The U.S. Navy is Violating First Amendment Rights on Twitch
With nationwide closures due to COVID-19, many military enlistment stations were shut down at the start of the pandemic.[1] With enlistments down about 50%, Army recruiters were forced to move their efforts online using social media.[2]Likely facing similar difficulties, the Navy also began expanding online recruiting efforts, with both branches beginning to stream regularly on Twitch.[3] Twitch is a live video streaming platform where millions of viewers log on each day to watch people play video games, perform music, cook, just chat, and more.[4] These viewers often engage with streamers by typing in a live chat while watching.[5] Twitch has seen a significant rise in popularity since the start of the COVID-19 outbreak in the United States, with average concurrent viewership of 1.41 million in February 2020 increasing to 2.49 million in April and staying above 2.1 million since.[6] Most Twitch users are male (81.5%), and the average viewer is 21 years old, though the platform allows people as young as 13 to use it.[7] Men make up 82% of the Navy and 86% of the Army, making the young, male-dominated platform ripe for online recruiting efforts.[8] The Navy and Army Twitch accounts have amassed around 4,900 and 22,500 followers, respectively.[9]
While beginning to stream on the platform, the Army and Navy were quickly met with viewers asking about past war crimes and criticizing the US Military for its recruiting practices.[10] User Canyon916, after commenting “I see you guys are upgrading from recruiting out of low-income schools, nice,” was told by a Navy streamer that if they said something about Navy recruiting practices again, they would be banned.[11] More controversy arose when Jordan Uhl, a progressive activist who believes the recruitment practices of the Army and Navy on Twitch are predatory towards young and poor people, was banned from the Army’s channel for asking the streamer about his favorite war crimes.[12] Around 300 others had been banned for similar comments.[13] Amidst this outcry for the banning of military recruitment on Twitch, Rep. Alexandria Ocasio-Cortez proposed an amendment to the Defense Appropriations bill for fiscal 2021 to block the military from using video games and esports as recruitment methods, though the amendment was blocked by the US House of Representatives.[14]
Mr. Uhl, who believes “everyone should be able to criticize the military on their social media channels,” sought help from the Knight First Amendment Institute.[15] The Knight Institute wrote a letter to Army and Navy recruiting officers in July 2020, demanding that the military branches’ Twitch channels change their moderation policies and restore access for Mr. Uhl and other banned users.[16] Citing recent cases, including Knight First Amendment Inst. At Columbia Univ. v. Trump, where the Second Circuit held that President Trump violated the First Amendment by blocking users who criticized him on Twitter, the Knight Institute argued that when the government intentionally opens a space to the public at large for expressive activity, it creates a “public forum” where it cannot constitutionally bar speakers based on viewpoint.[17] The Knight Institute notes that spokespeople for the Army have defended the banning of Mr. Uhl on the grounds that his messages were “harassment” under Twitch’s terms of service, and that the Navy defended its banning of users by citing to their posted channel rules.[18] Despite this, the Knight Institute argues that Mr. Uhl’s speech did not constitute harassment under the terms of service, as he was not attempting to intimidate, degrade, abuse, or bully others, or create a hostile environment for others.[19] Additionally, citing N.A.A.C.P. v. Claiborne Hardware Co., the Knight Institute says Mr. Uhl’s statement was “quintessential political speech,” which lies at the core of the First Amendment, and that the government does not have the authority to adopt rules (like the Navy’s channel rules) that effectively prohibit participants from criticizing the military.[20]
In response to this letter, the Army temporarily stopped streaming, but the Navy continued.[21] In August 2020, the Army reinstated the 300 or so users it recently banned and stated that it will review and clarify its Twitch streaming policies and procedures.[22] The Army then began streaming again.[23] The Knight Institute responded in a news release that it was “pleased that the Army intends to unban the users who were banned for engaging in core political speech, and we look forward to reviewing the Army’s new moderation policies. We will closely monitor how those policies are applied in practice.”[24]
Despite the Army’s response and efforts to ensure its Twitch stream no longer violates users’ First Amendment rights, the Navy has not responded or made any notable changes to the way it operates its Twitch stream regarding free speech.[25] The Knight Institute is “troubled that the Navy has not considered its own policies and practices.”[26]
The Navy continued streaming until last month, when a Sailor played on a stream where his friends named their characters after the words “Nagasaki,” “Japan 1945,” and a veiled reference to a racial slur.[27] While the streamer himself did not say any of these words, these were his “close friends” and it took him an hour into the stream to pause it and come back with the names changed.[28] In response to this incident, Command Lara Bollinger of the US Navy Public Affairs Office told Motherboard “we have paused streaming and are re-evaluating how we vet users who are allowed to play with us on stream in an effort to ensure that this does not happen again,” and “we do not condone those usernames and the Navy Goats and Glory team member’s immediate response that night was neither quick nor correct. His reaction to the situation was unbecoming of a member of our team and he will no longer be streaming with us.”[29]
The Navy, while responding promptly to concerns about the inappropriate in-game usernames and pausing its streaming, has still not publicly responded to the letter from the Knight Institute. This lack of response may result in more First Amendment violations by the Navy if it continues streaming. While on break, the Navy should consider this issue further and amend its channel policies, reinstate banned users, and closely monitor its streamers to ensure that users are no longer banned for their viewpoints.
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