• by Wendy Davis  @wendyndavis, July 16, 2021

A federal appellate court will reconsider whether Vimeo must face claims that it discriminated against “former homosexual” James Domen by removing his videos touting gay conversion therapy and deleting the account of Church United, which he founded.

Last March, a three-judge panel of the 2nd Circuit Court of Appeals in New York said Vimeo is protected by Section 230 of the Communications Decency Act, which immunizes companies from liability for removing content they deem objectionable.

“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.

On Thursday, those judges vacated that ruling and granted Domen's petition for a new hearing. The judges didn't give a reason for their decision.

The legal battle dates to 2019, when Domen alleged in a federal lawsuit that Vimeo 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.

A Vimeo moderator allegedly told Domen the account was under review because the company doesn't allow videos that promote “sexual orientation change efforts.”

The company specifically flagged five out of 80-plus videos that Church United had uploaded, and directed him to take down those videos. When he didn't, the company deleted the Church United account.

Domen alleged that those five videos were part of his efforts opposing a California bill that would have expanded a ban on gay conversion therapy.

U.S. Magistrate Judge Stewart Aaron in the Southern District of New York dismissed Domen's lawsuit last year. He then appealed to the 2nd Circuit, which ruled against him in early March.

Two weeks after the appellate decision came out, Domen sought a new hearing. He argued in a written motion that the judge's interpretation of Section 230 was “inconsistent with all notions of justice and fairness in a civilized society," and that Section 230 shouldn't protect web companies that remove content “for purely discriminatory reasons.”

“Where an internet-based platform ... allows the public to hear pro-homosexual messaging but takes down religiously-motivated speech revealing the incompatibility of the homosexual lifestyle and biblical doctrine, there is no escaping the fact that the restrictions on speech are content-based and discriminatory,” Domen argued.

Section 230, passed 26 years ago, broadly immunizes web publishers from liability for users' posts, including ones that are defamatory. Section 230 also protects websites from lawsuits over their content-moderation efforts -- including decisions to suppress speech that's legal, but violates a site's terms of service.

The First Amendment also protects websites' ability to suppress users' speech, but Section 230 often provides a faster path to victory when companies are sued over content moderation.