Federal Appeals Court Holds that Home Possession of AI-Generated CSAM is Constitutionally Protected Under Supreme Court Precedent

On August 25, 2026, a three-judge panel of the United States Court of Appeals for the Seventh Circuit unanimously held in United States v. Anderegg that, under existing Supreme Court precedent, the possession within the home of AI-generated CSAM not depicting a particular child is protected by the First Amendment.

The case involved a Wisconsin man arrested in 2024 for creating, distributing, and possessing thousands of “hyper-realistic,” AI-generated images depicting prepubescent children engaging in sexually explicit acts. Modifying Stable Diffusion, a text-to-image AI model, the man generated depictions of human genitalia and pictures of minors in sexually explicit positions, and then filtered out depictions of adults, resulting in images of prepubescent minors displaying their genitals, touching adult male penises, or engaging in sex. The case dealt only with the man’s challenge to the home possession of the material, not to the production or distribution charges.

The court granted the defendant’s motion to dismiss, expressing clearly that it was bound by two U.S. Supreme Court decisions from 1969 and 2002. The first recognized a right to possess obscene material privately within the home while the second held that sexually explicit imagery that does not depict an actual child is entitled to First Amendment protection. 

PACT is deeply concerned by what this case reveals about the challenges posed by AI-generated CSAM. Machine-learning models such as Stable Diffusion - the program used by the defendant - are trained on existing images. While AI-generated CSAM may not depict the abuse of an identifiable child, it is not created in a vacuum.

The technology depends on images and data from which it has learned. 

Interestingly, the judge who authored the court’s opinion also issued a concurring opinion joined by one of the other judges asking the Supreme Court to update its guidance given the rapid technological innovations that have taken place since 2002, in which modern AI-generated CSAM is “virtually indistinguishable” from CSAM created through the abuse of a particular child.  In today’s world, the prosecutors cannot readily distinguish AI- from non-AI-generated CSAM.  

PACT believes that the law must account for these technological realities and ensure that children are protected from the generation of new CSAM.

We urge the Supreme Court to revisit its 2002 dial-up-era jurisprudence and provide clear guidance that reflects this rapid technological change.