Vimeo’s Removal of ‘Sexual Orientation Change Effort’ Videos Upheld by 2nd Cir.

An opinion issued by the Second Circuit Court of Appeals late last week dismissed the suit brought by a church founder, James Domen, and his religious organization, Church United, against Vimeo Inc. The appellants asserted that video hosting site Vimeo improperly deleted the church’s  account while allowing other, allegedly comparable, videos with titles referring to homosexuality to remain on the website.

The opinion stated that Church United is a California non-profit religious corporation that seeks to “‘equip pastors to positively impact the political and moral culture in their communities.’” According to the panel, Vimeo reportedly warned the church that five videos it posted concerning Sexual Orientation Change Efforts (SOCE) or as Church United terms it “former homosexuality,” were marked for review. Vimeo allegedly explained to the church that the platform does not permit videos that promote SOCE, and asked that they be removed in view of its content policy.

Reportedly, 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.” Vimeo eventually deleted the account because Church United failed to remove the videos, prompting the church and its founder to file suit.

The summary order or non-precedential opinion explains that the lower court dismissed the complaint for failure to state a claim and on additional ground: that Vimeo’s curation of content on its website was within its purview and protected by Section 230 of the Communications Decency Act. The appellate court affirmed for failure to state a claim.

The panel held that the appellants’ “conclusory allegations” were insufficient to raise a plausible inference of discrimination and that they failed to state a claim under either the New York Sexual Orientation Non-Discrimination Act or the California Unruh Act. The pleading failed to suggest that Vimeo removed the appellants’ content for reasons other than violation of its terms of service, the opinion said.

The appellants are represented by Tyler & Bursch LLP and Vimeo by its own counsel, Jassy Vick Carolan LLP, and Wilmer Cutler Pickering Hale and Dorr.