Perhaps sometimes it's best for judges to ignore technical loopholes and rigid legal precedent for the sake of doing the right thing? Maybe, in extreme cases where absolute evil is involved, our system could dismiss the "rights of artists" and enforce restrictions based on the potential long term damage to society as a whole?
Yes, the constitutional conundrums are plenty, but can't we also simply use common sense? Because if we can't, these kinds of artistic "expressions" are going to inspire independent vigilantism and it will be the fault of the courts when this inevitably happens.
A federal appeals court says a Supreme Court precedent set in 2002 forces it to protect the in-home possession of AI-generated child sexual abuse material. The court warned that rapidly advancing technology has complicated legal lines drawn nearly 25 years ago.
The Seventh Circuit said it was bound by the Supreme Court decision that rejected restrictions on sexually explicit depictions of fictional children when no actual child was involved in their creation. But two judges warned that modern AI can now generate images virtually indistinguishable from material depicting the abuse of real children.
In other words, artistic depictions of child abuse are legal to possess in private because no real children were harmed in their creation. The use of AI exploits this loophole for the creation of hyper-realistic images very similar to real pornographic content.
"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," Judge John Lee wrote. "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."
If we give these judges the benefit of the doubt and accept their explanation that the Supreme Court ruling prevents them from taking action, we are still left with the moral question. There are constitutional purists out there who might argue that "artwork" is protected speech under the 1st Amendment. There are others (progressives) who will argue that a private individual owning such images hurts no one and they should be left alone to bask in their AI generated pedophilia.
This brings us to the deeper question: Should known pedophiles be allowed to roam free within society because they haven't abused a child "yet"? Or, should these people be locked up the moment they are identified for the sake of protecting communities from "potential" harm?
It's generally not constitutionally legal to arrest someone for something they might do, but obviously, the legalized possession of AI child abuse images cannot be allowed to stand. Even if the materials could be labeled "art" that does not harm real children, they act as a useful identifier for some of the worst monsters within any given community. That is to say, these images should be used as an excuse to round up such people.
It doesn't matter if they have not yet harmed a child; given the opportunity, they likely will. The Supreme Court should change their precedent for this reason alone.
The Seventh Circuit affirmed a lower court’s dismissal of one of four charges against Steven Anderegg, who investigators said had hundreds of AI-generated sexually explicit images depicting children on devices seized from his Wisconsin home.
Anderegg was charged with producing and distributing the AI-generated material, transferring it to a minor under 16, and possessing it. A federal district court dismissed only the possession charge on First Amendment grounds, leaving the other three charges intact.
For now, the distribution of these images is still illegal. Generating the images, while still considered illegal, is difficult to prove, which is why the possession issue is so important. Any AI images that use pictures of real children as a reference are also illegal. AI is testing legal lines that many people thought impossible only a decade ago and limitations need to be addressed before extensive damage is done.