MADISON, WI - A federal judge has ruled that AI-generated child sexual abuse material is protected by the First Amendment. The decision comes in a case against a Wisconsin man who was arrested in 2024 for producing, distributing and possessing AI-generated child sexual abuse material.
According to the Department of Justice (DOJ), 42-year-old Steven Anderegg used a text-to-image generative artificial intelligence (GenAI) model called Stable Diffusion to create thousands of realistic images of young children, KWTX reported.
Many of those images depicted naked children engaging in sexual intercourse with men, the DOJ said. Thousands of images were reportedly found on Anderegg's computer. He was also accused of sending some of the images to a 15-year-old boy and telling the boy how he created the images using AI.
At the time of Anderegg's arrest, Principal Deputy Assistant Attorney General Nicole M. Argentieri said the DOJ was prepared to hold him accountable.
"Today’s announcement sends a clear message: using AI to produce sexually explicit depictions of children is illegal, and the Justice Department will not hesitate to hold accountable those who possess, produce, or distribute AI-generated child sexual abuse material,” Argentieri said in May.
However, Judge John Z. Lee of the U.S. Court of Appeals for the 7th Circuit granted the defendant's motion to dismiss the charges. In his August 25 decision, the judge referred to two U.S. Supreme Court decisions from 1969 and 2002. The first ruled that people have a right to keep obscenity in the privacy of their homes, and the second ruled that child sexual abuse material that does not depict real children is not child pornography and is protected by the First Amendment.
In his decision the judge noted that while he is bound by the precedent set by the Supreme Court, he is concerned about “the lines these cases draw” and how quickly AI is evolving. He also noted that AI-generated child sexual abuse material is becoming increasingly difficult to distinguish from material that shows real children.
"We now live in an age where GenAI models can render images depicting the abuse of virtual children that are virtually indistinguishable from those depicting the abuse of actual children,” Lee wrote in his decision. “This case illuminates how this evolving technology complicates the lines drawn by the Supreme Court … that was nearly twenty-five years ago, and the image-generation technology available today was likely unimaginable back then. Given the relentless advancement in artificial intelligence models, we have some concerns about the lines these cases draw, but we are not free to redraw them ourselves."
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