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‘Ex-gay’ pastor can’t sue Vimeo for removing church's account, appeals court rules

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(Photo: Flickr Commons/Joe Gratz)

A federal appellate court has ruled that an ex-gay Southern California pastor and his Christian ministry cannot take legal action against the online video hosting platform Vimeo after his account was removed for promoting “sexual orientation change efforts.”

The U.S. Court of Appeals for the Second Circuit ruled last week that Pastor James Domen and his Church United cannot sue Vimeo due to the company’s immunity under Section 230 of the Communications Decency Act, which Big Tech companies often use to evade liability for content on their websites.

The Second Circuit agreed with U.S. Magistrate Judge Stewart Aaron’s January 2020 decision that Vimeo deleted the church’s account because it violated the platform’s content policies barring the promotion of “SOCE,” which is often derisively called “conversion therapy.”

“This policy, in turn, fell within the confines of the good-faith content policing immunity that the CDA provides to interactive computer services,” the Second Circuit opinion authored by U.S. Circuit Judge Rosemary S. Pooler states. 

Domen, who is now has a wife and kids, alleges he “was a homosexual” for three years. But “because of his desire to pursue his faith in Christianity, he began to identify as a former homosexual.”

In October 2016, his ministry created a Vimeo account to upload various videos promoting the organization, including “videos addressing sexual orientation as it relates to religion.” 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,” the Second Circuit’s opinion states. 

“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].’”

Vimeo instructed Church United to remove the videos and warned that if it 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.

The pastor says that the videos were part of Church United's effort to challenge a California Assembly bill proposing to expand the state’s ban on SOCE to talk therapy and pastoral counseling.

On Dec. 6, 2018, Vimeo deleted Church United’s account, saying that "Vimeo does not allow videos that harass, incite hatred, or include discriminatory or defamatory speech.”

The pastor’s lawyer, Nada Higuera, told the court during an oral argument in December that Vimeo discriminated against the pastor. She argued that Vimeo’s actions were “not against content, but against James Domen himself, and based on his sexual orientation.” 

According to Courthouse News, Pooler pushed back by saying that Vimeo “did target content." 

“They said they wouldn’t allow it, and he knew that when he signed up. What did he not understand?” Pooler, a Clinton appointee, argued. 

In a 2019 op-ed for The Christian Post, Liz Flaherty, author of Discover Eden: Empowering Christian Women to Walk in Sexual Liberty, wrote that some of the examples of conversion therapy described in some government hearings include such harmful practices as electric shock therapy, exposure to pornography, forced separation from loved ones and extreme public shaming.

“However, the greater health care community, including those with faith-based practices, already considers these methods barbaric and unethical,” she noted. “Blasted by the media, this kind of conversion therapy has become a straw man, erected with the intent of advocating one-sided and biased counseling methods that support an ideology that sexuality is completely fixed.”

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