7th Circuit Bars In-Home Possession Prosecution for AI Child Images With No Real Child

Within Wisconsin, Illinois and Indiana, a 7th Circuit decision now directly governs prosecutions for private, in-home possession of entirely computer-generated explicit images depicting children when no actual child is shown. The court upheld dismissal of a possession charge after finding that such a prosecution violated the First Amendment.

The ruling came in the case of Steven Anderegg, whom prosecutors accuse of creating thousands of photorealistic AI-generated child-abuse images. The court upheld dismissal of the possession count because the images did not depict a real child; the ruling did not invalidate the other charges in the case.

Judge John Z. Lee cited Supreme Court precedents from 1969 and 2002. The court’s reasoning turned on the absence of an actual child and precedent protecting private possession of obscene material in the home.

Given the relentless advancement in artificial intelligence... we have some concerns about the lines these cases draw, but we are not free to redraw them ourselves.

Judge John Z. Lee

Anderegg still faces charges alleging that he produced and distributed the images and sent them to a minor. Prosecutors allege he sent some images to a 15-year-old boy and explained how he created them with AI. Those allegations remain unresolved.

The decision directly applies only in the 7th Circuit. In Madison County, Alabama, Kenneth Todd Arrington faces two counts of producing pornography involving minors. Prosecutors say the images were made with AI and that no actual child was identified.

Alabama amended its law in 2024 to cover digital images created, altered or generated to appear to depict a person younger than 18 engaged in sexually explicit conduct. The state is in the 11th Circuit, which has not decided the same issue; Alabama’s law remains in force, and no First Amendment challenge has been filed in Arrington’s case. A Huntsville attorney who does not represent Arrington expects defense lawyers to raise the Wisconsin ruling in similar cases.

Katelyn Wonderlin, sexual assault program director at Bolton Refuge House, said the ruling could create vulnerabilities for efforts to protect children online. She said AI-generated images can be used to blackmail and extort children, even when the imagery does not depict a real child.