The 2nd Circuit U.S. Court of Appeals has vacated the 3-judge panel decision regarding Section 230 of the Communication Decency Act in the case of Domen v. Vimeo. The court has agreed to rehear this case en banc, which challenges the district court’s ruling asserting that Section 230 makes Vimeo and other Big Tech companies immune from civil rights laws.
On appeal, a three-judge panel of the 2nd Circuit upheld the district court’s ruling, but that appellate ruling is now vacated.
Church United and Pastor Jim Domen filed suit against Vimeo in January 2019, after the web-based platform censored its content by terminating Church United’s account. The video streaming platform alleged Church United violated its terms of service by featuring five videos of men and women who left the LGBT lifestyle to pursue their Christian faith. Vimeo argued its terms of service bans content promoting sexual orientation change therapy.
Pastor Jim Domen commented, “I never thought I’d see the day that it would be legal in America to discriminate against my faith and the fact that I was previously engaged in the gay lifestyle. As a Pastor and Former homosexual, I’m encouraged by the rehearing of our sexual orientation and religious discrimination lawsuit.”
In a simply worded order, the 2nd Circuit has agreed to convene an en banc panel of judges to reconsider its earlier ruling that affirmed the district court’s ruling.
“The petition for rehearing is granted,” today’s order read. “The panel hereby vacates its previous opinion. Accordingly, the decision of the district court remains in place until further notice from the panel.”
Their acceptance of the case is even more remarkable given the 2nd Circuit’s notable reputation for shunning rehearings, a stance that was reported on in an August 2016 article in the New York Law Journal.
“Since 1979, the U.S. Court of Appeals for the Second Circuit has consistently granted fewer petitions for rehearing en banc than any other circuit court, both in absolute terms and relative to the court’s caseload…” the article reported.
A new court date has yet to be announced but the en banc panel will re-examine whether Section 230 of the federal Communications Decency Act “immunizes Vimeo” as the district court ruled.
Robert Tyler, an attorney representing Church United and General Counsel for Advocates for Faith & Freedom said, “This ruling places Section 230 immunity in the crosshairs of judicial review. We suspect that the en banc court recognizes that Big Tech is not exempt from state and federal civil rights laws. Section 230 was not intended to give Big Tech the right to exclude persons from their platform just because the customer is black, Muslim, white, Christian, homosexual or formerly homosexual. That is plain invidious discrimination.”
