Third Circuit Says Section 230 Doesn't Apply to Publicity Rights Claims-Hepp v. Facebook
Internet Law

For the Third Time, a Second Circuit Panel Dismisses an Online Account Termination Case-Domen v. Vimeo

For the Third Time, a Second Circuit Panel Dismisses an Online Account Termination Case-Domen v. Vimeo

A 3-judge panel has issued its third opinion in Domen v. Vimeo, a lawsuit alleging that Vimeo committed unlawful discrimination by terminating his account. How does an appellate panel reach a third opinion in the same case? It issued its original opinion, substantially revamped the opinion following a rehearing request, and then substantially revamped the revamped opinion again following another rehearing request. Assuming for a moment that the original opinion needed to be revamped, you might expect the panel to try really, really hard to make its replacement opinion perfect. But in this case, the third opinion completely abandoned the legal theory the panel adopted in its first and second opinions, showing that whatever the second opinion didn’t solve whatever problem sparked it. I’ve never seen anything like this. It raises serious doubts about the workings inside the Second Circuit. Though I’m sure there are good reasons for this drama, to an outsider, it looks like amateurs have taken over the Second Circuit.

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The underlying case involves odious facts. The plaintiff, Domen, posted videos to Vimeo indicating that sexual orientation was mutable. Whether he intended it or not, the videos are extremely hateful and offensive. Vimeo terminated his account for violating its policy against advocating for sexual orientation mutability. Domen sued Vimeo for discriminating against him as a Christian heterosexual.

There’s never been any doubt that Domen case would fail in court. 60+ account termination/content removal cases have confirmed the services’ discretion to moderate content they find objectionable. Accordingly, Vimeo has the legal freedom to terminate his account. However, the courts have not agreed on the reason(s) why Domen should lose his case. The district court ruled for Vimeo based on Section 230(c)(1), Section 230(c)(2)(A), and failure of the prima facie elements. In a somewhat surprising ruling, the Second Circuit panel’s first opinion affirmed the dismissal on Section 230(c)(2)(A) grounds only. Had that opinion stood, it would elevated Section 230(c)(2)(A)’s role in account termination/content removal cases, despite (c)(2)(A)’s “good faith” prerequisite.

That opinion didn’t stand, however. The Second Circuit panel withdrew it and issued a second opinion that still cited Section 230(c)(2)(A), but it used less emphatic language that narrowed the opinion’s precedential value.

In another drama-filled surprise, last week, the Second Circuit panel withdrew the revised opinion and issued a brand-new one that relied solely on the failure of the prima facie elements. As a result, it completely sidestepped Section 230’s applicability altogether. This opinion is marked non-precedential, so it is both procedurally and substantively watered down.

How did this happen? We can only speculate, but it seems likely that some judges on the Second Circuit disagreed with the panel’s first opinion and got their colleagues to change the initial opinion; and when the changes apparently didn’t go far enough, the discontented judges got the panel to change its opinion again. If this hypothesis is correct, then it suggests that there are some Section 230 haters on the Second Circuit who have enough leverage to get a panel to backtrack twice.

Still, this hypothesis confuses me for two reasons. First, my understanding is that the Second Circuit panels circulate draft opinions to their colleagues before releasing them, so why wasn’t this issue surfaced and resolved with the pre-publication circulation of the first or second opinions? Second, if the panel did in fact seek to placate their colleagues with the second opinion, why didn’t they confirm with the colleagues were satisfied with the second opinion before finalizing it? (Or did they, and maybe the discontented judges moved the goalposts?) None of this makes sense.

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Substantively, the third opinion is quite simple, consistent with its status as a non-precedential ruling. The actual analysis is just two pages. The court says:

In order to state a discrimination claim under either statute, a plaintiff must allege facts sufficient to create an inference of discriminatory intent on account of the plaintiff’s membership in a protected class….Appellants have not met that standard. Instead, they simply allege that their content was removed for espousing pro-SOCE views and because of Domen’s sexual orientation and religion. They make only conclusory allegations suggesting that Vimeo removed their content for reasons other than violation of the Terms of Service.

The court turns to the alleged evidence of Vimeo’s discriminatory intent:

An inference of discriminatory intent may be shown through a comparison to similarly situated persons not sharing a plaintiff’s protected characteristic who were treated preferentially….The amended complaint merely alleges, on information and belief, that other videos containing references to LGBTQ sexual orientations and gender identities were permitted to remain on the site. That is not enough.

As further “evidence” of Vimeo’s discriminatory intent, Domen cited the fact that Vimeo didn’t provide a satisfactory explanation of its actions. (For good reasons–those explanations are also litigation-bait). The court replies: “Vimeo cited its terms of service to Plaintiffs when it closed the account; the absence of an additional explanation from the platform provider does not save Plaintiffs’ complaint.”

The panel’s perspective couldn’t be clearer: Domen’s claims have never been close and they want this case off their docket. Exhausted by the first two opinions, the panel doesn’t invest much energy to explain why the discrimination claims are defective. Still, what the court says is quite powerful:

  • Shouting “DISCRIMINATION!” isn’t enough to survive a motion to dismiss.
  • Presenting anecdotes of inconsistent content moderation isn’t enough to survive a motion to dismiss.
  • A service’s inscrutable explanations isn’t enough to survive a motion to dismiss.

So, when the dust settled, this case became a straightforward online account termination case where the plaintiff failed to establish the prima facie claims. Over half of the cases in our dataset on online account terminations and content removals ruled for the defense without relying on Section 230, so the panel’s final (?) resolution isn’t unusual.

While I liked the panel’s first opinion on Section 230(c)(2)(A), I think the panel’s third opinion leaves the case in a satisfactory place. First, it joins numerous other courts that have rejected discrimination claims over content moderation without relying on Section 230. See, e.g., Newman v. Google, Wilson v. Twitter, and the cases holding that Internet services aren’t places of public accommodation. That litigation effort has always been deeply censorial and legally futile. Second, the panel’s third opinion reduces the risk that the Supreme Court will grant cert on this case because it’s a non-precedential opinion. Third, in the highly unlikely circumstance that the Supreme Court does grant cert, the opinion’s sidelining of Section 230 essentially takes that issue out of the Supreme Court’s consideration. That’s a really good thing, because this is exactly the kind of case that Justice Thomas could use to trash Section 230.

Case Citation: Domen v. Vimeo, Inc., No. 20-616-cv (2d Cir. Sept. 24, 2021)

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