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
The logo for the Food and Drug Administration is seen ahead of a news conference on removing synthetic dyes from America’s food supply, at the Health and Human Services Headquarters in Washington, DC on April 22, 2025.
Nathan Posner | Anadolu | Getty Images
The U.S. Food and Drug Administration on Tuesday published a warning letter addressed to the wrist wearable company Whoop, alleging it is marketing a new blood pressure feature without proper approvals.
The letter centers around Whoop’s Blood Pressure Insights (BPI) feature, which the company introduced alongside its latest hardware launch in May.
Whoop said its BPI feature uses blood pressure information to offer performance and wellness insights that inform consumers and improve athletic performance.
But the FDA said Tuesday that Whoop’s BPI feature is intended to diagnose, cure, treat or prevent disease — a key distinction that would reclassify the wellness tracker as a “medical device” that has to undergo a rigorous testing and approval processes.
“Providing blood pressure estimation is not a low-risk function,” the FDA said in the letter. “An erroneously low or high blood pressure reading can have significant consequences for the user.”
A Whoop spokesperson said the company’s system offers only a single daily estimated range and midpoint, which distinguishes it from medical blood pressure devices used for diagnosis or management of high blood pressure.
Whoop users who purchase the $359 “Whoop Life” subscription tier can use the BPI feature to get daily insights about their blood pressure, including estimated systolic and diastolic ranges, according to the company.
Whoop also requires users to log three traditional cuff-readings to act as a baseline in order to unlock the BPI feature.
Additionally, the spokesperson said the BPI data is not unlike other wellness metrics that the company deals with. Just as heart rate variability and respiratory rate can have medical uses, the spokesperson said, they are permitted in a wellness context too.
“We believe the agency is overstepping its authority in this case by attempting to regulate a non-medical wellness feature as a medical device,” the Whoop spokesperson said.
High blood pressure, also called hypertension, is the number one risk factor for heart attacks, strokes and other types of cardiovascular disease, according to Dr. Ian Kronish, an internist and co-director of Columbia University’s Hypertension Center.
Kronish told CNBC that wearables like Whoop are a big emerging topic of conversation among hypertension experts, in part because there’s “concern that these devices are not yet proven to be accurate.”
If patients don’t get accurate blood pressure readings, they can’t make informed decisions about the care they need.
At the same time, Kronish said wearables like Whoop present a “big opportunity” for patients to take more control over their health, and that many professionals are excited to work with these tools.
Understandably, it can be confusing for consumers to navigate. Kronish encouraged patients to talk with their doctor about how they should use wearables like Whoop.
“It’s really great to hear that the FDA is getting more involved around informing consumers,” Kronish said.
FILE PHOTO: The headquarters of the U.S. Food and Drug Administration (FDA) is seen in Silver Spring, Maryland November 4, 2009.
Jason Reed | Reuters
Whoop is not the only wearable manufacturer that’s exploring blood pressure monitoring.
Omron and Garmin both offer medical blood pressure monitoring with on-demand readings that fall under FDA regulation. Samsung also offers blood-pressure-reading technology, but it is not available in the U.S. market.
Apple has also been teasing a blood pressure sensor for its watches, but has not been able to deliver. In 2024, the tech giant received FDA approval for its sleep apnea detection feature.
Whoop has previously received FDA clearance for its ECG feature, which is used to record and analyze a heart’s electrical activity to detect potential irregularities in rhythm. But when it comes to blood pressure, Whoop believes the FDA’s perspective is antiquated.
“We do not believe blood pressure should be considered any more or less sensitive than other physiological metrics like heart rate and respiratory rate,” a spokesperson said. “It appears that the FDA’s concerns may stem from outdated assumptions about blood pressure being strictly a clinical domain and inherently associated with a medical diagnosis.”
The FDA said Whoop could be subject to regulatory actions like seizure, injunction, and civil money penalties if it fails to address the violations that the agency identified in its letter.
Whoop has 15 business days to respond with steps the company has taken to address the violations, as well as how it will prevent similar issues from happening again.
“Even accounting for BPI’s disclaimers, they do not change this conclusion, because they are insufficient to outweigh the fact that the product is, by design, intended to provide a blood pressure estimation that is inherently associated with the diagnosis of a disease or condition,” the FDA said.
WATCH: Watch CNBC’s full interview with FDA commissioner Dr. Marty Makary
United Launch Alliance Atlas V rocket carrying the first two demonstration satellites for Amazon’s Project Kuiper broadband internet constellation stands ready for launch on pad 41 at Cape Canaveral Space Force Station on October 5, 2023 in Cape Canaveral, Florida, United States.
Paul Hennessey | Anadolu Agency | Getty Images
As Amazon chases SpaceX in the internet satellite market, the e-commerce and computing giant is now counting on Elon Musk’s rival company to get its next batch of devices into space.
On Wednesday, weather permitting, 24 Kuiper satellites will hitch a ride on one of SpaceX’s Falcon 9 rockets from a launchpad on Florida’s Space Coast. A 27-minute launch window for the mission, dubbed “KF-01,” opens at 2:18 a.m. ET.
The launch will be livestreamed on X, the social media platform also owned by Musk.
The mission marks an unusual alliance. SpaceX’s Starlink is currently the dominant provider of low earth orbit satellite internet, with a constellation of roughly 8,000 satellites and about 5 million customers worldwide.
Amazon launched Project Kuiper in 2019 with an aim to provide broadband internet from a constellation of more than 3,000 satellites. The company is working under a tight deadline imposed by the Federal Communications Commission that requires it to have about 1,600 satellites in orbit by the end of July 2026.
Amazon’s first two Kuiper launches came in April and June, sending 27 satellites each time aboard rockets supplied by United Launch Alliance.
Assuming Wednesday’s launch is a success, Amazon will have a total of 78 satellites in orbit. In order to meet the FCC’s tight deadline, Amazon needs to rapidly manufacture and deploy satellites, securing a hefty amount of capacity from rocket providers. Kuiper has booked up to 83 launches, including three rides with SpaceX.
Space has emerged as a battleground between Musk and Amazon founder Jeff Bezos, two of the world’s richest men. Aside from Kuiper, Bezos also competes with Musk via his rocket company Blue Origin.
Blue Origin in January sent up its massive New Glenn rocket for the first time, which is intended to rival SpaceX’s reusable Falcon 9 rockets. While Blue Origin currently trails SpaceX, Bezos last year predicted his latest venture will one day be bigger than Amazon, which he started in 1994.
Kuiper has become one of Amazon’s biggest bets, with more than $10 billion earmarked for the project. The company may need to spend as much as $23 billion to build its full constellation, analysts at Bank of America wrote in a note to clients last week. That figure doesn’t include the cost of building terminals, which consumers will use to connect to the service.
The analysts estimate Amazon is spending $150 million per launch this year, while satellite production costs are projected to total $1.1 billion by the fourth quarter.
Amazon is going after a market that’s expected to grow to at least $40 billion by 2030, the analysts wrote, citing estimates by Boston Consulting Group. The firm estimated that Amazon could generate $7.1 billion in sales from Kuiper by 2032 if it claims 30% of the market.
“With Starlink’s solid early growth, our estimates could be conservative,” the analysts wrote.
WATCH: Amazon launches first Kuiper internet satellites into space
Bitcoin fell below the $117,000 level on Tuesday after cryptocurrency-related bills were blocked in the House of Representatives.
The price of bitcoin was last down 2.8% at $116,516.00, according to Coin Metrics. That marks a pullback from the day’s high of $120,481.86.
Bitcoin/USD Coin Metrics, 1-day
The drop comes on the heels of multiple crypto-related bills failing to overcome a procedural hurdle in the House, with 13 Republicans voting with Democrats to block the motion in a 196-223 vote.
In recent days, bitcoin has been trading at all-time highs, spurred by institutional buying of bitcoin exchange-traded funds (ETFs) amid rising optimism that Congress would soon pass crypto legislation.
Stocks linked to crypto also came under pressure in late afternoon trading. Shares of bitcoin miners Riot Platforms and Mara Holdings closed down 3.3% and 2.3%, respectively. Others like crypto trading platforms Coinbase slid 1.5%. All were under pressure in extended trading.
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