The U.S. Army Is Now Possibly Violating the First Amendment on Facebook

The U.S. Army esports team is streaming its members playing video games on Facebook. After troubles facing down activists and trolls on Twitch, the U.S. Army has largely moved its streaming operation to Facebook. On Tuesday, during a game of Counter: Strike Global Offensive, several gamers found the stream and began to ask the Army about war crimes, much as they did on Twitch. The Army banned them from commenting on the stream, which is a possible violation of the First Amendment according to the Knight First Amendment Institute, a nonprofit that prosecutes First Amendment cases.

The Army is still streaming on Twitch, but its broadcasts are intermittent. It takes long breaks, as many as six days, between streams on Twitch. It streams more frequently on Facebook. On Tuesday, when it started to stream, viewers began asking hard questions.

“How ya gonna groom zoomers on Facebook? Did ya’lls feelings get hurt too much on Twitch?” Mark Slater—a pseudonym—asked.

According to O’Connell and Slater, the Army removed both of these comments and prevented them from commenting on the stream, a possible violation of the First Amendment. Later, the comments were reinstated and Slater and O’Connell could comment again. “When that occurred I couldn't say,” Slater told Motherboard on Discord. “Once I received the message that the comment was removed I could no longer comment additionally in the livestream. However, I could interact with previous streams.” Slater and O’Connell provided Motherboard with screenshots showing the moderator removed their comments.

According to the Knight First Amendment Institute at Columbia University, a nonprofit that takes on First Amendment cases and successfully sued Donald Trump for blocking people on Twitter, even a temporary ban could be a violation of the First Amendment.

“Even if the ban was temporary in nature, the government—in this case, the Army—cannot ban a user from commenting on their esports livestream on Facebook or any other platform based on comments critical of the military,” Lyndsey Wajert, a legal fellow at the Knight, told Motherboard in an email. “This type of viewpoint discrimination runs afoul of the First Amendment, and we will be looking into this matter further.”

The U.S. Army esports team moderates its chat on Facebook and Twitch. The rules on Facebook don’t appear until someone attempts to chat during a livestream, at which point the rules pop up. They are “be accepting, respect boundaries, no profanity, keep it clean, don’t self promote, don’t be rude, don’t flood chat, don’t criticize.”

“The absurdity of the U.S. Army esports presence on Facebook is that a government entity sincerely puts ‘Don’t criticize’ on their chat rules,” Slater told Motherboard on Discord.

For O’Connell, asking the military tough questions in a public space is about far more than just trolling. “I think it’s important to question the Army’s activities on Facebook because they are preying on young gamers in an attempt to boost their recruitment numbers,” he told Motherboard in a Twitter DM. “What they are doing is predatory and harmful to young teenagers. They are equating video games with real life combat.”

The Pentagon has recently turned to video game streaming as a way to bolster recruitment and build the military’s brand. The U.S. Air Force, Army, Navy, and National Guard are all streaming video games, mostly on Twitch but also on Facebook. It hasn’t been going well.

The Navy spent $2 million to get into Twitch, but is on a break from streaming right now after a Sailor played on a stream where one of his friends named his character after a veiled reference to a racial slur. A National Guard streamer repeated an anti-semetic phrased on stream. The Army is streaming intermittently and mostly on Facebook. And Rep. Alexandria Ocasio-Cortez (D-NY) attempted to pass legislation to prevent the Pentagon from using its budget to stream video games online.

“No one has been banned from U.S. Army eSports Team channels on our platforms. There have been cases where individuals have been ‘timed out’ for excessive spamming or harassment,” Lisa M. Ferguson, Deputy Director and Media Relations Chief of U.S. Army Recruiting Command Public Affairs, said. “In these cases, individuals have saturated the channel with their content not allowing any others to chat or post. The “time out” feature allows the team to pause that person’s ability to chat or post for limited time. This allows for others to then have their voices heard as well. The posts are not censored or removed, and they are allowed to continue once their time out is up.”

Update: This story has been updated with comment from the U.S. Army.