From U.S. v. Anderegg, issued on Tuesday by Seventh Circuit Judge John Lee, with concurrence from Judges Doris Pryor and Joshua Kolar:
Steven Anderegg faces charges of creating, distributing, and possessing visual representations of minors engaged in sexually explicit activity and of transferring such material to a minor below sixteen years of age. According to the government, Anderegg produced these images through Stable Diffusion, a generative artificial intelligence (“GenAI”) tool that enabled him to fabricate highly realistic images of prepubescent children performing sexually explicit acts.
The appeal in this matter concerns only Anderegg’s contest to the charge of possessing material at home, and does not challenge the charges of production or distribution. The court’s reasoning proceeds as follows:
Obscenity, along with certain other categories of speech, has historically been deemed outside the protection of the First Amendment. And, while pinning down the exact meaning of “obscenity” can be elusive, the Supreme Court has framed it thus: “[S]peech is obscene to the public at large—and thus proscribable—if (a) ‘the average person, applying contemporary community standards[,] would find that the work, taken as a whole, appeals to the prurient interest’; (b) ‘the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law’; and (c) ‘the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.'” Miller v. California (1973).
At the same time, “[t]he Constitution extends special safeguards to the privacy of the home.” The Supreme Court confronted the collision of these two principles—the government’s interest in curbing obscenity and an individual’s private sphere—in Stanley v. Georgia (1969) … . While recognizing the government’s broad power to regulate obscenity, the Court held that that power does not extend to mere possession by an individual within the privacy of his own home. “If the First Amendment means anything,” the Court stated, “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.” …
Roughly a decade after Stanley, the Supreme Court addressed whether the promotion and sale of CSAM [child sexual abuse material] implicated First Amendment rights. In New York v. Ferber (1982), the Court nevertheless held that “[t]he test for child pornography is separate from the obscenity standard enunciated in Miller” because CSAM differs from adult obscene material in several important respects. First, the state’s interest in safeguarding the physical and psychological well-being of minors and preventing their sexual exploitation and abuse “constitute[d] a government objective of surpassing importance.” Second, the distribution of CSAM is “intrinsically related to the sexual abuse of children” because the materials “are a permanent record of the children’s participation and the harm to the child is exacerbated by their circulation.” Third, the advertising and selling of CSAM “provide[d] an economic motive for and are thus an integral part of the production of such materials.” Fourth, the value of performances and photographs of children engaging in lewd sexual conduct was “exceedingly modest, if not de minimis.” … Eight years later, the Supreme Court held that the protections articulated in Stanley would [not] extend to the possession of CSAM in one’s home. Osborne v. Ohio (1990).
[Finally, in Ashcroft v. Free Speech Coalition (2002), the Supreme Court confronted the question of whether virtual CSAM, like actual CSAM, fell outside the First Amendment’s reach…. “By prohibiting child pornography that does not depict an actual child,” the Court stated, “the statute goes beyond [Ferber] which distinguished child pornography from other sexually explicit speech because of the State’s interest in protecting the children exploited by the production process.” … For much the same reason, the Court noted, Osborne too was distinguishable, because it had “anchored its holding in the concern for the participants, those whom it called the ‘victims of child pornography.'” In Osborne, the state had a compelling interest in protecting children by attempting to eliminate CSAM at all levels of the distribution chain and preventing CSAM from being used to solicit minors. This was not the case in Free Speech Coalition, the Supreme Court explained, because the depictions did not involve actual children….
[The government argued, among other things,] that, since it is often difficult to tell virtual CSAM from real CSAM, prosecuting those who produced such material using real children would be very challenging. But the Court rejected this argument, declaring that “[t]he Government may not suppress lawful speech as the means to suppress unlawful speech. Protected speech does not become unprotected merely because it resembles the latter.”
After Free Speech Coalition, Congress returned to the drafting table and enacted the statute at issue here. The Prosecutorial Remedies and Other Tools to end the Exploitation of Children Today Act of 2003 (“PROTECT Act”) added a provision that, in part, makes possession of “a visual depiction of any kind … that (1)(A) depicts a minor engaging in sexually explicit conduct; and (B) is obscene.” … [I]t explicitly does not require that “the minor depicted actually exist.” …
Because the images included in the charges against Anderegg do not depict an actual child, Ferber and Osborne do not apply straightforwardly to this case…. And, because the government’s arguments for removing the materials from Stanley‘s protection have been squarely rejected by the Supreme Court in Free Speech Coalition, we conclude that § 1466A(b)(1) is unconstitutional as applied to Anderegg….
Judge Lee, joined by Judge Kolar, also wrote a separate concurring opinion to emphasize that, given the substantial progress in computer-generated imagery and AI, further guidance from the Supreme Court on the intersection of the First Amendment and virtual CSAM would be helpful if a suitable case arises:
[N]early a quarter-century after the Court’s decision, Free Speech Coalition remains controlling in a world where “AI-generated CSAM is virtually indistinguishable from CSAM created through the physical abuse of a child.” Even at the time of Free Speech Coalition, several Justices warned of this possibility. Justice O’Connor echoed many concerns raised by the government today, namely that “rapidly advancing technology soon will make it all but impossible to” enforce prohibitions on actual CSAM and that “[c]omputer-generated images … bear a remarkable likeness to actual human beings.”
Justice Thomas also foresaw that “technology may evolve to the point where it becomes impossible to enforce actual child pornography laws because the Government cannot prove that certain pornographic images are of real children.” In his view, “if technological advances thwart prosecution of ‘unlawful speech,’ the Government may well have a compelling interest in barring or otherwise regulating some narrow category of ‘lawful speech’ in order to enforce effectively laws against pornography made through the abuse of real children.”
According to some experts, that day may have arrived. Recent data indicate that the flood of AI-generated images reported to the NCMEC CyberTipline is placing growing demands on law enforcement…. “Even the images that do not depict a real child put a strain on law enforcement resources and impede identification of real child victims.” … [P]erpetrators may “disguise pictures of real children being abused by making the image look computer-generated” ….
Moreover, AI-generated CSAM could present additional challenges not raised by the government in this appeal. For instance, researchers have found that “a major dataset used for training image-generating AI contained hundreds of CSAM images.” Thus, unlike the virtual CSAM involved in Free Speech Coalition, the market for AI-generated virtual CSAM images may affect the demand for actual CSAM used to train those models. Such a finding would implicate many of the concerns raised in Osborne.
In this case, the record is not sufficient to assess these intricate issues, and of course we are bound by the framework laid down in Free Speech Coalition. Yet it goes without saying that “[t]he prevention of sexual exploitation and abuse of children constitutes a government objective of surpassing importance.” The stakes are high, and we must remain cognizant of the rapid evolution of image-generation technology.
Joseph Aragorn Bugni represents Anderegg.
