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
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Bitcoin‘s more than 30% drop from its record high underscores the volatility that has come to characterize the cryptocurrency.
Moves from previous cycles not only show how the current price swings are all part of bitcoin’s normal operating pattern but also how they may often precede a rally, according to figures compiled by CoinDesk Data for CNBC.
Bitcoin, the world’s largest cryptocurrency, dropped to a low of around $80,000 late last month before staging a rally and falling again this week. When bitcoin dropped to under $81,000, that represented an approximately 36% fall from its all-time high of around $126,000 hit earlier in October. As of Thursday, bitcoin was trading at over $93,000, according to Coinmetrics, a roughly 26% decline from its record high.
These price swings may seem large but they are normal in relation to bitcoin’s history.
Bitcoin’s price movement is often referred to in “cycles.” Generally, the bitcoin cycle refers to a four-year pattern of price movement that revolves around a key event known as the halving, a change to mining rewards that is written in bitcoin’s code. While there are signs that the typical timing and patterns of the cycles could be changing, the range of price movements appears to be consistent.
In the current cycle, bitcoin has already weathered a 32.7% pullback from March to August 2024 and a 31.7% decline between January and April 2025, according to CoinDesk Data.
“Looking at previous cycles, volatility of this magnitude appears consistent with long-term trends,” Jacob Joseph, senior research analyst at CoinDesk Data, told CNBC.
Bitcoin’s ups and downs can be seen across its history.
During the 2017 cycle, there were drawdowns of around 40% twice that year and then a 29% decline in November before bitcoin reached a new record high in December.
Looking back at the 2021 cycle, bitcoin recorded declines of 31.2% in January that year and 26% in February. There was a more than 55% correction between April and June 2021 as China banned bitcoin mining. The asset then rallied to a new high in November that year.
“While deeper mid-cycle corrections have certainly occurred, nearly all of them — aside from the mining-ban-drop in 2021 — took place within a broader bullish structure, often holding above key technical levels such as its 50-week moving average,” Joseph said.
What has driven market moves?
Beginning Oct. 10, more than 1.6 million traders suffered a combined $19.37 billion erasure of leveraged positions over a 24-hour period. Many traders were forced out of their positions and the impact of that cascaded across the industry.
That effect is still being felt, according to Lucy Gazmararian, founder of Token Bay Capital.
“[It was the] biggest liquidation event in crypto’s history and that takes quite a few weeks to see the fallout from that and for the market to consolidate,” Gazmararian told “Access Middle East” on Thursday.
“It also coincided at a time when there’s a lot of concern that we are reaching the end of a bull market … so that has increased the levels of fear out there in the market.”
In the past, when the bull market ends and there is a period of depressed prices, often dubbed a “crypto winter,” bitcoin has tended to sit 70% to 80% below its all-time high. This has not yet happened. But concern about this coming to pass is weighing on investors’ minds.
“Really the timing of the drop, where we are in the cycle, that’s making investors cautious in case we do see that 80% drop,” Gazmararian said.
Inside Horizon Quantum’s office in Singapore on Dec. 3, 2025. The software firm claimed it is the first private company to deploy a commercial quantum computer in the city-state.
Sha Ying | CNBC International
Singapore-based software firm Horizon Quantum on Wednesday said it has become the first private company to run a quantum computer for commercial use in the city-state, marking a milestone ahead of its plans to list in the U.S.
The start-up, founded in 2018 by quantum researcher Joe Fitzsimons, said the machine is now fully operational. It integrates components from quantum computing suppliers, including Maybell Quantum, Quantum Machines and Rigetti Computing.
According to Horizon Quantum, the new computer also makes it the first pure-play quantum software firm to own its own quantum computer — an integration it hopes will help advance the promising technology.
“Our focus is on helping developers to start harnessing quantum computers to do real-world work,” Fitzsimons, the CEO, told CNBC. “How do we take full advantage of these systems? How do we program them?”
Horizon Quantum builds the software tools and infrastructure needed to power applications for quantum computing systems.
“Although we’re very much focused on the software side, it’s really important to understand how the stack works down to the physical level … that’s the reason we have a test bed now,” Fitzsimons said.
Quantum race
Horizon Quantum hopes to use its new hardware to accelerate the development of real-world quantum applications across industries, from pharmaceuticals to finance.
Quantum systems aim to tackle problems too complex for traditional machines by leveraging principles of quantum mechanics.
For example, designing new drugs, which requires simulating molecular interactions, or running millions of scenarios to assess portfolio risk, can be slow and computationally costly for conventional machines. Quantum computing is expected to provide faster, more accurate models to tackle these problems.
A top executive at Google working on quantum computers told CNBC in March that he believes the technology is only five years away from running practical applications.
Still, today’s quantum systems remain in the nascent stages of development and pose many engineering and programming challenges.
Investment in the space has been rising, however, as major tech companies report technological breakthroughs. Alphabet, Microsoft, Amazon and IBM, along with the U.S. government, are already pouring millions into quantum computing.
Investor attention also received a bump in June after Nvidia chief executive Jensen Huang offered upbeat remarks, saying quantum computing is nearing an “inflection point” and that practical uses may arrive sooner than he had expected.
Nasdaq listing
Horizon Quantum’s announcement comes ahead of a merger with dMY Squared Technology Group Inc., a special purpose acquisition company. The deal, agreed upon in September, aims to take Horizon public on the Nasdaq under the ticker “HQ.”
The software firm said in September that the transaction valued the company at around $503 million and was expected to close in the first quarter of 2026.
The launch of its quantum computer also helps cement Singapore’s ambition to be a regional quantum computing hub. The city-state has invested heavily in the technology for years, setting up its first quantum research center in 2007.
Before Horizon Quantum’s system came online, Singapore reportedly had one quantum computer, used primarily for research purposes. Meanwhile, U.S.-based firm Quantinuum plans to deploy another commercial system in 2026.
Singapore’s National Quantum Strategy, unveiled in May 2024, committed 300 million Singapore dollars over five years to expand the sector, with a significant portion directed toward building local quantum computer processors.
In May 2024, the National Quantum Strategy (NQS), Singapore’s national quantum initiative, pledged around S$300 million over five years to strengthen development in the sector, with a significant portion directed toward building local quantum computer processors.
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