Metro Weekly

Federal appeals court says “ex-gay” pastor can’t sue Vimeo for removing conversion therapy videos

2nd Circuit finds Section 230 of the Communications Decency Act allows Vimeo to enforce its own standards of content.

James Domen, ex-gay, conversion therapy
James Domen (right) and Vice President Mike Pence — Photo:

A pastor who claims to have successfully changed his sexual orientation through conversion therapy can’t sue Vimeo for banning his account and removing videos he made extolling the virtues of the therapy, a federal court has ruled.

A three-judge panel on the 2nd U.S. Circuit Court of Appeals found that Vimeo is immune under Section 230 of the Communications Decency Act, a 1996 Internet law dealing with private blocking and screening of potentially offensive material. As a result, the company cannot be sued for removing videos that violated its policies regarding what type of content can be shared on the platform.

Pastor James Domen, of the California-based Church United, argued that Vimeo had discriminated against him on the basis of sexual orientation when it removed five videos in which he calls himself a “former homosexual.” He sued, only to have his lawsuit dismissed by a federal court. He subsequently appealed the ruling.

The 2nd Circuit found that the lower court had ruled correctly in dismissing the lawsuit. The court also found that Vimeo’s actions were not motivated by animus towards Domen’s orientation, but the content of the videos, which violated the company’s policy against content advocating sexual orientation change efforts, according to the Courthouse News Service.

Writing for the appeals court, Judge Rosemary Pooler found that Vimeo was protected under the “Good Samaritan” subsection of Section 230, and thus was within their rights to remove the videos and block Domen’s account for violating its policy.

Under Section 230, interactive computer service providers, like social media and video platforms, are not liable for publishing or restricting information uploaded by users. The law protects good-faith steps “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.”

Pooler wrote that the last part of the law protects Vimeo, as it grants significant leeway to platforms like Vimeo, and allows them to subjectively determine what content they consider objectionable, and take steps or adopt rules to prevent dissemination of that information.

Michael Cheah, general counsel for Vimeo, argued in court that the company “does not agree with Church United or Domen’s content.”

“I want to emphasize the word content. We do not disagree with this,” Cheah said during his oral argument. “Vimeo made the editorial decision to remove discriminatory content from its website.”

Related: “Former homosexual” loses lawsuit after Video deleted conversion therapy videos

The Internet Association, whose members include Google, Twitter and Facebook, backed Vimeo’s claims, writing in an amicus brief that the success of online media depends on being able to operate without being hindered by lawsuits seeking to hold them liable for regulating content on their platforms. 

Political and social conservatives have been railing against the Internet law, claiming that it has shielded companies for removing or restricting content the companies perceive as dangerous, such as conspiracy theories like QAnon, or content that borders on hate speech — which they say discriminates against conservative points of view.

Former President Donald Trump even called for the outright repeal of Section 230 last year after Twitter censored tweets linking to a New York Post story that made unconfirmed allegations that then-Democratic presidential candidate Joe Biden, had his position as a former vice president to benefit Burisma, a Ukrainian energy company, while his son, Hunter, sat on Burisma’s board. Twitter initially censored the story because the emails on which the story was allegedly based were believed to have been hacked and contained private information — both of which violated Twitter’s policies.

But until Section 230 is repealed or rewritten, tech companies and social media platforms will continue to have immunity, especially when — as Vimeo did — they warn users beforehand of potential violations and give them time to correct or resolve the matter.

“Ultimately, “Section 230(c)(2) immunizes from liability providers and 18 users of interactive computer service who voluntarily make good faith efforts to restrict access to material they consider to be objectionable,” Pooler concluded in her opinion. “Here, Vimeo has done just that. Appellants chose to ignore Vimeo’s notice of their violation of Vimeo’s content policy, and, as a result, Vimeo deleted their account. By suing Vimeo for this, Appellants run headfirst into the CDA’s immunity provision, which ‘allows computer service providers to establish standards of decency without risking liability for doing so.'”

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