Content Regulation / Censorship, Gender Expression, Indecency / Obscenity
The State v. Momar Sowe and Alieu Sarr
Closed Expands Expression
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The United States Court of Appeals for the Second Circuit dismissed a lawsuit against the online video streaming site, Vimeo (“Appellee”) wherein it was alleged that it had discriminated against the plaintiffs on the basis of sexual orientation and religion. The Appellants had approached the Court as a result of Vimeo’s action of removing their content from its platform as it was found to be in violation of its policies that bar the propagation of sexual orientation change efforts (“SOCE”). The Court held that Section 230(c)(2) of the Communications Decency Act (“CDA”), 1996 immunizes Vimeo against the lawsuit as it provides a wide berth to restrict content that the Respondent, in good faith, finds objectionable.
James Domen (1st Plaintiff-Appellant) is the President and Founder of Church United (2nd Plaintiff-Appellant), a non-profit organization which focuses on the spiritual heritage of United States by seeking to “equip pastors to positively impact the political and moral culture in their communities”. Domen alleged that he was a homosexual who changed his sexual identity due to his “desire to pursue his faith in Christianity” (p. 5) and began to identify as a “former homosexual”. Since October 2016, Domen and Church United had been uploading videos on an account on Vimeo’s (Defendant’s) online video hosting platform which seek to address sexual orientation as it relates to religion. In a span of two years, Church United had uploaded 89 videos and upgraded to a professional account to access more features and bandwidth.
On November 23, 2018, Vimeo e-mailed Domen flagging concern over five videos in Church United’s account which were violating their SOCE policy. The videos were posted as an effort by Church United to challenge a Californian legislation proposing to ban talk therapy and pastoral counselling on SOCE matters and included, among others, clips which featured Domen speaking about his sexual orientation, a promotion video for an event where former homosexuals gather, an NBC produced documentary on SOCE as well as a press conference and interview on like issues. Vimeo instructed the organization to remove the videos, failing which they were warned the account or videos will be permanently deleted. This came along with the instruction to download the videos in the event of deletion of their account. As the Appellants failed to comply with the policy, Vimeo proceeded with deletion of Church United’s account on December 6, 2018.
The Appellants approached the District Court for the Southern District of New York against the action of Vimeo, alleging violation of the Unruh Act, New York’s Sexual Orientation Non-Discrimination Act, and Article 1, Section 2 of the California Constitution. They claimed that the act of deletion of their account amounted to “censorship” as it had restricted Domen’s right to express his sexual orientation and religious beliefs. They also alleged discrimination as other similarly placed videos were allowed to feature on their domain with titles such as “Gay to Straight”, “Homosexuality is NOT ALLOWED in the QURAN”, “The Gay Dad”, and “Happy Pride! LGBTQ Pride Month 2016”.
On January 15, 2020, the District Court granted Vimeo the motion to dismiss by arriving at the conclusion that the arguments of the Appellants were preempted in accordance with subsections (c)(1) and (c)(2) of Section 230 of the CDA. While immunity under subsection (c)(1) was triggered as Vimeo acted in the capacity of a “publisher” rather than a “speaker”, the immunity under subsection (c)(2) was triggered as the videos promoted SOCE. Domen and Church United also failed to convince the Court that Vimeo acted in bad faith by discriminating against them based on their religion and sexual orientation.
Accordingly, the District Court held that the entire case was statutorily barred as Section 230 of CDA preempted state statutory claims and the California state constitutional claim. Even otherwise, as Vimeo was a non-state actor, the District Court held that free speech could not have been infringed, thus dismissing the California constitutional claim. Therefore, the District Court granted Vimeo’s motion to dismiss pursuant to Federal Rule 12(b)(6).
In an appeal against the decision of the District Court, Domen and Church United argued that Vimeo was not entitled to protection under section 230 of the CDA. By a decision dated March 11, 2021, the Appellate Court dismissed the claims of the plaintiffs and affirmed the decision of the lower court. On July 21, 2021, the Court vacated its previous opinion and filed an amended opinion agreeing that section 230 of the CDA protected Vimeo against the civil rights claims articulated by appellants’ and affirmed in the decision of the District Court.
Circuit Judge, Pooler (writing for himself, Wesley and Carney) affirmed the judgment of the District Court. The primary issue for consideration of the Court was whether the action of Vimeo fell under the immunity protection as offered by Section 230(c) of the CDA.
The CDA was initially enacted for “protecting children from sexually explicit internet content”, and Section 230 was incorporated as an amendment to “provide immunity for interactive computer services that make ‘good faith’ efforts to block and screen offensive content” [p.11]. Notably, section 230 of the CDA has two relevant subsections: the first grants immunity to the provider or user of an interactive computer service from being treated as publisher or speaker while the second governs the liability 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” [p. 14].
As held in FTC v. LeadClick Media, the section shields conduct if the defendant “(a) is a provider or user of an interactive computer service, (b) the claim is based on information provided by another information content provider and (c) the claim would treat the defendant as the publisher or speaker of that information”.
The appellants’ had argued for the inapplicability of either of the aforementioned provisions (i.e. subsection (c)(1) and (c)(2)) of Section 230. They claimed that the lawsuit was targeted to hold Vimeo liable for the “enforcement of its own content policies” and not for the user generated content. Whereas, the claim under 230(c)(2) was also inappropriate since Vimeo did not act in good faith. Vimeo denied these contentions, arguing that they were mere facilitators and not creators of the video thus entitling them to protection under subsection (c)(1). Moreover, since they acted in good faith, they were also entitled to protection under subsection (c)(2).
The Court found it convenient to not delve into an analysis on the applicability of subsection (c)(1) since Vimeo’s removal of appellants’ videos and account for posting pro-SOCE content in violation of the Terms of Service was held to be covered under the good faith protection in subsection 230(c)(2) of the CDA. While dealing with the bare wordings of the subsection (2), the Court emphasized that it provides significant subjective discretion to Vimeo and statutorily entitles it to mark and restrict any content [p. 13]. Therefore, what remained to be examined was whether the actions of Vimeo were adopted in good or bad faith and the degree to which actions could be taken.
Answering this question, the Court stated that the statute does not limit the power of the provider to employ any means of restriction. On that account, the action of Vimeo to take down the entire account of Church United instead of the six specific videos, stood justified as under the law. Further, even upon issuing a warning, when Church United failed to act in accordance with Vimeo’s policy, it concretized in the form of action taken as required under subsection (c)(2).
On the issue whether the action by Vimeo against the appellants’ was made under ‘bad faith’, the Court relied on a catena of authorities to showcase how the arguments of the Appellants are not commensurate with the interpretations adopted by the Court. In Zango, Inc. v. Kaspersky Lab, Inc., the Court had held that a filter that blocked malicious software from the user’s computer qualified for section 230 immunity. The scope of this decision was, however, limited in Enigma Software Group USA, LLC v. Malwarebytes, Inc, where the Court while dealing with the issue of improper filtering out of a firewall program, held that section 230’s immunity “does not extend to anti-competitive conduct”. Applying the tests of these two authorities, the Court held that the conduct of Vimeo did not qualify as “anti-competitive or self-serving behavior in the name of content regulation” [ p. 15].
The appellants’ argument on exercise of bad faith on account of existence of other videos dealing with homosexual content with titles such as “Gay to Straight” was also negated by the Court. It reasoned that deleting content discussing sexual orientation does not, by itself, insinuate ‘bad faith’. The Court cited Bennett v. Google, LLC where Section 230 provided immunity for removing “some—but not all— offensive material from their websites” [p. 16]. Further, as the information on such platforms is quite extensive, section 230 was adopted as a means to “remove disincentives for the development and utilization of blocking and filtering technologies” [Zeran v. Am. Online, Inc.].
Moreover, the Court upheld the District Court’s action of dismissing the case at the pleadings stage. It reiterated its finding in Nemet Chevrolet, Ltd. v. Consumeraffairs.com, Inc, wherein section 230 was stated to act as an immunity from suit, which would stand lost if the case went to trial. Notably, in the amended order dated July 21, 2021, the Court clarified that its decision applied to the limited circumstances of the case and should not be read as conferring immunity on service providers acting in circumstances far afield from the facts of the case [p. 20].
Separately, the Court also underscored the failure of the appellants’ to state a claim against Vimeo’s alleged discriminatory intent, stating that they were unable to meet the standard as was expected to create an inference of intentional discrimination. Since the complaint merely alleged that other videos were permitted to remain on Vimeo’s site, it was not enough. Furthermore, the Court held that only one of the other similar videos that the appellants’ cited could be understood to promote SOCE, though no further explanation was provided regarding its content.
In conclusion, the Court affirmed the decision of the District Court by stating that Section 230(c)(2) of the CDA immunizes Vimeo from the lawsuit.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The decision expands expression. While the decision upholds the autonomy as well as the freedom of expression of Vimeo, in choosing the content that it needs to express on its platform, it might appear antithetical of Domen’s freedom to self expression. However, as has been expressed by scholars and decided by the Courts time and again (for example see, here and here).
SOCE falls outside the coverage of the first amendment protection under the circumstances of the present case.
On the international level, aspects of conversion therapy to change an individual’s sexual orientation, may constitute violations of Article 2 of the Universal Declaration of Human Rights, which states: “Everyone is entitled to all the rights and freedoms…without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.” Furthermore, Article 2(1) and Article 26 of the International Covenant on Civil and Political Rights uphold equality and non-discrimination before the law of all persons.
The International Bar Association’s Human Rights Institute (IBAHRI) has supported the United Kingdom Government’s plan to ban conversion therapy and called for legislative steps within a stated timeline. As documented by IBAHRI, UK’s National Health Service and the British Psychological Society have warned that all kinds of conversion therapy are ‘unethical and potentially harmful’, the Church of England has stated that that such practices have “no place in the modern world” and that a 2020 Stonewall survey “found that those subject to such therapy were more likely to subsequently report severe mental health issues and suicide attempts.”
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