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Lawmakers sue Oregon to block 'misinformation' contract to counter election-related claims

Motion for preliminary injunction says "good faith effort" to resolve dispute fell apart. Secretary of state claims contract will just help it respond to misinformation with "accurate information."

Published: December 20, 2023 11:13pm

Oregon is trying to silence "criticism of its election system" through a contract to "identify and mitigate" purported mis-, dis- and malinformation (MDM) related to its elections, surveilling those whom the state deems "misleading," according to a First Amendment lawsuit against Democratic Gov. Tina Kotek, Secretary of State LaVonne Griffin-Valade and Elections Director Molly Woon.

The plaintiffs, who include state lawmakers, talk show hosts, Republican Party officials and a former GOP candidate for governor, filed a motion for preliminary injunction last week after a failed "good faith effort through a telephone conference to resolve the dispute."

They are seeking the "halting any performance of work pursuant to" Griffin-Valade's request for proposals titled "Election False Information Solution," which was opened for bidding Sept. 21 and has not been executed despite an Oct. 27 deadline, the motion says. 

Her office awarded a similar anti-MDM contract a year earlier to U.K. artificial intelligence company Logically AI. The motion fixes an error in the Nov. 7 complaint that claimed Logically AI also received the new award, which Griffin-Valade told lawmakers Nov. 9 was behind schedule.

The "harmful information" the Beaver State identified as the target of the RFP "is only harmful in the sense that it damages the credibility of Oregon’s repeated claims that its elections are 'safe and secure,'" the plaintiffs argue.

"Oregon’s plan to intimidate the public from criticizing Oregon’s election system … has teeth" in the form of a $10,000 fine, codified into law in 2021, for "communication of false statements of material fact intended to mislead electors on a variety of election topics," they said.

The new suit includes plaintiffs from a lawsuit against Oregon's vote-by-mail and "computerized tabulation systems," including former school superintendent and 2022 gubernatorial candidate Marc Thielman and Republican state Sen. Dennis Linthicum. 

That suit failed last year in district court and last week in the 9th U.S. Circuit Court of Appeals, which agreed that "lack of confidence in the integrity of the election system" is too speculative to sustain the lawsuit on behalf of Oregon voters.

Linthicum and Republican state Sen. Kim Thatcher, who are representing constituents in the election censorship lawsuit, are also suing to compel the impaneling of a grand jury to investigate alleged federal manipulation of COVID-19 statistics to inflate the pandemic's severity.

After a delay prompted by a federal prosecutor's sick dog, the lawmakers lost in district court last year. The 9th Circuit canceled oral argument scheduled for Dec. 5, with a pending ruling based on the briefs and court record.

The three cases were filed by lawyer Stephen Joncus, who also sued to overturn Oregon's COVID vaccine mandates, lost in district court and presented oral argument in September before the 9th Circuit. All documents in Joncus's cases can be found on his website.

Oregon officials laid forth sweeping efforts to crack down on supposed MDM, according to an Aug. 30 "pre-proposal conference" recording linked in the motion. 

An Elections Division employee said it envisions an "early warning system" to identify and mitigate MDM and share the information with the FBI, Department of Homeland Security's Cybersecurity and Infrastructure Security Agency, National Guard, the anti-terrorist Oregon TITAN Fusion Center and Oregon State Police among others. 

The plans resemble CISA's nationwide work with the Election Integrity Partnership, a public-private entity it helped conceive, to remove, label and soft-block supposed MDM in the 2020 and 2022 election seasons. The Supreme Court is now considering the constitutionality of arrangements in which the feds pressure platforms to censor content.

Last year's RFP with Logically AI was a test for the system, and this year's will "officially launch the program," according to a Dec. 12 press release by the plaintiffs.

It cites the "Solutions Requirements," incorporated into Joncus's declaration with exhibits, in which the Elections Division says Oregon "voters are in desperate need of accurate sources of information for combatting foreign and domestic misinformation and disinformation."

Applicants must offer "media monitoring and thread [sic] detection services" that cover a wide range of sources, from social media and YouTube to Oregon news sites, podcasts and the "Dark web." The solution will provide "a means for managing authoritative public information that refutes rumors, claims, and MDM narratives."

They will recommend "countermeasures" to the secretary of state, such as "[p]ublic messaging that promotes factual information" and reports MDM to social media platforms "for violating community guidelines and/or policies," which will be determined case by case. 

This means "shadow banning, de-monetizing, and de-platforming," the press release says.

"There is a lot of misinformation online about this RFP," Griffin-Valade told more than two dozen lawmakers including Thatcher and Linthicum who objected that the system would "continually monitor and actively manipulate the free speech of Oregonians."

"My office has no authority to remove information from the internet, so there is no first [sic] amendment issue here," she said Nov. 9, just after the suit was filed. The contract awarded to Logically AI was just a "pilot" and the new RFP is still in process.

The MDM notifications will be "similar to a Google news alert" and prompt the state to notify law enforcement "when there is a threat to life or infrastructure," as happened to candidates of both parties in the last election, or use its own channels to "share accurate information with voters" when monitoring uncovers false information, Griffin-Valade said.

The secretary of state's assurances didn't assuage the plaintiffs.

"Knowing that the government is watching what is said and is empowered to employ 'countermeasures' will cause citizens to think twice about what they say – which constitutes unlawful interference with their fundamental right of free speech," the motion says.

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