From U.S. v. Anderegg, decided Tuesday by Seventh Circuit Judge John Lee, joined by Judges Doris Pryor and Joshua Kolar:
Steven Anderegg is charged 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. According to the government, Anderegg produced these images using Stable Diffusion, a generative artificial intelligence (“GenAI”) software that allowed him to create hyper-realistic images of prepubescent children engaging in sexually explicit acts.
The appeal in this case deals only with Anderegg’s challenge to the home possession charge, not to the production or distribution charge. Here’s the court’s analysis:
Obscenity, along with certain other categories of speech, has historically fallen “outside the scope of the First Amendment.” And, although the precise meaning of “obscenity” is difficult to pin down, the Supreme Court has offered the following articulation: “[S]peech is obscene to the public at large—and thus proscribable—if (a) ‘the average person, applying contemporary community standards[,] would find that the work, taken as a whole, appeals to the prurient interest’; (b) ‘the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law’; and (c) ‘the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.'” Miller v. California (1973).
At the same time, “[t]he Constitution extends special safeguards to the privacy of the home.” The Supreme Court addressed the clash of these two principles—the government’s interest in proscribing obscenity and an individual’s privacy in one’s home—in Stanley v. Georgia (1969)…. Acknowledging that the government retains “broad power to regulate obscenity,” the Supreme Court held that the State’s “power simply does not extend to mere possession by the individual in the privacy of his own home.” “If the First Amendment means anything,” the Court explained, “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.” …
Approximately a decade after Stanley, the Supreme Court addressed whether the promotion and sale of CSAM [child sexual abuse material] implicated First Amendment rights. [In N.Y. v. Ferber 1982),] the Court nevertheless held that “[t]he test for child pornography is separate from the obscenity standard enunciated in Miller” because CSAM was different from adult obscene materials in several important ways. First, the state’s interest in protecting the physical and psychological well-being of minors and preventing
Obligating an actual child victim in CSAM cases could actually pave the way for obligating an actual child victim in those stupid bait and switch stings. I can’t help but wonder if that’s another significant concern among the prosecutors in this case.