Source: iCONnect Blog

AI-generated sexual depictions of fictional minors require renewed consideration of First Amendment doctrine, argues Arvind Kurian Abraham, an S.J.D. candidate at Harvard Law School. Abraham examines the constitutional questions through United States v. Anderegg, a Seventh Circuit case concerning private possession of AI-generated sexual material. According to Abraham’s account, the images in that case were produced without involving actual children. The commentary contrasts debates over obscenity with the identifiable exploitation underlying sexual abuse material involving real children. Abraham also traces competing arguments about pornography, harm and freedom of expression.

Abraham presents Ashcroft v. Free Speech Coalition as a central precedent for assessing restrictions on sexual depictions created without real children. The commentary describes concerns about excessively broad restrictions reaching artistic expression and about the evidence connecting fictional depictions to actual harm. Abraham argues that AI’s capabilities warrant reconsideration of that precedent by the Supreme Court and Congress. Drawing on a concurrence by Justice Thomas, Abraham considers whether restrictions could be justified if synthetic images became indistinguishable from material involving actual children and made existing prohibitions impossible to enforce. Abraham offers this enforcement rationale as a possible constitutional approach; the proposed response to AI is the author’s argument, rather than an established legal conclusion.