TikTok Is Funding Montana Users’ Suit Against Ban

28tiktok suit 01 cghq facebookjumbo.jpg
28tiktok suit 01 cghq facebookjumbo.jpg

When five TikTok creators in Montana filed a lawsuit last month, saying the state’s new ban of the app violated their First Amendment rights and far outstripped the government’s legal authority, it appeared to be a grass-roots effort.

One relevant fact that the creators and TikTok didn’t mention: The company is financing their case.

For more than a month, the popular video service deflected questions about its involvement in the suit. When the case was filed, TikTok said it was weighing whether to file a separate one — a move the company made several days later.

This week, Jodi Seth, a spokeswoman for TikTok, acknowledged that it was paying for the users’ lawsuit after two of them told The New York Times about the company’s involvement.

“Many creators have expressed major concerns both privately and publicly about the potential impact of the Montana law on their livelihoods,” Ms. Seth said. “We support our creators in fighting for their constitutional rights.”

While TikTok is funding the lawsuit, the creators said, the company is not paying them directly for their role.

TikTok’s financing illustrates how central its users in Montana are to the company’s effort to combat the ban, which is set to go into effect on Jan. 1. Gov. Greg Gianforte, a Republican, signed the bill last month, citing concerns that TikTok, which is owned by the Chinese internet giant ByteDance, could expose private user data to the Beijing government. TikTok says it has never been asked to provide, nor provided, U.S. user data to Beijing.

The company is relying on the group of Montana residents to show how the ban would harm users rather than protect them. The strategy in Montana is similar to the one it deployed in 2020 after President Donald J. Trump issued an executive order barring TikTok from operating in the United States. At that time, too, TikTok covertly funded a lawsuit brought by creators, The Wall Street Journal reported, and the action fended off the ban. TikTok is not required to disclose its funding of cases.

TikTok has sought to highlight its users in front of lawmakers and in marketing, putting faces to the app in Montana and nationally as calls for bans have increased since November. The company featured creators in a recent “TikTok Sparks Good” campaign and flew TikTok stars to Capitol Hill in March when its chief executive testified before Congress.

“From a public relations point of view, the lawyers may think it works better if the public sees the creators as entirely independent of TikTok, as little people who are being harmed rather than being agents or emissaries of TikTok,” said Stephen Gillers, a professor emeritus of legal ethics at New York University School of Law.

He said filing separate suits was strategically sound for the company, as the creators’ case could be stronger than TikTok’s complaint “because the creators can claim a personal First Amendment interest in challenging the Montana law.”

Some of the Montana creators named in the suit declined to talk about how they had been brought into the effort. But two others discussed being contacted by lawyers for TikTok, including Heather DiRocco, a 36-year-old mother of three in Bozeman who has 200,000 followers on the app.

Ms. DiRocco’s TikTok account often contains comedy videos in which she riffs about her previous experiences as a woman in the Marines. She took a more serious turn in March after she learned about Montana’s bill, urging other residents to use an #MTlovesTikTok hashtag in videos and to call the governor’s office to voice opposition. A few weeks later, she posted a video criticizing how lawmakers had grilled TikTok’s chief executive at the March congressional hearing.

TikTok’s lawyers reached out to Ms. DiRocco in April to see if she would be interested in being a plaintiff in a suit challenging the bill. She was intrigued, she said, after learning she would not have to pay Davis Wright Tremaine, the law firm leading the challenge, and reading about how the firm represented the TikTok creators who successfully challenged the federal ban in 2020.

“I was like, you know what, I would love to help out with this because I already don’t like it, I’m already advocating for it on my channel,” Ms. DiRocco said. “I’d love to be a part of this so it can go further than what I can get it to do.”

The firm said it had contacted many creators who expressed concerns about the Montana law and let them know that if they wanted to fight the ban, TikTok would help file and pay for a lawsuit.

“The fact that TikTok is paying for the suit is irrelevant to the legal merits of the case,” said Ambika Kumar, one of the firm’s lawyers and the lead attorney for the creators.

The creators in the lawsuit have been thrust into the national spotlight and have faced questions about why they are standing up for TikTok. All five said they loved the app. While most earn some money from it, Alice Held, a 25-year-old college student in Missoula with 217,000 followers on TikTok, said she had joined the effort even though she made, “at most, $15 a month” from video views.

“They chose a pretty diverse range of plaintiffs when I think about all of our backgrounds — there’s a veteran, a business owner, a rancher who lives in rural Montana,” Ms. Held said. “The young person slash student perspective is probably the role I play within the five of us.”

She was motivated to join the suit by her belief in free speech and her view that the concerns about Chinese government access to TikTok data were overblown, Ms. Held said. “When people ask what’s my stake, it goes back to the First Amendment rights and free speech and wanting to protect that for Montanans,” she said.

Another plaintiff, Samantha Alario, who lives Missoula, said the platform enabled her to reach customers for her swimwear brand whom she would not be able to connect with on sites like Facebook and Instagram. She said the group represented “normal, everyday folks” who used the app.

“We are not TikTok stars,” Ms. Alario, 35, said. “We walked into the lion’s den almost a whole week before TikTok decided to come and back us up on this, because we see how important this is.”

Jameel Jaffer, the executive director of Columbia University’s Knight First Amendment Institute, said that the users’ lawsuit put the focus on how Montana’s ban would harm Americans and that he expected the courts to strike it down.

“TikTok is an American company and has First Amendment rights, but there has been rhetoric in Montana and the federal government suggesting that TikTok’s connections to China mean it’s not an ordinary First Amendment actor,” Mr. Jaffer said.

The lawsuit “really emphasizes that this isn’t just about the rights of TikTok, let alone the rights of ByteDance,” he added. “It’s about the rights of TikTok’s users, including its American users, and I think that’s a really important point to make.”

Previous articleTikTok funds lawsuit by Montana users challenging statewide ban
Next articleBest Curling Irons (2023): Tongs, Wands, Hot Brushes
Expert tech and gaming writer, blending computer science expertise