Rehearings are rarely granted by federal appeals courts.  If you’ve lost an appeal in federal court, the overwhelming odds are that a higher court – the Supreme Court – isn’t going to review your case, so unless you can get the Court of Appeals to reverse itself, you’re done.  Many losing litigants ask the Court of Appeals for “rehearing”, in which either the original panel of three judges reviews its own opinion or, more rarely, a larger panel of judges conducts a “rehearing en banc”. 

Rehearing is a tough row to hoe.  If addressed to the panel that decided against you, you need to persuade them that they “overlooked or misapprehended” the facts or the law.  With two sets of lawyers arguing, and three judges (and their clerks) looking at the issues carefully, you can imagine that a successful even getting the judges to consider the question, much less change their minds, is difficult.

Last Friday, July 16, 2021, a panel of the Second Circuit granted a petition for rehearing in a case called Domen v. Vimeo, Inc.  It’s an important case involving Section 230 of the Communications Decency Act.  Domen is a pastor who says that he used to be homosexual but that his faith turned him into a “former homosexual” and he wants to spread the word.  In spreading the word, he signed up for an account on the Vimeo video-sharing platform and agreed to Vimeo’s terms of service.  His contract prohibits posting content that “[c]ontains hateful, defamatory, or discriminatory content or incites hatred against any individual or group.”  As an example, the agreement says that the users can’t post content that promotes Sexual Orientation Change Efforts (SOCE).  I’ll bet you can guess what came next: Domen posted a bunch of video promoting exactly what he promised he wouldn’t do.  When Vimeo took down his videos and closed his account, he sued claiming that Vimeo violated state laws prohibiting certain forms of private-actor religious discrimination.  In March, the Second Circuit ruled that the state laws cited by Domen were pre-empted by the overall policy in section 230 of the Communications Decency Act, and that Vimeo was shielded from liability under Section 230 by virtue of its status as an “interactive computer service”.  As far as I can tell from the Wall Street Journal’s description of Domen’s petition (more on WSJ later), Domen argued that the Section 230 is just a defense to liability, and not blanket immunity, so he’s entitled to a hearing on whether Vimeo acted in good faith. 

Fair point.  If your status as an interactive computer service stops the lawsuit at the courthouse door, then the “good faith” requirement is meaningless.  The panel granted rehearing and vacated its prior ruling.  This set the religious right atwitter.  There followed a spate of urgent articles speculating as to whether the Second Circuit was going to pare pack Section 230’s protection.  To me, though, the most entertaining of the urgent articles was today’s opinion article, posted online at 12:48 pm by WSJ Editorial Board member Allysia Finley, speculating on what might happen.  It was entertaining because, hours earlier, the panel had already decided the case and issued a new opinion.  Needless to say, the WSJ Editorial Board was off base (again) at a moment when, say, reading the newspaper might help.

In the revised opinion, most of the “immunity” language is gone.  In its place is the language of “defense”.  And there’s a robust discussion of Vimeo’s best defense, which is that Domen agreed not to post the stuff that he actually posted, thereby violating the terms of service.  That, combined with plenty of other elements in the record, provided ample evidence of Vimeo’s good faith. Far from getting a second bite at the apple, Domen found a new and better way to lose.

So, folks, read the user agreement.  And if you’re running the editorial department of a great newspaper, read the morning news reports.

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