Background
Federal prosecutors charged Steven Anderegg with producing, distributing, and possessing obscene visual depictions of minors engaged in sexually explicit conduct, as well as transferring such material to a child under sixteen. The government alleged that Anderegg used Stable Diffusion and carefully selected prompts to generate hundreds of photorealistic images of prepubescent children. It conceded, however, that the charged images did not depict or correspond to any actual child.
Anderegg moved to dismiss the possession count, which arose under 18 U.S.C. § 1466A(b)(1). The district court dismissed that count as unconstitutional as applied because it punished possession of obscene material in Anderegg’s home, but it left the production, distribution, and transfer counts intact. The government brought an interlocutory appeal.
The Court’s Holding
The Seventh Circuit affirmed. Under Stanley v. Georgia, the government generally may not criminalize mere possession of obscene material in the privacy of a person’s home. The court rejected the government’s argument that the statute’s interstate-commerce element took the possession charge outside Stanley, emphasizing that the government intended to rely on Anderegg’s possession at home rather than movement of the images through commerce. It also rejected the contention that Stanley protects only obscenity depicting adults.
The court further held that Osborne v. Ohio, which permits criminalization of in-home possession of CSAM depicting actual children, did not remove Anderegg’s virtual images from Stanley’s protection. Ashcroft v. Free Speech Coalition had already rejected the government’s asserted justifications for banning virtual CSAM that involved no actual children, including grooming risks, normalization of abuse, effects on the market for actual CSAM, and difficulty distinguishing real from computer-generated images. Although the panel expressed concern that advances in generative AI may have undermined assumptions behind that precedent, it concluded that only the Supreme Court may redraw the governing constitutional lines. Section 1466A(b)(1) was therefore unconstitutional as applied to Anderegg’s alleged in-home possession.
Key Takeaways
- The First Amendment, as interpreted in Stanley, protects the private in-home possession of obscene virtual CSAM that depicts no actual child.
- A federal statute’s interstate-commerce element does not defeat that protection when the charged conduct is mere possession in the home.
- The ruling leaves Anderegg’s production, distribution, and transfer charges intact and addresses only the dismissed possession count.
Why It Matters
The decision applies decades-old First Amendment precedent to photorealistic material created with modern generative AI. It limits the government’s ability within the Seventh Circuit to prosecute mere in-home possession under § 1466A(b)(1) when the obscene depictions involve no actual child, while leaving room to prosecute production, distribution, transfer, and material involving real children.
In a concurrence joined by Judge Kolar, Judge Lee urged the Supreme Court to provide additional guidance, observing that AI-generated images may now be virtually indistinguishable from depictions of actual abuse and may impose new burdens on victim identification and law enforcement.