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 appeared to be a grassroots effort.
A relevant fact that the creators and TikTok did not mention: the company is financing their case.
For more than a month, the popular video service deflected questions about its involvement in the lawsuit. When the case was filed, TikTok said it was weighing whether to file a separate one, a move the company took several days later.
This week, Jodi Seth, a spokeswoman for TikTok, acknowledged that it was paying the demand from users after two of them told The New York Times about the company’s involvement.
“Many creators have expressed serious concerns, both privately and publicly, about the potential impact of the Montana law on their livelihoods,” Ms. Seth said. “We stand with our creators in the fight 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 funding illustrates how central its users in Montana are to the company’s effort to combat the ban, which goes into 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 expose users’ private data to the Beijing government. TikTok says it has never been asked to provide, nor did it 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 he implemented in 2020 after President Donald J. Trump issued an executive order barring TikTok from operating in the United States. At the time, too, TikTok covertly funded a lawsuit brought by the creators, The Wall Street Journal. reported, and the action circumvented the ban. TikTok is not required to disclose its case funding.
TikTok has sought to highlight its users to lawmakers and in marketing, putting faces for 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 brought TikTok stars to Capitol Hill in March when its chief executive testified before Congress.
“From a public relations standpoint, lawyers may think it works better if the public sees creators as completely independent of TikTok, as little people who are 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 was strategically sound for the company, as the creators’ case could be stronger than TikTok’s complaint “because creators can claim a vested First Amendment interest in challenging Montana law.”
Some of the Montana creators named in the lawsuit declined to discuss how they were involved in the effort. But two others spoke about being contacted by TikTok lawyers, 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 talks about her previous experiences as a woman in the Navy. She took a more serious turn in March after learning about the Montana bill, urging other residents to use the hashtag #MTlovesTikTok on videos and call the governor’s office to voice her opposition. A few weeks later, she posted a video in which she criticized how lawmakers had questioned TikTok’s chief executive at the March congressional hearing.
TikTok’s lawyers contacted Ms. DiRocco in April to see if she would be interested in being a plaintiff in a lawsuit challenging the bill. She said she was intrigued after learning she wouldn’t have to pay Davis Wright Tremaine, the law firm leading the challenge, and reading how the firm represented TikTok creators who successfully challenged the federal ban in 2020.
“I was like, you know what, I’d love to help with this because I don’t like it anymore, I’m already championing it on my channel,” Ms. DiRocco said. “I would love to be a part of this so that I can go beyond what I can do.”
The firm said it had contacted many creators who raised concerns about the Montana law, informing them that if they wanted to fight the ban, TikTok would help file and pay a lawsuit..
“The fact that TikTok is paying the lawsuit is irrelevant to the legal merits of the case,” said Ambika Kumar, one of the firm’s lawyers and lead attorney for the creators.
The creators of the suit have risen to the national spotlight and have faced questions about why they are defending TikTok. All five said they loved the app. While most make some money from this, Alice Held, a 25-year-old college student in Missoula with 217,000 TikTok followers, said she had joined the effort despite earning, “at most, $15 a month” for video views.
“They chose a pretty diverse range of plaintiffs when I think about all of our backgrounds: there’s a veteran, there’s a business owner, there’s a rancher who lives in rural Montana,” Ms. Held said. “The perspective of the young student is probably the role I play within the five of us.”
He motivated her to join the lawsuit because of her belief in free speech and her view that concerns about the Chinese government’s access to TikTok data were exaggerated, Held said. “When people ask what my bet is, it goes back to First Amendment rights and free speech and wanting to protect that for Montanans,” she said.
Another plaintiff, Samantha Alario, who lives in Missoula, said the platform allowed her to reach customers of her swimwear brand that she couldn’t connect with on sites like Facebook and Instagram. She said the group represented “ordinary people” who used the app.
“We are not TikTok stars,” said Alario, 35. “We went into the lion’s den almost a whole week before TikTok decided to come and support us on this, because we see how important this is.”
Jameel Jaffer, executive director of Columbia University’s Knight Institute for the First Amendment, said the user lawsuit focused on how Montana’s ban would harm Americans and that he hoped the courts would 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 no ordinary First Amendment actor,” Jaffer said.
The lawsuit “really emphasizes that it’s not just about TikTok’s rights, let alone ByteDance’s rights,” he added. “This is about the rights of TikTok users, including American users, and I think that’s a very important point to keep in mind.”