Less than one week after issuing an order vacating its own March 2021 opinion in an important Communications Decency Act (“CDA”) case and granting a petition for rehearing, the Second Circuit issued a new opinion reaffirming “protection” under Section 230 of the CDA for video-sharing site Vimeo, Inc. (“Vimeo”) (Domen v. Vimeo, Inc., No. 20-616 (2d Cir. July 21, 2021) (amended opinion)).
It’s not completely clear why the Second Circuit decided to grant a rehearing and amend its original opinion to only reach essentially the same holding. It is possible that given the attention surrounding the CDA, the court thought it best to narrow the language of its original holding so it could insulate its ruling from possible Supreme Court review (recall, Justice Thomas previously issued a statement following denial of certiorari in a prior CDA case, that “in an appropriate case,” the Court should consider whether the text of the CDA “aligns with the current state of immunity enjoyed by Internet platforms”). The Second Circuit’s second decision arguably watered down some of its stronger statements in its earlier opinion enunciating broad CDA immunity (e.g., even swapping out the word “immunity” for “protection” when discussing the CDA). The court even mused in dicta near the end of the opinion about the types of claims that might fall outside of CDA protection, as if to intimate that CDA Section 230 immunity is broad, but not as broad as its detractors suggest.
Yet, despite the narrowing of its original opinion, the court reached the same result under the same reasoning. As in the original (now vacated) opinion from March 2021, the Second Circuit’s amended decision relied on Section 230(c)(2), the Good Samaritan provision, which allows online providers to self-regulate the moderation of third party content in good faith without fear of liability. Unlike the original opinion, in the second go-round the appeals court also knocked out the plaintiff’s claims on the merits, finding allegations of discrimination based on the presence of similar videos uploaded by other users that were left up on the site as “vanishingly thin” (thereby further reducing the chance of Supreme Court review).