Domen Appeal - Vimeo Answering Br. 7-31-20 As FILED

Case 20-616, Document 69, 07/31/2020, 2897557, Page1 of 40
20-0616-cv
United States Court of Appeals
for the
Second Circuit
JAMES DOMEN, an individual, CHURCH UNITED,

a California not-for-profit corporation,
Plaintiffs-Appellants,
– v. –
VIMEO, INC., a Delaware for-profit corporation,
Defendant-Appellee.
DOES, 1 through 25, inclusive,
Defendant.
––––––––––––––––––––––––––––––
ON APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF NEW YORK
BRIEF FOR DEFENDANT-APPELLEE
JEAN-PAUL JASSY MICHAEL A. CHEAH

KEVIN L. VICK General Counsel
ELIZABETH BALDRIDGE VIMEO, INC.
JASSY VICK CAROLAN LLP 555 West 18th Street
800 Wilshire Boulevard, Suite 800 New York, New York 10011
Los Angeles, California 90017 (212) 314-7457
(310) 870-7048
Attorneys for Defendant-Appellee
CORPORATE DISCLOSURE STATEMENT
Defendant-Appellee Vimeo, Inc. (“Vimeo”) is majority-owned by
IAC/InterActiveCorp (“IAC”), a publicly held corporation. No publicly-traded
company owns more than 10% of IAC’s stock.

TABLE OF CONTENTS
TABLE OF CONTENTS ........................................................................................... i
TABLE OF AUTHORITIES ................................................................................... iii
PRELIMINARY STATEMENT ...............................................................................1
COUNTERSTATEMENT OF ISSUES ....................................................................3
STANDARD OF REVIEW .......................................................................................4
STATEMENT OF FACTS ........................................................................................4
A. VIMEO’S CONTENT RESTRICTIONS .........................................................4
B. PLAINTIFFS’ USE OF THE VIMEO SERVICE ..............................................6
C. PLAINTIFFS’ LAWSUIT ............................................................................6
D. THE DISTRICT COURT’S OPINION ...........................................................7
ARGUMENT .............................................................................................................7
I. THE DISTRICT COURT CORRECTLY CONCLUDED THAT

PLAINTIFFS’ CLAIMS WERE BARRED BY SECTION 230 OF
THE COMMUNICATIONS DECENCY ACT .......................................7
A. PLAINTIFFS’ CLAIMS ARE BARRED BY SECTION 230(C)(1) ..........9
1. Vimeo Operates an Interactive Computer Service ...........9
2. Vimeo Is Not the Information Content Provider with

Respect to the Content at Issue .........................................9
3. Plaintiffs’ Lawsuit Treats Vimeo as a Publisher of

Their Content ..................................................................11
4. Plaintiffs’ Attempt to Tether Section 230(c)(1) to

Section 230(c)(2) Fails ...................................................13
5. Plaintiffs Miscomprehend the Caselaw ..........................16
6. The Court Should Ignore Plaintiffs’ Policy Appeals ......17
i
B. PLAINTIFFS’ CLAIMS ARE ALSO BARRED BY

SECTION 230(C)(2). ....................................................................17
1. Vimeo Considered Plaintiffs’ Content Objectionable

under Section 230(c)(2) ..................................................18
2. Plaintiffs Did Not Plausibly Plead an Absence of

Good Faith ......................................................................20
C. THE DISTRICT COURT DID NOT ABUSE ITS DISCRETION IN

DENYING PLAINTIFFS LEAVE TO AMEND BECAUSE
AMENDMENT WOULD BE FUTILE ...............................................23
II. THE DISTRICT COURT CORRECTLY DISMISSED

PLAINTIFFS’ STATE-LAW CLAIMS FOR FAILURE
TO STATE A CLAIM ............................................................................24
III. ALTERNATIVELY, PLAINTIFFS’ CLAIMS ARE BARRED

BY THE FIRST AMENDMENT ...........................................................24
CONCLUSION ........................................................................................................29
ii
TABLE OF AUTHORITIES
Cases
Ashcroft v. Iqbal,
556 U.S. 662 (2009).......................................................................... 21, 22, 23
Barnes v. Yahoo!, Inc.,

570 F.3d 1096 (9th Cir. 2009) ................................................................ 12, 14
Batzel v. Smith,
333 F.3d 1018 (9th Cir. 2003) .......................................................................15
Bell Atlantic Corp. v. Twombly,

550 U.S. 544 (2007)................................................................................ 21, 22
Bostock v. Clayton County,

140 S. Ct. 1731 (2020)...................................................................................17
Capitol Records, LLC v. Vimeo, LLC,

826 F.3d 78 (2d Cir. 2016) ..............................................................................4
Cox v. Twitter,
No. 2:18-2573-DCN, 2019 WL 2513963 (D.S.C. Feb 8, 2019) ...................13
Davison v. Randall,
912 F.3d 666 (4th Cir. 2019) .........................................................................18
e360Insight, LLC v. Comcast Corp.,

546 F. Supp. 2d 605, 609 (N.D. Ill. 2008) .....................................................21
e-Ventures Worldwide, LLC v. Google, Inc.,

No. 2:14-cv-646, 2017 WL 2210029 (M.D. Fla. Feb. 8, 2017) ... 13-14, 26-27
Ebeid v. Facebook, Inc.,

No. 18-CV-07030-PJH, 2019 WL 2059662 (N.D. Cal. May 9, 2019) .. 22, 24
Enigma Software Grp. USA, LLC v. Malwarebytes, Inc.,

946 F.3d 1040 (9th Cir. 2019) .......................................................................18
Fair Housing Council of San Fernando Valley v. Roommates.com, LLC,

521 F.3d 1157 (9th Cir. 2008) .......................................................................16
iii
Fehrenbach v. Zedlin,
No. 17 Civ. 5282, 2018 WL 4242452 (E.D.N.Y. Aug. 6, 2018) ..................15
Force v. Facebook,
934 F.3d 53 (2d Cir. 2019) ............................................. 2, 8, 9, 11, 13, 16, 21
FTC v. LeadClick Media, LLC,

838 F.3d 158 (2d Cir. 2016) ............................................................................7
Fyk v. Facebook,
808 F. App’x 597 (9th Cir. 2020) ......................................... 10, 13, 14, 16, 23
Gonzales v. Oregon,
546 U.S. 243 (2006).......................................................................................17
Green v. America Online (AOL),

318 F.3d 465 (3d Cir. 2003) ..........................................................................12
Holomaxx Technologies Corp. v. Microsoft Corp.,

783 F. Supp. 2d 1097 (C.D. Cal. 2011) .................................................. 21, 22
Holomaxx Technologies Corp. v. Yahoo!, Inc.,

No. 10-cv-04926 JF, 2011 WL 3740827 (N.D. Cal. Aug. 23, 2011) ............21
Hurley v. Irish-Am. Gay, Lesbian & Bisexual Grp. of Boston,

515 U.S. 557 (1995).......................................................................... 25, 26, 27
Kim v. Kimm,
884 F.3d 98 (2d Cir. 2018) ....................................................................... 4, 23
Knight First Amendment Institute at Columbia University v. Trump,

953 F.3d 216 (2d Cir. 2019) ..........................................................................19
Langdon v. Google, Inc.,

474 F. Supp. 2d 622 (D. Del. 2007) ..............................................................13
Leon v. Murphy,
988 F.2d 303 (2d Cir. 1993) ..................................................................... 4, 25
Lewis v. Google LLC,

No. 20-cv-0085-SK, 2020 WL 2745253 (N.D. Cal. May 20, 2020)...............9
iv
Manhattan Community Access Corp. v. Halleck,

139 S. Ct. 1921 (2019)...................................................................................26
Mezey v. Twitter,
No. 1:18-cv-21069 KMM, 2018 WL 5306769 (S.D. Fla. July 7, 2018).......13
Miami Herald Publishing Co. v. Tornillo,

418 U.S. 241 (1974).......................................................................... 12, 25, 26
Nattional Institute of Family & Life Advocates v. Becerra,

138 S. Ct. 2361 (2018).............................................................................. 8, 19
Neilsen v. Preap,
139 S. Ct. 954 (2019).....................................................................................14
Pac. Gas & Elec. Co. v. Public Utilities Commission of California,

475 U.S. 1 (1986)...........................................................................................25
Perez-Dickson v. Bridgeport Board of Education,

801 F. App’x 811 (2d Cir. Jan 28, 2020).......................................................24
Pickup v. Brown,
740 F.3d 1208 (9th Cir. 2014) .......................................................................19
Prager University v. Google LLC,

951 F.3d 991 (9th Cir. 2020) .........................................................................26
PruneYard Shopping Center v. Robins,

447 U.S. 74 (1980).........................................................................................26
Reed v. Town of Gilbert,

135 S. Ct. 2218 (2015)...................................................................................27
Ricci v. Teamsters Union Local 456,

781 F.3d 25 (2d Cir. 2015) ..............................................................................8
Riggs v. MySpace, Inc.,

444 F. App’x 986 (9th Cir. 2011) ........................................................... 10, 13
Riley v. National Federation of the Blind of N.C.,

487 U.S. 781 (1988).......................................................................................28
v
Rumsfeld v. Forum for Academic & Institutional Rights, Inc.,

547 U.S. 47 (2006).........................................................................................26
Sikhs for Justice “SFJ”, Inc. v. Facebook, Inc., 144 F. Supp. 3d 1088
(N.D. Cal. 2015), aff’d sub nom. Sikhs for Justice “SFJ”, Inc. v.
Facebook, Inc., 697 F. App’x 526 (9th Cir. 2017) ................................. 10, 13
Stratton Oakmont, Inc. v. Prodigy Services Co.,

No. 31063/94, 1995 WL 323710 (N.Y. Sup. Ct. May 24, 1995) ................7, 8
Telescope Media Grp. v. Lucero,

936 F.3d 740 (8th Cir. 2019) .................................................................. 26, 27
Turner Broadcasting System, Inc. v. FCC,

512 U.S. 622 (1994)........................................................................... 25-26, 27
Vega v. Hempstead Union Free School District,

801 F.3d 72 (2d Cir. 2015) ............................................................................24
Wilson v. Twitter,
No. 3:20-cv-00054, 2020 WL 3410349 (S.D.W.V. May 1, 2020) ...............24
Woodruff v. National Railroad Passenger Corp.,

403 F. App’x 624 (2d Cir. 2010) ...................................................................24
Zango, Inc. v. Kaspersky Lab, Inc.,

No. 07-0807, 2007 WL 5189857 (W.D. Wash. Aug. 27, 2007), aff’d,
568 F.3d 1169 (9th Cir. 2009) .......................................................................18
Zeran v. America Online, Inc.,

129 F.3d 327 (4th Cir. 1997) ........................................................ 8, 13, 18, 27
Zhang v. Baidu.com Inc.,

10 F. Supp. 3d 433 (S.D.N.Y. 2014) .............................................................26
Constitutions, Statutes and Rules
47 U.S.C. § 230 ................................................................................................ passim
47 U.S.C. § 230(a)(2) ...............................................................................................12
47 U.S.C. § 230(a)(3) ...............................................................................................12
vi
47 U.S.C. § 230(b)(3)...............................................................................................18
47 U.S.C. § 230(b)(4)...............................................................................................18
47 U.S.C. § 230(c) .................................................................................................7, 8
47 U.S.C. § 230(c)(1) ....................................................................................... passim
47 U.S.C. § 230(c)(2) ....................................................................................... passim
47 U.S.C. § 230(c)(2)(A) ................................................................................. passim
47 U.S.C. § 230(c)(2)(B) .........................................................................................15
47 U.S.C. § 230(f) ......................................................................................................8
47 U.S.C. § 230(f)(2) .................................................................................................9
Cal. Bus. & Prof. Code § 865.1 .................................................................................5
Fed. R. Civ. P. 12(b)(6)..............................................................................................4
N.Y. Educ. Law § 6509-E ..........................................................................................5
N.Y. Educ. Law § 6531-a ..........................................................................................5
U.S. Const. 1st Am..................................................................... 2, 6-7, 24, 26, 27, 28
Other Authorities
2009 Report of American Psychological Association’s Task Force on

Appropriate Therapeutic Responses to Sexual Orientation ............................5
California Assembly Bill 2943 ................................................................................20
Nicole A. Meier, A Proposed Cure, More Expansive Conversion Therapy

Legislation and the Limits of Parental Rights, 93 S. CAL. L. REV. 345
(2020) ...............................................................................................................5
SB 1172, 2012 Cal. Legis. Serv. ch. 835 ...................................................................5
vii
PRELIMINARY STATEMENT
The district court (Aaron, J.) correctly recognized that the Communications
Decency Act of 1996, 47 U.S.C. § 230 (the “CDA”), protects Vimeo’s editorial
right to decide whether to publish or remove user content from its video-sharing
platform. This sound ruling advances Congress’ goal of encouraging online
companies like Vimeo to self-regulate.
Like many other services that allow users to upload content, Vimeo has long
banned “hateful and discriminatory” content from its platform. Since 2014, Vimeo
has publicly stated that this prohibited category includes content that promotes
“sexual orientation change efforts” (or “SOCE”), a scientifically-repudiated
practice based upon the flawed theory that to be gay or lesbian is to suffer from a
mental defect that can and should be “cured.” Plaintiffs Pastor James Domen and
Church United flouted this restriction when they published on Vimeo’s platform
several videos promoting SOCE. After Plaintiffs declined to voluntarily remove
them, Vimeo simply did what self-regulating platforms do in such situations—it
removed Plaintiffs’ videos and terminated their account.
The district court correctly dismissed Plaintiffs’ lawsuit, which seeks to
reinstate their account and videos over Vimeo’s objections. There are several
independent reasons why this Court should affirm. First, Vimeo’s self-regulatory
decisions are protected by Section 230(c)(1) of the CDA. To encourage self-
1
regulation, Congress immunized online service providers from claims that treated
them as the “publisher” of user content. Plaintiffs argue that § 230(c)(1) does not
apply to acts of content removal, but this Court and others have already observed
that one of the editorial functions of a “publisher” is to decide whether to
“withdraw” content. Force v. Facebook, 934 F.3d 53, 65 (2d Cir. 2019).
Second, Plaintiffs’ claims are separately preempted by Section 230(c)(2) of
the CDA, which provides additional protection to online providers when they
remove or restrict the availability of certain materials on their platforms. Vimeo
qualified for this complementary immunity because it took actions in good faith to
remove content that it considered objectionable.
Third, Plaintiffs failed to properly plead intentional discrimination. The
district court correctly concluded that Plaintiffs’ pleadings did not allege any facts
to make their state-law discrimination claims plausible. On the contrary, the most
plausible reading of the pleadings is that Vimeo removed Plaintiffs’ account and
videos because they violated Vimeo’s content restrictions.
Fourth, and alternatively, Vimeo’s editorial decision is shielded by the First
Amendment, a ground the district court did not reach. Plaintiffs seek to interfere
with Vimeo’s right to decide what content to allow on its own platform. The First
Amendment does not allow a court to second-guess such editorial decisions.
For each of these independent reasons, the Court should affirm.
2
COUNTERSTATEMENT OF ISSUES
1. Did the district court correctly conclude that Plaintiffs’ claims were
barred by the immunity conferred upon interactive computer service
providers like Vimeo under Section 230(c)(1) of the CDA where
Plaintiffs’ claims challenged Vimeo’s decision to withdraw their
content and thereby treated Vimeo as the “publisher” of that content?
2. Did the district court correctly conclude that Plaintiffs’ claims were
also barred by the separate immunity under Section 230(c)(2) of the
CDA where Plaintiffs’ own allegations established that Vimeo’s
removal of their content and account were actions taken in good faith
to remove content that Vimeo considered objectionable?
3. Did Plaintiffs adequately plead intentional discrimination where the
alleged discriminatory intent was not supported by any factual
allegations?
4. Did the district court abuse its discretion in denying leave to amend as
futile where no additional facts would have made Plaintiffs’
discrimination claims viable?
5. Does Plaintiffs’ attempt to require Vimeo to host content it finds
objectionable violate its free speech rights under the First
Amendment?
3
STANDARD OF REVIEW
This Court reviews dismissals under Rule 12(b)(6) de novo, Kim v. Kimm,
884 F.3d 98, 102-03 (2d Cir. 2018), and the denial of leave to amend for abuse of
discretion, id. at 105. This Court may affirm “on any basis for which there is a
record sufficient to permit conclusions of law, including grounds upon which the
district court did not rely.” Leon v. Murphy, 988 F.2d 303, 308 (2d Cir. 1993).
STATEMENT OF FACTS
A. Vimeo’s Content Restrictions
Vimeo operates a website (https://vimeo.com) through which users may
upload, stream, and watch videos. JA48 ¶24. Plaintiffs allege that Vimeo has over
90 million members who have collectively uploaded millions of videos to the
Vimeo platform. Br. 5; JA48 ¶27; see also Capitol Records, LLC v. Vimeo, LLC,
826 F.3d 78, 84 (2d Cir. 2016) (observing that “as of 2012 [Vimeo] hosted more
than 31 million videos and had 12.3 million registered users in 49 countries”).
Vimeo maintains stated restrictions on the content that users may upload to
its platform, which users must agree to before uploading videos. See Capitol
Records, 926 F.3d at 84. Vimeo’s Terms of Service prohibit, inter alia, uploading
content that “[c]ontains hateful, defamatory, or discriminatory content or incites
hatred against any individual or group.” JA96 §7; JA50 ¶39. The Terms of
Service incorporate by reference Vimeo’s Community Guidelines (JA97 §7),
which elaborate on the restricted categories (JA101-07; JA50 ¶39). In a section

4
titled, “How does Vimeo define hateful, harassing, defamatory, and discriminatory
content?” (JA105), the Guidelines state that Vimeo “forbid[s] content that displays
a demeaning attitude toward specific groups, including: . . . . Videos that promote
Sexual Orientation Change Efforts (SOCE).” JA106.
Vimeo published this prohibition against SOCE content in 2014 (JA93 ¶4)
after California passed a law banning “mental health provider[s] [from] engag[ing]
in sexual orientation change efforts with a patient under 18 years of age.” Cal.
Bus. & Prof. Code § 865.1. California’s legislature found that “[b]eing lesbian,
gay, or bisexual is not a disease, disorder, illness, deficiency, or shortcoming,” SB
1172, 2012 Cal. Legis. Serv. ch. 835, § 1(a), and “[t]he major professional
associations of mental health practitioners and researchers in the United States
have recognized this fact for nearly 40 years,” id. The legislature further found
that SOCE techniques are both ineffective and potentially harmful as they may
increase risks of depression, social withdrawal, suicide, and substance abuse. Id.
§ 1(b) (citing 2009 report of American Psychological Association’s Task Force on
Appropriate Therapeutic Responses to Sexual Orientation).1
1
Other states, including New York, have since followed California’s lead.
See N.Y. Educ. Law §§ 6509-E, 6531-a; see also Nicole A. Meier, A Proposed
Cure, More Expansive Conversion Therapy Legislation and the Limits of Parental
Rights, 93 S. CAL. L. REV. 345, 346 & n.3 (2020).
5
B. Plaintiffs’ Use of the Vimeo Service
In 2016, Plaintiffs created a Vimeo account. JA49 ¶29. Over the next two
years, Plaintiffs uploaded multiple videos (id. ¶30), including videos that promoted
sexual orientation change efforts. See JA50 ¶¶36, 41. Specifically, Plaintiffs
uploaded five videos that “involved an effort by Church United to challenge [the
proposed expansion of] California’s existing prohibition on SOCE to apply to talk
therapy and pastoral counseling.” Id. ¶41. In one of the videos, Mr. Domen
describes the “homosexual lifestyle” as follows: “It’ll ruin your life. It’s
devastating. It’ll destroy your life.” JA158 ¶3.
On November 23, 2018, Vimeo informed Plaintiffs that “Vimeo does not
allow videos that promote Sexual Orientation Change Efforts (SOCE),” JA58, and
identified at least five videos “that espouse this theory.” JA49 ¶¶ 33. Vimeo
warned Plaintiffs that if they failed to take remedial action, “your videos and/or
your account may be removed by a Vimeo moderator.” JA58. Despite this
warning, Plaintiffs did not remove any videos. On December 6, 2018, Vimeo
closed Plaintiffs’ account. JA50 ¶39.
C. Plaintiffs’ Lawsuit
Plaintiffs filed suit in the Central District of California (JA29), seeking a
permanent injunction requiring Vimeo to reinstate their account and videos plus
damages of at least $75,000 (JA40-41). Plaintiffs asserted claims under the First
6
Amendment (JA38), the California Constitution (JA35), and a California anti-
discrimination statute, the Unruh Act (JA39). Following transfer to the Southern
District of New York (Op. 2), Plaintiffs amended their pleadings to drop their First
Amendment claim and add a claim under the New York State Human Rights Law.
JA29, JA52.
D. The District Court’s Opinion
The district court (Aaron, J.) dismissed Plaintiffs’ First Amended Complaint
under Section 230(c) of the CDA. Op. 1. The district court concluded that
Plaintiffs’ causes of action were barred by Section 230 of the CDA (Op. 11) and
failed to state a claim (id. 19). The court denied leave to amend because “there is
no way for Plaintiffs to reformulate their claims in a way that is not preempted” by
the CDA. Id. 21. The court found it unnecessary to reach Vimeo’s First
Amendment argument, citing constitutional avoidance concerns. Id. 21 n.13.
ARGUMENT
I. THE DISTRICT COURT CORRECTLY CONCLUDED THAT

PLAINTIFFS’ CLAIMS WERE BARRED BY SECTION 230 OF THE
COMMUNICATIONS DECENCY ACT.
Section 230 was in part Congress’ response to Stratton Oakmont, Inc. v.
Prodigy Servs. Co., No. 31063/94, 1995 WL 323710, at *4 (N.Y. Sup. Ct. May 24,
1995), which held that an online service provider could be treated as a publisher of
defamatory material because it “filtered its content in an effort to block obscene
material[.]” FTC v. LeadClick Media, LLC, 838 F.3d 158, 173 (2d Cir. 2016).
7
Fearing that this decision would stymie self-regulation efforts and thus lead to the
proliferation of offensive content online, Congress enacted Section 230(c) to
provide “[p]rotection for ‘Good Samaritan’ blocking and screening of offensive
material[.]” 47 U.S.C. § 230(c); LeadClick Media, LLC, 838 F.3d at 173. The two
subsections within Section 230 “tackle, in overlapping fashion,” the disincentives
to self-regulation created by Stratton Oakmont. Force, 934 F.3d at 79 (Katzmann,
C.J., concurring); see also Br. 11-13.
The first subsection, § 230(c)(1), immunizes Internet platforms from
lawsuits that treat them as a “publisher” of user-generated content posted on those
platforms: “[L]awsuits seeking to hold a service provider liable for its exercise of a
publisher’s traditional editorial functions—such as deciding whether to publish,
withdraw, postpone or alter content—are barred.” Zeran v. Am. Online, Inc., 129
F.3d 327, 330 (4th Cir. 1997) (cited with approval in LeadClick, 838 F.3d at 173).
The succeeding subsection, § 230(c)(2), immunizes online providers when they
take good faith actions to remove or restrict offensive content. Inconsistent state
laws are “express[ly]” preempted, Ricci v. Teamsters Union Local 456, 781 F.3d
25, 27 (2d Cir. 2015), by these immunities.2
2
Section 230(f) exempts certain laws from the CDA’s immunities. “Federal
and state antidiscrimination statutes are not exempted.” Nat’l Ass’n of the Deaf v.
Harvard Univ., 377 F. Supp. 3d 49, 66 (D. Mass. 2019).
8
A. Plaintiffs’ Claims Are Barred by Section 230(c)(1).
Section 230(c)(1) applies when, as here, the defendant (1) operates an
“interactive computer service”; (2) is not the person who created the “information”
at issue; and (3) is being treated, by the plaintiff’s lawsuit, “as the publisher or
speaker of [such] information[.]” 47 U.S.C. § 230(c)(1); Force, 934 F.3d at 64
(reciting elements). “[T]he Circuits are in general agreement that the text of
Section 230(c)(1) should be construed broadly in favor of immunity.” Force, 934
F.3d at 64 (citing cases).
1. Vimeo Operates an Interactive Computer Service.
Plaintiffs do not dispute that Vimeo’s online video-sharing service qualifies
as an “interactive computer service.” 3 Op. 11 (noting that Plaintiffs did not
dispute this element). Thus, Vimeo satisfies the first § 230(c)(1) element.
2. Vimeo Is Not the Information Content Provider with Respect

to the Content at Issue.
The second § 230(c)(1) element—that the information at issue be provided
by “another information content provider,” 47 U.S.C. § 230(c)(1) (emphasis
added)—is satisfied whenever “the interactive service provider is not also an
‘information content provider’ of the content which gives rise to the underlying
3
This term refers to “any information service, system, or access software
provider that provides or enables computer access by multiple users to a computer
server.” 47 U.S.C. § 230(f)(2). Examples include websites, see LeadClick, 838
F.3d at 173, and video-sharing services, Lewis v. Google LLC, No. 20-cv-0085-SK,
2020 WL 2745253, at *8 (N.D. Cal. May 20, 2020) (YouTube).
9
claim.” LeadClick, 838 F.3d at 174. This element is satisfied here because the
content giving rise to Plaintiffs’ claims—Plaintiffs’ videos and account—were
solely and undisputedly created by Plaintiffs. See JA49 ¶30; see also Op. 11
(noting lack of disagreement).
On appeal, Plaintiffs contend that § 230(c)(1) applies only where the content
at issue was created by someone other than the plaintiff or the defendant. Br. 13-
14. This is plainly wrong: Courts have repeatedly held that the plaintiff can be the
“another information content provider.” Fyk v. Facebook, 808 F. App’x 597, 598
(9th Cir. 2020) (rejecting any “so-called ‘first party’ and ‘third party’ distinction”);
see also, e.g., Riggs v. MySpace, Inc., 444 F. App’x 986, 987 (9th Cir. 2011)
(holding Section 230(c)(1) barred plaintiff’s claims based on MySpace’s
“decisions to delete” plaintiff’s “user profiles on [the MySpace] social networking
website”); Sikhs for Justice “SFJ”, Inc. v. Facebook, Inc., 144 F. Supp. 3d 1088,
1093-94 (N.D. Cal. 2015) (“another” language “refer[s] to content created entirely
by individuals or entities other than the interactive computer service”) (emphasis
added), aff’d sub nom. Sikhs for Justice, Inc. v. Facebook, Inc., 697 F. App’x 526
(9th Cir. 2017). Put another way, “[a]s to [Vimeo], [Domen] is ‘another
information content provider.’” Fyk, 808 F. App’x at 598 (quoting Sikhs for
Justice, 144 F. Supp. 3d at 1094).
10
3. Plaintiffs’ Lawsuit Treats Vimeo as a “Publisher” of

Plaintiffs’ Content.
Plaintiffs’ claims satisfy the third § 230(c)(1) element because they “seek[]
to hold a service provider liable for its exercise of a publisher’s traditional editorial
functions—such as deciding whether to publish, withdraw, postpone or alter
content . . . .” LeadClick, 838 F.3d at 174 (quotation marks and citations omitted)
(emphasis added). Plaintiffs’ claims—which assail Vimeo’s decision to remove
Plaintiffs’ videos from its platform—necessarily treat Vimeo as a publisher
because “acting as the ‘publisher’ under Section 230(c)(1) includes the decision
whether to ‘withdraw’ content.” Force, 934 F.3d at 65 (quoting LeadClick, 838
F.3d at 174). In Force, for example, this Court held that claims challenging
“Facebook’s alleged failure to delete content from Hamas members’ Facebook
pages” implicated Facebook’s publisher activities. 934 F.3d at 65 (emphasis
added). If the editorial decision not to delete content is covered by the CDA, it
stands to reason that the editorial decision to delete content is also covered. See
also id. at 79 (opining that § 230(c)(1) would apply to “the decision to publish or
withdraw [an] ad”) (Katzmann, C.J., concurring).
Although Force settles the matter, Plaintiffs argue that § 230(c)(1) does not
apply because they “are not attempting to treat Vimeo as the speaker of any third-
party message.” Br. 14 (emphasis added). But § 230(c)(1) applies when a service
11
provider is treated as the “publisher or speaker” of another’s content and thus
covers more than just retransmitting user-generated content.
Notably, the § 230(c)(1) immunity is not limited to any specific publishing
activity; rather, it covers the status of being a “publisher.” Because “removing
content is something publishers do,” Barnes v. Yahoo!, Inc., 570 F.3d 1096, 1102
(9th Cir. 2009), Plaintiffs’ lawsuit perforce treats Vimeo as a publisher. See also
Green v. Am. Online (AOL), 318 F.3d 465, 471 (3d Cir. 2003) (“decisions relating
to the monitoring, screening, and deletion of content” are “quintessentially related
to a publisher’s role”); cf. Miami Herald Pub’g Co. v. Tornillo, 418 U.S. 241, 258
(1974) (in First Amendment context, decision not to publish a response from a
politician to a critical op-ed “constitute[s] the exercise of editorial control and
judgment”).
Nothing in § 230 indicates that Congress intended a “narrow” (Br. 19)
meaning of “publisher” which would arbitrarily exclude from protection the
removal of content while simultaneously immunizing the failure to remove
content. Quite the opposite: The statute seeks to encourage the removal of
offensive content, and its goals speak to “unfettered” markets and the desirability
of self-regulation. 47 U.S.C. §§ 230(a)(2), (a)(3). In light of these goals,
reviewing courts have adopted “‘a capacious conception of what it means to treat a
website operator as the publisher . . . of information provided by a third party.’”
12
Force, 934 F.3d at 65 (ellipses in original; quotation marks and citation omitted);
see also Zeran, 129 F.3d at 330 (rejecting narrow construction of “publisher” that
would exclude common-law distributors).
Accordingly, courts agree that the § 230(c)(1) immunity includes the act of
removing user-generated content previously posted to an internet platform. See,
e.g., Fyk, 808 F. App’x at 598 (dismissing under Section 230(c)(1) claims based
upon defendant’s removal of content); Riggs, 444 F. App’x at 987 (same); Sikhs
for Justice, 697 F. App’x at 526 (same).4 The Court should therefore reject
Plaintiffs’ cramped and baseless reading of “publisher” in this context.
4. Plaintiffs’ Attempt to Tether Section 230(c)(1) to Section

230(c)(2) Fails.
Ignoring plain meaning and precedent, Plaintiffs next argue that § 230(c)(1)
must be read to exclude immunity for acts of withdrawing content to avoid
“swallowing” the more specific immunity for content removals provided in
§ 230(c)(2). Br. 19-20. But Plaintiffs, and the lone case they cite, e-Ventures
Worldwide, LLC v. Google, Inc., No. 2:14-cv-646, 2017 WL 2210029 (M.D. Fla.
4
See also, e.g., Wilson v. Twitter, No. 3:20-cv-00054, 2020 WL 3410349, at
*12 (S.D.W.V. May 1, 2020) (Section 230(c)(1) covers decisions to withdraw
content); Cox v. Twitter, No. 2:18-2573-DCN, 2019 WL 2513963, at *3 (D.S.C.
Feb. 8, 2019) (same); Mezey v. Twitter, No. 1:18-cv-21069 KMM, 2018 WL
5306769, at *1 (S.D. Fla. July 19, 2018) (same); Langdon v. Google, Inc., 474 F.
Supp. 2d 622, 630 (D. Del. 2007) (same).
13
Feb. 8, 2017), are wrong because they fail to account for the scenarios in which
§ 230(c)(2) applies where § 230(c)(1) might not.
Contrary to Plaintiffs’ contention (Br. 18), courts have analyzed—and
rejected—this “mere surplusage” argument. Recently, the Ninth Circuit reiterated
that, “as we have explained, § 230(c)(2)(a) ‘provides an additional shield from
liability.’” Fyk, 808 F. App’x at 598 (emphasis in original) (quoting Barnes, 570
F.3d at 1105). In fact, though §§ 230(c)(1) and (c)(2) may overlap to some degree,
they are not coextensive and § 230(c)(2) “still has work to do.” Neilsen v. Preap,
139 S. Ct. 954, 969 (2019) (in different statutory context, declining to apply canon
regarding surplusage interpretations). For instance:
 Section 230(c)(1) does not apply where the content at issue was created
or developed, in whole or in part, by the defendant service provider.
Because § 230(c)(2) covers the removal of any “materials,” not just
content created by “another,” it applies to a different class of entities who
may have “developed, even in part, the content at issue,” Barnes, 570
F.3d at 1105, including the defendant itself. Indeed, Plaintiffs concede
this point without rejoinder. Br. 21; see also Op. 14.
 Section 230(c)(1) may not apply where the service provider has allegedly
breached an express promise with respect to user content. See Barnes,
570 F.3d at 1102 (§ 230(c)(1) did not bar claim based upon promissory
14
estoppel). In contrast, § 230(c)(2) clearly “insulates service providers
from claims premised on the taking down of a customer’s posting such as
breach of contract or unfair business practices.” Batzel v. Smith, 333
F.3d 1018, 1030 n.14 (9th Cir. 2003), superseded in part by statute on
other grounds.
 Section 230(c)(2)(B) provides a distinct immunity to entities that create
and distribute tools that allow others to restrict access to content as
permitted under § 230(c)(2)(A). See, e.g., Fehrenbach v. Zedlin, No. 17
Civ. 5282, 2018 WL 4242452, at *5 (E.D.N.Y. Aug. 6, 2018)
(§ 230(c)(2)(B) precluded lawsuit that “charges the Facebook defendants
with enabling users to restrict access to material”). There is no analog to
this immunity in § 230(c)(1).
These varied use cases illustrate that § 230(c)(2) serves as a complementary
immunity for acts of content removal and restriction which fills in any gaps that
§ 230(c)(1) might leave. Consequently, the fact that both § 230(c)(1) and
§ 230(c)(2) can apply to content removal decisions (as here) does not mean that
latter has been rendered nugatory. Far from indicating a defect, this overlap is
fully consistent with the structure and purpose of the CDA: After all, Congress
“titled the entirety of § 230(c) ‘Protection for ‘Good Samaritan’ blocking and
screening of offensive material,’ suggesting that the definitional rule outlined in
15
§ 230(c)(1) may have been envisioned as supporting or working in tandem with the
civil liability shield in § 230(c)(2).” Force, 934 F.3d at 81 (Katzmann, C.J.,
concurring).
5. Plaintiffs Miscomprehend the Caselaw.
Citing Fair Housing Council of San Fernando Valley v. Roommates.com,
LLC, 521 F.3d 1157 (9th Cir. 2008) (en banc), Plaintiffs argue that § 230(c)(1)
does not apply when a publisher intends to discriminate. Br. 15-16. But
Roommates.com says no such thing. Instead, the decision concerns the second
Section 230(c)(1) element, viz., whether the content at issue was developed “by
another.” 47 U.S.C. § 230(c)(1). The Ninth Circuit held that when a roommate-
finding website required users to create profiles that would be used to discriminate,
it “materially contribut[ed],” 521 F.3d at 1168, to the development of
discriminatory information and therefore became a “co-developer” of that content.
Id. at 1165-68. Plaintiffs similarly misread LeadClick’s discussion of this point.
Br. 15. These cases are inapposite because Plaintiffs do not dispute that they alone
created the content at issue.
Ultimately, Plaintiffs conflate the second and third elements of § 230(c)(1)
to read a good faith element into the statute. But “nothing in § 230(c)(1) turns on
the alleged motives underlying the editorial decisions of the provider of an
interactive computer service.” Fyk, 808 F. App’x at 598.
16
6. The Court Should Ignore Plaintiffs’ Policy Appeals
As a last gasp, Plaintiffs resort to public policy appeals and slippery-slope
arguments about censorship and discrimination. Br. 13, 18-19. These flawed
arguments are misdirected: “The place to make new legislation, or address
unwanted consequences of old legislation, lies in Congress.” Bostock v. Clayton
Cnty., 140 S. Ct. 1731, 1735 (2020). By the same token, the current White
House’s policy goals, expressed in a recent Executive Order (see Br. 1, 13, 18-19),
have no bearing here, where Congress has authoritatively spelled out its policy
goals and left nothing for the executive branch to do. See Gonzales v. Oregon, 546
U.S. 243, 258-69 (2006) (Department of Justice order entitled to no deference
when it lacked authority to issue statutory interpretation). If anything, Congress’
policy goals as expressed in the CDA make clear that it wanted to encourage
companies to self-regulate—just as Vimeo did here.
B. Plaintiffs’ Claims Are Also Barred by Section 230(c)(2).
The district court also correctly dismissed Plaintiffs’ claims under
§ 230(c)(2) because Vimeo’s removal of their videos and account were “action[s]
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)(A).
17
1. Vimeo Considered Plaintiffs’ Content Objectionable under

Section 230(c)(2).
Section 230(c)(2) affords service providers like Vimeo wide latitude in
determining what materials can be considered “otherwise objectionable.” Notably,
the statute “does not require that the material actually be objectionable; rather, it
affords protection for blocking material ‘that the provider or user considers to be’
objectionable.” Zango, Inc. v. Kaspersky Lab, Inc., No. 07-0807, 2007 WL
5189857, at *4 (W.D. Wash. Aug. 28, 2007) (quoting § 230(c)(2)(A) (emphasis
added)), aff’d, 568 F.3d 1169 (9th Cir. 2009).
Nor does the statute require that materials falling into the catch-all category
of “otherwise objectionable” be analogous to the expressly enumerated categories:
Given that the enumerated terms “vary greatly . . ., the catchall was more likely
intended to encapsulate forms of unwanted online content that Congress could not
identify in the 1990s.” Enigma Software Grp. USA, LLC v. Malwarebytes, Inc.,
946 F.3d 1040, 1051-52 (9th Cir. 2019). This is certainly consistent with
Congress’ goal of “encourag[ing] service providers to self-regulate the
dissemination of offensive material over their services,” Zeran, 129 F.3d at 330
(summarizing 47 U.S.C. §§ 230(b)(3) & (4)).
Vimeo’s policy choice to ban hateful and discriminatory materials is a
reasonable, and indeed common, act of self-regulation. See Davison v. Randall,
912 F.3d 666, 693 (4th Cir. 2019) (“social media companies like Facebook and
18
others have policies forbidding hate speech on their platforms”) (Keenan, J.,
concurring). From a service provider’s (or typical user’s) perspective, content that
is hateful or discriminatory is no less offensive or unwanted than content that is
“filthy,” “excessively violent,” or “harassing.” 47 U.S.C. § 230(c)(2)(A). Indeed,
members of this Court have cautioned that maintaining a forum “overrun with
harassment, trolling, and hate speech” will lead to less speech, not more. Knight
First Am. Inst. at Columbia Univ. v. Trump, 953 F.3d 216, 231 (2d Cir. 2019)
(Park, J., dissenting from denial of rehearing en banc) (emphasis added).
Vimeo’s decision to categorize content promoting SOCE as hateful and
discriminatory and therefore to ban it from the Vimeo platform also represents a
valid policy choice. Given that SOCE is descended from bad science, outdated
stereotypes, and outright hostility to a historically marginalized group, Vimeo’s
position is, at a minimum, reasonable. Cf. Pickup v. Brown, 740 F.3d 1208, 1232
(9th Cir. 2014) (California legislature rationally restricted SOCE treatment on
minors because the “overwhelming consensus was that SOCE was harmful and
ineffective”), overruled on other grounds by Nat’l Inst. of Family & Life Advocates
v. Becerra, 138 S. Ct. 2361 (2018).
While Plaintiffs now try to distance themselves from the SOCE movement,
in their pleadings, they affirmatively alleged that their videos promoted SOCE,
explaining that the “five (5) videos [at issue] involved an effort by Church United
19
to challenge California Assembly Bill 2943 (AB 2943) which aimed to expand
California’s existing prohibition on SOCE to apply to talk therapy and pastoral
counseling.” JA50 ¶41. As the district court aptly noted: “Obviously, challenging
a statute that expands a prohibition on SOCE is equivalent to promoting SOCE.”
Op. 15.
Moreover, Plaintiffs’ videos themselves confirm that SOCE conveys
negative messages and reflects hostile attitudes about LGBTQ people. For
example, in one of the videos Mr. Domen describes the “homosexual lifestyle” in
the grimmest of terms: “It’ll ruin your life. It’s devastating. It’ll destroy your
life.” JA158 ¶3; see also Op. 15 (“Based upon the allegations in the FAC, it is
plain that Plaintiffs’ videos in fact promoted SOCE.”).
2. Plaintiffs Did Not Plausibly Plead an Absence of Good Faith.
Plaintiffs’ own pleadings disclose that Vimeo had a good faith basis for
Vimeo removing their videos and terminating their account. Specifically, Plaintiffs
affirmatively alleged that: “‘Vimeo does not allow videos that promote Sexual
Orientation Change Efforts,’” JA49, ¶33; Plaintiffs uploaded videos that promoted
SOCE, JA50, ¶41; and Vimeo removed Plaintiffs’ account only after giving
Plaintiffs an opportunity—which they did not take—to remove those videos, id.
¶39; JA58.
Plaintiffs’ assertions that Vimeo’s stated reasons were pretextual and that, as
20
the district court put it, “Vimeo somehow was targeting Domen because he is a
‘former homosexual,’” Op. 16 n.9, are not grounded in any facts that would allow
a court to “draw the reasonable inference that [Vimeo] is liable for the misconduct
alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 556 (2007)). Beyond their repeated, conclusory
allegations of “discrimination,”5 Plaintiffs merely observe that, out of the myriad
videos uploaded to its platform by over “90,000,000 creators worldwide” (JA48
¶27), Vimeo has purportedly not removed a handful of videos concerning “sexual
orientation and religion” generally, Br. 8; JA51, ¶45. Yet, the cited video titles
merely suggest that a variety of viewpoints on homosexuality (e.g., “Gay to
Straight” or “Happy Pride! LGBTQ Pride Month 2016”) are currently available on
the Vimeo platform. Absent is any allegation that any of these videos actually
violate Vimeo’s Terms of Service (e.g., for hateful or discriminatory content) or
that Vimeo is even aware of them.6
5
Such conclusory allegations are plainly insufficient. See Iqbal, 556 U.S. at
681; Holomaxx Tech. Corp. v. Microsoft Corp., 783 F. Supp. 2d 1097, 1105 (C.D.
Cal. 2011) (dismissing claims based upon § 230(c)(2) where plaintiff’s allegations
of bad faith were conclusory); Holomaxx Tech. Corp. v. Yahoo!, Inc., No. 10-cv-
04926 JF, 2011 WL 3740827, at *2 (N.D. Cal. Aug. 23, 2011) (same); e360Insight,
LLC v. Comcast Corp., 546 F. Supp. 2d 605, 609 (N.D. Ill. 2008) (same).
6
Moreover, as the district court observed, “the purpose of Section 230 was to
insulate interactive computer services from liability for removing some content[.]”
Op. 16 n.9; see also Force, 934 F.3d at 79 (81 (Katzmann, C.J., concurring). The
immunity would be rendered meaningless if a service provider had to justify every
21
As between the “‘obvious alternative explanation,’” Iqbal, 556 U.S. at 682
(quoting Twombly, 544 U.S. at 567) for Vimeo’s content removal decision—that
Plaintiffs’ SOCE videos violated Vimeo’s Terms of Service—“the purposeful,
invidious discrimination [Plaintiffs] ask[] [the Court] to infer, discrimination is not
a plausible conclusion,” id. Accordingly, Plaintiffs’ own pleadings show that
“Vimeo removed Plaintiffs’ account because of the content of Plaintiffs’ videos,
not based upon Domen’s sexuality or religion.” Op. 19; see also Ebeid v.
Facebook, Inc., No. 18-CV-07030-PJH, 2019 WL 2059662, at *5 (N.D. Cal. May
9, 2019) (“the complaint’s allegations suggest that, if anything, Facebook denied
plaintiff access to its services based on plaintiff’s views about the then-British
Ambassador to Egypt,” instead of plaintiff’s race, color, religion or national
origin).
Tacitly conceding that Vimeo had a good-faith basis to remove the five
SOCE videos, Plaintiffs complain that Vimeo’s moderation action should have
ended there, and without terminating Plaintiffs’ account. See Br. 23. Yet, at
argument below, Plaintiffs’ counsel admitted that “we don’t know what Vimeo
allegedly inconsistent content moderation decision to prove good faith. For the
same reason, Vimeo owed no duty to provide “an explanation for the distinction
between Church United and Domen’s videos relating to sexual orientation and
religion and similar videos on its platform.” Br. 25 (quoting JA51 ¶46); see
Holomaxx, 783 F. Supp. 2d at 1106 (Microsoft had no “duty to discuss in detail its
reasons for blocking [plaintiff’s] communications”).
22
would have done had [Plaintiffs] taken down the five [videos].” Tr. 34-35. This
admission further undermines their claims. Moreover, terminating a user account
after providing an opportunity to cure reflects not bad faith but rather reasonable
self-regulation.
C. The District Court Did Not Abuse its Discretion in Denying

Plaintiffs Leave to Amend Because Amendment Would Be Futile.
No additional facts will avoid immunity under § 230(c)(1) because “nothing
in § 230(c)(1) turns on the alleged motives underlying the editorial decisions of the
provider of an interactive computer service.” Fyk, 808 F. App’x at 598. The
Court’s inquiry can end there.
And while § 230(c)(2) does contain a good faith element, Plaintiffs never
explain what evidence of bad faith they would have adduced if given the
opportunity. See Br. 8, 25. Instead, they merely speculate that “evidence of
[Vimeo’s] discriminatory intent could be uncovered in discovery.” Br. 24; see also
Tr. 34-35 (similarly requesting discovery). Plaintiffs have it backwards: They are
required to provide plausible factual allegations at the outset to “unlock the doors
of discovery.” Iqbal, 556 U.S. at 678. Because they offer no evidence of bad
faith, Plaintiffs’ “proposed amendments would have no impact on the basis for the
district court’s dismissal and would consequently be futile[.]” Kim, 884 F.3d at
105.
23
II. THE DISTRICT COURT CORRECTLY DISMISSED PLAINTIFFS’

STATE-LAW CLAIMS FOR FAILURE TO STATE A CLAIM.
On appeal, Plaintiffs do not address their claim under California’s
constitution and have therefore waived it. See Woodruff v. Nat’l R.R. Passenger
Corp., 403 F. App’x 624, 625 n.1 (2d Cir. 2010). The Court should therefore
affirm the district court’s dismissal of this claim.
Plaintiffs also do not dispute that their claims require intentional
discrimination. See Br. 24; see Op. 17 n.10 & n.11 (summarizing elements). For
the same reasons why Plaintiffs have failed to plead bad faith (see Part I.B.2,
supra), their threadbare assertions of discrimination (Br. 25) fail to “‘give plausible
support to a minimal inference of discriminatory motivation.’” Perez-Dickson v.
Bridgeport Bd. of Educ., 801 F. App’x 811 (2d Cir. Jan 28, 2020) (quoting Vega v.
Hempstead Union Free Sch. Dist., 801 F.3d 72, 84 (2d Cir. 2015)). Instead, the
most plausible reading of the pleadings is that Vimeo removed Plaintiffs’ videos
and account because of the content of their speech—and not based upon their
identities. See Ebeid, 2019 WL 2059662 at *5 (dismissing discrimination claim).
III. ALTERNATIVELY, PLAINTIFFS’ CLAIMS ARE BARRED BY THE

FIRST AMENDMENT.
This Court may also affirm on the ground that Plaintiffs’ claims violate the
First Amendment because they seek to interfere with Vimeo’s editorial process.
Although the district court did not reach this issue, Vimeo’s position is fully
24
supported by the record and therefore provides an alternative basis for affirmance.
See Leon, 988 F.2d at 308.
The First Amendment does not permit state interference with editorial
decisions. In Miami Herald Publishing Co. v. Tornillo, the Supreme Court struck
down a state law requiring newspapers to provide political candidates with space to
respond to critical editorials because it unduly interfered with the editorial process.
418 U.S. 241, 244 (1974). Far from promoting discourse, a “[g]overnment-
enforced right of access inescapably ‘dampens the vigor and limits the variety of
public debate[.]’” Id. at 257.
The principle of editorial autonomy articulated in Tornillo “is not restricted
to the press” but is “enjoyed by business corporations generally and by ordinary
people engaged in unsophisticated expression as well as by professional
publishers.” Hurley v. Irish-Am. Gay, Lesbian & Bisexual Grp. of Boston, 515
U.S. 557, 574 (1995). Accordingly, the Supreme Court has upheld it in a wide
variety of circumstances including parades, see id., public utility mailers, see Pac.
Gas & Elec. Co. v. Pub. Utilities Comm’n of Cal., 475 U.S. 1, 12 (1986) (plurality
opinion), and cable television programming, Turner Broadcasting System, Inc. v.
25
FCC, 512 U.S. 622, 636 (1994). Independently deciding what content to allow or
prohibit on a video-sharing platform is entitled to no less constitutional protection.7
The fact that Vimeo provides a platform for multitudes of user speech does
not, as Plaintiffs argued below, strip it of First Amendment protection. As the
Supreme Court recently held, “merely hosting speech by others is not a traditional,
exclusive public function and does not alone transform private entities into state
actors subject to First Amendment constraints.” Manhattan Comm’ty Access Corp.
v. Halleck, 139 S. Ct. 1921, 1930 (2019); see Prager Univ. v. Google LLC, 951
F.3d 991, 996-99 (9th Cir. 2020) (YouTube not state actor subject to public forum
rules). Accordingly, online platforms have the right to determine what third-party
content to display. See, e.g., Zhang v. Baidu.com Inc., 10 F. Supp. 3d 433, 437
(S.D.N.Y. 2014) (search engine had First Amendment right to remove Chinese
pro-democracy webpages from search results); e-Ventures Worldwide, LLC, 2017
7
The Supreme Court cases cited by Plaintiffs below are inapposite because
the government regulations at issue did not require private parties to speak or carry
any specific message. See PruneYard Shopping Center v. Robins, 447 U.S. 74, 87
(1980) (“no specific message [was] dictated by the State to be displayed on
appellants’ property”); Rumsfeld v. Forum for Academic & Institutional Rights,
Inc., 547 U.S. 47 (2006) (“[t]he Solomon Amendment neither limits what law
schools may say nor requires them to say anything”). Where, however, as here,
speaker autonomy is threatened, Tornillo and Hurley apply and cases like Rumsfeld
and PruneYard do not. See Telescope Media Grp. v. Lucero, 936 F.3d 740, 757-58
(8th Cir. 2019).
26
WL 2210029, at *5 (search engines’ “judgments about what to publish and what
not to publish are absolutely protected by the First Amendment”).
Because Plaintiffs’ claims expressly seek to reverse Vimeo’s editorial
decision to remove their content “based on a viewpoint regarding sexual orientation
and religion with which Vimeo disagrees,” JA51 ¶47 (emphasis added), they
“target speech based on its communicative content,” Reed v. Town of Gilbert, 135
S. Ct. 2218, 2226 (2015), and any resulting injunction requiring Vimeo to
“reinstate” such content, JA56 ¶D, would therefore be a “content-based”
regulation, Reed, 135 S. Ct. at 2226. Such regulations are “presumptively
unconstitutional and may be justified only if the government proves that they are
narrowly tailored to serve compelling state interests.” Id.8
Plaintiffs cannot carry this heavy burden. While anti-discrimination laws
such as those Plaintiffs purport to invoke are undoubtedly praiseworthy, they
cannot be enlisted “to interfere with speech for no better reason than promoting an
approved message or discouraging a disfavored one, however enlightened either
purpose may strike the government.” Hurley, 515 U.S. at 579. Even assuming a
8
Intermediate scrutiny, ordinarily applicable to content-neutral regulations,
does not apply because Plaintiffs seek to extract a penalty and burden based upon
Vimeo’s determination not to host Plaintiffs’ content. See Zhang, 10 F. Supp. 3d
at 442-43 (New York anti-discrimination law did not, on as-applied basis, pass
First Amendment scrutiny applicable to content-based regulations) (citing Turner,
512 U.S. at 643, 644); Lucero, 936 F.3d at 758 (same result as to Minnesota anti-
discrimination law).
27
compelling governmental interest, the state could always provide a forum for
people to advance viewpoints like those of Plaintiffs and thus has less restrictive
ways of advancing its goal. See Riley v. Nat’l Fed. of the Blind of N.C., 487 U.S.
781, 800 (1988) (law requiring charitable organizers to make disclosures not
narrowly tailored because “the State may itself publish the detailed financial
disclosure forms it requires professional fundraisers to file”). Indeed, Plaintiffs do
not even allege that there is nowhere else on the Internet for them to espouse their
views. Nor could they. See JA139 (Plaintiffs’ videos available on other platform).
Ultimately, and apparently with no sense of irony, Plaintiffs are attempting
to subvert state anti-discrimination laws to commandeer Vimeo, a private
enterprise, into carrying their discriminatory messages in perpetuity and in
violation of Vimeo’s established content policies. Upholding such claims would
strip website operators like Vimeo of their freedom to decide what content they
wish to host and would leave them unable to remove all sorts of unwanted and
harmful speech. Such a rule would invariably lead to less speech, not more of it.
Such a result is not contemplated by state anti-discrimination law, would be wholly
inconsistent with the Communications Decency Act, and would be anathema to the
First Amendment.
28
CONCLUSION
For the reasons set forth above, this Court should affirm the district court’s
order dismissing all of Plaintiffs’ claims with prejudice.
Dated: New York, New York Respectfully submitted,

July 31, 2020
/s/ Michael A. Cheah

Michael A. Cheah
General Counsel
VIMEO, INC.
555 West 18th Street
New York, New York 10011
(212) 314-7457
(212) 632-9547 (Facsimile)
michael@vimeo.com
Jean-Paul Jassy
Kevin L. Vick
Elizabeth Baldridge
JASSY VICK CAROLAN LLP
800 Wilshire Boulevard, Suite 800
Los Angeles, California 90017
(310) 870-7048
(310) 870-7010 (Facsimile)
jpjassy@jassyvick.com
kvick@jassyvick.com
ebaldridge@jassyvick.com
29
CERTIFICATE OF COMPLIANCE
This brief complies with (1) the type-volume limitation of FRAP 32(a)(7)(B)
because it is 30 pages or less and contains 6,403 words (based upon Microsoft
Word’s word-count function), excluding those parts of the brief exempted from the
rule; and (2) the typeface requirements of FRAP 32(a)(5) and 32(a)(6) because it
uses a proportionally-spaced typeface, Times New Roman, 14-point (Microsoft
Word).
Dated: July 31, 2020

Michael A. Cheah
General Counsel
VIMEO, INC.
(212) 314-7457
(212) 632-9547 (Facsimile)
michael@vimeo.com
CERTIFICATE OF SERVICE
I hereby certify that on July 31, 2020, I caused the foregoing to be
electronically filed with the Clerk of the Court via ECF, which will send
notification of such filing to all registered participants, including counsel of record
for Plaintiffs:
Robert H. Tyler, Esq.

Nada N. Higuera, Esq.
TYLER & BURSCH, LLP
25026 Las Brisas Road
Murrieta, California 92562
nhiguera@tylerbursch.com
Attorneys for Plaintiffs

Michael A. Cheah
General Counsel
VIMEO, INC.
(212) 314-7457
(212) 632-9547 (Facsimile)
michael@vimeo.com

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Case 20-616, Document 69, 07/31/2020, 2897557, Page1 of 40

JAMES DOMEN, an individual, CHURCH UNITED,

VIMEO, INC., a Delaware for-profit corporation,

DOES, 1 through 25, inclusive,

BRIEF FOR DEFENDANT-APPELLEE

JEAN-PAUL JASSY MICHAEL A. CHEAH

CORPORATE DISCLOSURE STATEMENT

Defendant-Appellee Vimeo, Inc. (“Vimeo”) is majority-owned by

IAC/InterActiveCorp (“IAC”), a publicly held corporation. No publicly-traded

company owns more than 10% of IAC’s stock.

TABLE OF CONTENTS ........................................................................................... i

TABLE OF AUTHORITIES ................................................................................... iii

PRELIMINARY STATEMENT ...............................................................................1

COUNTERSTATEMENT OF ISSUES ....................................................................3

STANDARD OF REVIEW .......................................................................................4

STATEMENT OF FACTS ........................................................................................4

A. VIMEO’S CONTENT RESTRICTIONS .........................................................4

B. PLAINTIFFS’ USE OF THE VIMEO SERVICE ..............................................6

C. PLAINTIFFS’ LAWSUIT ............................................................................6

D. THE DISTRICT COURT’S OPINION ...........................................................7

I. THE DISTRICT COURT CORRECTLY CONCLUDED THAT

A. PLAINTIFFS’ CLAIMS ARE BARRED BY SECTION 230(C)(1) ..........9

1. Vimeo Operates an Interactive Computer Service ...........9

2. Vimeo Is Not the Information Content Provider with

3. Plaintiffs’ Lawsuit Treats Vimeo as a Publisher of

4. Plaintiffs’ Attempt to Tether Section 230(c)(1) to

5. Plaintiffs Miscomprehend the Caselaw ..........................16

6. The Court Should Ignore Plaintiffs’ Policy Appeals ......17

B. PLAINTIFFS’ CLAIMS ARE ALSO BARRED BY

1. Vimeo Considered Plaintiffs’ Content Objectionable

2. Plaintiffs Did Not Plausibly Plead an Absence of

C. THE DISTRICT COURT DID NOT ABUSE ITS DISCRETION IN

II. THE DISTRICT COURT CORRECTLY DISMISSED

III. ALTERNATIVELY, PLAINTIFFS’ CLAIMS ARE BARRED

Barnes v. Yahoo!, Inc.,

Bell Atlantic Corp. v. Twombly,

Bostock v. Clayton County,

Capitol Records, LLC v. Vimeo, LLC,

e360Insight, LLC v. Comcast Corp.,

e-Ventures Worldwide, LLC v. Google, Inc.,

Ebeid v. Facebook, Inc.,

Enigma Software Grp. USA, LLC v. Malwarebytes, Inc.,

Fair Housing Council of San Fernando Valley v. Roommates.com, LLC,

FTC v. LeadClick Media, LLC,

Green v. America Online (AOL),

Holomaxx Technologies Corp. v. Microsoft Corp.,

Holomaxx Technologies Corp. v. Yahoo!, Inc.,

Hurley v. Irish-Am. Gay, Lesbian & Bisexual Grp. of Boston,

Knight First Amendment Institute at Columbia University v. Trump,

Langdon v. Google, Inc.,

Lewis v. Google LLC,

Manhattan Community Access Corp. v. Halleck,

Miami Herald Publishing Co. v. Tornillo,

Nattional Institute of Family & Life Advocates v. Becerra,

Pac. Gas & Elec. Co. v. Public Utilities Commission of California,

Perez-Dickson v. Bridgeport Board of Education,

Prager University v. Google LLC,

PruneYard Shopping Center v. Robins,