Earlier this month, in Domen v. Vimeo, Inc.,1 a panel of the U.S. Court of Appeals for the Second Circuit held that a relatively unused subpart of Section 230 of the Communications Decency Act (CDA)—namely, 47 U.S.C. § 230(c)(2)(A)—immunized an online platform (Vimeo) from a lawsuit brought by users who complained that the platform had wrongfully deleted their content and banned them from using the platform. The result of this ruling—termination at the motion-to-dismiss stage of a lawsuit against an online platform based on its decisions, actions or inactions relating to the moderation of third-party content—is fully in line with rulings from legions of courts across the country that have applied Section 230 as a source of very broad immunities for online platforms.2 But the ruling is groundbreaking in one respect: It is the first reported case in nearly 20 years in which an appellate court has held that § 230(c)(2)(A)—which prohibits holding online platforms liable for “any action voluntarily taken in good faith” to block or remove material that the platform “considers to be . . . objectionable”—can and should operate to bar such claims at the threshold pleading stage.3 The ruling is also consistent with statutory and policy arguments advanced in an amicus brief by the Internet Association, which was represented in this case by WilmerHale.
Case Background
Vimeo operates a website that allows users to upload, view, share and comment on videos. In 2016, James Domen and Church United created a Vimeo account and uploaded videos promoting sexual orientation change efforts (SOCE). Vimeo notified them that this content violated Vimeo’s terms of service and instructed them to remove it. When Domen and Church United failed to do so, Vimeo deleted the content and banned their account. Domen and Church United then sued Vimeo in federal court, alleging that Vimeo’s actions constituted religious discrimination in violation of New York and California law, as well as the U.S. and California constitutions. In 2020, the U.S. District Court for the Southern District of New York granted Vimeo’s motion to dismiss, ruling that Appellants’ claims were independently preempted by distinct provisions of the CDA: § 230(c)(1), which grants immunity to online providers who did not “create” or “develop” the content at issue and are treated in litigation as the “publisher” of that content; and § 230(c)(2)(A), which is quoted above.
On appeal, Domen and Church United argued that § 230(c)(1) does not protect against claims challenging a platform’s decision to remove content or users from its website—an argument that nearly all courts to reach that question have rejected.4 As for § 230(c)(2)(A), they argued that provision did not apply because their videos were not “objectionable” and because Vimeo failed to show that it acted in “good faith,” which Appellants claimed is a factual question that cannot be resolved at the pleadings stage. Additionally, Domen and Church United argued that Vimeo could not be deemed to have acted in good faith because it supposedly had failed to remove similar videos posted by other third parties and had banned their account instead of simply deleting the particular videos that Vimeo had identified as violating its rules.
The Second Circuit affirmed the district court’s dismissal, holding that all of Appellants’ claims are barred by § 230(c)(2)(A) and declining to reach the question of whether § 230(c)(1) also barred the claims. The decision is notable in several significant respects.
First, while other courts have typically relied on § 230(c)(1) in granting pleading-stage dismissals of suits brought against platforms by users who complain that the platform improperly removed their content or shuttered their account, here the Second Circuit instead looked solely to § 230(c)(2), which it held can and should be applied at the pleadings stage. The Court explained, in particular, that “‘Section 230 immunity, like other forms of immunity, is generally accorded effect at the first logical point in the litigation process . . . and immunity is an immunity from suit rather than a mere defense to liability; it is effectively lost if a case is erroneously permitted to go to trial.’” Domen, 2021...
