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`20-616
`Domen v. Vimeo, Inc.
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`UNITED STATES COURT OF APPEALS
`FOR THE SECOND CIRCUIT
`SUMMARY ORDER
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`RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
`SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY
`FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN
`CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE
`EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION
`“SUMMARY ORDER”). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON
`ANY PARTY NOT REPRESENTED BY COUNSEL.
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`At a stated term of the United States Court of Appeals for the Second Circuit, held at
`the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York,
`on the 24th day of September, two thousand twenty-one.
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`PRESENT:
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`ROSEMARY S. POOLER,
`RICHARD C. WESLEY,
`SUSAN L. CARNEY,
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`Circuit Judges.
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`_________________________________________
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`JAMES DOMEN, AN INDIVIDUAL, CHURCH UNITED, A
`CALIFORNIA NOT-FOR-PROFIT CORPORATION,
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`VIMEO, INC., A DELAWARE FOR-PROFIT CORPORATION,
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`Defendant-Appellee.
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`_________________________________________
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`FOR APPELLANTS:
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`Plaintiffs-Appellants,
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`v.
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`No. 20-616-cv
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`NADA N. HIGUERA, Tyler & Bursch,
`LLP (Robert H. Tyler, on the brief),
`Murrieta, CA.
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`FOR APPELLEE:
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`MICHAEL A. CHEAH, General Counsel,
`Vimeo, Inc., New York, NY (Jean-Paul
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`Jassy, Kevin L. Vick, Elizabeth H.
`Baldridge, Jassy Vick Carolan LLP, Los
`Angeles, CA, on the brief).
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`Samuel C. Leifer, Patrick J. Carome, Ari
`Holtzblatt, Wilmer Cutler Pickering Hale
`and Dorr LLP, Boston, MA, and
`Washington, DC, for The Internet
`Association, Amicus Curiae in support of
`Defendant-Appellee.
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`Appeal from a judgment of the United States District Court for the Southern District
`of New York (Stewart D. Aaron, M.J.).
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`UPON DUE CONSIDERATION WHEREOF, IT IS HEREBY ORDERED,
`ADJUDGED, AND DECREED that the judgment entered on January 17, 2020, is
`AFFIRMED.
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`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 grounds that Section 230 of the Communications
`Decency Act (“CDA”) protects Vimeo from this suit and that Appellants failed to state a
`claim. The district court concluded that Vimeo deleted Church United’s account because of
`Church United’s violation of Vimeo’s published content policy barring the promotion of
`sexual orientation change efforts (“SOCE”) on its platform. Vimeo’s enforcement of this
`policy, in turn, fell within the confines of the publisher immunity provided by Section
`230(c)(1) and the immunity to police content created by Section 230(c)(2). The district court
`also found that Appellants failed to state a claim on any of the counts listed in the amended
`complaint. We previously affirmed the judgment of the district court in opinions dated
`March 11, 2021 and July 21, 2021. Having vacated those decisions, we issue this summary
`order in their place.
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`Appellants argue that Vimeo discriminated against them based on their religion and
`sexual orientation, which they term “former” homosexuality: by deleting Church United’s
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`entire account, as opposed to only the videos at issue, and by permitting other videos with
`titles referring to homosexuality to remain on the website. However, Appellants’ conclusory
`allegations are insufficient to raise a plausible inference of discrimination and they have
`failed to state a claim under either the New York Sexual Orientation Non-Discrimination
`Act or the California Unruh Act.1 Therefore, we AFFIRM the judgment of the district
`court.
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`BACKGROUND
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`These facts are taken from Plaintiffs’ amended complaint and are assumed to be true
`for the purposes of this appeal.
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`James Domen is the president and founder of the non-profit organization Church
`United.2 Domen alleges that he “was a homosexual” for three years but then, “because of
`his desire to pursue his faith in Christianity, he began to identify as a former homosexual.”
`App’x at 47. Domen shares his story through Church United to connect with others in
`California who have had similar experiences. Church United was founded in 1994 and is a
`California non-profit religious corporation. It seeks to “equip pastors to positively impact
`the political and moral culture in their communities,” and it has over 750 affiliated pastors.
`App’x at 47. The organization claims to “focus on the spiritual heritage of the United States”
`by attempting to connect with “nationally-known speakers, including elected officials . . .
`who vote to support a biblical worldview.” App’x at 47.
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`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.
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`1 We do not reach the district court’s conclusions regarding Section 230(c).
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`2 Because Domen is the president and founder of Church United and his claims are co-
`extensive with those of Church United, we generally refer to Domen and Church United
`together as “Church United,” “Appellants,” or “Plaintiffs.”
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`Vimeo’s Terms of Service expressly prohibit content supportive of SOCE. They
`proscribe content which “[c]ontains hateful, defamatory, or discriminatory content or incites
`hatred against any individual or group.” Domen v. Vimeo, Inc., 433 F. Supp. 3d 592, 599
`(S.D.N.Y. 2020). They also incorporate Vimeo’s Guidelines. See id. (quoting the Terms of
`Service: “[a]ll videos you submit must also comply with the Vimeo Guidelines, which are
`incorporated into this Agreement.”). The Guidelines include a section entitled, “How does
`Vimeo define hateful, harassing, defamatory, and discriminatory content?,” which states that
`Vimeo will “generally remove” several categories of videos, including those that “promote
`Sexual Orientation Change Efforts (SOCE).” Id. To upload a video to Vimeo’s platform, all
`users must accept Vimeo’s Terms of Service agreement. See Capitol Records, LLC v. Vimeo,
`LLC, 826 F.3d 78, 84 (2d Cir. 2016) (“All Vimeo users must accept its Terms of Service.”).
`Appellants agreed to the Terms of Services and Guidelines by creating an account and
`uploading videos to the website. Domen v. Vimeo, Inc., No. 8:19-cv-01278-SVW-AFM, 2019
`WL 4998782, at *2-3 (C.D. Cal. Sept. 4, 2019) (applying the Terms of Service agreement’s
`forum selection clause to Appellants’ claims).
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`In October 2016, Church United created a Vimeo account to upload videos
`promoting the organization, including “videos addressing sexual orientation as it relates to
`religion.” App’x at 49. Church United 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.
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`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
`case Vimeo deleted the account. Church United claims that five of its videos were flagged as
`violating Vimeo’s policies:
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`• Video One: a two-minute video where Domen explained “his life story, his preferred
`sexual orientation, the discrimination he faced, and his religion.” App’x at 49.
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`• Video Two: a promotion video for “Freedom March Los Angeles,” allegedly an event
`where “former homosexuals” gather. App’x at 50.
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`• Video Three: an NBC-produced documentary segment about SOCE. App’x at 50.
`• Video Four: a press conference with “the founder of Desert Stream” relating to his
`religion and sexuality. App’x at 50.
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`• Video Five: an interview with a survivor of the attack on Pulse Nightclub in Florida in
`March 2018 and his background as a “former homosexual.” App’x at 50.
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`Appellants state 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.
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`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 Vimeo’s action constitutes “censorship,” App’x
`at 52, insofar as it barred Domen from speaking about his preferred sexual orientation and
`religious beliefs. They also allege that Vimeo allows similar videos to remain on its website
`with titles such as “Gay to Straight,” “Homosexuality is NOT ALLOWED in the QURAN,”
`“The Gay Dad,” and “Happy Pride! LGBTQ Pride Month 2016.” App’x at 51.
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`Based on these allegations, Appellants claim that Vimeo violated the Unruh Act, a
`California law barring businesses from intentionally discriminating on the basis of, inter alia,
`sexual orientation and religion; New York’s Sexual Orientation Non-Discrimination Act; and
`Article 1, Section 2 of the California Constitution, which “mandates viewpoint neutral
`regulation of speech in public and quasi-public fora.” App’x at 54. Appellants do not
`challenge the Guidelines’ prohibition on pro-SOCE content as facially discriminatory against
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`homosexuals under the civil rights laws, focusing only on Vimeo’s application of the
`Guidelines to Appellants’ content and account.3
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`The district court granted Vimeo’s motion to dismiss pursuant to Federal Rule
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`12(b)(6). See Domen, 433 F. Supp. 3d at 607-08. In doing so, the court concluded that all of
`Appellants’ claims were preempted by subsections (c)(1) and (c)(2) of Section 230 of the
`CDA. The district court first concluded that Vimeo was acting as a “publisher” rather than a
`speaker, triggering protection from suit under subsection (c)(1). Id. at 601-03. The district
`court acknowledged that the Second Circuit had not ruled on precisely this situation—where
`plaintiffs sought to hold a defendant liable for removing content as opposed to permitting
`content to exist on its platform—but used the reasoning of other courts to conclude that
`this did not change the outcome. Id. at 602. The district court also concluded subsection
`(c)(2) required dismissal. Id. at 604. It reasoned that the videos promoted SOCE, violating
`Vimeo’s content policy against SOCE, and Appellants’ allegations suggesting Vimeo acted in
`bad faith were too conclusory to “nudge their claims across the line from conceivable to
`plausible.” Id. at 604 (alteration omitted). The district court further decided that because
`Section 230 preempts state statutory claims and the California state constitutional claim, the
`entire case was statutorily barred. Id. at 604-06.
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`The district court also concluded that, even if the CDA did not bar all of Appellants’
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`claims, Appellants failed to state a 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, a necessary element of a claim
`under both state statutes. 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.
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`3 Appellants also do not contend that Vimeo’s actions constituted a breach of the Terms of
`Service or that Vimeo breached its agreement with them as to when and how content may
`be removed from Vimeo’s website.
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`On appeal, Appellants argue that Section 230 of the CDA does not protect Vimeo’s
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`actions from suit and that they stated a claim under state statutory discrimination law.
`Because Appellants’ complaint fails to plausibly plead a claim for discrimination under the
`state statutes there is no need to consider Vimeo’s defense that such claims are pre-empted
`under Section 230. Appellants’ claims fail because they have not plausibly pled that Vimeo’s
`acts were done with discriminatory intent or purpose. Furthermore, Appellants do not make
`any arguments regarding their state constitutional free speech claim in their opening brief
`and have therefore waived the ability to challenge its dismissal in this appeal. See Gross v. Rell,
`585 F.3d 72, 95 (2d Cir. 2009).
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`DISCUSSION
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`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 (2009)).
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`Appellants’ complaint fails to state a claim on which relief may be granted. See Fed. R.
`Civ. P. 12(b)(6). The district court found that Plaintiffs failed to state a claim under both the
`New York Human Rights Law (incorporating the Sexual Orientation Non-Discrimination
`Act) and the California Unruh Act, because they did not “plausibly allege[] that Vimeo’s
`conduct was animated by discriminatory intent against Domen.” Domen, 433 F. Supp. 3d at
`606. In order to state a discrimination claim under either statute, a plaintiff must allege facts
`sufficient to create an inference of discriminatory intent on account of the plaintiff’s
`membership in a protected class. See Greater L.A. Agency on Deafness, Inc. v. Cable News
`Network, Inc., 742 F.3d 414, 425 (9th Cir. 2014) (“[T]he Unruh Act contemplates willful,
`affirmative misconduct on the part of those who violate the Act . . . .” (internal quotation
`omitted)); Smith v. City of New York, 385 F. Supp. 3d 323, 332 (S.D.N.Y. 2019) (stating that
`one element of a claim under the New York Human Rights Law is that the “adverse
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`employment action occurred under circumstances giving rise to an inference of
`discriminatory intent”).
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`Appellants have not met that standard. Instead, they simply allege that their content
`was removed for espousing pro-SOCE views and because of Domen’s sexual orientation
`and religion. See App’x at 51, 52, 55 (Amended Complaint). They make only conclusory
`allegations suggesting that Vimeo removed their content for reasons other than violation of
`the Terms of Service. Smith, 385 F. Supp. 3d 323 at 332 (“[B]are-bones, conclusory
`allegations of supposedly ‘similarly situated’ comparators . . . fail to raise an inference of
`discriminatory intent.”).
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`On appeal, Appellants argue that the amended complaint sufficiently alleged
`discriminatory intent by identifying “similar videos about sexual orientation and religion
`posted by other users that were not deleted.” Appellants’ Br. at 25. They further argue,
`without pointing to any factual basis, that “[b]y permanently banning Church United and
`Domen from its platform, as opposed to censoring the five videos, it is evident that Vimeo
`discriminated not merely against a message, but against Church United and Domen based on
`sexual orientation and religion.” Id.
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`An inference of discriminatory intent may be shown through a comparison to
`similarly situated persons not sharing a plaintiff’s protected characteristic who were treated
`preferentially. See, e.g., Stucky v. Wal-Mart Stores, Inc., No. 02-CV-6613 CJS(P), 2005 WL
`2008493, at *6 (W.D.N.Y. Aug. 22, 2005). However, the allegations about these “similar
`videos” in the amended complaint are vanishingly thin and lack the substance required to
`support an inference of discriminatory intent. See Appellants’ Br. at 25. 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.
`See App’x at 51. That is not enough. See, e.g., Henry v. NYC Health & Hosp. Corp., 18 F. Supp.
`3d 396, 408 (S.D.N.Y. 2014) (aside from allegations that comparators and plaintiff had the
`same hair color, the complaint “fail[ed] to describe who these people are, what their
`responsibilities were, how their workplace conduct compared to [plaintiff’s], or how they
`were treated,” and therefore failed to state a claim for discrimination); Morris v. Yale Univ. Sch.
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`of Med., 477 F. Supp. 2d 450, 460 n.2 (D. Conn. 2007) (“To be ‘similarly situated,’ the
`individuals with whom plaintiff attempts to compare himself must be similarly situated in all
`material respects.” (citation and alterations omitted)); Graham v. Long Island R.R., 230 F.3d 34,
`40 (2d Cir. 2000) (“[T]he standard for comparing conduct requires a reasonably close
`resemblance of the facts and circumstances of plaintiff's and comparator’s cases . . . .”).
`Furthermore, we have difficulty understanding what inference in support of their claim can
`reasonably be drawn from Plaintiffs’ allegation that Vimeo continued to host a video entitled
`“The Gay Dad,” or “LGBTQ barber in NYC.” App’x at 51. They highlight, apparently as
`evidence of discriminatory intent, that “Vimeo did not provide Plaintiffs with an explanation
`for the distinction between Plaintiffs’ videos relating to sexual orientation, testimonials,
`events relating to sexual orientation, and the thousands of similar videos related to LGBTQ
`and sexual orientation.” App’x at 51. But Vimeo cited its terms of service to Plaintiffs when
`it closed the account; the absence of an additional explanation from the platform provider
`does not save Plaintiffs’ complaint.
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`Appellants’ claims must be dismissed because they fail to state a claim for religious or
`sexual orientation-based discrimination. Although the parties raised additional arguments,
`we do not reach them here.
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`CONCLUSION
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`We conclude that Appellants have failed to state a claim for discrimination, and
`that the district court properly dismissed Appellants’ claims. Accordingly, the judgment of
`the district court is AFFIRMED.
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`FOR THE COURT:
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`Catherine O’Hagan Wolfe, Clerk of Court
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