Some time last year, I wrote a column suggesting that perhaps it was time to loosen the FCC laws on the use of profanity in broadcasting, especially when those on YouTube can say whatever they’d like.
It wasn’t that I particularly wanted to hear more F-bombs and the like, but maybe that war has been lost.
Last week, a short piece by Jay Peters in The Verge entitled “YouTube tells creators they can drop more F-bombs” caught my eye. Under my personal heading of “I Really Don’t Know Much About How YouTube Works, But I Know Everyone Uses It,” apparently, YouTube had a rule that if you used a “strong profanity” such as “f—” in the first seven seconds of a video, you would not receive full monetization. Instead, the creator would receive “limited ad revenue.”
This changes an earlier policy that limited ad revenue if profanity was used in the first 8–15 seconds of a video. The policy was previously changed in March 2023, allowing profanity as of eight seconds into the video.
The reasoning was simple: some advertisers might not want their spots to bump up against a stream of four-letter (or longer) curse words. The latest change was based on advertisers having the ability to target content to their desired level of profanity.
Apparently, some advertisers don’t mind having ads bump up against a stream of “strong” profanity compared to YouTube-defined “moderate profanity” such as “a–hole” or “b—-.”
In case you think YouTube has thrown in the motherf—ing towel completely on profanity, you may not receive full monetization if you put profanity in titles or thumbnails. Also, using too much profanity could harm your revenue. As Conor Kavanagh, YouTube’s head of monetization policy experience (a marvelous title), was quoted in the article, “You have to pick and choose your f—s carefully.”
Meanwhile, broadcasters still operate with FCC rules. Here’s the latest from the FCC’s website:
Deciding what’s obscene, indecent or profane
Each type of content has a distinct definition:
- Obscene content does not have protection by the First Amendment. For content to be ruled obscene, it must meet a three-pronged test established by the Supreme Court: It must appeal to an average person’s prurient interest; depict or describe sexual conduct in a “patently offensive” way; and, taken as a whole, lack serious literary, artistic, political or scientific value.
- Indecent content portrays sexual or excretory organs or activities in a way that is patently offensive but does not meet the three-prong test for obscenity.
- Profane content includes “grossly offensive” language that is considered a public nuisance.
F-bombs fall under the “profane content” category. And yes, there is a “safe harbor” between 10 PM and 6 AM local time in which some indecent content (not profane) may be aired under the belief that children will not be listening or watching, consistent with the definition of “indecent” above. Another FCC document from 2022 refers to 18 U.S.C. Section 1464, which states:
“[W]hoever utters any obscene, indecent, or profane language by means of radio communication shall be fined under this title or imprisoned not more than two years, or both.”
Same goes for cable under 18 U.S.C. Section 1468(a) and 47 U.S.C. Section 559. While I’ve never heard of it happening, channeling your inner George Carlin on the air could put you in the slammer.
Meanwhile, a YouTube “creator” (I’m using quotes because profanity has been with us for millennia, so dropping F-bombs is not exactly creative) can say whatever and be paid.
Two thoughts here:
First, the world has changed, and if kids can access YouTube on their phones with ease — not to mention porn sites, although that access is being tightened — why are we worried about broadcast? If the laws changed tomorrow, how many radio programmers would go for it? Would someone syndicate an unleashed Howard Stern? And think about news and sports talk hosts who no doubt hold back some of their language. There will always be a market for “clean” entertainment, but a “no-holds-barred” sports talk show on broadcast radio would probably have a following.
Next, the federal law above uses the words “by means of radio communication.” Last I knew, your cell phone operates using “radio communication.” And radio is used by ISPs as well. No, it’s not AM, FM, or DARS band, but it’s radio—although the title of Section 1464 is “Broadcasting obscene language.” The Code of Federal Regulations Title 47 Chapter 1 Subchapter D Part 97 defines “broadcasting” as “Transmissions intended for reception by the general public, either direct or relayed.”
Therefore, if someone wanted to file suit against YouTube or a creator under 18 U.S.C. Section 1464, would they have an argument? The content is “intended for reception by the general public,” even if it’s not exactly aimed at the “general public.” The lawyers and policy experts can think about that one, but wouldn’t the court case be an interesting one if a federal court accepted it?
I’m not a prude and have used more than my fair share of four-letter words, as well as some multi-syllable versions, but I dislike double standards. Radio, television, and cable operate under one set of rules, while online services operate under their own, far more lax, self-imposed rules.
While I don’t see the NAB Board instructing the organization to push for smut on broadcast any time soon—nor do I think Congress will ever rescind the laws noted here—it’s an interesting thought. In the meantime, if your talent is producing content for YouTube, dropping an F-bomb in the first second or two won’t hurt your revenue.
Let’s meet again next week.
