The First Amendment to the United States Constitution is clear: “Congress shall make no law… abridging the freedom of speech, or of the press.” This is the cornerstone of American liberty the legal guarantee that ideas, words, and expression cannot be restricted by the government, except in the narrowest circumstances.
Yet in 2025, the boundaries of what Americans can say in the most influential arenas the airwaves and the internet are no longer defined solely by the First Amendment. Instead, they are hemmed in by a double fence: one built by government regulators like the FCC, and another reinforced by corporate platforms like YouTube. Together, these forces create a speech environment far smaller than what the Constitution envisioned.
I. The Government Fence — The FCC’s Indecency Rules
The Federal Communications Commission (FCC), established in 1934, was originally tasked with managing radio frequencies and ensuring fair competition. Over time, it gained authority over broadcast content a power the Supreme Court upheld in FCC v. Pacifica Foundation (1978), the infamous “Seven Dirty Words” case.
In that case, the Court allowed the FCC to restrict “indecent” language — not obscene speech (which is unprotected), but anything describing sexual or excretory organs or functions in a manner deemed “patently offensive.” The result was a time, place, and manner standard: such language could not be aired between 6 a.m. and 10 p.m. when children might be watching.
This standard still exists. The FCC can fine stations for uttering certain words, even in news, comedy, or artistic contexts. While defenders argue that broadcast radio and TV are “public resources” and subject to more regulation, the reality is clear: the FCC enforces a content-based speech restriction that goes beyond the Constitution’s narrow exceptions.
II. The Corporate Fence — YouTube’s Algorithmic Censorship
If the FCC is the first fence, YouTube is the second and much taller. With more than 2.7 billion users worldwide and dominance in online video, YouTube functions as today’s largest de facto public square.
But YouTube’s Community Guidelines and Advertiser-Friendly Content Guidelines impose restrictions that dwarf FCC rules. Creators risk demonetization, age restrictions, or suppression in search results for using certain words not just profanity, but also terms relating to:
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Violence (murder, blood, assault)
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Adult content (sex, porn, nudity)
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Drugs (marijuana, cocaine, alcohol)
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Sensitive topics (suicide, abuse, terrorist)
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Controversial politics (conspiracy, election fraud, Nazi)
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Even identity terms (gay, lesbian, transgender) in certain contexts.
These restrictions apply regardless of context. An educational documentary, a historical analysis, or a news segment can be penalized simply for mentioning flagged words even without graphic imagery.
Because YouTube’s policies are shaped by advertiser concerns and enforced by AI-driven algorithms, they are broad, opaque, and unaccountable. For many creators, appealing a demonetization is impossible, and the mere threat of losing income drives self-censorship.
III. The Double Fence Effect
Individually, the FCC’s rules and YouTube’s policies are problematic. Together, they form a two-tiered speech restriction system:
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Inner Fence: The First Amendment’s narrow exceptions (true threats, incitement, obscenity, child exploitation material).
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Middle Fence: The FCC’s broadcast restrictions on “indecent” or “profane” content, upheld by courts.
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Outer Fence: Corporate moderation standards, often more restrictive than the law, enforced across the dominant online platforms.
Speech that lives between the middle and outer fence is legal but effectively inaccessible to mass audiences. A creator might be allowed to say something under the First Amendment, yet be unable to reach the public without facing penalties, suppression, or demonetization.
IV. Why This Matters for the First Amendment
Some will argue that the First Amendment applies only to government action, and private companies can set whatever rules they want. Legally, that’s true. But in practice, when private platforms control the primary channels of modern communication and often collaborate with or respond to government and advertiser pressure the distinction between public and private censorship becomes meaningless to the average citizen.
This convergence of government precedent and corporate policy means:
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The range of acceptable discourse is shrinking.
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Market dominance of a few tech companies magnifies the effect.
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Cultural chilling occurs, where creators and citizens avoid certain topics altogether.
The First Amendment was designed to protect the spirit of free speech, not just its technical legality. A society in which speech is legal but functionally silenced is not a free society.
V. Tearing Down the Fence
To restore a truly open public square:
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Revisit FCC authority over broadcast indecency, especially in an era when internet platforms are dominant and children’s access is already mediated by parental controls.
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Push for transparency in algorithmic moderation, requiring platforms to disclose flagged word lists and appeal outcomes.
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Encourage competition so that no single platform controls the flow of speech online.
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Reaffirm First Amendment principles in public discourse, resisting both government and corporate overreach.
The Founders did not intend for American speech to be corralled by layers of fences one built by bureaucrats, another by corporate boardrooms. The First Amendment’s promise is not just freedom from government punishment, but the ability to speak openly in the forums where public life happens.
If we accept the current double fence as normal, the vibrant marketplace of ideas becomes a walled garden with a “No Trespassing” sign. And that is not freedom it is permission.
By The Craig Bushon Show Media Team
