How have courts treated prosecutions for possession-only CSAM where the defendant claims the images were AI-generated or virtual?
Executive summary
Federal and lower courts are starting to draw a sharp line between AI- or computer-generated sexual images that do not involve real children and material that is based on or depicts actual minors, with at least one district court recently dismissing a possession charge as unconstitutional as applied to “virtual” CSAM [1] [2]. At the same time, prosecutors, the FBI, and many state attorneys general insist AI-generated CSAM is criminal and pursue charges—especially when imagery is tied to real children or is indistinguishable from real-victim material—so the law is unsettled and fact-intensive [3] [4] [5].
1. How courts have squared old First Amendment precedents with AI imagery
Judges confronting AI- or computer-generated child sexual abuse imagery have relied heavily on a trio of Supreme Court precedents: Stanley’s protection of private possession of obscene material in the home, Osborne’s carve-out for CSAM involving real children, and Ashcroft v. Free Speech Coalition’s rejection of overly broad statutes that criminalize “virtual” depictions absent real victims; a recent district opinion invoked that framework to conclude Section 1466A could not constitutionally reach mere private possession of obscene virtual CSAM in that case, and dismissed the possession count [1] [2].
2. When courts and prosecutors treat synthetic images as CSAM anyway
Federal prosecutors and law enforcement have not accepted a blanket immunity for AI-generated material: the FBI and prosecutors have publicly warned that realistic computer-generated images can be prosecuted as CSAM—particularly when images are based on or traceable to real minors or when investigations uncover additional material showing real-victim abuse—and courts have allowed convictions where images were morphed from actual children or otherwise implicated real victims [3] [6].
3. The fine factual line controlling prosecutions—real child, morphed face, training data
A recurring theme in decisions and prosecutions is factual nuance: courts and investigators ask whether an image “depicts” a real child (including morphed or superimposed faces), whether an AI model was trained on real CSAM, and whether the defendant’s conduct involved distribution, production, or other trafficking offenses that Congress has already treated as per se unprotected; those distinctions have produced opposite outcomes—dismissal of pure-possession charges for wholly virtual imagery in one case, and guilty pleas or indictments where images tie back to actual minors [1] [3] [6].
4. Policy pressures pushing prosecutions despite constitutional concerns
Child-safety organizations and many state attorneys general press for treating AI-generated sexual content “no differently” than traditional CSAM, arguing that enforcement gaps would embolden abusers and flood investigative systems with realistic fakes that harm children and divert scarce resources; legislators and advocacy groups have proposed statutory fixes as prosecutors push for tools to pursue AI-enabled abuse [5] [4] [2].
5. What this means now—and the open questions courts haven’t answered
Practically, defendants who possess images that are wholly synthetic and not traceable to real minors may find recent district rulings a viable defense to possession charges, but that protection is far from settled nationally because prosecutors successfully pursue cases tied to real victims and appeals are pending; the record is incomplete on whether higher courts will uniformly extend First Amendment protection to all AI-generated CSAM, and existing reporting does not establish a binding Supreme Court rule on the new AI facts [1] [2] [3].