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CHICAGO — A federal appeals court says a Wisconsin man did not break the law when he used generative AI to create child sexual abuse material.
Writing for the 7th Circuit Court of Appeals, Judge John Lee said precedent set by the U.S. Supreme Court protected images generated by 45-year-old Steven Anderegg under the First Amendment.
Anderegg was indicted in early 2024 after allegedly using a text-to-image AI model to create sexually explicit photo-realistic images of minors. Anderegg allegedly used text prompts to tell the AI how to make the images, then used other prompts to prevent it from making images of adults.
Investigators said he used Instagram to send the images to a minor.
Judge Lee pointed to two Supreme Court rulings that he ruled protected Anderegg. The first, Stanley v. Georgia, held that individuals have a First Amendment right to possess obscenity in the privacy of their home. The 1969 case effectilvely established the right to pornography, though a 1990 ruling — Osborne v. Ohio — later criminalized child sexual abuse material.
The second Supreme Court ruling cited by Lee was Ashcroft v. Free Speech Coalition, a 2002 case that chipped away at rules put in place under the Child Pornography Prevention Act (CPPA). Specifically, the Court in that case ruled that virtual child sexual abuse material was allowed because it did not involve actual children.
“The problem for the government…is that the justifications it offers here for proscribing the possession of obscene virtual CSAM were all expressly discussed and rejected by the Supreme Court in Free Speech Coalition,” Lee wrote.
Lee admitted that he and his fellow judges had “some misgivings about applying Free Speech Coalition” to the case but that they were bound by precedent to do so.
Anderegg is also charged in La Crosse County with first-degree child sexual assault and two counts of exposing a child to harmful material.
