Seventh Circuit: Possession of Obscene AI Images Protected by First Amendment

The Seventh Circuit in United States v. Anderegg recently ruled that possession of obscene AI images is protected under the First Amendment to the US Constitution. The case highlights how rapidly evolving technology is straining decades-old legal frameworks.

The Facts of the Case

According to the government, Steven Anderegg installed a generative AI program called Stable Diffusion. By using specific text prompts, he allegedly generated hundreds of realistic images of children engaged in sex acts.

Anderegg was charged with producing, distributing, possessing, and transferring images under 18 USC § 1466A. The district court dismissed the possession charge, finding that the Supreme Court’s landmark 1969 decision in Stanley v. Georgia, protected possession of the AI-generated under the First Amendment. The Court in Stanley ruled that an individual may possess obscenity in the privacy of his own home. The government filed an appeal challenging the dismissal of the possession charge, bringing the issue before the Seventh Circuit.

The Legal Crossroads: Stanley vs. Osborne

The appeal forced the Seventh Circuit to confront a difficult question: For First Amendment purposes, is “virtual” or AI-generated CSAM more like traditional obscenity, or more like actual CSAM?

• The Stanley Doctrine: In Stanley v. Georgia, the Supreme Court established that the mere private possession of obscene material (depicting adults) is protected by the First Amendment.
• The Osborne Exception: In Osborne v. Ohio (1990), the Supreme Court carved out a major exception to Stanley, ruling that the government can criminalize the private possession of CSAM. The compelling state interest in protecting actual children from the abuse required to produce the images outweighed individual privacy rights.
• The Free Speech Coalition Wrinkle: Complicating matters further is the 2002 case Ashcroft v. Free Speech Coalition, where the Supreme Court struck down a law banning “virtual” child pornography that did not use real children, arguing that the Osborne rationale (protecting real victims) didn’t apply.

The Challenge of Generative AI

The Seventh Circuit noted that the case “illuminates how this evolving technology complicates the lines drawn by the Supreme Court“.

The government argued that the district court erred by applying Stanley, contending that Stanley only protects obscene materials depicting adults, not children. They essentially argued that hyper-realistic AI CSAM should be treated with the same severity as actual CSAM, falling under the Osborne exception despite the lack of a “real” victim in the traditional sense.

Why This Case Matters

Anderegg is a crucial test case at the intersection of First Amendment jurisprudence and generative AI. The technology has advanced to a point where “virtual” images are indistinguishable from photographs, blurring the lines that previous Supreme Court decisions relied upon. It should be noted that the Seventh Circuit only ruled on possession of obscene materials and that Anderegg still faces distribution and production charges.

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