NetChoice v. Hilgers
Issue
In *NetChoice v. Hilgers*, the State of Iowa and 25 co-amici argue that Nebraska's Parental Rights in Social Media Act — which requires parental consent before platforms may create accounts for minors — regulates a commercial contracting transaction rather than speech, and therefore triggers no First Amendment scrutiny at all. Even if scrutiny applies, the amici contend that NetChoice cannot satisfy the demanding facial-overbreadth standard established in *Moody v. NetChoice*, 603 U.S. 707 (2024), because the Act has plainly constitutional applications to young children that NetChoice has made no showing to overcome. A separate threshold question is whether NetChoice can stack associational standing on top of third-party standing to assert the constitutional rights of platform users who are strangers to the association.
What Happened
Twenty-six states and the District of Columbia, led by Iowa Attorney General Eric Wessan, filed a motion for leave to file an amicus brief in the District of Nebraska on June 12, 2026, in support of Defendant Hilgers's opposition to NetChoice's motion for a preliminary injunction against enforcement of L.B. 383. The brief argues that account creation is purely a contractual act — involving data licensing, arbitration waivers, and liability releases — and that any restriction on speech flows only from the platform's own business decision to bundle speech with that contract, meaning heightened scrutiny is never triggered. Relying on the Fifth Circuit's recent decision in *NetChoice v. Fitch*, 134 F.4th 799 (5th Cir. 2025), amici argue that *Moody*'s substantial-overbreadth standard defeats the facial challenge at the preliminary injunction stage because NetChoice has identified no applications that outweigh the Act's unquestionably valid reach over young children. The brief further urges the court to reject NetChoice's standing theory as an impermissible "derivative" chain — associational standing piggybacked onto third-party standing — a structure rejected by both the Third and Eighth Circuits. Amici also ask the court to weigh platforms' equitable posture against injunctive relief, citing internal suppression of teen-harm research and a prior NetChoice expert submission withdrawn for AI-fabricated citations.
Why It Matters
This brief is a coordinated state-AG effort to translate *Moody v. NetChoice* into an early-stage litigation shield — pressing courts to deny preliminary injunctions against minor-protection statutes before plaintiffs can build a full record of unconstitutional applications, a theory the Fifth Circuit has now endorsed and which the Eighth Circuit has not yet addressed in this posture. The "commercial transaction" framing is the most aggressive doctrinal move: if courts accept that account-creation regulation is categorically outside the First Amendment, states could gate nearly any platform interaction on consent requirements without triggering scrutiny, a line no court has yet drawn clearly. The derivative-standing argument presents a genuine structural question that could cut off facial challenges to state social-media laws at the threshold, independent of the merits, and its resolution in the Eighth Circuit would carry significant weight in parallel litigation across the country. Readers should note, however, that amici's reliance on *TikTok v. Garland* overstates a holding the Supreme Court expressly left open, and that the "young children" defense does not answer the harder constitutional question the Act raises for 16- and 17-year-olds.
Related Filings
Other proceedings in the same litigation tracked by this monitor.
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