And not for the first time. In 2020, TikTok secretly supported TikTok users who sued over the federal TikTok ban introduced by President Donald Trump. A Wall Street Journal report noted that the 2020 lawsuit was a key part of TikTok's efforts to overturn Trump's ban.
Once again, TikTok sees its users as useful for challenging a ban. Legal experts told the Times that the new lawsuit takes the focus off TikTok's ties to China. Montana TikTokers have a personal First Amendment interest in the case, making it more about how a TikTok ban would harm Americans. Jameel Jaffer, the executive director of Columbia University’s Knight First Amendment Institute, told the Times that he wouldn’t be surprised if the courts struck down Montana's ban.
After a month of avoiding confirmation of its involvement in the Montana lawsuit, TikTok was outed by two of the suing TikTokers, who told the Times that TikTok was paying their legal fees. Only after the TikTokers dished did TikTok spokesperson Jodi Seth admit to the Times that the company is paying for the lawsuit.
Those two TikTokers also said that, apart from covering legal fees, TikTok was providing no other compensation for participating in the lawsuit.
TikTok has no obligation to disclose its funding of these lawsuits, the Times noted.
Ars attempted to find out the relative cost to TikTok of supporting Montana TikTok users compared to supporting TikTokers involved in the 2020 lawsuit, but TikTok only shared the same statement from Seth that was provided to The Times.
"We support our creators through various programs and have an ongoing dialogue about their presence on TikTok," Seth's statement said. "Throughout this process, many creators have expressed major concerns both privately and publicly about the potential impact of the Montana law on their livelihoods. We will support our creators in fighting for their constitutional rights."
Ambika Kumar, the lead attorney representing Montana TikTok creators, told the Times that TikTok funding the lawsuit "is irrelevant to the legal merits of the case."
TikTok allies with Montana creators
According to the Wall Street Journal, TikTok owner ByteDance came up with a two-pronged strategy back in 2020 to improve its chances of blocking a US ban on the app:
It lined up the influencers to be plaintiffs, connected them with a top First Amendment lawyer and helped create a legal strategy that was complementary to a separate lawsuit the company pursued under its own name.
The New York Times' interviews with two Montana TikTokers, Heather DiRocco and Alice Held, reveals that TikTok is today following a similar playbook in Montana and is using the same law firm, Davis Wright Tremaine.
Davis Wright Tremaine confirmed to the Times that, as soon as the ban was enacted, the law firm began reaching out to Montana TikTok users who were posting short videos protesting the ban. The law firm told these TikTokers that "TikTok would help file and pay for a lawsuit," the Times reported.
DiRocco told the Times that TikTok's lawyers reached out to her after she started urging her followers to use a hashtag, #MTlovesTikTok, to help her fight the ban. Once she found out that she could take her fight to court without having to pay the law firm—using the same lawyers who had already succeeded in helping TikTokers overturn a ban—she was in.
“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,'" DiRocco told the Times.
Once TikTok got some Montana TikTokers to join the fight, TikTok then filed its own lawsuit, just as it did when fighting the 2020 ban.
TikTok's financial support is likely important to keep the case moving forward, as the lead plaintiff in the lawsuit, Samantha Alario, told the Times that none of the TikTokers are "stars" who generate enormous wealth on the platform. (Held said that she makes at most $15 per day on TikTok.)
Montana's ban is scheduled to take effect January 1, 2024. TikTok has repeatedly said that it is prepared to fight to keep the app available in the state. Experts previously told Ars that the state's law faces a wide range of legal hurdles beyond just First Amendment challenges, and it appears to be both technically and legally unfeasible.