Last month, five TikTok creators in Montana filed a lawsuit arguing that the state’s new ban on the app violated their First Amendment rights and went well beyond the government’s legal purview, which appears to be the case. A grassroots effort.
A related fact that the creators and TikTok didn’t mention: the company is funding their case.
The popular video service has evaded questions about its involvement in the lawsuit for more than a month. In filing the lawsuit, TikTok said it was considering whether to file a separate lawsuit — a move the company took days later.
This week, TikTok spokeswoman Jodi Seth acknowledged that TikTok was paying for lawsuits by users after two users told The New York Times about the company’s involvement.
“Many creators have privately and publicly expressed serious concerns about the potential impact of Montana’s law on their livelihoods,” Ms. Seth said. “We support our creators in their fight for constitutional rights.”
The creators said that while TikTok funded the lawsuit, the company did not pay them directly.
TikTok’s financing shows that users in Montana are critical to the company’s efforts to fight the ban. The ban will take effect on January 1. Republican Gov. Greg Gianforte signed the bill last month, citing concerns that TikTok, the company owned by Chinese internet giant ByteDance, could leak private user data to the Beijing government. TikTok said it was never asked to provide Beijing with U.S. user data, and has not provided it.
The company relied on groups of Montana residents to show how the ban would harm rather than protect users. Montana’s strategy is similar to that deployed in 2020 after President Donald J. Trump issued an executive order banning TikTok from operating in the United States. At the time, TikTok also secretly funded lawsuits brought by creators, WSJ to report, an action that defends against the ban. TikTok is not required to disclose the funding of its case.
Since November, as calls for a ban have grown, TikTok has sought to highlight its users before lawmakers and in marketing, giving the app a presence in Montana and across the country. The company featured creators at its recent “TikTok Sparks Good” event and flew TikTok stars to Capitol Hill in March when the CEO testified before Congress.
“From a public relations standpoint, lawyers may have argued that it would be better if the public viewed creators as completely independent from TikTok, as little people who were harmed, rather than TikTok’s agents or envoys,” New York Emeritus Professor of Legal Ethics at the University Law School.
“
Some of the Montana creators named in the lawsuit declined to say how they got involved with the work. But two others discussed TikTok lawyer connections, including Heather DiRocco, a 36-year-old Bozeman mother of three who has 200,000 followers on the app.
Ms. DiRocco’s TikTok account often includes comedic videos in which she recounts her former experiences as a woman in the Marine Corps. In March, after learning of Montana’s bill, she took a more serious approach, urging other residents to use the hashtag #MTlovesTikTok in videos and calling the governor’s office to express dissent. A few weeks later, she posted a video criticizing the way lawmakers grilled the TikTok CEO at a congressional hearing in March.
Attorneys for TikTok contacted Ms. DiRocco in April to ask if she would be interested in becoming a plaintiff in a lawsuit challenging the act. She said she was intrigued to learn that she would not have to pay Davis Wright Tremaine, the law firm leading the challenge, and to see how the firm represented TikTok creators who successfully challenged a federal ban in 2020.
“I was like, you know what, I’d love to help out with this because I don’t like it anymore, I’ve advocated for it on my channel,” Ms. DiRocco said. “I’d love to be a part of it so it can go further than I can.”
The company said it has contacted many of the creators who expressed concerns about the Montana law and let them know that TikTok will help file and pay legal costs if they want to fight the ban.
“The fact that TikTok paid for the lawsuit has nothing to do with the legal merits of the case,” said Ambika Kumar, one of the company’s lawyers and the creator’s lead counsel.
The creators in the lawsuit have thrust themselves into the national spotlight and faced questions about why they are supporting TikTok. All five said they loved the app. While most make some money from it, Missoula college student Alice Held, 25, has 217,000 followers on TikTok.
“When I considered all of our backgrounds, they had a pretty diverse set of plaintiffs — there was a veteran, a business owner, a rancher who lived in rural Montana,” Ms. Held said . “Young people squint the student’s perspective, which is probably the role I played among the five of us.”
Held said she joined the lawsuit because she believes in free speech and believes concerns about Chinese government access to TikTok data are overblown. “When people ask what my interests are, it comes back to First Amendment rights and free speech and wanting to protect the rights and free speech of Montanans,” she said.
Another plaintiff, Samantha Alario, who lives in Missoula, said the platform allowed her to reach customers for her swimwear brand that she couldn’t reach on sites like Facebook and Instagram. client. She said the group represented “average people” who use the app.
“We are not TikTok stars,” Ms. Arario, 35, said. “Before TikTok decided to come and support us, we almost walked into the lion’s den because we saw how important it was.”
Jameel Jaffer, executive director of the Knight First Amendment Institute at Columbia University, said the user lawsuits focus on how Montana’s ban would hurt Americans, and he expected the courts to strike down the ban.
“TikTok is an American company with First Amendment rights, but there has been rhetoric from the state of Montana and the federal government that TikTok’s ties to China mean it’s not an ordinary First Amendment actor,” Jaffer said.
He added that the lawsuit “does emphasize that this is not just about TikTok’s rights, and it’s not about ByteDance’s rights.” “This is about the rights of TikTok users, including the rights of users in the United States, and I think this is a very important point.”
