The ‘Henderson test’ could weaken Big Tech’s favorite law 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
Bloomberg Creative | Bloomberg Creative Photos | Getty Images
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.”
WATCH: Why the Supreme Court’s Section 230 case could reshape the internet
JoeBen Bevirt, founder and CEO of Joby Aviation, stands near an electric air taxi by Joby Aviation at the Downtown Manhattan Heliport in Manhattan, New York City, U.S., November 12, 2023.
Roselle Chen | Reuters
Joby Aviation is ramping up its manufacturing capabilities in the U.S. as it races to roll out air taxi service in 2026.
The electric vertical takeoff and landing (eVTOL) maker said Tuesday that it’s launching production at its remodeled components facility in Dayton, Ohio, and plans to double capacity at its Marina, California, manufacturing hub.
“Reimagining urban mobility takes speed, scale, and precision manufacturing. Our expanded manufacturing footprint in both California and Ohio is preparing us to do just that,” said product chief Eric Allison in a release.
Shares jumped more than 7%, building on a 16% year-to-date gain.
Joby Aviation and competitors such as Archer Aviation and Eve Air Mobility are aiming to roll out eVTOLs worldwide that can ease traffic congestion in crowded city centers, but they are awaiting regulatory approval.
The company is currently in the process of gaining Federal Aviation Administration approval for its vehicles.
Last month, Joby Aviation shares popped on news that it delivered its first eVTOL to the United Arab Emirates, with plans to launch service in the region next year. The company agreed to an exclusive six-year deal to roll out air taxi service in Dubai last February.
Joby said the new facilities will create hundreds of new full-time jobs and underscore its commitment to fostering American innovation. At full capacity, the 435,500-square-foot California factory will manufacture as many as 24 aircraft annually.
The electric air transport company also said the opening coincided with the flight of its sixth aircraft.
Engineers from Toyota will help ramp up aircraft production to 500 annually at the Ohio facility. The companies inked a $500 million deal last year.
Shares of Joby and its competitors have ballooned in value this year as interest in the technology gains steam.
In June, President Donald Trump signed an executive order that included the creation of an air taxi testing program.
WATCH: Joby Aviation CEO on UAE delivery: This is a huge milestone for us
Howard Lutnick, U.S. Secretary of Commerce speaks during the Pennsylvania Energy And Innovation Summit 2025 at Carnegie Mellon University in Pittsburgh on July 15, 2025.
David A. Grogan | CNBC
Commerce Secretary Howard Lutnick on Tuesday said the Trump administration reversed course on allowing Nvidia to sell its AI chips to China because the U.S. company will not be giving over its best technology.
Lutnick made the remark speaking with CNBC’s Brian Sullivan, saying that Nvidia wants to sell China its “4th best” chip, which is slower than the fastest chips that U.S. companies use.
“We don’t sell them our best stuff, not our second best stuff, not even our third best,” Lutnick said.
Nvidia said Monday night that it would soon resume sales of the H20 chip to China after the Trump administration signaled that it would grant the chipmaker necessary export licenses.
Lutnick said that the administration said that the renewed sale of H20 chips to China was linked to a rare-earths magnet deal. Lutnick said it was in U.S. interests to have Chinese companies using American technology so they continue to use an American “tech stack.”
“The fourth one down, we want to keep China using it,” Lutnick said. “We want to keep having the Chinese use the American technology stack, because they still rely upon it.”
Similarly, Nvidia CEO Jensen Huang has said in recent weeks that the U.S. should continue selling his chips to China so Chinese companies don’t invest in homegrown infrastructure. Huang on Sunday also said that the Chinese military wouldn’t use Nvidia chips anyway, and previously signaled that China’s Huawei is a legitimate competitor.
“The idea is the Chinese are more than capable of building their own,” Lutnick said. “You want to keep one step ahead of what they can build, so they keep buying our chips.”
The reversal is a major win for Nvidia. Huang had previously said that the Trump administration’s decision to require a license for the H20 chip in April “effectively closed” the China market. Nvidia said that it could have sold $8 billion in H20 chips in the current quarter before sales were stopped.
The administration reversed its decision after President Donald Trump met with Huang in Washington last week.
“You want to sell the Chinese enough that their developers get addicted to the American technology stack,” Lutnick said. “That’s the thinking.”
The H20 chip was introduced in 2022 in response to Biden administration export controls. It’s based on the same underlying technology as Nvidia’s Hopper-generation chips, which are sold in the U.S. as finished systems using H100 or H200 chips.
The U.S. chipmaker took some features out of the H20 in order to sell it to China, including fewer graphics processing unit cores and lower bandwidth connecting separate parts of the chip. But the success of the DeepSeek R1 model suggested that there were many Chinese companies that were just fine with the slowed-down chips. The China-specific H20 is behind Nvidia’s Blackwell chips, the H100 and the H200, Lutnick said.
Nvidia says that it releases new artificial intelligence chips every year and that serious AI developers should always try to get the latest and greatest versions because the technology is improving so quickly.
The best AI chips broadly available from clouds and system makers today are called Blackwell, and come as a GB200 chip with a paired central processing unit as well as B100 and B200 versions. Nvidia also makes a range of Blackwell-based chips for gaming and graphics that can be used for AI, but they’re generally weaker than the biggest chips designed for data centers.
A successor, called Blackwell Ultra, is only now starting to be installed in data centers, and it’s expected to ramp in volume over the next year. In 2027, Nvidia will release “Vera Rubin” chips.
-
Sports3 years ago‘Storybook stuff’: Inside the night Bryce Harper sent the Phillies to the World Series
-
Sports1 year agoStory injured on diving stop, exits Red Sox game
-
Sports2 years agoGame 1 of WS least-watched in recorded history
-
Sports2 years agoMLB Rank 2023: Ranking baseball’s top 100 players
-
Sports4 years ago
Team Europe easily wins 4th straight Laver Cup
-
Sports2 years agoButton battles heat exhaustion in NASCAR debut
-
Environment2 years agoJapan and South Korea have a lot at stake in a free and open South China Sea
-
Environment2 years agoGame-changing Lectric XPedition launched as affordable electric cargo bike