NetChoice v. Hilgers

MOTION for Leave TO FILE A BRIEF OF AMICI CURIAE by…

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.

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against injunctive relief, citing internal suppression of teen-harm research and a prior NetChoice expert submission withdrawn for AI-fabricated citations.

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.

BRIEF in opposition to MOTION for Preliminary Injunction… — Attachment 25

Issue: In *NetChoice v. Hilgers*, Nebraska Attorney General Michael Hilgers argues that LB 383 — the state's social media age-verification and parental consent law — regulates commercial contracting with minors rather than protected speech, and that NetChoice therefore cannot demonstrate the First Amendment injury necessary to obtain a preliminary injunction. The case raises whether a trade association can assert the First Amendment rights of platform users who are not its members, and whether facial-challenge doctrine under *Moody v. NetChoice* permits invalidation of a law whose unconstitutional applications, if any, do not substantially outweigh its constitutional ones.

Nebraska AG Michael Hilgers filed this opposition brief on June 5, 2026, in response to NetChoice's motion for a preliminary injunction seeking to block enforcement of LB 383 before it takes effect. The brief makes four principal arguments: that NetChoice lacks associational or third-party standing to vindicate platform users' rights; that the law's age-verification and parental-consent requirements target a business model, not expressive activity, and therefore fall outside First Amendment scrutiny; that the law satisfies either intermediate or strict scrutiny given Nebraska's interests in minor welfare and parental rights; and that NetChoice's approximately 13-month delay in seeking emergency relief defeats any claim of irreparable harm. On the merits, Defendant draws on *TikTok v. Garland* and *City of Austin* to press the content-neutrality point, while invoking *Troxel v. Granville* and *Mahmoud v. Taylor* to support parental rights as a compelling state interest. The State asks the court to deny the injunction outright, and urges severance rather than facial invalidation if any individual provision is found constitutionally infirm.

This brief consolidates the emerging state-level defense playbook for social media age-restriction statutes, aggregating post-*Moody* arguments being tested in parallel litigation across multiple circuits, making it a useful marker of how state attorneys general are framing these challenges. The standing argument — that platform users, not association members, are the true rights-holders and that NetChoice has not shown those users face a hindrance to self-assertion — is the brief's strongest claim and tracks the tightened third-party standing standard from *FDA v. Alliance for Hippocratic Medicine*. The "conduct not speech" recharacterization is more contested, since courts have generally treated conditions on access to interactive online forums as burdening speech rather than merely regulating commercial transactions, and how district courts resolve that threshold question will shape which tier of scrutiny applies to a wave of similar state laws.