What defenses have been raised in prosecutions for AI‑generated CSAM and how have judges ruled on First Amendment challenges?
Executive summary
Federal prosecutions for AI‑generated child sexual abuse material (CSAM) have prompted defenses grounded in the First Amendment, obscenity doctrine, and assertions that no real child was involved; judges so far have split the difference—allowing many prosecutions to proceed while recognizing constitutional limits on private possession of wholly virtual obscene material (Anderegg) [1] [2]. The result is a patchwork: some charges survive under existing CSAM statutes or obscenity law, but at least one federal judge has held that a possession count tied solely to AI‑generated “virtual” CSAM is unconstitutional as applied [1] [2].
1. What defenses are being raised — First Amendment and Stanley/Ashcroft arguments
Defendants in AI‑CSAM prosecutions have invoked Supreme Court precedents that protect certain virtual or obscene materials in private possession—most notably Stanley’s protection for private possession of obscene material and Ashcroft v. Free Speech Coalition’s shielding of “virtual” CSAM that does not involve real children—arguing that wholly AI‑generated images deserve the same protection [1] [3]. Lawyers also assert affirmative defenses in some jurisdictions that no minor was actually depicted or involved in production, a claim designed to exploit statutory language distinguishing images based on whether they depict or were produced using real children [4] [3].
2. Obscenity and Miller: the government's counterpunch
Prosecutors have responded by falling back on obscenity doctrine (Miller) and statutes that explicitly criminalize “computer‑generated images” that are “indistinguishable from” real child pornography, arguing that obscene AI content or content effectively indistinguishable from images of actual minors falls outside First Amendment protection and satisfies existing federal offenses [5] [3]. That strategy treats graphic AI images as either obscene or functionally equivalent to real‑victim material and therefore categorically unprotected, pointing to statutory language and Ferber/Ashcroft lineages [5] [3].
3. How judges have ruled so far — the Anderegg split
A recent decision in the Anderegg prosecution illustrates the split: U.S. District Judge James D. Peterson rejected most dismissal motions but tossed the possession count, holding Section 1466A unconstitutional as applied to private possession of obscene AI‑generated “virtual” CSAM—while allowing other charges tied to production or distribution to proceed—signaling that possession in the home of wholly virtual obscene material may be protected even as other conduct remains prosecutable [1] [2]. That ruling tracks Ashcroft’s protection for virtual depictions and revives the Stanley limit on punishing private possession of obscene material [1] [2].
4. Distinctions courts use: real victims, training data, and “indistinguishable” outputs
Courts and commentators emphasize three doctrinal fault lines: whether the image depicts an identifiable real child (Ferber/photograph rule), whether the model’s training set included real abuse imagery, and whether the output is “virtually indistinguishable” from real CSAM—outcomes that determine if speech is categorically unprotected or must be judged under Miller’s obscenity test [3] [5]. These distinctions give prosecutors routes to prevail when images are morphed from real victims or can be shown to be functionally identical to real‑victim material, while leaving wholly synthetic, non‑indistinguishable images vulnerable to First Amendment defense [5] [3].
5. Prosecutorial tools, state laws, and the legislative response
Prosecutors point to existing statutes that explicitly cover computer‑generated images and to state laws that now criminalize AI‑generated CSAM as evidence they can pursue bad actors without crossing constitutional lines, and many states have already amended codes to cover AI‑generated material [5] [6]. At the same time scholars and NGOs warn that federal courts have not yet uniformly addressed cases based solely on AI‑generated CSAM—creating an unsettled terrain that has prompted proposed federal reforms and state‑level bans to close perceived gaps [7] [6].
6. Unresolved questions and practical consequences
Significant questions remain: higher courts may be asked to reconcile Ashcroft and Stanley with modern AI realities, there is limited precedent for federal cases premised solely on AI outputs, and prosecution strategies will hinge on evidentiary showings about indistinguishability or training data—factors that turn doctrinal lines into forensic battles [7] [3]. The immediate practical effect is a bifurcated landscape where defendants can and will press First Amendment and “no real child” defenses, judges will resolve those claims case‑by‑case, and legislators continue to write new laws to close perceived loopholes [1] [6].