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.”
Meta CEO Mark Zuckerberg has repositioned the social media giant as an AI company.
Vincent Feuray | AFP | Getty Images
Meta Platforms shares popped about 4% higher on Thursday after Bloomberg reported that CEO Mark Zuckerberg was looking to make significant cuts to the company’s metaverse resources.
Bloomberg said that executives have considered budget cuts as high as 30% for the unit, citing people familiar with the talks.
The move would be notable for the Facebook parent company, which changed its name to Meta in October 2021 to signal its pivot beyond social media.
Zuckerberg said at the time that “the metaverse is the next frontier just like social networking was when we got started.”
The proposed cuts would likely include layoffs, according to Bloomberg, which said the cuts were part of budget planning for 2026. The cuts will likely hit the company’s virtual reality group.
Meta did not immediately respond to a request for comment.
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Meta’s Reality Labs unit, which develops the Quest family of VR headsets and Ray-Ban and Oakley AI smart glasses, reported a $4.4 billion loss in the company’s most recent quarter.
The division had recorded over $70 billion in cumulative losses since late 2020 as of the third-quarter report.
When Nvidia this week said it would take a $2 billion stake in chip design company Synopsys, it was just the latest in a string of massive investments announced by the chipmaker this year.
That doesn’t even include the biggest commitment of all: $100 billion to buy OpenAI shares over a number of years, although there is still no definitive agreement, Nvidia finance chief Colette Kress said Tuesday.
It’s a lot of money and a lot of deals, but Nvidia’s got the cash to write big checks.
At the end of October, Nvidia had $60.6 billion in cash and short-term investments. That’s up from $13.3 billion in January 2023, just after OpenAI released ChatGPT. That launch three years ago was key to making Nvidia’s chips the most valuable tech product.
As Nvidia has transformed from a maker of gaming technology into the most valuable U.S. company, its balance sheet has become a fortress, and investors are increasingly wondering what the company will do with its cash.
“No company has grown at the scale that we’re talking about,” said CEO Jensen Huang, when asked what the company plans to do with all its cash, on Nvidia’s earnings call last month.
Analysts polled by FactSet expect the company to generate $96.85 billion in free cash flow this year alone and $576 billion in free cash flow over the next three years.
Some analysts would like to see Nvidia spend more of its cash on share repurchases.
“Nvidia is set to generate over $600B in free cash flow over the next few years and it should have a lot left over for opportunistic buybacks,” wrote Melius Research analyst Ben Reitzes in a note on Monday.
The company’s board increased its share repurchase authorization in August, adding $60 billion to its total. In the first three quarters of the year, it spent $37 billion on share repurchases and dividends.
“We’re going to continue to do stock buybacks,” Huang said.
Nvidia is doing the buybacks, but it’s not stopping there.
Huang said that Nvidia’s balance sheet strength gives its customers and suppliers confidence that orders in the future, which he called offtake, will be filled.
“Our reputation and our credibility is incredible,” Huang said. “It takes a really strong balance sheet to do that, to support the level of growth and the rate of growth and the magnitude associated with that.”
Kress, Nvidia’s CFO, on Tuesday said that the company’s “largest focus” is making sure it has enough cash to deliver its next-generation products on time. Most of Nvidia’s largest suppliers are equipment manufacturers like Foxconn and Dell, which can require that Nvidia provide working capital to manage inventory and build additional manufacturing capacity.
Huang called his company’s strategic investments “really important work” and said that if companies like OpenAI grow, it drives additional consumption of AI and Nvidia’s chips. Nvidia has said that it does not require any of its investments to use its products, but they all do anyway.
“All of the investments that we’ve done so far — all of it, period — is associated with expanding the reach of Cuda, expanding the ecosystem,” Huang said, referring to the company’s AI software.
In an October filing, Nvidia said it had has already made $8.2 billion in investments in private companies. For Nvidia, those investments have replaced acquisitions.
Nvidia’s $7 billion acquisition of Mellanox in 2020 is the largest the company has ever made, and it laid the groundwork for its current AI products, which aren’t single chips but entire server racks that sell for around an estimated $3 million.
But the company faced regulatory issues when it tried to buy chip technology firm Arm for $40 billion in 2020.
Nvidia called off the deal before it could be completed after regulators in the U.S. and UK raised concerns about its effects on competition in the chip industry. Nvidia has purchased some smaller companies in recent years, to bolster its engineering teams, but it hasn’t completed a multi-billion acquisition since the Arm deal failed.
“It’s hard to think about very significant, large types of M&A,” Kress this week said, speaking at an investor conference. “I wish one would come available, but it’s not going to be very easy to do so.”
A sign at a NYS Department Of Labor job fair at the Downtown Central Library in Buffalo, New York, US, on Wednesday, Aug. 27, 2025.
Lauren Petracca | Bloomberg | Getty Images
This is CNBC’s Morning Squawk newsletter. Subscribe here to receive future editions in your inbox.
Here are five key things investors need to know to start the trading day:
1. Silver linings playbook
Yesterday highlighted the relevance of a market adage: Bad news can actually be good news for investors. After private payroll data showed weakness in the labor market, stocks climbed as investors hoped the report would strengthen the case for an interest rate cut at the Federal Reserve’s meeting next week.
Here’s what to know:
The ADP reported a surprise decline of 32,000 jobs in November. Economists surveyed by Dow Jones were forecasting a gain of 40,000.
The Dow Jones Industrial Average rallied more than 400 points in Wednesday’s session, pulling the 30-stock index into positive territory for the week.
Traders are now pricing in a roughly 89% likelihood of a rate cut, up from under 70% a month ago, according to CME’s FedWatch tool.
Data released by Challenger, Gray & Christmas this morning also showed layoff announcements this year totaled the most since 2020, another sign of the labor market’s slowdown.
Speaking of tariffs, Treasury Secretary Scott Bessent said that the Trump administration can replicate the sweeping levies if the Supreme Court rules the president exceeded his authority to enact the duties.
Salesforceblew past earnings per share expectations for the third quarter, sending shares higher in today’s premarket. While the company’s quarterly revenue came in slightly under Wall Street’s consensus forecast, Salesforce offered stronger-than-anticipated revenue guidance for the current three-month period.
Salesforce also said annualized revenue from its Agentforce AI software jumped 330% year over year. The firm set a better-than-expected revenue target of $60 billion for fiscal 2030 for Agentforce.
3. Jensen’s jaunt
Nvidia President and CEO Jensen Huang speaks to the media as he arrives for a meeting with the Senate Banking Committee on Capitol Hill on December 3, 2025 in Washington, DC.
Anna Moneymaker | Getty Images
Nvidia CEO Jensen Huang returned to Washington, D.C. yesterday to meet with Trump and discuss chip export restrictions. Huang then went to Capitol Hill, where lawmakers are weighing whether to approve a rule that would limit AI chip exports.
Huang said the Guaranteeing Access and Innovation for National Artificial Intelligence Act — known as the GAIN AI Act — “is even more detrimental to the United States than the AI Diffusion Act.” Huang also broke with some of his fellow AI executives by slamming state-by-state AI regulation. Such oversight would “drag this industry into a halt” and would “create a national security concern,” he said.
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4. Vaccination vote
Massachusetts Institute of Technology professor Retsef Levi speaks during an Advisory Committee on Immunization Practices meeting at the Centers for Disease Control and Prevention in Atlanta, Sept. 19, 2025.
Alyssa Pointer | Reuters
Health and Human Services Secretary Robert F. Kennedy Jr.’s hand-picked Advisory Committee on Immunization Practices is slated to vote today. On the docket: whether to change its longstanding recommendation that babies gets the hepatitis B vaccination within 24 hours of birth.
While it’s unclear how the committee will rule, any change to the recommendation would have major impacts within public health. Some experts caution that doing away with the decades-old recommendation could lead to a higher rate of chronic infections in children.
5. New terrain
GM Chief Product Officer Sterling Anderson during the automaker’s “GM Forward” event on Oct. 22, 2025 in New York City.
Anderson’s remit includes overseeing “the end-to-end product lifecycle” of GM’s vehicles, according to the company. He told CNBC that the he wants to see a faster rate of innovation and create a “unified approach” to product.
Also helping General Motors: Trump’s decision to cut tariffs on South Korea. The company is the second-largest new vehicle importer from the country, behind South Korea-based Hyundai Motor.
Current-quarter earnings per share impact: 25 cents
— CNBC’s Sean Conlon, Jeff Cox, Kevin Breuninger, Jordan Novet, Annie Palmer, Ashley Capoot, Annika Kim Constantino, Mike Wayland and Leslie Josephs contributed to this report. Josephine Rozzelle edited this edition.