• by Wendy Davis  @wendyndavis, July 22, 2021

A federal appellate panel has reiterated its earlier ruling that “former homosexual” James Domen can't proceed with claims that Vimeo violated anti-discrimination laws by removing his videos touting gay conversion therapy and deleting the account of Church United, which he founded.

The move came just one week after the same appellate judges granted Domen's request to reconsider their earlier ruling, handed down in March.

The amended decision, issued by Circuit Judges Rosemary Pooler, Richard Wesley and Susan Carney, is several pages longer than the March ruling but reached the same result: Section 230 of the Communications Decency Act protects the online video company from Domen's claims.

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

Section 230 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.)

The new decision includes a statement that Section 230 protections are not absolute, writing: “Our decision should not be read to confer immunity on providers acting in circumstances far afield from the facts of this case.”

But it's not clear what the effect of that statement is, given that the judges found that Section 230 applies to Domen's claims.

The judges also say in the new decision that a "separate and independent" reason to dismiss Domen's claims is that he failed to allege the kinds of facts that would create an inference of intentional discrimination by Vimeo.

"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," the judges wrote. "That is not enough." 

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.

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 specifically 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.