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 algorithmically 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 it 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 the 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 the 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 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 that 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 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.”
Thomas Fuller | SOPA Images | Lightrocket | Getty Images
A judge ordered that X and xAI’s lawsuit accusing Apple and OpenAI of trying to maintain monopolies in artificial intelligence markets must remain in federal court in Fort Worth, Texas, despite “at best minimal connections” to that geographic area by any of the companies.
Judge Mark Pittman, in a sharply ironic four-page order on Thursday, encouraged the companies to relocate their headquarters to Fort Worth, given their preference for the antitrust lawsuit to be heard there.
Pittman’s order implicitly aims at the tendency of some plaintiffs of a conservative bent to file lawsuits in the Fort Worth division of the U.S. Northern District of Texas courts to increase their chances of winning favorable rulings from the two active judges there, both of whom were appointed by Republicans.
Those plaintiffs have included X and Tesla, both controlled by mega-billionaire Elon Musk, who, until earlier this year, was a top advisor to President Donald Trump.
Pittman was appointed by Trump, but has been critical of the practice of targeting lawsuits to specific judicial districts, known as forum-shopping.
In his order on Thursday, Pittman said that the Fort Worth division’s docket is two to three times busier than the docket of the Dallas division, which has more judges.
Pittman’s order noted that neither Apple nor OpenAI has a strong connection to Fort Worth, other than several Apple stores.
“And, of course, under that logic, there is not a district and division in the entire United States that would not be an appropriate venue for this lawsuit,” Pittman wrote.
X Corp. is headquartered in Bastrop, Texas — roughly 200 miles south of Fort Worth — while both Apple and OpenAI are headquartered in California. Musk’s xAI acquired his social media company X in March in an all-stock transaction.
“Given the present desire to have venue in Fort Worth, the numerous high-stakes lawsuits previously adjudicated in the Fort Worth Division, and the vitality of Fort Worth, the Court highly encourages the Parties to consider moving their headquarters to Fort Worth,” the judge wrote.
“Fort Worth has much more going for it than just the unique artwork on the fourth floor of its historic federal courthouse,” Pittman said.
The judge had asked the three companies to explain why the case belonged in the Fort Worth court.
But neither Apple nor OpenAI requested that the case be moved before the judge’s Oct. 9 deadline, Pittman noted in the order.
Read more CNBC politics coverage
Still, Pittman opted to keep the case in the Fort Worth division.
“The fact that neither Defendant filed a motion to transfer venue serves as a consideration for the Court,” the judge wrote. “And the Court ‘respect[s]’ Plaintiffs’ choice of venue.”
“But the Court does not make its decision lightly or without reservations. This case contains at best minimal connections to the Fort Worth Division of the Northern District of Texas,” Pittman wrote. “Possibly one of the strongest points made by Plaintiffs is the mere fact that ‘Apple sell[s] iPhones [in this Division] (and many other products) and OpenAI offer[s] ChatGPT nationwide.'”
“After more than a decade of service presiding over thousands of cases in three different courts, the undersigned continues to feel strongly that ‘[v]enue is not a continental breakfast; you cannot pick and choose on a Plaintiffs’ whim where and how a lawsuit is filed,'” the judge sniped.
But Pittman noted that he had little, if any, choice in the decision to keep the suit in his courthouse.
The U.S. 5th Circuit Court of Appeals, whose jurisdiction includes federal courts in Texas, has raised “the standard for transferring venue to new heights,” Pittman wrote.
Last year, the 5th Circuit twice slapped down orders by Pittman to transfer to Washington, D.C., a lawsuit by trade groups representing large banks challenging a rule issued by the Consumer Financial Protection Bureau, which capped credit card late fees at $8 per month.
The 5th Circuit said Pittman’s court “clearly abused its discretion” in trying to move the case.
OpenAI declined to comment to CNBC, referring a reporter to its public filings in the lawsuit. X and Apple did not immediately respond to a request for comment.
Musk’s X and xAI sued Apple and OpenAI in August, alleging the companies of an “anticompetitive scheme” to maintain monopolies in artificial intelligence markets.
The lawsuit accused Apple of favoring OpenAI’s ChatGPT on its App Store rankings and deprioritizing other competitors, such as xAI’s Grok.
Earlier this month, a judge in Washington, D.C., blocked Musk’s request to move the Securities and Exchange Commission’s lawsuit over his alleged improper disclosure of his stake in Twitter to Texas. Musk renamed Twitter to X after purchasing the company.
More companies are announcing AI-driven layoffs from Salesforce to Accenture.
Twenty20
From tech to airlines, large global companies have been slashing staff as the real-world impact of artificial intelligence plays out, spooking employees. But critics say AI has become an easy excuse for firms looking to downsize.
Last month, tech consultancy firm Accenture announced a restructuring plan that includes quick exits for workers that aren’t first able to reskill on AI. Days later, Lufthansa said it was going to eliminate 4,000 jobs by 2030 as it leans on AI to increase efficiency.
The headlines are grim, but Fabian Stephany, assistant professor of AI and work at the Oxford Internet Institute, said there might be more to job cuts than meets the eye.
Previously there may have been some stigma attached to using AI, but now companies are “scapegoating” the technology to take the fall for challenging business moves such as layoffs.
“I’m really skeptical whether the layoffs that we see currently are really due to true efficiency gains. It’s rather really a projection into AI in the sense of ‘We can use AI to make good excuses,'” Stephany said in an interview with CNBC.
Companies can essentially position themselves at the frontier of AI technology to appear innovative and competitive, and simultaneously conceal the real reasons for layoffs, according to Stephany.
“There might be various other reasons why companies are having to get rid of part of their workforce … Duolingo or Klarna are really prime candidates for this because there has been overhiring during Corona [Covid-19 pandemic] as well,” the professor said.
Some companies that flourished during the pandemic “significantly overhired” and the recent layoffs might just be a “market clearance.”
“It’s to some extent firing people that for whom there had not been a sustainable long term perspective and instead of saying “we miscalculated this two, three years ago, they can now come to the scapegoating, and that is saying ‘it’s because of AI though,'” he added.
This pattern has sparked conversation online. One founder, Jean-Christophe Bouglé even said in a popular LinkedIn post that AI adoption is at a “much slower pace” than is being claimed and in large corporations “there’s not much happening” with AI projects even being rolled back due to cost or security concerns.
“At the same time there are announcements of big layoff plans ‘because of AI.’ It looks like a big excuse, in a context where the economy in many countries is slowing down, despite what the incredible performance of stock exchanges suggest,” said Bouglé, who co-founded Authentic.ly.
Feeding the fear of AI
Jasmine Escalera, a careers expert, said this concealment is “feeding the fear of AI” with employees globally concerned about their jobs being replaced as a result of AI.
“So we already know that employees are scared because companies are not being honest, open and communicative about how they’re implementing AI,” Escalera told CNBC Make It. “Now companies are openly stating ‘We’re doing this [layoffs] because of AI’ so it’s feeding the frenzy.”
Escalera said big companies need to be more responsible as they set the tone for what’s the norm in business decision making and avoid greenlighting “bad behavior.”
A Salesforce spokesperson clarified to CNBC that the company deployed its own AI agent, Agentforce, which reduced the number of customer support cases and eliminated the need to “backfill support engineer roles,” they said.
“We’ve successfully redeployed hundreds of employees into other areas like professional services, sales, and customer success,” the Salesforce spokesperson added.
Klarna directed CNBC to its co-founder and CEO Sebastian Siemiatkowski’s comments on X where he explained that the company shrank its workforce from 5,500 to 3,000 people in two years but “AI is only part of that story.”
Siemiatkowski linked the workforce reduction to slimming down its analytics team to one “success team,” with many then leaving by natural attrition as well as the reduction of the company’s customer success team.
Lufthansa and Accenturedeclined to comment on the matter and did not share any further details on their AI restructuring strategy. Duolingo did not respond to CNBC’s request for comment.
Mass AI layoffs are not here
The Budget Lab, a non-partisan policy research center at Yale University, released a report on Wednesday which showed that U.S. labor has actually been little disrupted by AI automation since the release of ChatGPT in 2022.
The lab examined U.S. labor market data from November 2022 to July 2025 using a “dissimilarity index” which measured how much the occupational mix—the share of workers in different jobs—has shifted since AI’s debut and compared it to other technological shifts such as the introduction of computers and the internet.It found that AI hasn’t yet caused widespread job losses.
Additionally, New York Fed economists released research in early September which showed that AI use amongst firms “do not point to significant reductions in employment” across the services and manufacturing industry in the New York–Northern New Jersey region.
It found that 40% of service firms said they were using AI this year, up from 25% last year, while manufacturing firms saw a similar jump from 16% last year to 26% this year, but very few were using AI to layoff workers.
Only 1% of the services firm reported AI as the reason for laying off workers in the past six months, down from 10% that had laid off workers using AI in 2024. Meanwhile, 12% of services firms said AI made them hire less workers in 2025.
By contrast, 35% of services firms have used AI to retrain employees and 11% have hired more as a result.
Stephany said there isn’t much evidence from his research that shows large levels of technological unemployment due to AI.
“Economists call this structural unemployment, so the pie of work is not big enough for everybody anymore and so people will lose jobs definitely because of of AI, I don’t think that this is happening on a mass scale,” he said.
He added that concerns about technology putting an end to human work can be seen throughout history.
“It reoccurred this century alone a dozen times, you can go back to ancient times where Roman emperors put hold to certain machines because they were worried about this and always the contrary happened. The machine made companies, industries more productive.
“It allowed for the emergence of entirely new jobs. If you think about the internet 20 years ago, nobody would have known what a social media influencer is, what an app developer is because it didn’t exist.”
Read more about companies conducting AI layoffs below:
The Kalshi logo arranged on a laptop in New York, US, on Monday, Feb. 10, 2025.
Gabby Jones | Bloomberg | Getty Images
Close to half of Kalshi’s user base experienced glitches and delays on Saturday during college football games, a major source of trades, as some said they were temporarily unable to process orders.
In a message sent to a user obtained by CNBC, the predictions market service’s website apologized for any inconvenience and said it was “looking into” the issues traders were experiencing.
“The Exchange is experiencing temporary delays,” the message read. “Balances and positions may not be accurately reflected at this time.”
One user shared a screen recording and screenshots with CNBC that showed they were unable to see their balance or bets while the issues persisted.
A number of users on X reported the website was down when they were trying to place bets on college football games, with some saying they had open orders that wouldn’t process. When CNBC visited the website, it wouldn’t load, showing only a green K with a spinning circle around it for more than 20 minutes. The platform later loaded.
“Earlier today, Kalshi experienced minor glitches that temporarily affected some user experiences. No exchange outage occurred, no funds were affected, and the issues are now resolved,” the company said in a statement.
Earlier, a spokesperson denied there was an outage and said the exchange “never stopped functioning properly.” He added that there has been no impact on clearing, advanced trading, or institutional trading.
“There were some glitches and delays on our web and app product, which affected less than half of our user base,” the spokesperson said.
A little over a week ago, Kalshi announced a $300 million Series D funding round that valued the company at $5 billion, more than double its $2 billion valuation in June after its Series C round.
The round was co-led by Andreessen Horowitz (a16z) and Sequoia Capital, with participation from Paradigm. Additional backers included Coinbase Ventures, General Catalyst, Spark Capital and CapitalG.
The company, founded in 2018, rose to prominence by offering bettors the ability to trade on a wide range of real-world events, from football games to who President Donald Trump could pardon this year.