7th Circuit Ruling Protects AI‑Generated Child Abuse Images, Raising First Amendment Questions

In late August, a three‑judge panel of the U.S. Court of Appeals for the 7th Circuit issued a decision that the First Amendment shields the private possession of child sexual abuse material (CSAM) when the images are created by artificial intelligence and do not show a real child.

The panel reached this conclusion by applying three Supreme Court precedents. In Stanley v. Georgia (1969) the Court said people may keep obscene material in their homes. Osborne v. Ohio (1990) created an exception for child pornography, stating that possession fuels abuse. A 2002 decision later struck down a federal ban on purely virtual CSAM, holding that computer‑generated images are protected speech.

The case that triggered the ruling involved Steven Anderegg, a software engineer who used generative AI tools to produce hyper‑realistic CSAM. He was charged with producing, distributing, and possessing the images, and he even sent one to a minor via Instagram. While a district court had dismissed his possession charge on First Amendment grounds, prosecutors appealed, leading to the 7th Circuit’s review.

The appeals court agreed to drop the possession charge, but it left the other counts intact. Anderegg still faces criminal charges for producing and distributing the AI‑generated material.

Judges John Z. Lee and Joshua P. Kolar wrote that the rapid advances in AI raise uncomfortable questions for the courts. They suggested that the Supreme Court may need to provide new guidance on how the First Amendment applies to virtual CSAM.

The government has not yet appealed the decision, but it retains that option. If it does, the issue could appear before the Supreme Court during its October term, potentially setting a nationwide precedent.

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