In a little over 18 months, Vimeo has three times vindicated its rights under Section 230 to take down objectionable content. Vimeo’s victory came first in the Southern District of New York; the decision there was affirmed by the Second Circuit. In a rare procedural twist, the Second Circuit panel vacated its decision, but issued an opinion upholding Vimeo’s right to take down objectionable content the following week. The cases illustrate that Section 230’s strength is not solely in subsection (c)(1) but also in (c)(2), which protects a website’s ability to “in good faith . . . 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.” 47 U.S.C. § 230(c)(2). The trilogy of cases underscores the continued importance of Section 230 to Internet companies, even as it comes under increasing criticism from the public, politicians, and the judiciary.
The case, Domen v. Vimeo, Inc., began when Vimeo terminated James Domen’s account for posting videos that promoted conversion of members of the LGBT population, typically called sexual orientation change efforts. See Domen v. Vimeo, Inc., 433 F. Supp. 3d 592, 596 (S.D.N.Y. 2020). In November 2018, Vimeo informed Domen that it does not allow videos that promote sexual orientation change efforts. In December 2018, Vimeo deleted Domen’s account because “Vimeo does not allow videos that harass, incite hatred, or include discriminatory or defamatory speech.” Notably, Vimeo’s guidelines specifically called out sexual orientation change efforts as videos that would be subject to removal.
Domen filed a complaint against Vimeo on a variety of claims asserting censorship and discrimination. Vimeo filed a motion to dismiss, arguing that Section 230 protected its decisions to take down objectionable content. The magistrate judge held that under either Section 230(c)(1) or (c)(2), Vimeo was immunized for its decision. For subsection (c)(1), the magistrate judge held as a matter of first impression in the Second Circuit that Vimeo was protected by Section 230’s immunity for removing content created by Domen. As the magistrate judge ably explained, a typical subsection (c)(1) case involves an interactive computer service being treated as liable for publishing the content of a third party. Here, though, Domen sought to hold Vimeo liable for removing Domen’s content. The magistrate judge, relying on persuasive opinions from other circuits, held that in effect, though, Domen was still trying to treat Vimeo as a publisher, and thus subsection (c)(1) preempted the claim.
Crucially, though, the magistrate judge did not just rely on Section 230(c)(1); rather the judge also considered Section 230(c)(2), which has been discussed less in the case law than (c)(1). Section 230(c)(2) states that no 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.” The magistrate judge held that, based on the complaint, Vimeo had acted in good faith in removing material it considered to be objectionable.
Domen appealed to the Second Circuit. See Domen v. Vimeo, Inc., 991 F.3d 66 (2d Cir. 2021). The panel in the Second Circuit declined to reach the subsection (c)(1) challenge, holding instead that subsection (c)(2) immunized Vimeo from Domen’s lawsuit. The language in the opinion was quite expansive, noting that subsection (c)(2) was a “broad provision” that “immunizes interactive computer service providers from liability” for their content moderation choices.
The panel issued its opinion on March 11, 2021. On July 15, 2021, the panel granted a petition for rehearing and vacated its opinion. One week later, on July 21, 2021, the panel amended its decision. The panel still reached the same outcome but with narrower language. For instance, rather than stating “we affirm the district court’s dismissal on the ground that subsection (c)(2) immunizes Vimeo from suit[,]” the panel stated that “we affirm the district court’s dismissal because subsection (c)(2) protects Vimeo from suit.” Additionally, the panel added a paragraph clarifying that Section 230 may not apply in cases of false advertising, deceptive trade practices, tortious interference, and anti-competitive conduct. Finally, the panel reached the merits of the case, holding that, in any event, Domen’s claims would not have sufficed.
Despite the narrowing of the language in the amended opinion, Vimeo obtained a complete victory. More broadly, the district court and amended opinions are ringing endorsements for a company’s right under Section 230(c)(2) to take down objectionable content. As one scholar noted, much of the case law regarding Section 230(c) came from California courts and was often unpublished. The magistrate judge’s and Second Circuit’s opinions brought that case law to a new circuit and will likely be cited frequently. Indeed, at the time of publication, the magistrate judge’s opinion has already received five citations, three of which are not in the Second Circuit.
There are a few storm clouds on the horizon, though. The amended opinion was narrower in scope, such as its replacement of immunity with protection. (Professor Eric Goldman noted that the replacement of “immunize” with “protect” caused even a quotation to be erroneously changed.). The new paragraph in the amended opinion that cautions against a broad view of Section 230 regarding false advertising, deceptive trade practices, tortious interference, and anti-competitive conduct provides clever plaintiffs new tools to plead around Section 230’s procedural fast track.
It is unclear why the court felt the need to add this language. These caveats may have been added to prevent en banc rehearing. Alternatively, by reaching the merits of the claims and narrowing the scope of the opinion, the panel may have reduced the likelihood of Supreme Court review.
The overall result of the proceeding is positive though. Vimeo affirmed its right to take down objectionable content and the Second Circuit embraced a vigorous defense of Section 230(c)(2), providing further precedential support to a critical law undergirding the free and open Internet.