citations omitted) (citing 141 Cong. Rec. H8469-70 (daily ed. Aug. 4, 1995 (statement of Rep. Cox))).
To “overrule Stratton ,” id ., and to accomplish its other objectives, Section 230(c)(1) provides that “[n]o provider . . . of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.” [] 47 U.S.C. § 230(c)(1).
. . .
Section 230(c)(2), which, like Section 230(c)(1), is contained under the subheading “Protection for ‘Good Samaritan’ Blocking and Screening of Offensive Material,” 47 U.S.C. § 230(c), responds to Stratton even more directly. It provides that “[n]o provider or user of an interactive computer service shall be held liable on account of—(A) any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected; or (B) any action taken to enable or make available to information content providers or others the technical means to restrict access to material described in [Section 230(c)(1)].” . § 230(c)(2).
Force v. Facebook, Inc
.,
B. Application
1. Immunities Under Section 230 Of The CDA The Court first considers “publisher” immunity under Section 230(c)(1) and then considers immunity to “police content” under Section 230(c)(2). For the reasons set forth below, the Court finds that Vimeo is entitled to immunity under either (c)(1) or (c)(2).
a. “Publisher” Immunity Under Section 230(c)(1)
“In light of Congress’s objectives, the Circuits are in general agreement that the text of
Section 230(c)(1) should be construed broadly in favor of immunity.”
Force
, 934 F.3d at 64.
Section 230(c)(1) provides that “[n]o provider . . . of an interactive computer service shall be
treated as the publisher or speaker of any information provided by another information content
provider.” 47 U.S.C. § 230(c)(1). Thus, the CDA’s grant of immunity under Section 230(c)(1)
applies to a defendant if the defendant “(1) is a provider or user of an interactive computer
service, (2) the claim is based on information provided by another information content provider
and (3) the claim would treat [the defendant] as the publisher or speaker of that information.”
LeadClick Media, LLC
,
In this case, Vimeo plainly was acting as a “publisher” when it deleted (or, in other words,
withdrew) Plaintiffs’ content on the Vimeo website. As the Second Circuit explained in
LeadClick
,
Section 230 “bars lawsuits seeking to hold a service provider liable for its exercise of a publisher’s
traditional editorial functions—such as deciding whether to publish,
withdraw
, postpone or alter
content
.”
LeadClick Media, LLC
, 838 F.3d at 174 (emphasis supplied; citations and internal
quotation marks omitted);
see also Force
,
The parties do not cite, and the Court has been unable to locate, any cases in the Second
Circuit construing Section 230(c)(1) in the same factual context as the present case. In the typical
case, plaintiffs seek to hold the interactive computer service liable for publishing the content of
a third party (or failing to delete content of that party), and immunity from liability under (c)(1)
is found in that context.
See
,
e.g
.,
Force
,
For example, in
Riggs v. MySpace, Inc
.,
The Court is cognizant of the decision in
e-ventures Worldwide, LLC v. Google, Inc
., No.
14-CV-00646 (PAM) (CM),
For example, as the Ninth Circuit explained in Barnes :
Subsection (c)(1), by itself, shields from liability all publication decisions, whether to edit, to remove, or to post, with respect to content generated entirely by third parties. Subsection (c)(2), for its part, provides an additional shield from liability, but only for “any action voluntarily taken in good faith to restrict access to or availability of material that the provider . . . considers to be obscene . . . or otherwise objectionable.” § 230(c)(2)(A). Crucially, the persons who can take advantage of this liability shield are not merely those whom subsection (c)(1) already protects, but any provider of an interactive computer service. See § 230(c)(2). Thus, even those who cannot take advantage of subsection (c)(1), perhaps because they developed, even in part, the content at issue . . . can take advantage of subsection (c)(2) if they act to restrict access to the content because they consider it obscene or otherwise objectionable.
Barnes
,
The Court finds that Plaintiffs are seeking to hold Vimeo liable for actions it took as a “publisher,” and therefore that Vimeo is entitled to immunity under Section 230(c)(1) of the CDA. Even assuming, arguendo , that (c)(1) immunity did not apply, the Court finds that Vimeo is entitled to immunity under (c)(2), as discussed below.
b. Immunity To “Police Content” Under Section 230(c)(2)
Section 230(c)(2) provides in relevant part that “[n]o provider . . . of an interactive
computer service shall be held liable on account of . . . any action voluntarily taken in good faith
to restrict access to or availability of material that the provider . . . considers to be obscene, lewd,
lascivious, filthy, excessively violent, harassing, or otherwise objectionable . . ..” 47 U.S.C. §
230(c)(2)(A). This statute applies to this case. Here, 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.
See Dipp-Paz v. Facebook
, No. 18-CV-09037 (LLS),
Section 230(c)(2) is focused upon the provider’s subjective intent of what is “obscene,
lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable.” 47 U.S.C. §
230(c)(2). That section “does not require that the material actually be objectionable; rather, it
affords protection for blocking material ‘that the provider or user considers to be’ objectionable.”
Zango, Inc. v. Kaspersky Lab, Inc
., No. 07-CV-00807 (JCC),
Based upon the allegations in the FAC, it is plain that Plaintiffs’ videos in fact promoted SOCE. Plaintiffs themselves allege that “the videos involved an effort by [Plaintiff] Church United to challenge California Assembly Bill 2943 . . ., which aimed to expand California’s existing prohibition on SOCE to apply to talk therapy and pastoral counseling.” (FAC ¶ 41.) Obviously, challenging a statute that expands a prohibition on SOCE is equivalent to promoting SOCE.
The only remaining question, then, is whether Vimeo acted in “good faith” in removing
Plaintiffs’ videos, as the statute requires. Plaintiffs allege that Vimeo “failed to act in good faith”
(FAC ¶¶ 53, 61; Pl. Opp. at 11), but set forth no facts to support this allegation. Such a conclusory
allegation is not sufficient.
See e360Insight, LLC v. Comcast Corp
.,
2. Preemption Under CDA Section 230
Having found that immunity applies under Section 230, the Court now turns to whether
Section 230 preempts Plaintiffs’ claims. “Preemption [under Section 230] is express.”
Ricci
, 781
F.3d at 27. “No cause of action may be brought and no liability may be imposed under any State
or local law that is inconsistent with this section.” 47 U.S.C. § 230(e)(3). Although “[p]reemption
under the Communications Decency Act is an affirmative defense, . . . it can still support a motion
to dismiss if the statute’s barrier to suit is evident from the face of the complaint.”
Ricci
, 781 F.3d
at 28 (citing
Klayman
,
a. Preemption Of State Statutory Claims In Plaintiffs’ First and Second Causes of Action, Plaintiffs assert that Vimeo discriminated against them pursuant to the California Unruh Act, Cal. Civil Code § 51, et seq . [10] and the New York State Human Rights Law, N.Y. Executive Law § 269, et seq . [11] (FAC ¶¶ 49-63.) Specifically, Plaintiffs allege that Vimeo deleted their account and censored their speech due to discrimination based upon Plaintiffs’ sexual orientation and religion. (FAC ¶¶ 50, 51, 58, 59.)
The issue here is whether the California Unruh Act or the New York State Human Rights
Law are “inconsistent” with the CDA such that the CDA may immunize Defendant for the state
statutory claims asserted herein.
See
47 U.S.C. § 230(e)(3). Section 230(e) of the CDA enumerates
specific claims which cannot be preempted by the CDA, namely, criminal law, intellectual
property law, communications privacy law, sex trafficking laws or state laws that are consistent
with the CDA. 47 U.C.S. § 230(e). State antidiscrimination laws, however, are not exempted from
the reach of the CDA.
See Nat’l Ass’n of the Deaf v. Harvard Univ
.,
b. Preemption Of California Constitution Claim
In Plaintiffs’ Third Cause of Action, they allege a Free Speech Claim under the California
Constitution. (FAC ¶¶ 64-80.) As Plaintiffs concede, if Section 230 immunity is found, then their
claim under the California Constitution must be dismissed. (
See
1/13/20 Tr. at 32-33.) This is
because federal law preempts conflicting State Constitutions under the Supremacy Clause, which
provides, as follows: “the Laws of the United States . . . shall be the supreme Law of the Land . . .
any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.” U. S. Const.,
Art. VI, cl. 2.
See Capital Cities Cable, Inc. v. Crisp
, 467 U.S. 691, 716 (1984) (Oklahoma
Constitution’s ban on advertising alcoholic beverages preempted by federal regulations
implementing Communications Act);
Parkridge 6 LLC v. U.S. Dep’t of Transp
., No. 09-CV-01312
(LMB) (IDD),
Even assuming,
arguendo
, that the CDA does not preempt the First and Second Causes of
Action, they would be dismissed. Plaintiffs’ First and Second Causes of Action allege that Vimeo
discriminated against Domen because of his sexual orientation and religion. (
See
FAC ¶¶ 44, 50-
53, 58-61.) Both the California Unruh Act and the New York Human Rights Law require that
Plaintiffs show discriminatory intent.
See Greater Los Angeles Agency on Deafness, Inc. v. Cable
News Network, Inc
.,
IV. In The Alternative, Plaintiffs Have Not Stated A Free Speech Claim Under The California Constitution (Third Cause Of Action)
Even assuming,
arguendo
, that the CDA does not preempt the Third Cause of Action, it
also would be dismissed. Plaintiffs allege that Vimeo is a “public forum” or “the equivalent of a
public forum,” such that it is “akin to a state actor[]” for purposes of the California Constitution.
(
See
FAC¶¶ 66, 72.) Article I, section 2, subdivision (a) of the California Constitution provides:
“Every person may freely speak, write and publish his or her sentiments on all subjects, being
responsible for the abuse of this right. A law may not restrain or abridge liberty of speech or
press.” Cal. Const. Art. I, § 2(a). This provision of the California Constitution grants broader rights
to free expression than the First Amendment to the U.S. Constitution, and applies beyond state
actors to private actors in certain limited circumstances.
See Robins v. Pruneyard Shopping Ctr
.,
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
,
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. Thus, Plaintiffs do not state a claim under the California Constitution.
V. Leave To Amend
Plaintiffs request leave to amend “to cure any pleading defects.” (Pl. Opp. at 21.) Rule
15’s liberal standard instructs that leave to amend should be “freely give[n] . . . when justice so
requires.” Fed. R. Civ. P. 15(a)(2). However, leave to amend should be denied where, as here, it
would be “futile” and where the “plaintiff cannot cure the deficiencies in his pleadings to allege
facts sufficient to support his claim.”
Onibokun v. Chandler
,
CONCLUSION
For the foregoing reasons, Defendant’s motion to dismiss is GRANTED and this case is dismissed with prejudice. The Clerk of Court is directed to enter judgment and close this case. SO ORDERED .
Dated: New York, New York
January 14, 2020
________________________________ STEWART D. AARON United States Magistrate Judge
Notes
[1] In deciding this motion, the Court has considered Defendant’s Memorandum of Law (Def. Mem., ECF No. 43), the Declaration of Michael A. Cheah, together with its exhibits (Cheah Decl., ECF No. 44), Plaintiffs’ Opposition (Pl. Opp., ECF No. 45), the videos hyperlinked to Plaintiffs’ Request for Judicial Notice (Jud. Not. Req., ECF No. 46), Defendant’s Reply Memorandum (Reply, ECF No. 47) and the Reply Declaration of John Fogleman. (Fogleman Decl., ECF No. 48.)
[2] For purposes of this motion to dismiss, the Court assumes that the well-pleaded allegations of the FAC are true. See Ashcroft v. Iqbal , 556 U.S. 662, 679 (2009) (when “well-pleaded factual allegations” are present, “a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief.”).
[3] The Court notes that the email attached as Exhibit A to the FAC does not reference any particular videos. However, Defendant does not challenge that the five referenced videos were among those at issue. ( See Def. Mem. at 4.)
[4] Paragraph 39 of the FAC alleges that the “Vimeo guideline” is attached to the FAC as Exhibit B. However, Exhibit B is a copy of the December 6, 2018 email referenced above.
[5] Section 230(c)(1) “provides immunity to [a defendant] as a publisher or speaker of information
originating from another information content provider.”
Green v. Am. Online (AOL)
,
[6] Section 230(c)(2) “expressly provides [interactive computer services] with immunity” to “police content.”
Klayman v. Zuckerberg
,
[7] Since the CDA is a federal statute, “the decisions of the Second Circuit are controlling.” Cohen v. KIND L.L.C .,207 F. Supp. 3d 269 , 271 (S.D.N.Y. 2016) (citing Menowitz v. Brown ,991 F.2d 36 , 40 (2d Cir.1993) (“[A] transferee federal court should apply its interpretations of federal law, not the constructions of the transferor circuit.”)). However, case law from other Circuits may provide persuasive authority. See Thypin Steel Co. v. Certain Bills of Lading Issues For A Cargo of 3017 Metric Tons, More Or Less, Of Hot Rolled Steel Plate Laden On Bd. The M/V GEROI PANFILOVSKY, in rem ., 96-CV-02166 (RPP); see also Lang v. Elm City Const. Co .,217 F. Supp. 873 , 877 (D. Conn. 1963) (“While the decision of the Third Circuit in Corabi is not controlling on this Court, it is persuasive and will be followed, absent a decision on the question by the Supreme Court or the Second Circuit.”).
[8] “The term ‘interactive computer service’ means any information service, system, or access software provider that provides or enables computer access by multiple users to a computer server . . ..” 47 U.S.C.A. § 230(f)(2).
[9] During oral argument, in support of Plaintiffs’ allegations regarding Vimeo’s lack of good faith, Plaintiffs’
counsel pointed to the fact that, although Vimeo removed Plaintiffs’ videos, Vimeo did not remove other
videos (examples of which are set forth in paragraph 45 of the FAC) “relating to [individuals’] sexual
orientation.” (1/13/2020 Tr. at 41-42.) These allegations cannot plausibly establish a lack of good faith on
the part of Vimeo since the purpose of Section 230 was to insulate interactive computer services from
liability for removing some content, but not other content.
See Murawski v. Pataki
,
[10] The Unruh Act provides that “[a]ll persons within the jurisdiction of this state are free and equal, and no matter what their sex, race, color, religion, ancestry, national origin, disability, medical condition, genetic information, marital status, sexual orientation, citizenship, primary language, or immigration status are entitled to the full and equal accommodations, advantages, facilities, privileges, or services in all business establishments of every kind whatsoever.” Cal. Civ. Code § 51(b).
[11] The New York State Human Rights Law provides that “(a) It shall be an unlawful discriminatory practice for . . . any place of public accommodation, . . . because of the race, creed, color, national origin, sexual orientation, gender identity or expression, military status, sex, disability or marital status of any person, directly or indirectly, to refuse, withhold from or deny to such person any of the accommodations, advantages, facilities or privileges thereof . . . .” N.Y. Exec. Law § 296(2)(a).
[12] Private actors cannot be liable for First Amendment violations.
See Lloyd Corp. v. Tanner
,
[13] Vimeo also argues that Plaintiffs’ claims are barred by the First Amendment. (Def. Mem. at 6-9; Reply
at 1-4.) Specifically, Vimeo asserts that Plaintiffs’ claims infringe on Vimeo’s free speech rights “because
they seek to force Vimeo to publish, host, and stream videos containing ideological messages ‘with which
Vimeo disagrees.’” (Def. Mem. at 6 (citing FAC ¶ 47).) The Court does not need to reach this constitutional
issue since, as set forth above, it is dismissing all three causes of action contained in the FAC on other
grounds. It is well settled that courts “avoid reaching constitutional questions when they are unnecessary
to the disposition of a case.”
Anobile v. Pelligrino
,