Domen posted movies advocating for sexual orientation change efforts (SOCE). Vimeo terminated his account. Domen sued Vimeo for the termination, alleging that it discriminated in opposition to him. The district court docket dismissed Domen’s complaint. The Second Circuit affirmed, in a precedent-setting opinion counting on Section 230(c)(2)(A).
Domen sought a rehearing, and Vimeo didn’t file opposition papers. Last week, the panel issued a quick order granting the rehearing and vacating its prior opinion. This announcement caught many individuals’s consideration. Did Domen in some way discovered a technique to win an account termination case, one thing that dozens of prior plaintiffs have did not do? The pro-censorial Internet critics began salivating on the prospect.
Yesterday, the Second Circuit issued its amended opinion and…it’s a nothingburger….? The panel reaches the identical final result for a similar causes: Vimeo wins and Domen loses due to Section 230(c)(2)(A). So why did the Second Circuit subject its cryptic rehearing order, solely to keep track of up every week later with revisions that didn’t change the consequence? Given the brief time interval between the order and the amended opinion, it looks as if the Second Circuit have sequenced this in order that the amended opinion got here out on the similar time it introduced the rehearing.
The revised opinion covers some new floor, together with a dialog concerning the (lack of) deserves of varied claims that in all probability ought to have been within the opinion initially. The revised opinion additionally makes minor error corrections and quite a few stylistic edits, like somebody determined to shine up the draft. Seriously, what’s happening right here? Everything about this course of feels sloppy.
The Prior Opinion
In the prior opinion, the panel mentioned 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 consequence, the panel discovered that Section 230(c)(2)(A) might assist Vimeo’s movement to dismiss, regardless of Domen’s allegation that Vimeo didn’t act in good religion.
The prior opinion was probably the most enthusiastic embrace of Section 230(c)(2)(A) by any federal appellate court docket. It added a invaluable instrument to the Internet companies’ defensive toolkit. Many companies already depend on Section 230(c)(1) to guard their account termination and content material removing selections. Having Section 230(c)(2)(A) as a strong protection gave them an additional layer of safety.
Changes within the Amended Opinion (see a redline evaluating 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, each reference to “immunize” is modified to “‘protect.” The amended opinion deletes the footnote explaining why Section 230 needs to be characterised as an immunity. The phrase substitution was finished as an automated international change, so the amended opinion even incorrectly modified a citation from Green v. AOL. More sloppiness.
The prior opinion contained two references to Section 230 as “broad.” Both are struck within 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 unsure 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, however now it’s even clearer.
The amended opinion adds a number of trainings and certifications to Section 230’s scope, together with:
- “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 mentioned that Section 230(c)(2) grants “significant subjective discretion” to Internet companies. The amended opinion says they get “some degree of subjective discretion.”
- The prior opinion mentioned that Vimeo is entitled to contemplate 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 thought of SOCE “harassing,” however 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 supply, citing Nemet Chevrolet, that it’s acceptable to choose this case on 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 next 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 next language (which, as you’ll be able to see from my abstract above, I assumed was a number of the most defense-favorable language):
Section 230(c)(2) doesn’t require interactive service suppliers to make use of a specific methodology of content material restriction, nor does it mandate excellent enforcement of a platform’s content material insurance policies. Indeed, the basic goal of Section 230(c)(2) is to offer platforms like Vimeo with the discretion to establish and take away what they contemplate objectionable content material from their platforms with out incurring legal responsibility for every choice
The amended opinion adds a kind new part independently dismissing the declare on its lack of deserves. The amended opinion notes how Vimeo is simply implementing its TOS. It adds a sentence that “Appellants implicitly acknowledge that their content violated the Vimeo’s Terms of Service,” and one other 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 additionally rejects Domen’s allegations that related movies weren’t treated persistently as a result of “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.”
The amended opinion is outshined by its atmospherics, however don’t lose sight of the massive image. In the amended opinion, the Second Circuit dominated that Domen misplaced on a movement to dismiss due to Section 230(c)(2)(A) AND as a result of his discrimination claims independently failed on their lack of advantage. This is a whole victory for Vimeo.
Unfortunately, the entire opinion’s skepticism in direction of Section 230 gives a plethora of concepts for plaintiffs to plead round Section 230. In my weblog submit on the prior opinion, I discussed 4 prospects:
- allege anti-competitive animus (rephrased within the amended opinion as “anti-competitive conduct”)
- allege “self-serving behavior”
- present higher proof of inconsistent content material moderation selections
- search for extra proof that means lack of excellent religion in content material moderation
This opinion tacks on extra concepts: false promoting, misleading commerce practices, tortious interference, and “claims sounding in contract or tort.”
The large unknown: why did the panel amend its opinion? I don’t know, however it certain seems to be like one other Second Circuit choose complained to the panel concerning the prior opinion’s breadth and maybe threatened to push for en banc assessment if the panel didn’t amend it to that choose’s satisfaction. (I may need suspected Judge Katzmann, who wrote a dissent in Force v. Facebook that excoriated Section 230, however he tragically died in June). If the panel did amend its opinion to stave off the specter of an en banc rehearing, then it appears unlikely that the Second Circuit would grant the en banc rehearing now in mild of the watered-down opinion. If so, the subsequent cease could possibly be a Supreme Court petition for certiorari. It could be bizarre to have a Section 230(c)(2)(A) case be the Supreme Court’s first assessment of Section 230, however I hope it gained through a win’t get that far.
Unless one thing completely surprising occurs on this case, this case adds to the unbroken streak of 60+ failed makes an attempt to carry Internet companies liable for his or her account termination/content material removing selections. The pro-censorship boobirds can cease salivating.
Case quotation: Domen v. Vimeo, Inc., 20-616-cv (second Cir. amended opinion July 21, 2021)