A Wisconsin man charged with possessing child sexual abuse images created by artificial intelligence may be protected by the Constitution, a judge rued.
Steven Anderegg, 42, was charged last May with four federal criminal counts related to his alleged production, distribution, and possession of AI-generated images of minors engaged in sexually explicit conduct, in a case that could set major implications for how AI-generated child porn is legally handled.
In response to Anderegg’s motion to dismiss the charges, a federal judge in Wisconsin allowed three of the charges to move forward but threw one out. U.S. District Judge James D. Peterson argued that the First Amendement protects the possession of “virtual child pornography” in one’s home. Prosecutors have since appealed.
More than 13,000 AI-generated images were found on Anderegg’s devices, and many of them depicted child sexual abuse material, the filing says. He allegedly used “text-to-image generative artificial intelligence model called Stable Diffusion to create thousands of realistic images of prepubescent minors,” federal prosecutors said when announcing the charges.
In his argument to dismiss the possession charge, Anderegg says “he has the right to possess and produce obscene material in his own home.” He cited the Stanley v. Georgia decision, a 1969 Supreme Court ruling that prohibited criminalizing obscene materials in the home.
Defending the 1969 ruling, late Justice Thurgood Marshall said: “If the First Amendment means anything, it means that a State has no business telling a man, sitting alone in his own house, what books he may read or what films he may watch. Our whole constitutional heritage rebels at the thought of giving government the power to control men's minds."
The government argued that a 2003 statute applies to “obscene virtual child pornography” because it bears “concern that offenders will use AI-generated obscene material depicting children in an effort to ‘groom’ actual minors into engaging in sexual acts,” among other reasons.
In his decision, Peterson denied Anderegg’s request to dismiss the other charges of distribution of an obscene image of a minor, transfer of obscene matter to a person under 16 and production of an image of a minor engaging in sexually explicit conduct.
The federal government last May accused the 42-year-old of describing how he used Stable Diffusion to make the images to a 15-year-old boy and sent the teen several GenAI images of “minors lasciviously displaying their genitals” via Instagram.
Instagram reported Anderegg’s account to the National Center for Missing and Exploited Children, which tipped off law enforcement.
