On August 25, Judge John Z. Lee of the U.S. Court of Appeals for the Seventh Circuit ruled that the First Amendment protects the right of Americans to possess AI-generated child pornography. In a concurring opinion, Lee noted that “given the significant advances in computer-generated image technology, particularly in the field of artificial intelligence, we would benefit from additional guidance from the Supreme Court regarding the intersection between the First Amendment and virtual CSAM [child sexual abuse material] if an appropriate case should arise.”
The case centers around Wisconsinite Steven Anderegg, who was charged by the Justice Department in 2024 “with producing, distributing, and possessing visual depictions of minors engaged in sexually explicit conduct and transferring such material to a minor under the age of sixteen.” Anderegg had created thousands of images using Stable Diffusion, a “generative artificial intelligence software”; many images were “hyper-realistic . . . of prepubescent children engaging in sexually explicit acts.” Child pornography, but without real children.
In 2025, a Western District of Wisconsin judge dismissed Anderegg’s possession charge. (He still faces charges for producing and distributing the images.) Federal prosecutors appealed the dismissal, but Lee upheld the lower court ruling, albeit with explicit reluctance, citing the Supreme Court rulings Stanley v.Georgia (1969)—which states that “individuals have a First Amendment right to possess obscenity in the privacy of their home”—and Ashcroft v. Free Speech Coalition (2002).
“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. “This case illuminates how this evolving technology complicates the lines drawn by the Supreme Court. . . . 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.”
Contrary to the implication of some headlines, Lee’s ruling was narrow, stating that the Justice Department cannot use possession statute 18 U.S.C. § 1466A(b)(1) against the in-home possession of obscene images that do not depict a real child. The ruling does not deny that the images are obscene, nor does it protect the creation or distribution of AI-generated child porn. But it does highlight the emerging front in the porn wars, adding child porn to the growing concern about deepfakes and “nudify apps.” As one dystopian CBS headline put it: “AI ‘nudify’ apps that can digitally undress any photo pose back-to-school risk.”
Decades of libertarian propaganda about porn have left us ill-prepared to deal with this moment. In some quarters, the specter of AI-generated CSAM has prompted the same arguments we have heard applied to pornography more generally: that porn use serves the social function of “safety valve” or “outlet” for sexually violent impulses and thus decreases the incidence of actual sexual violence. In a 2023 essay for Wired, Danielle Bernstein argued that AI-generated CSAM “could actually benefit society in the long run by providing a less harmful alternative to the already-massive market for images of child sexual abuse.”
Dr. Fred Berlin, director of the Johns Hopkins Sex and Gender Clinic, claimed that because pedophiles do not choose their attractions, they are faced with “not giving into a craving, a craving that is rooted in biology, not unlike somebody who’s having a craving for heroin.” Leaving aside Berlin’s characterization of both pedophilia and his inference that the celibate experience is the equivalent of heroin withdrawal, his example cautions against AI-generated CSAM. Drug use tends to exacerbate cravings rather than reduce them.
Psychologist Anna Salter, who specializes in profiling high-risk offenders, is blunt: “Child porn pours gas on a fire.” Regardless of whether children are harmed in the production of AI-generated child porn, the content will stoke the desire to hurt children.
The same is true for pornography more generally. As mainstream porn has become increasingly vicious and degrading, sexual violence has not declined, as porn defenders claim (usually citing rape statistics). Porn has mainstreamed sexual violence as a normative part of relationships. A 2024 report, for example, noted that choking during sex has become so common “that teenagers believed it was a routine sexual act they were expected to perform and enjoy.”
