NetChoice v. Weiser

[11281039] Appellant/Petitioner's brief filed by Philip…

Issue: In *NetChoice v. Weiser*, Colorado Attorney General Philip Weiser argues that a state law requiring social media platforms to deliver health-based disclosures to minor users regulates commercial product speech subject to deferential *Zauderer* scrutiny, not the heightened First Amendment review the district court applied. The question is whether mandated disclosures about a platform's own product risks — grounded in peer-reviewed research rather than purely transactional messaging — qualify as the kind of "purely factual and uncontroversial" commercial speech that *Zauderer* permits governments to compel, or whether *NIFLA v. Becerra* requires stricter scrutiny because the underlying science and framing remain contested. The answer will also determine whether NetChoice's facial challenge can survive *Moody v. NetChoice*'s demanding requirement that courts weigh unconstitutional applications against constitutional ones before enjoining a law in its entirety.

Colorado AG Philip Weiser filed this opening brief in the Tenth Circuit on May 11, 2026, appealing a district court preliminary injunction that blocked enforcement of Section 1601 of Colorado's Healthier Social Media Use by Youth Act. The brief argues the district court made a foundational legal error by treating the law as regulating third-party content moderation rather than the platforms' own compelled product speech — a categorization that, if accepted, would shift the governing standard from heightened scrutiny to *Zauderer*'s more permissive framework. The AG contends the required disclosures are factual and non-ideological, analogizing them to cigarette warnings and alcohol labeling, and argues they are grounded in peer-reviewed research and public-health consensus the platforms themselves do not dispute exists. The brief separately argues that the district court failed to complete *Moody v. NetChoice*'s required second-step analysis — weighing valid applications against invalid ones — before issuing a facial injunction, and that the law's broad platform discretion over format and timing generates a wide range of plainly constitutional applications NetChoice cannot overcome under the *Salerno* "no valid application" standard. Oral argument has been requested.

No federal appellate court has definitively resolved whether *Zauderer*'s deferential framework applies to state laws requiring social media platforms to disclose health-related product risks to minors, and the Tenth Circuit's answer here will carry weight as other states pursue similar legislation. The brief's most consequential doctrinal move is its attempt to sever *Zauderer* from the traditional "proposes a transaction" requirement — a position with some Ninth Circuit support in *CTIA* and *X Corp. v. Bonta* but not yet settled law — which, if adopted, would significantly lower the constitutional bar for youth-focused platform disclosure mandates nationwide. The case also presents a sharp unresolved question under *NIFLA*: whether ongoing scientific debate about the causal relationship between social media use and adolescent mental health renders such disclosures "controversial" and thus ineligible for *Zauderer* treatment, even when the disclosures cite peer-reviewed sources. The AG's offensive use of *Moody* — arguing the district court skipped the required application-weighing analysis — is a notable strategic development, as that precedent has more commonly been invoked by challengers seeking to avoid facial invalidation.