The U.S. Army has an official esports team that streams on Twitch, runs a discord server, and participates in tournaments. It’s a recruitment tool, but it’s running afoul of internet culture and learning an important lesson about being online: moderation is hard if not impossible. Last week, it banned people from its Twitch channel for asking questions about U.S. war crimes. The American Civil Liberties Union (ACLU) says that’s a violation of the first amendment’s free speech protections.
“It looks like what happened was a violation of the First Amendment,” Vera Eidelman, a staff attorney for the ACLU’s Speech, Privacy and Technology Project told VICE over the phone. According to Eidelman, the Government can’t pick and choose what comments it allows on a public forum and that there’s a recent history of case law to back up the claim.
The U.S. Army’s troubles started quickly. At the end of June, people made a game of seeing how fast they could get banned from its official Discord channel by asking uncomfortable questions. Progressive activist and organizer Jordan Uhl saw videos of the bannings and got the idea to see what would happen if he went to the Army’s Twitch channel and asked about war crimes.
“Sure, at a base level, it's trolling,” Uhl told VICE on the phone. “But it was also interesting that [The Army is] being aggressive with removing any incidences of us war crimes in what is essentially a recruiting tool for the military.”
Uhl runs his own Twitch stream and said that some of his best friends are professional Twitch streamers. “A lot of my work through various different progressive advocacy organizations over the years has involved U.S. foreign policy,” he said. He was incensed to see the U.S. Army recruiting on Twitch, and though he thought the whole thing was funny, he was also upset the Army banned him from the Twitch channel.
“It boils down to an issue of speech,” he said. “If you want to if the Army wants to recruit with these modern tools and these modern platforms that are widely used by young susceptible kids, young, impressionable kids, the kids have at least a right to know what the military does and has done.”
Uhl didn’t expect the story to get as big as it has, but he’s glad it did. “I would imagine the ACLU thinks the Army can’t do this and I would agree,” he said.
The ACLU does, in fact, agree. So does the Knight First Amendment Institute at Columbia University, the law firm that successfully sued Donald Trump when he blocked people on his Twitter account.
“As a general rule, as established in our case against Trump, if a government agency or branch of the military operates a social media platform or a website, and they allow people generally to post comments then typically that would be considered a public forum,” Katie Fallow, a Senior Staff Attorney with Knight, told VICE over the phone. “If the Army run Twitch channel is a public forum, then deleting comments or blocking people from commenting based on their viewpoints, such as asking about military crimes, would violate the first amendment.”
Twitch allows its users to moderate their own channels and establish rules for its chat rooms and Fallow said that the government is, in certain circumstances, allowed to limit speech in the areas it’s hosting a public forum. But she didn’t feel like those rules applied here. “You’re not looking at what Twitch’s functionalities are because the real concern here is that the government, by banning these comments, was censoring speech based on viewpoint,” she said. She pointed out that the U.S. Army’s own stated rules for the chat room didn’t prohibit asking questions about war crimes. “You have to apply your own rules uniformly and without viewpoint. None of these rules cover what those comments were.”
"The U.S. Army eSports Team follows the guidelines and policies set by Twitch," a representative of the U.S. Army esports team said in a statement. "The team viewed the user's question as a violation of Twitch's harassment policy and banned the user. We fully support users' rights to express themselves, but we will not support harassment of our Soldiers on our forums."
Uhl said he didn’t think he was harassing anyone in the chat or violating an existing policy. “Moderation tools are important but I would draw comparisons to time, place, and manner restrictions of protests,” he said. “This is an official government space that the military and the U.S. Government is funding. I’m not going in there and saying, ‘Kill yourself. I’m saying, ‘hey, this is what the U.S. military has done.’ It’s directly about the military’s behavior. I’d argue that’s fair game.”
Eidelman believes the case is open and shut. “It looks like the government has opened up this channel to engage in various games but [is] also creating a chat box where people can speak to them and talk about the game and talk about whatever they wanted to talk about until the thing they wanted to talk about was something that the Army found offensive or opposed,” she said. “And that's exactly what the government can't do in a forum that it designates...the government cannot constitutionally prohibit speech on the basis of viewpoint. And it looks like that's exactly what it did here.”
According to Eidelman, this case is similar not just to Knight’s case against Trump, but multiple cases against public officials who have used Facebook, Twitter, and other online platforms to establish public forums while silencing opposing voices.
“There are actually a lot of cases of public officials banning people from Twitter or Facebook accounts and feeds. The ACLU has brought a number of cases against governors and other local officials,” Eidelman said.
“Recruiting is an extremely predatory process that goes after kids who are captivated by this myth of war, perpetuated by the media. It preys on kids who are poor or disadvantaged...it promises them a better life,” Uhl said. “[The Military] promise them stability, they promise them steady income and the ability to serve your country and become a hero. When in reality, a lot of them end up doing grunt work or suffer a lifetime of PTSD or endure military sexual trauma or, in worst cases, die. To use video games and culture and entertainment agitprop to recruit kids is especially predatory.”
Twitch declined to comment on the story and referred VICE to its FAQ on bans and suspensions. "Channel owners and moderators are free to ban anyone from their channel, regardless of the reason. Twitch Staff will not assist in reversing channel-specific bans,” the FAQ said.