Suppose I told you that the one thing that Baldur's Gate 3, Cyberpunk 2077, and GTA VI all have in common is criminality. In that case, you'd cluck your tongue, roll your eyes, and back out of this article like you were escaping a five-star wanted level, lest I start preaching about the morality of your in-game actions (which I won't).
While each of these titles offers gameplay that could place you on the wrong side of the law, I'm talking about the legal status of the games themselves. These and many, many others that feature certain adult content.
Of course, it's not the first time gaming has found itself on trial. Lawmakers and fun-be-gone lobbyists have been trying (and failing) to "save" society from digital depravity ever since video games became the favored political scapegoat of complex real-world issues.
Thankfully, the First Amendment protects our polygonal pastime, leaving me free to enjoy Night City's criminal underworld, and you to do something weirder, like satisfy your "animalistic urges" with Baldur's Gate's Halsin.
However, even the First Amendment has its limits, and the most unspeakably obscene stuff finds no protection from the governmental banhammer. Which is, most of the time, entirely appropriate and something we're all better off for.
Just as long as nobody, say, decides to suddenly rewrite the definition of what counts as "obscene," and turn that formerly protective barrier into a blockading baton, ready to be wielded by the prudish and culturally out-of-touch.
Something that could very well happen if a recently proposed Bill in the U.S. manages to pass.
Now that's obscene: The proposed law that could change games forever
On paper, the bill in question — the Interstate Obscenity Definition Act (IODA), proposed by U.S. Senator Mike Lee — resembles any other "Won't somebody please, think of the children" attempt to clean up the internet. However, buried within its legalese language is a potential headache for mature video games.
One of the key changes proposed by the IODA would be the replacement of the Miller test with a new, stricter federal standard of what is considered "obscene."
The Miller test decides if material is obscene based on whether the average person, using community standards, would think it was designed purely to provoke sexual excitement, if acts like this are shown offensively, and if there's any artistic, literary, political, or scientific value to be found.
If the answer is "yes" to all three, congratulations: your game (or movie, or book, or questionable upload to Nexus Mods) just became legally obscene and is likely to have a hard time finding a legitimate audience within U.S. borders.
Thankfully, those previously mentioned "community standards" take into account context, nuance, and cultural understanding. Without it, all of those Bioware romance scenes would likely have gone the way of the Dodo.
Instead of that, the IODA would create a single, rigid rulebook to strictly define what counts as "obscene," massively narrowing the scope of what's acceptable. Suddenly, any sexual content in games would be considered obscene if it could potentially "arouse, titillate, or gratify the sexual desires of a person" — regardless of context.
By that metric alone, the recently released Elder Scrolls Oblivion Remastered would find itself in hot water legally, as the game's shapely Flame Atronach has caused such a thirst from gamers online, that thirstposts about the Daedric baddy have been banned, with moderators declaring: "We cannot take any more Sexy Flame Atronach posts."
What's next
The IODA hasn't passed yet, and it may well stall or quietly die in committee. Even if it should pass, it's unlikely that such a challenge to the First Amendment will go untested in court.
That's not to say it's impossible. The bill's vague wording might hinder its progress, but should it survive, it may also have a sweeping impact on media — especially when judgments hinge on the wildly subjective metric of whether or not something was "intended to arouse."
While there's still an exception for content that provides "serious" literary or artistic value, video games are still often seen by many outside of the sphere as entertainment and not art, no matter how mature the themes they explore are.
The fallout of such a law could force affected developers to self-censor, sanitize content, or potentially pull games from sale entirely, all while nervously recalibrating the content they put out in the future.
Of course, there's a slippery slope to think of, also. Today, it's sexual content in games. But what about tomorrow? Violence? Politics? Questionable morality?
There's arguably more riding on this bill than the continued happiness of thirsty Bethesda fans, that's for sure.
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