Already a subscriber? Make sure to log into your account before viewing this content. You can access your account by hitting the “login” button on the top right corner. Still unable to see the content after signing in? Make sure your card on file is up-to-date.

A federal appeals court ruled Tuesday that possessing AI-generated child sexual abuse material at home is protected speech under the First Amendment, provided no real child appears in it.

Getting into it: The ruling came from Judge John Z. Lee, writing for a three-judge panel of the 7th Circuit, in the case of Steven Anderegg, 42, of Holmen, Wisconsin. The Justice Department charged him in 2024 with producing, distributing and possessing obscene visual depictions of minors, alleging he used the AI image generator Stable Diffusion to create thousands of photorealistic images. A district judge in the Western District of Wisconsin dismissed the possession count last year on First Amendment grounds. Prosecutors appealed. The panel upheld the dismissal.

The three remaining charges are still live. Anderegg is accused of producing the images, distributing them, and sending some to a 15-year-old boy through Instagram along with an explanation of how he made them. Meta flagged those direct messages to the National Center for Missing and Exploited Children through a CyberTip, which is how investigators found him.

Lee leaned on two Supreme Court precedents. Stanley v. Georgia in 1969 held that what a person keeps and looks at inside their own home is beyond the reach of obscenity law. Ashcroft v. Free Speech Coalition in 2002 held that virtual material not depicting a real child is not child pornography. He also noted the existing exception for morphing images, in which an ordinary photo of a real child is edited into explicit material. That remains illegal because a real child is harmed.

In his ruling, Lee wrote, “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. 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.”

The ruling has drawn criticism online and from advocates who work with abuse victims. Katelyn Wonderlin of Bolton Refuge House said the images can be used to blackmail and extort children regardless of how they were made. “It creates a lot of vulnerabilities in our community. It also contributes to a community consciousness or community belief that it is allowable to have child sex abuse materials,” she said.