RIGHT SPEAK: Federal Judge: Child Sex Abuse Images Are OK As Long As They’re Made With AI: The Judge Appears to Have Been Hedged In by Years of Bad Supreme Court Precedent Allowing Virtual Child Sexual Abuse Material

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Federal Judge: Child Sex Abuse Images Are OK As Long As They’re Made With AI

The judge appears to have been hedged in by years of bad Supreme Court precedent allowing virtual child sexual abuse material

A federal judge ruled this week that possession of images depicting child sexual abuse material (CSAM), otherwise known as child pornography, is protected by the First Amendment so long as the images are created with artificial intelligence (AI) and do not depict real people.

Seventh Circuit Appeals Judge John Z. Lee issued the ruling in a case where defendant Steven Anderegg was charged with producing, distributing, and possessing thousands of photorealistic AI child sex abuse images, as well as sending the materials to a young boy. The 13,000-plus images, many of which depicted nude, prepubescent children touching their genitals and being involved in sexual intercourse with men.

While Lee’s ruling upheld a district court dismissal of the possession charge, it appeared to include an implicit request for the Supreme Court to review its precedent on the matter, which was made well prior to advancements in AI.

“We now live in an age where GenAI models can render images depicting the abuse of virtual children that are virtually indistinguishable from those depicting the abuse of actual children,” Lee wrote. “Given the relentless advancement in artificial intelligence models, we have some concerns about the lines these cases draw, but we are not free to redraw them ourselves.”

Lee noted the controlling precedent in Stanley v. Georgia, a 1969 unanimous Warren Court opinion written by Justice Thurgood Marshall claiming private possession of obscene materials was protected by the First Amendment, and Ashcroft v. Free Speech Coalition, where a 6-3 court in 2002 effectively allowed virtual child pornography. Those cases, Lee wrote, mean “we must affirm.”

The decision makes clear an untenable web of Supreme Court precedent on what it considers “obscenity,” and how permissible it might be, based on the content. Right now, as the decision makes clear, American law — claiming a constitutional protection of free speech — effectively allows production and possession of highly realistic child pornography, so long as it is virtual.

“Obscenity, along with certain other categories of speech, has historically fallen ‘outside the scope of the First Amendment,'” Lee wrote. “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.’”

However, Lee continued, there are more protections for obscenity within the confines of the home, and the Supreme Court decided that the government has “broad power to regulate obscenity” but that “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,’” Lee wrote.

There were more cases pertaining to possession in the home and how that creates a market for CSAM, but until 2002 the jurisprudence addressed the issue of actual children in the images. That year the pornography industry’s trade association, Free Speech Coalition, sued to challenge the Child Pornography Prevention Act of 1996, which criminalized production of CSAM “without using any real children” — or, virtual CSAM.

The Supreme Court ruled in favor of the pornography industry, which argued that its members’ First Amendment rights were chilled by the prohibition. “Taking great care to note that the materials at issue did not involve actual children, the Supreme Court agreed,” Lee wrote. --->READ MORE HERE