United States v. Anderegg

In Stanley v. Georgia, 394 U.S. 557 (1969), the Supreme Court created an exception to the rule that the government may freely restrict or punish speech that is unprotected as legally obscene, holding that possessing such material in one’s home is protected, as the First Amendment does not permit the government to punish people for private thoughts. As the Court put it: “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 ….”

And while sexually explicit images of real minors, i.e., child pornography that requires child abuse to create—more commonly today called “child sexual abuse material,” or “CSAM”—is its own unprotected category where even private possession is unlawful, the Supreme Court held in Ashcroft v. Free Speech Coalition, 535 U.S. 234 (2002), that “virtual” CSAM not involving real minors, if obscene, falls within Stanley’s protection. That’s been settled law ever since.

But that didn’t stop the federal government from prosecuting the private possession of sexually explicit images of AI-generated minors in United States v. Anderegg. When prosecutors appealed dismissal of a possession-of-obscenity count for that content (other counts for conduct other than possession remained), FIRE joined the First Amendment Lawyers’ Association to provide the Seventh Circuit a uniquely valuable perspective on the issue—with lead counsel Louie Sirkin, who argued Free Speech Coalition, explaining why that case required dismissing the charge for possession of virtual CSAM. Although the government argued Stanley’s protections shouldn’t apply to depictions of minors, every reason it offered had been considered—and rejected—by the Supreme Court in Free Speech Coalition.

The Seventh Circuit agreed, affirming the lower court’s decision on just those grounds to hold the First Amendment protects private, in-home possession of obscene depictions of non-existent minors. Allowing the government to prosecute otherwise-protected sexual expression under the theory that it’s “close enough” to the material the state can legitimately prohibit is a dangerous road to start down, and the circuit court declined to allow the government to do so here.