How an obscure legal doctrine called the Henderson test could weaken Section 230 and change free speech on the internet

A legal test which on Google lawyer said the Supreme Court is roughly “96 percent correct” could dramatically erode the liability shield the company and other tech platforms have relied on for decades, according to several experts who advocate for the law to be upheld 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 talks and briefings after oral arguments in Gonzalez v. Google. Some of those who criticized Google’s discount even work for groups supported by the company.

Section 230 is the law that protects the ability of technology platforms to host material from users — such as social media posts, uploaded video and audio files, and comments — without being held legally responsible for their content. It also allows platforms to moderate their services and remove posts they deem objectionable.

The law is central to the issue to be decided by the Supreme Court in the Gonzalez case, which asks whether platforms like on Google YouTube may be liable for algorithmically recommending user posts that appear to support or promote terrorism.

In Tuesday’s arguments, the justices appeared hesitant to issue a ruling that would change Section 230.

But even if they avoid commenting on that law, they could still issue warnings that change how it’s applied or clear the way for changing the law in the future.

One way the Supreme Court could undermine Section 230 is by endorsing the Henderson test, some advocates say. Ironically, Google’s own lawyers may have given the court more confidence to approve this test if it chose to do so.

The Henderson test stems from a November ruling by the Fourth Circuit Court of Appeals in Henderson v. Public Data Source. The plaintiffs in that case sued a group of companies that collect public information about individuals, such as criminal records, voting records and driving information, then put it into a database that they sell to third parties. The plaintiffs allege 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 an appeals court overturned that decision.

The appeals court wrote that for the Section 230 defense to apply, “we require that the defendant be held liable for any inappropriate content in 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 that Public Data was responsible for the content because it decided how to present it, even though the information was derived from other sources. The court said it was plausible that some of the information sent by the public record to one of the claimant’s potential employers was “inaccurate because it omitted or summarized information in a way that made it misleading.” In other words, once Public Data has made changes to the downloaded information, it has become a provider of information content.

If the Supreme Court upholds Henderson’s ruling, it would effectively “challenge Section 230,” said Jess Miers, legal affairs attorney for the Chamber of Progress, a left-of-center industry group that counts Google among its supporters. Myers said that’s because the main benefit of Section 230 is to help quickly dismiss cases against platforms that focus on user posts.

“It’s a really dangerous test because it again encourages plaintiffs to then just plead their claims in ways that say we’re not talking about how inappropriate the content is,” Myers said. “We’re talking about how the service collected 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 decision if accepted by SCOTUS.”

“It was shocking to me to see Google support Henderson’s opinion because it is 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 is good for Google, it’s good for us,’ we will actually see a dramatic narrowing of Section 230, where plaintiffs will find many other avenues to bring lawsuits that are based on content on third side. They’ll just say they’re based on something other than the harm that’s in the third-party content itself.”

Google pointed to the portions of its memo 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 display snippets of third-party information from those of a credit reporting website such as Henderson’s.

In the case of a chat room, Google says, although “the operator provides the organization and layout, the underlying posts are still third-party content,” meaning it would be covered by Section 230.

“In contrast, when a credit reporting website fails to provide consumers with its own required statement of consumer rights, section 230(c)(1) does not preclude liability,” Google wrote. “Even if the website also publishes third-party content, the failure to summarize user rights and provide this information to customers is solely the action of the website.”

Google also said that 230 would not apply to a website that “requires users to transmit allegedly illegal preferences,” such as those that would violate housing laws. This is because by “’material contribution to [the content’s] illegality,’ the website makes that content its own and is responsible for it,” Google said, citing the 2008 case San Fernando Valley Fair Housing Council v. Roommates.com.

Section 230 experts reworking the Supreme Court’s arguments were baffled by Google’s lawyer’s decision to give such blanket approval to Henderson. In trying to make sense of this, several suggested that it may have been a strategic decision to try to show the justices that Section 230 is not a limitless free pass for tech platforms.

But in doing so, many believe Google has gone too far.

Kathy Gellis, who represented amici in a brief filed in the case, said at the Chamber of Progress briefing that Google’s attorney probably wanted to illustrate the line of where Section 230 does and does not apply, but “by endorsing it so much broadly, he supported probably more than we expected, and certainly more than the necessary amici would sign.”

Corbin Barthold, an Internet policy adviser at Google-backed TechFreedom, said at a separate press conference that the idea Google may be trying to convey in support of Henderson isn’t necessarily bad in itself. He said they seem to be trying to make the argument that even if you use a definition of publication as laid out by Henderson, organizing information is inherent to what platforms do because “there’s no such thing as just a raw transmission 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 accept Google’s argument that there really isn’t a difference here, it could go in a bad direction,” he added.

Miers speculated that Google may have seen the Henderson case as relatively safe to cite, given that it involved an alleged violation of the Fair Credit Reporting Act rather than a matter of a user’s social media post.

“Maybe Google’s lawyers were looking for a way to show the court that there are limits to Section 230 immunity,” Myers said. “But I think in doing so it invites some pretty problematic readings into the Section 230 immunity test, which could have pretty irreparable results for future Internet law litigation.”

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