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A panel of three Biden-appointed federal judges on the Seventh Circuit Court of Appeals has ruled that possession of AI-generated child sexual abuse material is protected by the First Amendment — and the ruling is sending shockwaves through child-protection advocacy and law enforcement communities across the country.
The case, United States v. Steven Anderegg, involved a Wisconsin man charged with producing, distributing, and possessing more than 13,000 photorealistic AI-generated images depicting the sexual abuse of prepubescent children. He also sent the material to a minor. The appeals court upheld the dismissal of the possession charge, citing a 2002 Supreme Court precedent from Ashcroft v. Free Speech Coalition — a ruling the pornography industry’s trade lobby won to block the Child Pornography Prevention Act of 1996.
Writing for the panel, Judge John Z. Lee acknowledged the horror of what this ruling enables. “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,” he wrote. “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.”
In other words: the judges know this is wrong. They are pointing the finger at the Supreme Court and daring it to fix precedent that is now a generation out of date.
The controlling framework goes back to Stanley v. Georgia in 1969, which protected private in-home possession of obscene materials, and Ashcroft in 2002, which shielded virtual CSAM from prosecution on the grounds that no real child was harmed in its creation. The Supreme Court in 2002 was persuaded by the pornography industry’s argument — that virtual images would actually replace the market for real abuse. That argument has aged catastrophically.
Researchers have since found that major AI training datasets contained hundreds of real CSAM images — meaning the virtual content is not cleanly separated from real-world child exploitation. Justice Clarence Thomas, who concurred in the 2002 ruling, explicitly warned that advancing technology would make that separation untenable. That day has arrived.
Law enforcement is already staggering under the load. Reports of AI-generated CSAM to the National Center for Missing and Exploited Children CyberTipline are surging, and investigators are now spending enormous resources trying to distinguish real victims from synthetic ones — in images designed to be indistinguishable.
This is what happens when the judiciary prioritizes legal process over common sense, and when courts treat decades-old precedent as untouchable scripture regardless of what the world now looks like. A Supreme Court that struck down Roe v. Wade after decades can certainly revisit a ruling that is now being used to shield mass-produced synthetic child pornography.
Congress must also act. The Child Pornography Prevention Act of 1996 attempted to close exactly this gap. The Supreme Court blew the door back open. Lawmakers have every tool they need to write statute that holds up to the modern technological reality — and every obligation to the children who become the ultimate victims when this material circulates, normalizes, and fuels demand.
The Seventh Circuit panel has handed the Supreme Court a direct invitation. The question is whether the justices will take it before this ruling becomes a permanent shield for the worst actors on the internet.
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