Modifying An Obscenity Law Exception Is A Must In The Age Of Genai

The wheels of justice sometimes turn slowly. When they do move, however, they may expose an aging US Supreme Court precedent on a First Amendment issue that requires reversal or modification due to communication technologies that didn’t exist when the precedent was established. While lower courts may want to overrule it, that’s a task for the Supreme Court.

This explains what’s happening today regarding prosecuting people for possessing—not producing or distributing—obscene child sexual abuse material (CSAM, also called child pornography) that’s produced entirely by generative AI and doesn’t depict any actual child. The US Court of Appeals for the Seventh Circuit’s recent decision in United States v. Anderegg highlights this scenario and the need for Supreme Court intervention. Circuit Judge John Lee, who penned the court’s opinion, also wrote a concurrence calling for its help:

Given the significant advances in computer-generated image technology, particularly in the field of artificial intelligence, we would benefit from additional guidance from the Supreme Court regarding the intersection between the First Amendment and virtual CSAM if an appropriate case should arise.

I first wrote about Anderegg in 2024, shortly after the government announced the indictment and arrest of Steven Anderegg of Holeman, Wisconsin, for “his alleged production, distribution, and possession of AI-generated images of minors engaged in sexually explicit conduct.” As The Washington Post observed, Anderegg is “a novel case in which the Justice Department is testing the limits of . . . obscenity laws to curb the growing problem of AI-generated child sexual abuse imagery.” The only charge before the Seventh Circuit involved Anderegg’s possession prosecution under a federal statute (18 USC § 1466A(b)(1)) criminalizing a “computer generated image or picture” of “a minor engaging in sexually explicit conduct” that “is obscene.”

Here’s why the Seventh Circuit determined that using this statute to prosecute Anderegg for possessing AI-generated, “hyper-realistic images” of nonexistent minors engaging in sexual acts violates the First Amendment. First, the Supreme Court has identified two categories of sexual content involving real people that aren’t protected by the First Amendment: obscenity and child pornography. The latter involves images of people under age 18 engaged in “sexually explicit conduct” that doesn’t need to be as extreme as obscenity involving adults.

Second, and something critical for understanding the conundrum in Anderegg, the Supreme Court in 1969 in Stanley v. Georgia fashioned an exception from the rule that obscenity isn’t safeguarded by the First Amendment. It concluded “that the mere private possession of obscene matter cannot constitutionally be made a crime.” (Emphasis added.) The Court grounded its conclusion in concerns about “the privacy of a person’s own home” and “the right to receive information and ideas” there. The Court reasoned that “if the First Amendment means anything, it means that a State has no business telling a man, sitting alone in his own house, what books he may read or what films he may watch.”

Third, although Stanley protects privately possessing obscenity, the Court later rejected a possession exemption for child pornography featuring real minors. It predicated this distinction on the government’s interests in “protect[ing] the victims of child pornography” from physical and psychological harms and in “destroy[ing] a market for the exploitative use of children.”

Finally, the Court in 2002 inAshcroft v. Free Speech Coalition (FSC) concluded that a federal statute (18 USC § 2256(8)(B)) banning virtual child pornography not involving any actual minor in its production violated the First Amendment. The Court reasoned that the statute “prohibits speech that records no crime and creates no victims by its production. Virtual child pornography is not ‘intrinsically related’ to the sexual abuse of children.” It rejected the government’s argument that virtual child pornography shouldn’t be protected because “computer imaging makes it very difficult . . . to prosecute those who produce pornography by using real children.” The prosecutorial difficulty arises because the trouble with distinguishing real child pornography from fake imagery can create a reasonable doubt in jurors’ minds. If virtual child pornography is legal but real child pornography isn’t, then defendants will always claim their images are lawful fakes.

The Seventh Circuit concluded that Stanley (possessing obscenity at home is protected) and FSC (safeguarding virtual child pornography not involving real minors) collectively barred Anderegg’s prosecution under a statute adopted after FSC that requires such virtual child pornography also to be obscene to convict a defendant. The statute added the obscenity requirement to plug the prosecutorial hole created by FSC protecting virtual child pornography standing alone.

FSC was decided 24 years ago and, as Daniel Lyons wrote, “has aged poorly.” Today, as the Seventh Circuit observed, generative AI models render fake and real child pornography “virtually indistinguishable.” The Supreme Court now should either overrule FSC or clarify that Stanley’s possession exception from obscenity law doesn’t apply when the obscenity features virtual minors.

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