• by Wendy Davis  @wendyndavis, September 24, 2021

A federal appellate panel has taken the extremely rare step of issuing a third opinion in a lawsuit brought by “former homosexual” James Domen against Vimeo over its decision to remove his videos.

The new opinion, like the prior two rulings, sided with the online video platform. But in the latest decision, issued Friday, the judges sidestepped what has become a controversial and politically charged question: Whether Section 230 of the Communications Decency Act protects web services like Vimeo from discrimination claims rooted in content-moderation decisions.

Instead, the appellate judges said for the first time that they didn't need to rule on questions about Section 230 because Domen's complaint didn't have the kind of factual allegations that would prove intentional discrimination by Vimeo.

“Because appellants’ complaint fails to plausibly plead a claim for discrimination under the state statutes there is no need to consider Vimeo’s defense that such claims are pre-empted under Section 230,” the judges wrote.

In their prior two decisions, the judges agreed with Vimeo that Section 230 shielded it from Domen's lawsuit.

Section 230, which dates to 1996, broadly immunizes web publishers from liability for users' posts, including ones that are defamatory.

The law also protects websites from lawsuits over content moderation -- including decisions to suppress speech that is legal, but violates a site's terms of service. (The First Amendment also protects companies from lawsuits over content moderation.)

In recent years, politicians on both sides of the aisle have floated proposals to revise Section 230 -- although in dramatically different ways. Some Republicans say media laws should discourage websites from moderating content, while some Democrats argue that laws should encourage websites to institute more restrictions on content.

Former President Donald Trump -- who recently sued Facebook, Twitter and YouTube for banning him -- argues that Section 230 should be struck down as unconstitutional.

The legal battle between Domen and Vimeo dates to 2019, when he alleged that the company violated laws against discrimination based on religion and sexual orientation by taking down his videos and deleting the account of Church United, a nonprofit he founded and where he served as president.

Domen said he was informed that the account was under review because Vimeo doesn't allow videos that promote “sexual orientation change efforts.”

The company allegedly flagged five out of 80-plus videos that Church United had uploaded, and directed him to take down those videos. When he did not taken them down, the company deleted the Church United account, according to the court papers.

U.S. District Court Magistrate Judge Stewart Aaron in the Southern District of New York dismissed Domen's claims last year.

He then appealed to the 2nd Circuit.

In March, a three-judge panel of that court upheld the dismissal.

“While lively debate on whether and how best to regulate interactive computer service platforms is ongoing, and experts, consumers, and businesses continue to propose a variety of solutions, Section 230 remains the governing statute,” Circuit Judges Rosemary Pooler, Richard Wesley and Susan Carney wrote in an 18-page decision.

“Its impact on this case is clear,” the judges added. “Vimeo is free to restrict access to material that, in good faith, it finds objectionable.”

Four months later, the same three judges withdrew that opinion and replaced it with another, longer version. That opinion also sided with Vimeo, but included a statement that Section 230 protections are not absolute.

“Our decision should not be read to confer immunity on providers acting in circumstances far afield from the facts of this case,” the judges said in that second opinion.

That opinion has now also been withdrawn.