Judge Cites 1969, 2002 Precedents in AI Child Abuse Ruling

A federal appeals court judge ruled in August 2026 that certain AI-generated child sexual abuse material is protected by the First Amendment, a decision that underscores how existing constitutional precedent has not kept pace with generative AI technology.

Judge John Z. Lee of the U.S. Court of Appeals for the Seventh Circuit issued the ruling on August 25, 2026, in a case involving Steven Anderegg, who was arrested in 2024 on charges including fabricating and possessing AI-generated child sexual abuse material. The decision upheld a lower court's dismissal of production and possession charges, according to Snopes, which fact-checked claims about the ruling.

Bound by Supreme Court precedent

Lee's decision rested on two Supreme Court cases. The first, Stanley v. Georgia from 1969, established that the First Amendment protects private possession of obscene material in one's home. The second, Ashcroft v. Free Speech Coalition from 2002, ruled that child sexual abuse material not depicting real children does not constitute child pornography and receives First Amendment protection. That 2002 decision explicitly covered digitally created images.

The Ashcroft ruling came six years after the Child Pornography Prevention Act of 1996 and struck down provisions that would have outlawed speech related to the possibility of child pornography, including computer-generated images and images of adults who appear to be minors.

Technology has outpaced the law

While Lee said judicial precedent compelled his ruling, he expressed significant reservations about applying decades-old case law to current AI capabilities. The judge noted that generative AI models can now create images depicting abuse of virtual children that are "virtually indistinguishable" from images of real children.

"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 wrote in his decision.

The judge pointed to practical enforcement challenges, noting that the influx of AI-generated images reported to the National Center for Missing and Exploited Children's CyberTipline is placing increasing burdens on law enforcement. The difficulty in distinguishing AI-generated material from images of real victims complicates investigations.

Why it matters

This ruling exposes a critical gap between constitutional law established before modern AI existed and the capabilities of today's generative models. Because appellate judges cannot overturn Supreme Court precedent on their own, only the Supreme Court itself can update the legal framework to account for AI's ability to create realistic synthetic imagery. The Department of Justice declined to comment on whether it would appeal to the Supreme Court, leaving unresolved whether the nation's highest court will revisit its 2002 decision in light of technological advances that were "likely unimaginable" at that time.

The details were first reported by Snopes.