POOLER, Circuit Judge:
Plaintiffs-Appellants James Domen and Church United allege that Vimeo, Inc., discriminated against them on the basis of their religion and sexual orientation by deleting Church United's account from Vimeo's online video hosting platform. The district court granted Vimeo's motion to dismiss on the ground that Section 230 of the Communications Decency Act ("CDA") immunizes Vimeo from this suit. The district court concluded that Vimeo deleted Church United's account because of Church United's violation of one of Vimeo's content policies barring the promotion of sexual orientation change efforts ("SOCE") on its platform. This policy, in turn, fell within the confines of the good-faith content policing immunity that the CDA provides to interactive computer services.
Section 230 figures prominently in the current discourse regarding the intersection of law and social media.
These facts are taken from plaintiffs' amended complaint and are assumed true for this appeal.
Vimeo is a Delaware for-profit corporation headquartered in New York. Founded in 2004, it provides an online forum that allows users to upload, view, and comment on videos. Videos hosted on Vimeo include music videos, documentaries, live streams, and others.
In October 2016, Church United created a Vimeo account to upload a variety of videos promoting the organization, including "videos addressing sexual orientation as it relates to religion." App'x at 49. They allegedly uploaded 89 videos over the following two years. At some point, Church United upgraded to a professional account, which requires a monthly fee in exchange for access to more features and bandwidth. On November 23, 2018, Vimeo e-mailed Domen, informing him that a moderator had marked the Church United account for review. The e-mail explained, "Vimeo does not allow videos that promote [SOCE]." App'x at 58. Vimeo instructed Church United to remove the videos and warned that if Church United did not do so within 24 hours, Vimeo might remove the videos or the entire account. It also instructed Church United to download the videos as soon as possible to ensure that the organization could keep them in the event Vimeo deleted the account. Church United claims that five of its videos were flagged as violating Vimeo's policies:
Appellants allege that the videos were part of an effort by Church United to challenge a California Assembly bill proposing to expand the state's ban on SOCE to talk therapy and pastoral counseling.
On December 6, 2018, Vimeo deleted Church United's account, explaining: "Vimeo does not allow videos that harass, incite hatred, or include discriminatory or defamatory speech." App'x at 60. Appellants allege that this is "censorship," App'x
The district court granted Vimeo's motion to dismiss pursuant to Federal Rule 12(b)(6). See Domen v. Vimeo, Inc., 433 F.Supp.3d 592, 607-08 (S.D.N.Y. 2020). In doing so, the court concluded that all of Appellants' claims were preempted under both subsections (c)(1) and (c)(2) of Section 230 of the CDA.
Next, the district court concluded that, even if the CDA did not bar all of Appellants' claims, Appellants failed to state any plausible legal claim. Id. at 606-07. As for the discrimination claims, there were no plausible allegations supporting the claim that Vimeo intentionally discriminated against Appellants on the basis of their sexuality or religion. Id. at 606. The district court also concluded that Vimeo was not a state actor, so its actions did not implicate Appellants' free speech rights, requiring dismissal of the California constitutional claim. Id. at 606-07. Lastly, the district court denied leave to amend as futile. Id. at 607.
On appeal, Appellants argue that Section 230 of the CDA does not protect Vimeo's actions and that they stated a claim under state statutory discrimination law.
We review a district court's grant of a motion to dismiss de novo, Hernandez v. United States, 939 F.3d 191, 198 (2d Cir. 2019), and denials of leave to amend for abuse of discretion, Ruffolo v. Oppenheimer & Co., 987 F.2d 129, 131 (2d Cir. 1993). "To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face." Hernandez, 939 F.3d at 198 (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009)).
Congress enacted the CDA in the face of growing and widespread use of the internet. "[T]he primary purpose of the CDA was to protect children from sexually explicit internet content." FTC v. Lead-Click Media, LLC, 838 F.3d 158, 173 (2d Cir. 2016) (footnote omitted). Section 230 is an amendment to the original law, enacted to "provide immunity for interactive computer services that make `good faith' efforts to block and screen offensive content." Id. (citation, alteration, and some internal quotation marks omitted). Although "[w]e have had limited opportunity to interpret Section 230," our Circuit and others note "that Section 230 immunity is broad." Id.
Section 230 has two relevant subsections. The first provides that "[n]o provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider." 47 U.S.C § 230(c)(1). The second governs "[c]ivil liability" and states that no provider or user of an interactive computer service shall be held liable for:
Id. § (c)(2). "In applying the statute, courts have broken it down into three component parts[.]" LeadClick, 838 F.3d at 173 (brackets and internal quotation marks omitted). The statute shields conduct if the defendant "(1) is a provider or user of an interactive computer service, (2) the claim is based on information provided by another information content provider and (3) the claim would treat the defendant as the publisher or speaker of that information." Id. (alterations and internal quotation marks omitted). A "publisher's traditional editorial functions" include "deciding whether to publish, withdraw, postpone or alter content." Id. at 174 (internal quotation marks omitted).
Appellants argue neither subsection of Section 230(c) applies. They contend that subsection (c)(1) is inapplicable because this lawsuit seeks to hold Vimeo liable for the enforcement of its own content policies, not for hosting user-generated content. They also argue that subsection (c)(2) is inapplicable because, in their view, Vimeo did not act in good faith. Vimeo argues that subsection (c)(1) immunity applies because the action involves content that it did not create, i.e., Appellants'
A broad provision, subsection (c)(2) immunizes interactive computer service providers from 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." 47 U.S.C § 230(c)(2). Notably, 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.
Moreover, the statute does not require providers to use any particular form of restriction. Although Appellants take issue with Vimeo's deletion of Church United's entire account as opposed to deleting only those videos promoting SOCE, nothing within the statute or related case law suggests that this took Vimeo's actions outside of the scope of subsection (c)(2) immunity. Indeed, Vimeo warned Church United that removal of the entire account was exactly what might happen if they ignored the warning. Church United received the warning and did not take the videos down or otherwise allay Vimeo's concerns. Vimeo was entitled to enforce its internal content policy regarding SOCE and delete Church United's account without incurring liability.
We also agree with the district court that Appellants' allegations that Vimeo acted in bad faith are too conclusory to survive a motion to dismiss under Rule 12(b)(6). Appellants' bases for arguing that Vimeo acted in bad faith are not commensurate with how courts interpret bad faith in this context. Appellants' cited cases do not satisfy their position. In Zango, Inc. v. Kaspersky Lab, Inc., the Ninth Circuit considered whether the defendant's software —a filter blocking potentially malicious software from users' computers— qualified for Section 230 immunity in the same manner as platforms like YouTube or Facebook. 568 F.3d 1169, 1173-78 (9th Cir. 2009). The Ninth Circuit held that it did. Id at 1178. In Enigma Software Group USA, LLC v. Malwarebytes, Inc., the Ninth Circuit limited the scope of Zango, clarifying that Section 230 "immunity ... does not extend to anticompetitive conduct." 946 F.3d 1040, 1054 (9th Cir. 2019). There, the court reinstated the plaintiff's Lanham Act claim, which alleged that the defendant's firewall program improperly filtered out the plaintiff's rival firewall program, even though the plaintiff's program posed no actual security threat to users' computers. Id. at 1047-48. The plaintiff alleged that the defendant made "false and misleading statements to deceive consumers into choosing [the defendant's] security software over [the plaintiff's]." Id. at 1048. Vimeo's deletion of Appellants' account was not anti-competitive conduct or self-serving behavior in the name of content regulation. Instead, it was a straightforward consequence of Vimeo's content policies, which Vimeo communicated to
Appellants argue that bad faith is apparent from the fact that other videos relating to homosexuality exist on Vimeo's website. In support of this, 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." App'x at 51. 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 SOCE. 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." Bennett v. Google, LLC, 882 F.3d 1163, 1166 (D.C. Cir. 2018). 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. See Zeran v. Am. Online, Inc., 129 F.3d 327, 331 (4th Cir. 1997) (explaining that "[t]he amount of information communicated via interactive computer services is ... staggering" and that Congress passed Section 230 expressly to "remove disincentives for the development and utilization of blocking and filtering technologies" (internal quotation marks omitted)).
Ultimately, "Section 230(c)(2) immunizes from liability providers and users of interactive computer service who voluntarily make good faith efforts to restrict access to material they consider to be objectionable...." Green v. Am. Online (AOL), 318 F.3d 465, 472 (3d Cir. 2003). Here, Vimeo has done just that. Appellants chose to ignore Vimeo's notice of their violation of Vimeo's content policy, and, as a result, Vimeo deleted their account. By suing Vimeo for this, Appellants run headfirst into the CDA's immunity provision, which "allows computer service providers to establish standards of decency without risking liability for doing so." Bennett, 882 F.3d at 1168 (brackets and internal quotation marks omitted).
Moreover, the district court properly dismissed Appellants' claims at the pleadings stage. "Section 230 immunity, like other forms of immunity, is generally accorded effect at the first logical point in the litigation process[,] ... [and] immunity is an immunity from suit rather than a mere defense to liability[;] it is effectively lost if a case is erroneously permitted to go to trial." Nemet Chevrolet, Ltd. v. Consumeraffairs.com, Inc., 591 F.3d 250, 254 (4th Cir. 2009) (italics and internal quotation marks omitted). Although the parties raised additional arguments, there is no need to reach them.
We conclude that CDA Section 230(c)(2) immunizes Vimeo from this lawsuit, and the district court properly dismissed Appellants' claims. Accordingly, the judgment of the district court is