How an obscure legal doctrine called the Henderson test could weaken Section 230 and change free speech on the internet
The U.S. Supreme Court against a blue sky in Washington, D.C., US. Photographer: Stefani Reynolds/Bloomberg
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A legal test that Google’s lawyer told the Supreme Court was roughly “96% correct” could drastically undermine the liability shield that the company and other tech platforms have relied on for decades, according to several experts who advocate for upholding the law to the highest degree.
The so-called “Henderson test” would significantly weaken the power of Section 230 of the Communications Decency Act, several experts said in conversations and briefings following oral arguments in the case Gonzalez v. Google. Some of those who criticized Google’s concession even work for groups backed by the company.
Section 230 is the statute that protects tech platforms’ ability to host material from users — like social media posts, uploaded video and audio files, and comments — without being held legally liable for their content. It also allows platforms to moderate their services and remove posts they consider objectionable.
The law is central to the question that will be decided by the Supreme Court in the Gonzalez case, which asks whether platforms like Google’s YouTube can be held responsible for algorithmicaly recommending user posts that seem to endorse or promote terrorism.
In arguments on Tuesday, the justices seemed hesitant to issue a ruling that would overhaul Section 230.
But even if they avoid commenting on that law, they could still issue caveats that change the way it’s enforced, or clear a path for changing the law in the future.
What is the Henderson test?
One way the Supreme Court could undercut Section 230 is by endorsing the Henderson test, some advocates believe. Ironically, Google’s own lawyers may have given the court more confidence to endorse this test, if it chooses to do so.
The Henderson test came about from a November ruling by the Fourth Circuit appeals court in Henderson v. The Source for Public Data. The plaintiffs in that case sued a group of companies that collect public information about individuals, like criminal records, voting records and driving information, then put in a database that they sell to third parties. The plaintiffs alleged that the companies violated the Fair Credit Reporting Act by failing to maintain accurate information, and by providing inaccurate information to a potential employer.
A lower court ruled that Section 230 barred the claims, but the appeals court overturned that decision.
The appeals court wrote that for Section 230 protection to apply, “we require that liability attach to the defendant on account of some improper content within their publication.”
In this case, it wasn’t the content itself that was at fault, but how the company chose to present it.
The court also ruled Public Data was responsible for the content because it decided how to present it, even though the information was pulled from other sources. The court said it’s plausible that some of the information Public Data sent to one of the plaintiff’s potential employers was “inaccurate because it omitted or summarized information in a way that made it misleading.” In other words, once Public Data made changes to the information it pulled, it became an information content provider.
Should the Supreme Court endorse the Henderson ruling, it would effectively “moot Section 230,” said Jess Miers, legal advocacy counsel for Chamber of Progress, a center-left industry group that counts Google among its backers. Miers said this is because Section 230’s primary advantage is to help quickly dismiss cases against platforms that center on user posts.
“It’s a really dangerous test because, again, it encourages plaintiffs to then just plead their claims in ways that say, well, we’re not talking about how improper the content is at issue,” Miers said. “We’re talking about the way in which the service put that content together or compiled that content.”
Eric Goldman, a professor at Santa Clara University School of Law, wrote on his blog that Henderson would be a “disastrous ruling if adopted by SCOTUS.”
“It was shocking to me to see Google endorse a Henderson opinion, because it’s a dramatic narrowing of Section 230,” Goldman said at a virtual press conference hosted by Chamber of Progress after the arguments. “And to the extent that the Supreme Court takes that bait and says, ‘Henderson’s good to Google, it’s good to us,’ we will actually see a dramatic narrowing of Section 230 where plaintiffs will find lots of other opportunities to to bring cases that are based on third-party content. They’ll just say that they’re based on something other than the harm that was in the third party content itself.”
Google pointed to the parts of its brief in the Gonzalez case that discuss the Henderson test. In the brief, Google attempts to distinguish the actions of a search engine, social media site, or chat room that displays snippets of third-party information from those of a credit-reporting website, like those at issue in Henderson.
In the case of a chatroom, Google says, although the “operator supplies the organization and layout, the underlying posts are still third-party content,” meaning it would be covered by Section 230.
“By contrast, where a credit-reporting website fails to provide users with its own required statement of consumer rights, Section 230(c)(1) does not bar liability,” Google wrote. “Even if the website also publishes third-party content, the failure to summarize consumer rights and provide that information to customers is the website’s act alone.”
Google also said 230 would not apply to a website that “requires users to convey allegedly illegal preferences,” like those that would violate housing law. That’s because by “‘materially contributing to [the content’s] unlawfulness,’ the website makes that content its own and bears responsibility for it,” Google said, citing the 2008 Fair Housing Council of San Fernando Valley v. Roommates.com case.
Concerns over Google’s concession
Section 230 experts digesting the Supreme Court arguments were perplexed by Google’s lawyer’s decision to give such a full-throated endorsement of Henderson. In trying to make sense of it, several suggested it might have been a strategic decision to try to show the justices that Section 230 is not a boundless free pass for tech platforms.
But in doing so, many also felt Google went too far.
Cathy Gellis, who represented amici in a brief submitted in the case, said at the Chamber of Progress briefing that Google’s lawyer was likely looking to illustrate the line of where Section 230 does and does not apply, but “by endorsing it as broadly, it endorsed probably more than we bargained for, and certainly more than necessarily amici would have signed on for.”
Corbin Barthold, internet policy counsel at Google-backed TechFreedom, said in a separate press conference that the idea Google may have been trying to convey in supporting Henderson wasn’t necessarily bad on its own. He said they seemed to try to make the argument that even if you use a definition of publication like Henderson lays out, organizing information is inherent to what platforms do because “there’s no such thing as just like brute conveyance of information.”
But in making that argument, Barthold said, Google’s lawyer “kind of threw a hostage to fortune.”
“Because if the court then doesn’t buy the argument that Google made that there’s actually no distinction to be had here, it could go off in kind of a bad direction,” he added.
Miers speculated that Google might have seen the Henderson case as a relatively safe one to cite, given than it involves an alleged violation of the Fair Credit Reporting Act, rather than a question of a user’s social media post.
“Perhaps Google’s lawyers were looking for a way to show the court that there are limits to Section 230 immunity,” Miers said. “But I think in in doing so, that invites some pretty problematic reading readings into the Section 230 immunity test, which can have pretty irreparable results for future internet law litigation.”
WATCH: Why the Supreme Court’s Section 230 case could reshape the internet
Xpeng CEO He Xiaopeng speaks to reporters at the electric carmaker’s stand at the IAA auto show in Munich, Germany on September 8, 2025.
Arjun Kharpal | CNBC
Germany this week played host to one of the world’s biggest auto shows — but in the heartland of Europe’s auto industry, it was buzzy Chinese electric car companies looking to outshine some of the region’s biggest brands on their home turf.
The IAA Mobility conference in Munich was packed full of companies with huge stands showing off their latest cars and technology. Among some of the biggest displays were those from Chinese electric car companies, underscoring their ambitions to expand beyond China.
Europe has become a focal point for the Asian firms. It’s a market where the traditional automakers are seen to be lagging in the development of electric vehicles, even as they ramp up releases of new cars. At the same time, Tesla, which was for so long seen as the electric vehicle market leader, has seen sales decline in the region.
Despite Chinese EV makers facing tariffs from the European Union, players from the world’s second-largest economy have responded to the ramping up of competition by setting aggressive sales and expansion targets.
“The current growth of Xpeng globally is faster than we have expected,” He Xiaopeng, the CEO of Xpeng told CNBC in an interview this week.
Aggressive expansion plans
Chinese carmakers who spoke to CNBC at the IAA show signaled their ambitious expansion plans.
Xpeng’s He said in an interview that the company is looking to launch its mass-market Mona series in Europe next year. In China, Xpeng’s Mona cars start at the equivalent of just under $17,000. Bringing this to Europe would add some serious price competition.
Meanwhile, Guangzhou Automobile Group (GAC) is targeting rapid growth of its sales in Europe. Wei Haigang, president of GAC International, told CNBC that the company aims to sell around 3,000 cars in Europe this year and at least 50,000 units by 2027. GAC also announced plans to bring two EVs — the Aion V and Aion UT — to Europe. Leapmotor was also in attendance with their own stand.
There are signs that Chinese players have made early in roads into Europe. The market share of Chinese car brands in Europe nearly doubled in the first half of the year versus the same period in 2024, though it still remains low at just over 5%, according to Jato Dynamics.
“The significant presence of Chinese electric vehicle (EV) makers at the IAA Mobility, signals their growing ambitions and confidence in the European market,” Murtuza Ali, senior analyst at Counterpoint Research, told CNBC.
Tech and gadgets in focus
Many of the Chinese car firms have positioned themselves as technology companies, much like Tesla, and their cars highlight that.
Many of the electric vehicles have big screens equipped with flashy interfaces and voice assistants. And in a bid to lure buyers, some companies have included additional gadgets.
For example, GAC’s Aion V sported a refrigerator as well as a massage function as part of the seating.
The Aion V is one of the cars GAC is launching in Europe as it looks to expand its presence in the region. The Aion V is on display at the company’s stand at the IAA Mobility auto show in Munich, Germany on September 9, 2025.
Arjun Kharpal | CNBC
This is one way that the Chinese players sought to differentiate themselves from legacy brands.
“The chances of success for Chinese automakers are strong, especially as they have an edge in terms of affordability, battery technology, and production scale,” Counterpoint’s Ali said.
Europe’s carmakers push back
Legacy carmakers sought to flex their own muscles at the IAA with Volskwagen, BMW and Mercedes having among the biggest stands at the show. Mercedes in particular had advertising displayed all across the front entrance of the event.
BMW, like the Chinese players, had a big focus on technology by talking up its so-called “superbrain architecture,” which replaces hardware with a centralized computer system. BMW, which introduced the iX3 at the event, and chipmaker Qualcomm also announced assisted driving software that the two companies co-developed.
Volkswagen and French auto firm Renault also showed off some new electric cars.
Regardless of the product blitz, there are still concerns that European companies are not moving fast enough. BMW’s new iX3 is based on the electric vehicle platform it first debuted two years ago. Meanwhile, Chinese EV makers have been quick in bringing out and launching newer models.
“A commitment to legacy structures and incrementalism has slowed its ability to build and leverage a robust EV ecosystem, leaving it behind fast moving rivals,” Tammy Madsen, professor of management at the Leavey School of Business at Santa Clara University, said of BMW.
While European autos have a strong brand history and their CEOs acknowledged and welcomed the competition this week in interviews with CNBC, the Chinese are not letting up.
“Europe’s automakers still hold significant brand value and legacy. The challenge for them lies in achieving production at scale and adopting new technologies faster,” Counterpoint’s Ali said.
“The Chinese surely are not waiting for anyone to catch-up and are making significant gains.”
Marc Benioff is keeping an eye on Palantir.
The co-founder and CEO of sales and customer service management software company Salesforce is well aware that investors are betting big on Palantir, which offers data management software to businesses and government agencies.
“Oh my gosh. I am so inspired by that company,” Benioff told CNBC’s Morgan Brennan in a Tuesday interview at Goldman Sachs‘ Communacopia+Technology conference in San Francisco. “I mean, not just because they have 100 times, you know, multiple on their revenue, which I would love to have that too. Maybe it’ll have 1000 times on their revenue soon.”
Salesforce, a component of the Dow Jones Industrial Average, remains 10 times larger than Palantir by revenue, with over $10 billion in revenue during the latest quarter. But Palantir is growing 48%, compared with 10% for Salesforce.
Benioff added that Palantir’s prices are “the most expensive enterprise software I’ve ever seen.”
“Maybe I’m not charging enough,” he said.
It wasn’t Benioff’s first time talking about Palantir. Last week, Benioff referenced Palantir’s “extraordinary” prices in an interview with CNBC’s Jim Cramer, saying Salesforce offers a “very competitive product at a much lower cost.”
The next day, TBPN podcast hosts John Coogan and Jordi Hays asked for a response from Alex Karp, Palantir’s co-founder and CEO.
“We are very focused on value creation, and we ask to be modestly compensated for that value,” Karp said.
The companies sometimes compete for government deals, and Benioff touted a recent win over Palantir for a U.S. Army contract.
Palantir started in 2003, four years after Salesforce. But while Salesforce went public in 2004, Palantir arrived on the New York Stock Exchange in 2020.
Palantir’s market capitalization stands at $406 billion, while Salesforce is worth $231 billion. And as one of the most frequently traded stocks on Robinhood, Palantir is popular with retail investors.
Salesforce shares are down 27% this year, the worst performance in large-cap tech.
Salesforce and Palantir year to date stock chart.
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