United States v. Steven Anderegg

In the United States Court of Appeals For the Seventh Circuit ____________________ No. 25-1354 UNITED STATES OF AMERICA, Plaintiff-Appellant, v. STEVEN ANDEREGG, Defendant-Appellee. ____________________ Appeal from the United States District Court for the Western District of Wisconsin. No. 3:24-cr-0050 — James D. Peterson, Chief Judge. ____________________ ARGUED OCTOBER 30, 2025 — DECIDED AUGUST 25, 2026 ____________________ Before LEE, PRYOR, and KOLAR, Circuit Judges. LEE, Circuit Judge. Steven Anderegg is charged with pro- ducing, distributing, and possessing visual depictions of mi- nors engaged in sexually explicit conduct and transferring such material to a minor under the age of sixteen. According to the government, Anderegg produced these images using Stable Diffusion, a generative artificial intelligence (“GenAI”) software that allowed him to create hyper-realistic images of prepubescent children engaging in sexually explicit acts. 2 No. 25-1354 When Anderegg moved to dismiss the indictment, the dis- trict court granted the motion as to the possession charge and denied the remainder. In doing so, the court held that 18 U.S.C. § 1466A(b)(1) was unconstitutional as applied to An- deregg because, under Stanley v. Georgia, individuals have a First Amendment right to possess obscenity in the privacy of their home. 394 U.S. 557 (1969). Moreover, in the district court’s view, the government’s attempts to justify a prohibi- tion on the possession of virtual child sexual abuse material (“CSAM”) ran headlong into Ashcroft v. Free Speech Coalition, where the Supreme Court rejected substantially identical ar- guments. 1 535 U.S. 234, 250 (2002). This is despite the Su- preme Court’s prior holding in Osborne v. Ohio, which permit- ted the government to proscribe the in-home possession of 1 Federal criminal law defines “child pornography” as the “visual de- piction” of a minor “engaging in sexually explicit conduct.” 18 U.S.C. § 2256(8); see also United States v. Williams, 553 U.S. 285, 288 (2008) (child pornography generally “consists of sexually explicit visual portrayals that feature children.”). More recently, the Fourth Circuit has recognized that “the term ‘child sexual abuse material’ more ‘accurately reflects what is depicted—the sexual abuse and exploitation of children.’” United States v. Tucker, 60 F.4th 879, 887 (4th Cir. 2023) (citation modified); see also Child Sexual Abuse Material, U.S. Dep’t of Just. 1 (June 2023), https://www.jus- tice.gov/d9/2023-06/child_sexual_abuse_material_2.pdf [https://perma.cc/E3HM-AX7Q] (Department of Justice explaining that although the term “child pornography” appears in some federal statutes, the term “child sex abuse material” is preferred). Thus, the Fourth Circuit has used “child sexual abuse material” interchangeably with the term “child pornography” to “reflect more accurately the abusive and exploita- tive nature of [the act].” United States v. Kuehner, 126 F.4th 319, 322 n.1 (4th Cir. 2025). The Second Circuit has followed suit. United States v. Guard, 152 F.4th 375, 381 n.2 (2d Cir. 2025). Following their lead, we also employ the term CSAM where possible. No. 25-1354 3 CSAM depicting actual children. 495 U.S. 103, 109–11 (1990). The government then filed this interlocutory appeal, chal- lenging the dismissal of the possession charge. We now live in an age where GenAI models can render images depicting the abuse of virtual children that are virtu- ally 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 Coali- tion, the Supreme Court addressed the scope of First Amend- ment 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. See United States v. Rush, 130 F.4th 633, 637, 638 (7th Cir. 2025) (“The rule of law demands we follow binding Supreme Court precedent. … [W]e leave to the Supreme Court the prerogative of overrul- ing its own decisions.”). Because we conclude that Stanley and Free Speech Coalition control Anderegg’s as-applied challenge to § 1466A(b)(1), we must affirm. I. Background According to the government, in October 2023, Meta Plat- forms, Instagram’s parent company, reported the online transmission of potential CSAM to the CyberTipline of the National Center for Missing and Exploited Children (“NCMEC”). See 18 U.S.C. § 2258A. An Instagram user appar- ently sent a direct message containing what appeared to be AI-generated images depicting CSAM to an account belong- ing to a minor. According to Meta, at least one image depicted 4 No. 25-1354 “what appeared to be a … prepubescent juvenile male … with his legs spread far apart exposing his erect penis.” Meta also noted that the image appeared to be computer-generated. The corresponding message history showed the account user ex- plaining to the minor how he had created the images by in- putting text prompts into Stable Diffusion, a text-to-image GenAI model. Law enforcement linked the account to Anderegg, whose résumé indicated that he was a software engineer with a back- ground in AI models. Law enforcement then executed a search warrant of his home, his personal laptop, two other cell phones, and other devices. The government alleges that Anderegg installed Stable Diffusion on his personal laptop and added software compo- nents that provided the program with the ability to create de- pictions of human genitalia. He then used the program to gen- erate photo-realistic images of minors in sexually explicit po- sitions. To produce these images, Anderegg used curated text prompts to generate these images and further refined the out- put by employing negative prompts to exclude depictions of adults. This process generated hundreds of images depicting nude or semi-clothed prepubescent minors displaying or touching their genitals. Other images, according to the gov- ernment, portrayed prepubescent minors touching adult male penises or engaging in sexual intercourse. 2 Anderegg was charged with (1) “knowingly produc[ing]” and (2) “knowingly distribut[ing]” visual depictions of 2 The government concedes that the images for which Anderegg is charged do not depict an actual child, nor can they be linked to an actual child. Oral Argument at 21:43. No. 25-1354 5 minors engaged in sexually explicit conduct as well as (3) “knowingly transferr[ing]” such material to a minor under the age of sixteen in violation of 18 U.S.C. § 1466A(a)(1), (d)(1). He was also charged in Count 4 with “knowingly pos- sess[ing] at least one visual depiction that depicted a minor engaging in sexually explicit conduct and was obscene, and any depiction involved in the offense had been shipped and transported in interstate and foreign commerce” in violation of 18 U.S.C. § 1466A(b)(1), (d)(4). Anderegg filed a flurry of motions, including a motion to dismiss Count 4. As to that count, he argued that being con- victed of possessing CSAM would violate his First Amend- ment rights as recognized by Stanley. The district court agreed and dismissed the possession charge but left the remaining counts intact. The government appeals. II. Discussion We review de novo the district court’s determination that § 1466A(b)(1) is unconstitutional as applied to Anderegg. See United States v. Sheikh, 164 F.4th 629, 633 (7th Cir. 2026) (“We review the constitutionality of a federal statute de novo.”) (ci- tation omitted). In considering an as-applied challenge, “we examine only the facts of the case before us and not any set of hypothetical facts under which the statute might be unconsti- tutional.” United States v. Phillips, 645 F.3d 859, 863 (7th Cir. 2011). And, when reviewing the dismissal of Count 4, we ac- cept the indictment’s allegations as true. United States v. Moore, 563 F.3d 583, 586 (7th Cir. 2009). We start with a dis- cussion of the Supreme Court cases most pertinent to our in- quiry. 6 No. 25-1354 A. Applicable Supreme Court Precedent 1. Obscenity, CSAM, and the Home The First Amendment provides that “Congress shall make no law … abridging the freedom of speech.” U.S. Const. Amend. I. “At the same time, not all speech is protected.” Free Speech Coal., Inc. v. Paxton, 606 U.S. 461, 471 (2025). Obscenity, along with certain other categories of speech, has historically fallen “outside the scope of the First Amendment.” Id. (cita- tion omitted); see also Roth v. United States, 354 U.S. 476, 485 (1957) (“[O]bscenity is not within the area of constitutionally protected speech.”). And, 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 pa- tently 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.’” Paxton, 606 U.S. at 472 (quoting Miller v. California, 413 U.S. 15, 24 (1973)). At the same time, “[t]he Constitution extends special safe- guards to the privacy of the home.” United States v. Orito, 413 U.S. 139, 142 (1973). The Supreme Court addressed the clash of these two principles—the government’s interest in pro- scribing obscenity and an individual’s privacy in one’s home—in Stanley. 394 U.S. 557. There, law enforcement dis- covered three reels of eight-millimeter films containing ob- scene material at the defendant’s home, and he was later charged and convicted of knowingly possessing obscene No. 25-1354 7 matter in violation of Georgia law. The defendant challenged the conviction on First Amendment grounds, and the Su- preme Court agreed. Acknowledging that the government retains “broad power to regulate obscenity,” the Supreme Court held that the State’s “power simply does not extend to mere possession by the individual in the privacy of his own home.” 394 U.S. at 568. “If the First Amendment means anything,” the Court ex- plained, “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.” Id. at 565. Along the way, the Court had no trouble rejecting the State’s argument that its “right to protect the individual’s mind from the effects of obscenity” entitled it to reach into an individual’s home. Id. Indeed, “the right to be free, except in very limited circumstances, from unwanted governmental in- trusions into one’s privacy,” the Supreme Court declared, is “fundamental to our free society.” Id. at 564; see United States v. Reidel, 402 U.S. 351, 356 (1971) (“The personal constitutional rights of those like Stanley to possess and read obscenity in their homes and their freedom of mind and thought do not depend on whether the materials are obscene or whether ob- scenity is constitutionally protected. Their rights to have and view that material in private are independently saved by the Constitution.”). Approximately a decade after Stanley, the Supreme Court addressed whether the promotion and sale of CSAM impli- cated First Amendment rights. In New York v. Ferber, New York had enacted a broadly worded statute proscribing the use of a child under the age of sixteen in a “performance” that includes “sexual conduct.” 458 U.S. 747, 751 (1982) (citation 8 No. 25-1354 omitted). The statute defined “performance” as “any play, motion picture, photograph or dance,” and defined “sexual conduct” as “actual or simulated sexual intercourse … or lewd exhibition of the genitals.” Id. (citation modified). The defendant was arrested after selling two films to an under- cover police officer that depicted young boys masturbating; he was later convicted and appealed. The New York Court of Appeals reversed, holding that the statute violated the First Amendment because, among other things, it was over-inclu- sive by prohibiting the distribution of “materials which are traditionally entitled to constitutional protection,” such as medical books and educational sources. Id. at 752 (citation modified). In making this determination, the Court of Ap- peals relied on a state-law definition of obscenity that mir- rored the standard espoused in Miller. Id. at 753 (citation mod- ified). The Supreme Court reversed. Recognizing that the New York Court of Appeals’ reliance on Miller was not “unreason- able,” id., the Court nevertheless held that “[t]he test for child pornography is separate from the obscenity standard enunci- ated in Miller” because CSAM was different from adult ob- scene materials in several important ways, id. at 764. First, the state’s interest in protecting the physical and psychological well-being of minors and preventing the sexual exploitation and abuse of children “constitute[d] a government objective of surpassing importance.” Id. at 757. Second, the distribution of CSAM was “intrinsically related to the sexual abuse of chil- dren” because the materials “are a permanent record of the children’s participation and the harm to the child is exacer- bated by their circulation.” Id. at 759 (footnote omitted). Third, the advertising and selling of CSAM “provide[d] an economic motive for and are thus an integral part of the production of No. 25-1354 9 such materials.” Id. at 761 (footnote omitted). Fourth, the value of performances and photographs of children engaged in lewd sexual conduct was “exceedingly modest, if not de minimis.” Id. at 762. Lastly, classifying CSAM as outside the protection of the First Amendment was not inconsistent with the historical approach the Court employed when analyzing speech. Id. at 763. Thus, the Court concluded, CSAM (whether obscene or not) was not constitutionally protected. Eight years later, the Supreme Court addressed whether the protections articulated in Stanley would extend to the pos- session of CSAM in one’s home. In Osborne v. Ohio, the de- fendant was convicted of violating an Ohio law prohibiting the possession and viewing of CSAM after the police found in his home four photographs of adolescents in sexually explicit positions. 495 U.S. at 107. In the defendant’s view, the statute was unconstitutional under Stanley. The Supreme Court disa- greed. “Stanley should not be read too broadly,” the Court re- marked, adding that it had “previously noted that Stanley was a narrow holding.” Id. at 108. The main distinction between Osborne and Stanley, the Court observed, was “obvious”: “The State does not rely on a paternalistic interest in regulating Os- borne’s mind. Rather, Ohio has enacted [the statute] in order to protect the victims of child pornography; it hopes to de- stroy a market for the exploitative use of children.” Id. at 109. Thus, it was reasonable, the Supreme Court concluded, for Ohio to believe that criminalizing the possession and viewing of CSAM would lessen demand and decrease its production. Id. at 109–10. “Given the importance of the State’s interest in protecting the victims of child pornography,” the Court de- clared, “we cannot fault Ohio for attempting to stamp out this vice at all levels in the distribution chain.” Id. at 110. What is 10 No. 25-1354 more, the Court observed that the distribution and viewing of CSAM “permanently record the victim’s abuse” and “evi- dence suggest[ed] that pedophiles use child pornography to seduce other children into sexual activity.” Id. at 111 (citing Ferber, 458 U.S. at 759). Such grave interests, the Supreme Court held, allowed Ohio to prohibit the possession and view- ing of CSAM even in one’s own home notwithstanding Stan- ley. See United States v. 12 200-Foot Reels of Super 8mm. Film, 413 U.S. 123, 127 (1973) (noting that Stanley rests on an “explicitly narrow and precisely delineated privacy right”); United States v. Andersson, 803 F.2d 903, 906 (7th Cir. 1986) (finding that the Supreme Court has “limited” Stanley’s holding “severely”). 2. Free Speech Coalition—Virtual CSAM Before 1996, Congress had defined child pornography as images made using actual minors. 18 U.S.C. § 2252 (1994). But with the rapid advancement of computer technology, Con- gress passed the Child Pornography Prevention Act (“CPPA”) in 1996 to expand federal prohibitions on CSAM. As relevant here, the CPPA extended the ban beyond images involving actual children to include “any visual depiction, including any … computer-generated image or picture” that “is, or ap- pears to be, of a minor engaging in sexually explicit conduct.” 18 U.S.C. § 2256(8)(B) (1996). Thus, the statute criminalized the production, distribution, and possession of virtual CSAM, that is, CSAM “produced without using any real children.” Free Speech Coal., 535 U.S. at 239. In Ashcroft v. Free Speech Coalition, the Supreme Court con- fronted the question of whether virtual CSAM, like actual CSAM, was beyond the First Amendment’s reach. Id. at 234. In that case, Free Speech Coalition, a trade association for the adult-entertainment industry, mounted a facial challenge to No. 25-1354 11 § 2256(8)(B), arguing that the provision violated its members’ First Amendment rights by chilling protected speech. Id. Tak- ing great care to note that the materials at issue did not in- volve actual children, the Supreme Court agreed. As an initial matter, the Supreme Court observed that the CPPA sought “to reach beyond obscenity, and it makes no at- tempt to conform to the Miller standard.” Id. at 240. Put an- other way, “the CPPA cannot be read to prohibit obscenity, because it lacks the required link between its prohibitions and the affront to community standards prohibited by the defini- tion of obscenity.” Id. at 249. As a result, the government re- lied on Ferber, where the Supreme Court had allowed States to regulate CSAM whether obscene or not. But the Supreme Court found Ferber inapt. “By prohibiting child pornography that does not depict an actual child,” the Court stated, “the statute goes beyond [Fer- ber] which distinguished child pornography from other sex- ually explicit speech because of the State’s interest in protect- ing the children exploited by the production process.” Id. at 240 (citing Ferber, 458 U.S. at 747, 758); see Williams, 553 U.S. at 289 (“[T]he child-protection rationale for speech restriction does not apply to materials produced without children.”) (quoting Free Speech Coal., 535 U.S. at 249–51). Consistent with this purpose, the statute challenged in Ferber had targeted the “production of the work, not its content.” Id. at 249 (citation modified). And Ferber upheld the statute’s prohibition on the production, distribution, and sale of CSAM, because (1) the material constituted “a permanent record of the child’s abuse, the continued circulation itself would harm the child,” and (2) “the traffic in child pornography was an economic motive for its production.” Id. at 250 (citing Ferber, 458 U.S. at 759–60). 12 No. 25-1354 Here, the CPPA targeted virtual CSAM, and because “virtual child pornography is not intrinsically related to the sexual abuse of children, as were the materials in Ferber,” id. at 250 (citation modified), the Court found Ferber not to control. 3 For much the same reason, the Court remarked, Osborne too was distinguishable, because it had “anchored its holding in the concern for the participants, those whom it called the ‘victims of child pornography.’” Id. (citation modified). In Os- borne, the state had a compelling interest in protecting chil- dren by attempting to eliminate CSAM at all levels of the dis- tribution chain and preventing CSAM from being used to so- licit minors. Id. This was not the case in Free Speech Coalition, the Supreme Court declared, because the depictions did not involve actual children. The Supreme Court then proceeded to refute the various arguments the government had raised to justify the CPPA’s prohibition on virtual CSAM. First, the government argued that the CPPA was necessary because virtual CSAM could be used to seduce children. But, if this was the law’s purpose, the Court concluded, it was “not narrowly drawn,” because “[t]he Government cannot ban speech fit for adults simply be- cause it may fall into the hands of children.” Id. at 252. 3 Importantly, the Supreme Court in Free Speech Coalition distin- guished § 2256(8)(B) from § 2256(8)(C), which “prohibits a more common and lower tech means of creating virtual images, known as computer morphing,” where creators alter innocent images of real children so that they appear to be engaging in sexual acts. Id. at 242. “Although morphed images may fall within the definition of virtual child pornography,” the Court remarked, “they implicate the interests of real children and are in that sense closer to the images in Ferber. Respondents do not challenge this provision, and we do not consider it.” Id. No. 25-1354 13 Second, the government argued that virtual CSAM “whets the appetites of pedophiles and encourages them to engage in illegal conduct.” Id. at 253. But again the Supreme Court was unpersuaded. “The mere tendency of speech to encourage un- lawful acts is not a sufficient reason for banning it,” the Court noted, and the government had “shown no more than a re- mote connection between speech that might encourage thoughts or impulses and any resulting child abuse.” Id. Third, in the government’s view, it was necessary to pro- scribe virtual CSAM if it wanted to accomplish its goal to eliminate the market for real CSAM. The Court, however, found this theory “implausible,” noting that if the two were completely interchangeable, the actual images would be “driven from the market by the indistinguishable substi- tutes,” since “[f]ew pornographers would risk prosecution by abusing real children if fictional, computerized images would suffice.” Id. at 254. For its final argument, the government asserted that, be- cause it was often hard to distinguish virtual CSAM from real CSAM, prosecuting those who produced such material using actual children was very difficult. But the Court made short shrift of this argument, declaring that “[t]he Government may not suppress lawful speech as the means to suppress unlaw- ful speech. Protected speech does not become unprotected merely because it resembles the latter.” Id. at 255. After Free Speech Coalition, Congress went back to the drawing board and enacted the statute at issue here. The Pros- ecutorial Remedies and Other Tools to end the Exploitation of Children Today Act of 2003 (“PROTECT Act”) included a new provision which, in part, proscribed possession of “a visual depiction of any kind … that (1)(A) depicts a minor engaging 14 No. 25-1354 in sexually explicit conduct; and (B) is obscene.” 18 U.S.C. § 1466A(a)(1), (b)(1) (emphasis added). This includes any “digital image or picture, computer image or picture, or com- puter generated image or picture.” 18 U.S.C. § 1466A(f)(1). And it expressly does not require that “the minor depicted ac- tually exist.” 18 U.S.C. § 1466A(c). B. The Merits Here, Anderegg challenges the count charging him with possessing obscene virtual CSAM. Anderegg relies on Stanley to argue that § 1466A(b)(1) is unconstitutional as applied to him. In essence, he asserts that obscene virtual CSAM should have the same protections as other obscene materials when possessed and viewed at home. Unpacking this argument re- quires several parts. First, assuming for the sake of argument that obscene virtual CSAM is equivalent to other forms of ob- scenity, we must assess whether Anderegg’s circumstances would fall within the contours of Stanley. If the answer to that question is yes, we must evaluate whether obscene virtual CSAM, like actual CSAM, should be treated differently from obscene material generally (and therefore fall outside Stan- ley’s purview) for the reasons articulated in Osborne. Finally, as we consider this second question, we must be mindful of the differences between virtual CSAM and actual CSAM that the Supreme Court identified in Free Speech Coalition. 1. Stanley First, the government asks us to distinguish this case from Stanley in two ways. First, it contends that Anderegg’s alleged possession has a nexus with interstate commerce whereas Stanley’s did not. Second, the government reads Stanley to No. 25-1354 15 apply only to obscene materials depicting adults not children. Neither argument is persuasive. Under § 1466A(d)(4), the depiction (or materials used to produce the depiction) must be “shipped or transported in in- terstate or foreign commerce by any means, including by computer.” 18 U.S.C. § 1466A(d)(4). According to the govern- ment, “Stanley does not apply where the criminal conduct was facilitated through the use of interstate commerce.” Because, the argument goes, the government must prove the interstate- commerce link before Anderegg could be convicted under § 1466A(b)(1), Count 4 criminalizes more than the mere pos- session of obscene material in his home. 4 Instead, it criminal- izes Anderegg’s use of interstate commerce to come into pos- session of obscene and sexually explicit images of children. It is true that Stanley only applies to in-home possession of obscenity and that “commerce in obscene material is unpro- tected by any constitutional doctrine of privacy.” Paris Adult Theatre I v. Slaton, 413 U.S. 49, 69 (1973) (citations omitted). This is so because “the protected right to possess obscene ma- terial in the privacy of one’s home does not give rise to a cor- relative right to have someone sell or give it to others.” 12 200- Foot Reels, 413 U.S. at 128 (citations omitted). “Nor is there any correlative right to transport obscene material in interstate commerce.” Id. (citation omitted). As the Fourth Circuit put it, Stanley “did not prohibit the government from regulating the channels of commerce.” 4 The government notes that at trial, it “intends to prove that the com- puter that Anderegg used to produce and possess his imagery had trav- eled in interstate commerce and that he had downloaded Stable Diffusion from the internet to create those images.” 16 No. 25-1354 United States v. Whorley, 550 F.3d 326, 332 (4th Cir. 2008). And, pursuant to the Commerce Clause, “Congress may impose relevant conditions and requirements on those who use the channels of interstate commerce in order that those channels will not become the means of promoting or spreading evil, whether of a physical, moral or economic nature.” Orito, 413 U.S. at 144 (quoting N. Am. Co. v. SEC, 327 U.S. 686, 705 (1946)). Nevertheless, we are not convinced by the government’s reasoning. The interstate-commerce requirement does not change the fact that the government is using § 1466A(d)(4) to punish Anderegg for possessing obscene material in the home. Although the right Stanley pronounced may be narrow, it speaks to the crux of the offense alleged here—Anderegg’s actions in “the privacy of the home.” Paris Adult Theatre, 413 U.S. at 66 (citation modified). Furthermore, it is worth noting that later Supreme Court cases narrowing Stanley all involved to some degree the im- porting, transporting, or distributing of obscene materials; none expressly addressed in-home possession in and of itself. See, e.g., United States v. Thirty-Seven (37) Photographs, 402 U.S. 363, 376 (1971) (selling or giving obscene material to others); 12 200-Foot Reels, 413 U.S. at 128 (importing obscene materials even for private use); Orito, 413 U.S. at 141–43 (transporting obscene material in interstate commerce); Whorley, 550 F.3d at 333 (distinguishing Stanley by “focusing on the movement of obscene material in channels of commerce, and not on its mere possession.”). Similarly, here, the government has also charged An- deregg with production of obscene virtual CSAM (Count 1) and with distributing and transferring obscene virtual CSAM No. 25-1354 17 (Counts 2 and 3). The question before us is narrow: does the First Amendment allow the government to proscribe the in- home possession of obscene virtual CSAM. And, during oral argument, the government conceded that, with respect to Count 4, it planned to rely solely on the fact that Anderegg possessed the obscene material in his home. Oral Argument at 6:46. Thus, as a practical matter, the government’s interstate- commerce argument has no force. As the district court ob- served, “the obscene materials in Stanley (reels of eight-milli- meter film) almost certainly moved in interstate commerce too.” But this did not matter to the Supreme Court in Stanley. Once the production materials left the public sphere and en- tered the home, the government’s regulatory power was eclipsed by the individual’s First Amendment “right to re- ceive information and ideas, regardless of their social worth.” Stanley, 394 U.S. at 564. 5 5 The purpose of the interstate-commerce requirement is likely less substantive and more jurisdictional. “In our federal system, ‘Congress cannot punish felonies generally,’ Cohens v. Virginia, 6 Wheat. 264, 428 (1821); it may enact only those criminal laws that are connected to one of its constitutionally enumerated powers, such as the authority to regulate interstate commerce. As a result, most federal offenses include, in addition to substantive elements, a jurisdictional one, like the interstate commerce requirement.” Torres v. Lynch, 578 U.S. 452, 457 (2016). And “[j]urisdic- tional elements do not describe the ‘evil Congress seeks to prevent,’ but instead simply ensure that the Federal Government has the constitutional authority to regulate the defendant’s conduct.” Rehaif v. United States, 588 U.S. 225, 230 (2019) (citation omitted). “Because jurisdictional elements normally have nothing to do with the wrongfulness of the defendant’s conduct,” id., we hesitate to rely on them as meaningful distinctions for purposes of substantive constitutional analysis. 18 No. 25-1354 The government next posits that Stanley is best read as ap- plying only to obscene materials involving adults engaged in sexually explicit activity, not children. According to the gov- ernment, the phrase “obscene material” from Stanley does not necessarily cover the entire universe of obscene materials. Ra- ther, citing Williams, 553 U.S. at 288, the government argues that “obscene material” is best understood to only address the obscene material at issue there, adult pornography. We see no basis to read Stanley in such a limited fashion. It is true that in Williams, the Supreme Court stated, “We have held that the government may criminalize the possession of child pornography, even though it may not criminalize the mere possession of obscene material involving adults.” Id. But immediately following this sentence, the Court cited to Stan- ley with Osborne. Rather than inferring from the words “in- volving adults” the broad proposition the Supreme Court would apply Stanley only to obscene adult-based materials, the sentence is better understood to reflect the distinction its cases have historically drawn between CSAM and obscenity generally. See Nat’l Pork Producers Council v. Ross, 598 U.S. 356, 373 (2023) (“The language of an opinion is not always to be parsed as though we were dealing with the language of a stat- ute.”). What is more, the reasoning of Stanley did not turn on the contents of the obscene materials at issue, rather its hold- ing was predicated on the location—the home. See 394 U.S. at 568 (“[The] power to regulate obscenity … simply does not extend to mere possession by the individual in the privacy of his own home.”). Accordingly, assuming that the First Amendment would treat obscene virtual CSAM the same as other obscene No. 25-1354 19 materials, we conclude that the facts of this case fall within the bounds of Stanley. 2. Virtual CSAM versus CSAM The preceding conclusion begs the next question: whether, for First Amendment purposes, obscene virtual CSAM is more akin to actual CSAM or obscene materials generally. If it is the former, then Osborne and not Stanley would apply. To recap: Stanley prohibits the criminalization of possession of obscene material in the home. Ferber held that CSAM involv- ing actual children is not obscenity but its own category of speech not entitled to First Amendment protection due to the government’s compelling interests in protecting child vic- tims. For the same reasons, Osborne permits the government to proscribe the possession of CSAM involving actual chil- dren in the home. Then came Free Speech Coalition, which pro- hibits the criminalization of CSAM that involves no actual children and that is not obscene. Anderegg is charged with possessing in his home virtual CSAM that does not depict an actual child but that is obscene. Because the images for which Anderegg is charged do not depict an actual child, Ferber and Osborne do not directly ap- ply to this case. See Free Speech Coal., 535 U.S. at 249–51. That said, Stanley left open the possibility that “compelling reasons may exist for overriding the right of the individual to possess [certain] materials.” 394 U.S. at 568 n.11. The government argues that the same compelling interest the Supreme Court recognized in Ferber and Osborne exists here—the protection of actual children from sexual exploita- tion and abuse. And it attempts to distinguish Free Speech Co- alition by pointing out that § 1466A(b)(1) is limited to obscene 20 No. 25-1354 material unlike the statute in Free Speech Coalition. The prob- lem for the government, however, is that the justifications it offers here for proscribing the possession of obscene virtual CSAM were all expressly discussed and rejected by the Su- preme Court in Free Speech Coalition. First, the government argues that offenders may use ob- scene virtual CSAM to groom minors into engaging in sex- ually explicit conduct. To be sure, it is well-known that abus- ers utilize obscene images to groom their minor victims. See, e.g., United States v. Chambers, 642 F.3d 588, 593 (7th Cir. 2011); United States v. Reilly, 662 F.3d 754, 761 (6th Cir. 2011); United States v. Reaves, 253 F.3d 1201, 1205 (10th Cir. 2001); Child Por- nography Prevention Act of 1996, Pub. L. No. 104-208, § 121 subsection 1(8), 110 Stat. 3009 (congressional finding that the grooming risks are “the same” whether the imagery shows actual or computer-generated children). Moreover, as techno- logical advances allow creators to render virtual images indis- tinguishable from real ones, virtual CSAM may come to pose more of a danger than the cartoons or video games referenced in Free Speech Coalition. But we cannot ignore the fact that the Supreme Court flatly rejected the same argument the govern- ment advances here. Free Speech Coal., 535 U.S. at 251. In the Supreme Court’s words, “the government may not prohibit speech because it increases the chance an unlawful act will be committed at some indefinite future time.” Id. at 253 (citation modified). Relatedly, the government argues that an individual’s en- gagement with AI-generated material depicting children en- gaged in sexual conduct may normalize sexual activity with children in a way that poses risks to actual children. But, once again, Free Speech Coalition is on all fours. “Without a No. 25-1354 21 significantly stronger, more direct connection [between vir- tual CSAM and child exploitation],” the Supreme Court de- clared, “the Government may not prohibit speech on the ground that it may encourage pedophiles to engage in illegal conduct.” Id. at 253–54. To be sure, the Supreme Court left open the door for the government to make “a significantly stronger, more direct connection” between virtual CSAM and child abuse. Id. But, rather than providing more support for its contention here, the government merely restates the same arguments it made in Free Speech Coalition. Compare Brief for the Petitioners at 4– 5, Ashcroft v. Free Speech Coal., 535 U.S. 234 (2002) (No. 00-795) 2001 WL 432538, at *4–5 (arguing that Congress determined that “child pornography is often used as part of a method of seducing other children into sexual activity,” and “Congress found that computer-generated images of children engaged in sexually explicit conduct can be just as effective in seducing children into sexual activity as photographic images of real children.”), with Opening Brief for the United States at 15, United States v. Anderegg, No. 25-1354 (7th Cir. May 14, 2025) (“[O]ffenders may use images of the type that Anderegg pos- sessed, like they commonly use similar-type images showing actual children, to groom minors into engaging in sexually ex- plicit conduct.”). 6 6 Our own nonexhaustive perusal of the relevant literature reveals in- conclusive results. Most recently, the United States Sentencing Commis- sion released a study finding that “43.9 percent of possession offenders … engaged in aggravating conduct either prior to or concurrently with their instant federal child pornography offense.” U.S. Sent’g Comm’n, Federal Sentencing of Child Pornography, Non-Production Offenses, 41 (2021). 22 No. 25-1354 Next, the government argues that prohibiting the posses- sion of obscene virtual CSAM will help the government re- duce the commercial market for actual CSAM. But the Su- preme Court in Free Speech Coalition squarely addressed and rejected this argument as well, finding it “somewhat implau- sible.” Free Speech Coal., 535 U.S. at 254. After all, the Court noted, if the demand for virtual CSAM were the same as for actual CSAM, few would create actual CSAM and “risk pros- ecution by abusing real children if fictional, computerized im- ages would suffice.” Id. Finally, the government argues that due to technological advancements, AI-generated images are becoming increas- ingly indistinguishable from imagery depicting actual chil- dren, making the task of proving that an image depicts an ac- tual chil