TikTok seeks to dismiss NC attorney general’s lawsuit

TikTok is seeking to dismiss a lawsuit Gov. Josh Stein filed against the social media company when Stein served as North Carolina’s attorney general.

The motion to dismiss arrived in North Carolina Business Court Friday. On the same day the US Supreme Court heard oral arguments in a federal case challenging a congressional ban against TikTok if it refuses to divest from its Chinese-based parent company.

“The State of North Carolina has sued Defendants, alleging the TikTok platform violates North Carolina’s Unfair and Deceptive Trade Practices Act (‘UDTPA’). The State’s central theory is that certain ‘design features’ the platform uses to select, organize, and present third-party user-generated speech on the platform are harmful to younger users because they allegedly make viewing this speech ‘addictive.’ In other words, the State contends that the TikTok platform is unlawful because the manner in which it publishes content makes it too ‘engaging’ for younger users,” TikTok’s lawyers wrote in a memorandum supporting the motion to dismiss.

“The State further alleges that Defendants have deceived users by inadequately and inaccurately describing these ‘risks.’ The State’s claims fail as a matter of law, and its Complaint should be dismissed with prejudice,” the court filing continued.

TikTok argued that a North Carolina court “has no power to adjudicate” the case. “Defendants are not at home in North Carolina, and North Carolina is not the focal point of any suit-related conduct,” the company’s lawyers wrote. “The State’s assertion of personal jurisdiction is based primarily on the fact that the platform was available in North Carolina, and that North Carolina users were allegedly harmed by viewing content on the platform.”

Yet a North Carolina court cannot assume jurisdiction “merely because a globally accessible online platform is made available to residents of the forum state,” TikTok lawyers argued.

That’s not the only problem TikTok identified with North Carolina’s lawsuit. “Section 230 of the Communications Decency Act immunizes online platforms from liability as ‘publishers’ of third-party content,” the company’s lawyers wrote. “But publishing activities are what the State targets. The ‘design features’ the State challenges are the means by which user-generated content is selected, organized, and presented — i.e., published — on the platform.”

The US Supreme Court “recently confirmed” in a the 2024 case Moody v. NetChoice “that these online publishing activities are inherently expressive activities that are entitled to First Amendment protection,” TikTok’s lawyers wrote.

“And the State’s deception claims are further barred by the First Amendment because they seek to compel the platform to speak by mandating warnings about the alleged risks of user-generated content on the platform,” the court filing continued.

The North Carolina lawsuit also failed to show how TikTok violates the state law, the company argued. “The platform, as designed, is not an unfair business practice. The State’s attempt to use consumer-protection law to impose liability against an online platform for being ‘too engaging’ has no support in North Carolina law. Likewise, the State alleges no deceptive practices.”

“The State’s deception claims are based on nonactionable opinion and aspirational statements about the platform’s general priorities and goals, none of which is objectively verifiable as true or false,” TikTok’s lawyers wrote.

Stein publicized the lawsuit on Oct. 8, during the closing weeks of his campaign for governor. A news release from the North Carolina Department of Justice declared “Attorney General Josh Stein Sues TikTok for Harming Children.”

The lawsuit seeks injunctive and monetary relief, including asking the court to order TikTok to stop violating the law and to pay penalties.

“TikTok knowingly created a product that harmed children, and then it deceived everyone about how dangerous and addictive the product was,” Stein said in the press release. “They did this to make more money. It doesn’t matter what you’re selling – you have to be honest about the risks, and you have to follow the law. TikTok failed in both regards, and our children suffer. So, I’m taking them to court to make them do better by our kids.”

Attorneys general in more than a dozen states filed similar complaints.

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