United States v. Steven Anderegg

Issue

Does the First Amendment permit the federal government to prosecute a defendant under 18 U.S.C. section 1466A(b)(1) for possessing, inside his own home, obscene child sexual abuse material that he generated with an AI image model and that depicts no actual child?

Rule

The Seventh Circuit in Anderegg applied four Supreme Court decisions. Stanley v. Georgia, 394 U.S. 557 (1969), holds that the government's power to regulate obscenity does not extend to mere possession by an individual in the privacy of his own home. New York v. Ferber, 458 U.S. 747 (1982), places child sexual abuse material made with real children outside the First Amendment as its own category of unprotected speech, and Osborne v. Ohio, 495 U.S. 103 (1990), permits punishing even in-home possession of that material, because in both cases the state interest runs to protecting the actual children depicted. Ashcroft v. Free Speech Coalition, 535 U.S. 234 (2002), holds that the Ferber rationale does not reach material produced without any real child. The charged statute, 18 U.S.C. section 1466A(b)(1), reaches obscene visual depictions of a minor engaging in sexually explicit conduct, expressly includes computer-generated images under section 1466A(f)(1), and expressly does not require that the minor depicted actually exist under section 1466A(c).

Application

The government alleged that Steven Anderegg, a software engineer with a background in AI models, installed Stable Diffusion on his laptop, added components that gave the program the ability to render genitalia, and used curated text prompts together with negative prompts excluding adults to generate hundreds of photorealistic images of prepubescent minors. It charged four counts: production, distribution, and transfer of such material to a minor under sixteen under 18 U.S.C. section 1466A(a)(1) and (d)(1), and possession under section 1466A(b)(1) and (d)(4). The government conceded at oral argument that the charged images do not depict an actual child and cannot be linked to one. Anderegg moved to dismiss the possession count on First Amendment grounds. The district court granted that motion alone, holding section 1466A(b)(1) unconstitutional as applied to him, and left the other three counts intact. On the government's interlocutory appeal the Seventh Circuit reviewed the as-applied constitutional ruling de novo and accepted the indictment's allegations as true. The government offered two reasons to take Anderegg's case outside Stanley. It argued first that the jurisdictional element in section 1466A(d)(4), which requires that the depiction or the materials used to produce it be shipped or transported in interstate or foreign commerce, meant the possession count punished more than bare in-home possession. The Seventh Circuit rejected that, observing that the reels of film in Stanley almost certainly moved in interstate commerce too, that the later Supreme Court cases narrowing Stanley all involved importing, transporting, or distributing rather than possession standing alone, and that the government had conceded it planned to rely solely on Anderegg's possession of the material in his home. The panel also treated the commerce element as jurisdictional rather than as a measure of the wrongfulness of the conduct. The government argued second that Stanley is best read to cover only obscene material depicting adults. The Seventh Circuit found no basis for that reading, because Stanley's reasoning turned on the location, the home, and not on the content of the material. The panel then asked whether obscene AI-generated material should be treated like child sexual abuse material made with real children, which would put Osborne rather than Stanley in control. Because the charged images depict no actual child, the Seventh Circuit held that Ferber and Osborne do not directly apply, and it took up in turn each justification the government offered for overriding Stanley. The government argued that offenders use such images to groom minors, that engagement with the material normalizes sexual activity with children, that a possession ban would help shrink the commercial market for material made with real children, and that increasingly realistic AI output makes it harder to prove any given image depicts a real child. The Seventh Circuit acknowledged the force of several of these points, noted that abusers do use obscene images to groom victims, and observed that its own review of the literature was inconclusive. It nonetheless held that Ashcroft v. Free Speech Coalition had squarely considered and rejected each of these arguments, and that the government had done no more than restate the position the Supreme Court turned down in 2002 rather than supply the significantly stronger and more direct connection that Free Speech Coalition said would be required. The panel said plainly that it had misgivings about applying Free Speech Coalition to today's technology but was bound to follow it.

Conclusion

The Seventh Circuit affirmed the judgment dismissing the possession count, holding that 18 U.S.C. section 1466A(b)(1) is unconstitutional as applied to Steven Anderegg. The decision is published and binds district courts within the Seventh Circuit. Its reach is narrow in two respects that matter. It resolves only the in-home possession count, and only on an as-applied basis; the production, distribution, and transfer counts under section 1466A(a)(1) and (d)(1) were not before the panel and remain pending in the district court. The panel was unanimous and drew no dissent. Judge Lee, joined by Judge Kolar, filed a concurrence urging that the Supreme Court revisit the intersection of the First Amendment and virtual child sexual abuse material if an appropriate case arises, and noting an argument the government did not make in this appeal, that AI models may be trained on material depicting real abuse.

1466A(b)(1) is unconstitutional as applied to Anderegg.

Majority opinion of Judge Lee, stating the holding on the as-applied First Amendment challenge.

we have some misgivings about applying Free

Majority opinion of Judge Lee, conceding doubt about Ashcroft v. Free Speech Coalition while treating it as binding.

Stanley and Free Speech Coalition. I write separately to note

Judge Lee, joined by Judge Kolar, opening the concurrence that asks the Supreme Court for further guidance on AI-generated material.

Why it matters. United States v. Anderegg is the first federal appellate decision to apply Ashcroft v. Free Speech Coalition to material generated by a modern diffusion model, and it tells prosecutors that an in-home possession theory fails where no real child is depicted while production, distribution, and transfer theories survive untouched. The concurrence signals that the Seventh Circuit believes the governing Supreme Court law is out of step with the technology but will not be the court to change it.

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This summary was written from the opinion itself. Every quotation above was located in the text of the decision it is attributed to. It is a summary for public education and is not legal advice.

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