Anti-gay religious organization cannot sue over Vimeo censorship

The Court of Appeals does not say this, but this case dovetails with the so-called "cancel culture" that involves a media or some other corporate entity distancing itself from an odious or unpopular speaker. This case asks when a religious organization can sue Vimeo after the video platform took the organization off its menu.

The case is Domen v. Vimeo, issued on March 11. Vimeo is like YouTube. It allowed plaintiff's organization, Church United, to run its videos through the platform until plaintiff began running Church United's videos that violated Vimeo's policies barring the promotion of "sexual orientation change efforts."  In other words, plaintiff was promoting gay-conversion therapy and Vimeo took the organization off Vimeo.

Can you sue over this? Not this case. In the Communications Decency Act, no provider or user of an interactive computer service shall be held liable for:

any action voluntarily taken in good faith 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; or any action taken to enable or make available to information content providers or others the technical means to restrict access to [the] material described.

That's broad discretion afforded to Vimeo and YouTube when they want to pull videos that, in their opinion, fall within these content-based restrictions. We are not talking First Amendment here, in which the government enjoys no such discretion to censor speech. The CDA deals with private speech restrictions, which are not held to constitutional standards. As the Court of Appeals (Pooler, Wesley and Carney) writes, "the provision explicitly provides protection for restricting access to content that providers “consider[] . . . objectionable,” even if the material would otherwise be constitutionally protected, granting significant subjective discretion. Id. (emphasis added). Therefore, Vimeo is statutorily entitled to consider SOCE content objectionable and may restrict access to that content as it sees fit."

The statute does not even require providers like Vimeo to use any particular form of restriction. This means Vimeo was able to delete Church United's entire account as opposed to deleting only those videos promoting its anti-gay message. 

Finally, the plaintiff can win upon showing the video provider acted in bad faith. But the complaint in this case alleges bad faith in a conclusory manner, not enough to open this case up for discovery. While plaintiff says bad faith is proven buy all the other videos "relating to homosexuality [that] exist on Vimeo's website." 

Appellants point to titles of videos that allegedly remain on Vimeo’s website: “Gay to Straight,” “Homosexuality is NOT ALLOWED in the QURAN,” “The Gay Dad,” and “Happy Pride! LGBTQ Pride Month 2016.” However, the mere fact that Appellants’ account was deleted while other videos and accounts discussing sexual orientation remain available does not mean that Vimeo’s actions were not taken in good faith. It is unclear from only the titles that these videos or their creators promoted [sexual orientation change efforts]. Moreover, one purpose of Section 230 is to provide interactive computer services with immunity for  removing “some—but not all—offensive material from their websites.” Given the massive amount of user-generated content available on interactive platforms, imperfect exercise of content-policing discretion does not, without more, suggest that enforcement of content policies was not done in good faith.

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