When five TikTok creators in Montana filed a lawsuit last month, saying the state’s new ban on the app violated their First Amendment rights and far exceeded the government’s legal authority, it seemed like an attempt of the base.
A relevant fact that the creators and TikTok failed to mention: the company funds their cause.
For more than a month, the popular video service averted questions about its involvement in the lawsuit. When the case was filed, TikTok said it was considering whether to file a separate case — a move the company made several days later.
This week Jodi Seth, a TikTok spokeswoman, acknowledged that it paid for the users’ lawsuit after two of them told The New York Times about the company’s involvement.
“Many creators have expressed deep concerns both privately and publicly about the potential impact of the Montana law on their livelihoods,” Ms. Seth said. “We support our creators in their fight for their constitutional rights.”
While TikTok is funding the lawsuit, the creators said, the company is not paying them directly for their roles.
TikTok’s funding illustrates how important Montana users are to the company’s efforts to fight the ban, which will take effect on January 1. Gov. Greg Gianforte, a Republican, signed the bill into law last month, citing concerns that TikTok, which is owned by Chinese internet giant ByteDance, could release private user data to the Beijing government. TikTok says it has never been asked to provide or provide US user data to Beijing.
The company relies 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 in 2020 after President Donald J. Trump issued an executive order banning TikTok from operating in the United States. Also at the time, TikTok covertly funded a lawsuit filed by creators, The Wall Street Journal reported, and the action repelled the ban. TikTok is under no obligation to disclose its financing business.
TikTok has been trying to get its users in front of lawmakers and in marketing, drawing faces to the app in Montana and nationally as calls for bans have escalated since November. The company featured creators in a recent “TikTok Sparks Good” campaign and flew TikTok stars to Capitol Hill in March when the CEO testified before Congress.
“From a public relations point of view, the advocates may think it works better if the public sees the creators as completely independent from TikTok, as little people being harmed rather than agents or emissaries of TikTok,” said Stephen Gillers, an emeritus professor of legal ethics at New York University School of Law.
He said filing separate lawsuits made strategic sense 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 law of Montana.”
Some of the Montana makers named in the suit declined to talk about how they were involved in the effort. But two others discussed contacting 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 features comedic videos where she talks about her past experiences as a woman in the Marines. She took a more serious turn in March after learning about the Montana bill, urging other residents to use a #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 CEO during the congressional hearing in March.
TikTok’s lawyers contacted Ms. DiRocco in April to see if she would be interested in serving as plaintiff in a lawsuit against the bill. She was intrigued, she said, after learning she wouldn’t have to pay Davis Wright Tremaine, the law firm that led the challenge, and read about how the company represented TikTok creators who successfully challenged the 2020 federal ban .
“I was like, you know what, I’d love to help 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 beyond what I can make it do.”
The company said it had reached out to many creators expressing concerns about Montana’s law and informed them that if they wanted to challenge the ban, TikTok would help file and pay for a lawsuit.
“The fact that TikTok is paying for the lawsuit is irrelevant to the legal grounds of the case,” said Ambika Kumar, one of the company’s lawyers.
The creators in the lawsuit have been thrust into the national spotlight and have received questions about why they are championing TikTok. All five said they loved the app. While most make some money off it, Alice Held, a 25-year-old college student in Missoula with 217,000 followers on TikTok, said she joined the effort even though she was earning “up to $15 a month” from video views.
“They chose a pretty diverse range of claimants when I think about all of our backgrounds — there’s a veteran, a business owner, a rancher living in rural Montana,” Ms. Held said. “The perspective of the younger slash student is probably the role I play within the five of us.”
She was motivated to join the lawsuit by her belief in freedom of expression and her view that concerns about the Chinese government’s access to TikTok data were exaggerated, Ms Held said. “When people ask what my commitment is, it goes back to First Amendment rights and free speech and that I want to protect that for Montanans,” she said.
Another accuser, Samantha Alario, who lives in Missoula, said the platform allowed her to reach customers for her swimwear brand who she wouldn’t be able to connect with on sites like Facebook and Instagram. She said the group represented “normal, everyday people” using the app.
“We are not TikTok stars,” said 35-year-old Ms Alario. “We walked in the lion’s den for almost a whole week before TikTok decided to support us in this because we see how important this is.”
Jameel Jaffer, the executive director of Columbia University’s Knight First Amendment Institute, said the users’ lawsuit focused on how Montana’s ban would harm Americans and that he expected the courts to strike it down.
“TikTok is a US company and has First Amendment rights, but there is rhetoric in Montana and the federal government suggesting that TikTok’s connections to China mean it is not a regular First Amendment actor,” Jaffer said.
The lawsuit “really highlights that it’s not just about TikTok’s rights, let alone ByteDance’s rights,” he added. “It’s about the rights of TikTok users, including the US users, and I think that’s a really important point to make.”