Can the Army and Navy Ban Users From Social Media?

On official U.S. Army and Navy esports Twitch channels, members of the military livestream themselves playing video games such as Call of Duty, Fortnite and League of Legends for an audience of thousands. It’s an outreach and recruitment effort — and the military service members also chat with viewers about life in the armed forces.

Not everyone is looking to sign up. “what’s your favorite u.s. w4r cr1me?” Jordan Uhl asked in a chat on the Army Twitch channel on July 8, substituting numbers for letters to get around the channel’s moderation settings.

Mr. Uhl, a 32-year-old activist, then posted a Wikipedia link to a list of war crimes committed by the U.S. military. A video showed him being banned from the chat, and one of the streamers said, “have a nice time getting banned, my dude.”

Now, facing criticism from First Amendment advocacy groups who say the ban is unconstitutional, the Army said Wednesday it would pause streaming on Twitch to “review internal policies and procedures, as well as all platform-specific policies.”

In a letter sent to Army and Navy recruiting officers Wednesday, the Knight First Amendment Institute demanded that the military branches’ channels change their moderation policies and restore access for Mr. Uhl and 300 others who have made similar comments in the past few weeks.

“When the government intentionally opens a space to the public at large for expressive activity, it has created a ‘public forum’ under the First Amendment, and it cannot constitutionally bar speakers from that forum based on viewpoint,” the institute wrote in a letter Wednesday to Army and Navy recruiting officers on behalf of Mr. Uhl.

An Army spokeswoman, Kelli Bland, said users were banned because their comments constituted harassment, which would violate the terms of service of Twitch, which is owned by Amazon.

“The eSports Team blocked the term ‘war crimes’ in its Twitch channel after discovering the trend was meant to troll and harass the team,” Ms. Bland told The New York Times. “Twitch members used creative spelling to continue related posts. Following the guidelines and policies set by Twitch, the U.S. Army eSports Team banned a user from its account due to concern over posted content and website links that were considered harassing and degrading in nature.”

The First Amendment Institute disputed that Mr. Uhl and other users’ remarks were harassment, which Twitch, defines as content “that attempts to intimidate, degrade, abuse, or bully others, or creates a hostile environment for others.”

Jameel Jaffer, the executive director of the First Amendment Institute, said he had not yet received a reply from the Army or Navy, and he was prepared to sue them if they did not change their policies.

A Twitch spokeswoman did not respond to questions about the conflict, but pointed out that Twitch’s policy states that “channel owners and moderators are free to ban anyone from their channel, regardless of the reason.”

The Navy did not respond to a request for comment Wednesday. News of the ban and the letter were first reported by Vice.

“The government’s actions here are plainly unconstitutional,” said Naomi Gilens, a legal fellow at the Electronic Frontier Foundation. “When a government official or agency creates a forum for speech online and invites the public to participate, it can’t censor speech just because it doesn’t like the message or viewpoints being expressed.”

“Because the Army and Navy are using these Twitch channels to recruit young people, this issue is about much more than just esports,” Meenakshi Krishnan, a legal fellow at the First Amendment Institute, said in a statement. “Participants in these forums have a constitutional right to engage in speech critical of the military. The Army and Navy certainly have no legitimate interest in suppressing speech relating to war crimes.”

Courts have previously ruled that government-run social media accounts constitute public forums and that the government cannot block or exclude people based on their comments or views. Last July, a federal appeals court ruled that President Trump could not block people from his @realDonaldTrump Twitter account.

The Army most recently streamed 13 days ago; the Navy has continued streaming through Tuesday.

Mr. Uhl said that the issue was not simply about him as an individual getting banned. “Everyone should be able to criticize the military on their social media channels,” he said. “It’s at the core of free-speech protection.”

Mr. Uhl was banned from the Navy Twitch stream on Saturday along with others discussing war crimes and the former Navy Seal Eddie Gallagher.

“I hope this helps people understand that you’re allowed to criticize the government online,” Mr. Uhl said. “As we become an increasingly digital society, the laws need updating and we need protections for political speech online. We can’t have a system where the government can delete or ban negative comments on a social platform.”

On Wednesday afternoon, Rep. Alexandria Ocasio-Cortez, a New York Democrat, announced plans to file a measure to block the military from using video games and esports as recruitment methods.

The bans have renewed criticism of military recruiting tactics. Last week, Twitch also told the Army’s esports channel to stop advertising a fake video game controller giveaway that instead directed people to a recruitment form, The Verge reported.

Though the military has a long history of leveraging video games and the gaming community for recruitment, and its esports teams have been around since 2018, it drew increased attention online on June 30 after the official Army Twitter account responded to a tweet from the chat application Discord with “UwU,” an emoticon that conveys happiness or smugness. For that, the Army was accused of using social media to “prey on vulnerable teenagers.”

Some branches of the military, like the Marines, have abstained from relying on esports and gaming to recruit. A statement from the Marine Corps Recruiting Command obtained by Military.com reiterates that the military’s “national marketing brand strategy does not include future plans to establish esports teams or create branded games.”

“With the Marine Corps brand, we are very strategic in how we activate that brand and how people interact with it,” Capt. Michael Maggitti, a spokesman for the 8th Marine Corps District, told Military.com in May. “It could be some people’s first time engaging with the brand, and it’s a very serious decision to serve, and there’s concerns over gamifying what we do and the translation between video games and actual military service.”

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