A federal judge rule certain AI-generated child sex abuse material is protected by First Amendment.
In his decision, Judge John Z. Lee of the U.S. Court of Appeals for the 7th Circuit, referred to two U.S. Supreme Court decisions from 1969 and 2002. The first says people have the right to keep obscenity in the privacy of their homes and the second says child sex abuse material that does not depict real children is not child pornography and is protected by the First Amendment of the U.S. Constitution. The judge also said that while he is bound by precedent, he is concerned by “the lines these cases draw.”
In August 2026, a rumor spread that a federal judge ruled certain child sex abuse material generated by artificial intelligence was protected by the First Amendment of the U.S. Constitution, which establishes the right to free speech.
Several Snopes readers emailed to share an Instagram post relaying the story. “A federal judge has ruled that the First Amendment protects an individual’s right to privately possess child sexual abuse content created using Al if it does not depict a real person and remains in the home,” the image in the post read. On X, several people amplified the claim, with one calling it “disgusting” (archived):
In sum, the claim was true, but it lacked crucial context. In his Aug. 25, 2026, decision, Judge John Z. Lee of the U.S. Court of Appeals for the 7th Circuit, said precedent forced him to make this ruling, pointing to two U.S. Supreme Court decisions. He added that the current state of technological advance meant the court had “concerns” about the “lines” set by these two Supreme Court decisions.
The U.S. Department of Justice declined to comment on whether the agency intends to take the case to the Supreme Court.
Law hasn’t caught up with AI, judge suggested
In 2024, a man named Steven Anderegg was arrested on charges of fabricating, possessing and distributing AI-generated child sex abuse material, as well as sending some of this material to a minor. Anderegg asked for the charges of production and possession to be dismissed, which a federal district court in Wisconsin granted on grounds that these counts ran against decided caselaw.
The prosecutors then appealed this decision, but Lee agreed with the lower court, citing two decisions the Supreme Court rendered in 1969 and 2002.
The first decision, Stanley v. Georgia, said the First Amendment protects people who privately keep obscenity. “The First Amendment does not allow a state to criminalize the private possession of obscene matter,” read the summary of the case on the Justia website, a free online collection of all U.S. Supreme Court decisions.
The second decision — Ashcroft v. Free Speech Coalition — came six years after the Child Pornography Prevention Act of 1996. It ruled that child sex abuse material that does not depict real children is not child pornography, and that it is protected by the First Amendment. This decision explicitly covered digital images.
“The statute sought to outlaw all speech that was related to the possibility of child pornography, including images of adults who look like children and computer-generated images,” the case’s Justia page reads.
While Lee said he was compelled by judicial precedent to make this ruling, he also expressed “concerns about the lines these cases draw,” given how quickly AI technology is evolving. The judge also said that fabricated child sex abuse material that does not depict real persons was becoming more and more difficult to distinguish from such material that showed real children, making law enforcement more difficult.
“Recent data suggests that the influx of AI-generated images reported to the NCMEC [National Center for Missing and Exploited Children] CyberTipline imposes increasing burdens on law enforcement,” the judge wrote in his decision.
A paragraph in Lee’s decision summarized his rationale (Page 3 of this document):
We now live in an age where GenAI [generative AI] models can render images depicting the abuse of virtual children that are virtually indistinguishable from those depicting the abuse of actual children. This case illuminates how this evolving technology complicates the lines drawn by the Supreme Court in Stanley, Osborne, and Free Speech Coalition. Indeed, in Free Speech Coalition, the Supreme Court addressed the scope of First Amendment protections for virtual CSAM, but that was nearly twenty-five years ago, and the image-generation technology available today was likely unimaginable back then. 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.
In other words, Lee said he could not on his own change a precedent set by the Supreme Court. It would therefore fall upon the Supreme Court to change the interpretation of the law to account for current technology and its consequences.
For further reading, Snopes examined the claim that 17 Republican Colorado lawmakers voted against banning AI-generated child sex abuse material.
