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The Seventh Circuit holds 18 U.S.C. 1466A(b)(1) unconstitutional as applied to a defendant whose images the government conceded depict no actual child, in United States v. Anderegg, decided 25 August 2026
The AI element is not commentary in this case. The government conceded the images depict no actual child and cannot be linked to one, a necessary factual premise that takes Ferber and Osborne out of direct application and brings the Free Speech Coalition framework to bear. The holding also rests on the charged in-home possession and on obscenity doctrine.
Bottom line: A precedential decision of the Seventh Circuit, argued 30 October 2025 and decided 25 August 2026. It holds 18 U.S.C. 1466A(b)(1) unconstitutional AS APPLIED to this defendant. It does not strike the statute down, and the judgment below was affirmed.
What actually fell: One count. The district court dismissed the possession charge under section 1466A(b)(1) and (d)(4) and left the remaining counts intact. The production, distribution and transfer-to-a-minor counts under section 1466A(a)(1) and (d)(1) survive and were never on appeal.
Who this affects: Federal criminal practitioners in the Seventh Circuit (Illinois, Indiana, Wisconsin). More broadly, anyone advising on the constitutional line between obscenity prosecutions and wholly synthetic imagery.
Why the AI fact is load-bearing: At page 4 note 2 the government conceded the images do not depict an actual child, nor can they be linked to an actual child. That concession is what moves the case out of Osborne, which permits criminalising possession of material depicting a real minor, and into Free Speech Coalition.
The Supreme Court point, attributed correctly: The invitation for further guidance is in a CONCURRENCE by Lee, J., joined by Kolar, J., and it is conditional: the court would benefit from additional guidance from the Supreme Court regarding the intersection between the First Amendment and virtual CSAM if an appropriate case should arise. It is not a holding and not a request in this case.
Primary sources: Opinion, United States v. Anderegg, No. 25-1354 (7th Cir. 25 Aug 2026)
- Instrument
- United States v. Anderegg, No. 25-1354, opinion of the United States Court of Appeals for the Seventh Circuit
- Authority
- Seventh Circuit. Opinion by Lee, Circuit Judge. Panel also comprising Kolar and Pryor, Circuit JJ
- Jurisdiction
- Federal, Seventh Circuit: Illinois, Indiana, Wisconsin
- Court below
- W.D. Wis. No. 3:24-cr-0050, Peterson, C.J.
- Date of legal event
- Decided 25 August 2026. Read from the opinion's own face, ARGUED OCTOBER 30, 2025 - DECIDED AUGUST 25, 2026, and corroborated by the per-page ECF stamp Filed: 08/25/2026
- Precedential
- Yes. A signed authored panel opinion, with no non-precedential or do-not-cite designation anywhere in its 48,000 characters
- Holding
- Section 1466A(b)(1) is unconstitutional as applied to Anderegg. The judgment is affirmed
- Scope of the ruling
- AS APPLIED, not facial. The statute is not struck down
- Counts affected
- Only the possession count under 1466A(b)(1) and (d)(4). Production, distribution and transfer to a minor under 1466A(a)(1) and (d)(1) survive and were not on appeal
- The operative concession
- Opinion at page 4 note 2: the government conceded the images do not depict an actual child, nor can they be linked to an actual child
- Controlling authority
- Stanley and Free Speech Coalition control; Osborne distinguished
- Concurrence
- Lee, Circuit Judge, joined by Kolar, Circuit Judge. Note that Lee wrote both the majority and the concurrence, and Pryor is not listed as joining Lee's concurrence
- Editorial Note
- Informational analysis for working professionals, not legal advice. Confirm how any rule applies to your situation with qualified counsel.
- Primary source
- https://media.ca7.uscourts.gov/cgi-bin/OpinionsWeb/processWebInputExternal.pl?Path=Y2026%2FD08-25%2FC%3A25-1354%3AJ%3ALee%3Aaut%3AT%3AfnOp%3AN%3A3597567%3AS%3A0&Submit=Display
Why this is an AI case and not merely a case involving AI
It is easy to file a decision like this under AI because AI appears in the facts. That is not what is happening here. The synthetic origin of the material is doing the constitutional work.
At page 4 note 2 the government conceded that the images do not depict an actual child, nor can they be linked to an actual child. Once that is conceded, Osborne, which permits criminalising simple possession of material depicting a real minor because the harm attaches to the child, no longer supplies the rule. What supplies the rule instead is Free Speech Coalition, together with Stanley on possession in the home.
So the AI fact is load-bearing rather than incidental: it is a necessary premise that takes Ferber and Osborne out of direct application. It is not the whole of the holding, which also rests on the charged in-home possession and on Stanley and Free Speech Coalition. That is a different thing from a court remarking on AI in passing, and it is why practitioners should read the note rather than the headline.
The majority also addresses the government's AI argument on its merits and rejects it, in its own voice, at page 23.
What the court did not do, which is most of it
It did not strike down section 1466A. The holding is as applied to this defendant on this record, and the court says so.
It did not disturb the other counts. The district court had already dismissed the possession charge and left the remaining counts intact, and production, distribution and transfer to a minor under section 1466A(a)(1) and (d)(1) were never before the court of appeals. The judgment was affirmed.
It did not hold that synthetic material is protected generally. The route runs through possession in the home under Stanley combined with the absence of a real child under Free Speech Coalition, not through a general proposition about generated imagery.
And it did not ask the Supreme Court to take this case. The court expressed some concerns about the lines these cases draw while stating it is not free to redraw them itself, at page 3. That is the majority registering discomfort, not creating a rule.
The concurrence, and how to cite it accurately
The Supreme Court invitation belongs to a separate writing: Lee, Circuit Judge, joined by Kolar, Circuit Judge, concurring, at page 25.
Its wording is conditional. The court would benefit from additional guidance from the Supreme Court regarding the intersection between the First Amendment and virtual CSAM if an appropriate case should arise. That is an invitation contingent on a future vehicle, not a suggestion that certiorari should be sought here.
One structural detail worth noting because it is easy to get wrong in a brief: Lee wrote both the majority and the concurrence, and Pryor is not listed as joining Lee's concurrence. So the concurrence carries two of three judges, and it is not a dissent.
Anyone citing this decision for the proposition that the Seventh Circuit has called for Supreme Court intervention on AI-generated material should cite the concurrence, name both judges, and preserve the conditional.
Cite this narrowly and it is strong. The Seventh Circuit held section 1466A(b)(1) unconstitutional as applied, on a record where the government conceded the images depict no actual child and cannot be linked to one, so Free Speech Coalition governed rather than Osborne. One possession count fell; production, distribution and transfer to a minor were untouched and not on appeal; the judgment was affirmed. The call for Supreme Court guidance is in a two-judge concurrence and is conditional on an appropriate future case. Cite it any wider than that and the citation will not survive checking.
Source File
Retrieve the opinion in United States v. Anderegg, No. 25-1354, from the Seventh Circuit or from its govinfo USCOURTS package. Confirm page 1 reads ARGUED OCTOBER 30, 2025 - DECIDED AUGUST 25, 2026 and that the per-page ECF stamp reads Filed: 08/25/2026. Confirm the government's concession at page 4 note 2. Confirm the as-applied holding and the affirmance at pages 23 to 24, and the concurrence caption at page 25. One retrieval trap: the Seventh Circuit CGI endpoint prepends a short plain-text header before the PDF magic bytes, so file reports data and pdftotext fails until the header is stripped. A correct extraction yields roughly 48,000 characters.
we would benefit from additional guidance from the Supreme Court regarding the intersection between the First Amendment and virtual CSAM if an appropriate case should arise. - Lee, Circuit Judge, joined by Kolar, Circuit Judge, concurring, United States v. Anderegg, No. 25-1354 (7th Cir. 25 Aug 2026)
FAQ
Did the Seventh Circuit strike down 18 U.S.C. 1466A?
No. The holding is that section 1466A(b)(1) is unconstitutional as applied to this defendant on this record. The statute stands, and the judgment below was affirmed.
Which counts were affected?
Only the possession count under section 1466A(b)(1) and (d)(4). The district court dismissed that charge and left the remaining counts intact. Production, distribution and transfer to a minor under section 1466A(a)(1) and (d)(1) survive and were never on appeal.
Why did the AI element matter to the outcome?
Because the government conceded at page 4 note 2 that the images do not depict an actual child and cannot be linked to one. That concession moves the case out of Osborne, which rests on harm to a real minor, and into the Free Speech Coalition framework. Without it the possession count would have been analysed differently.
Did the court ask the Supreme Court to take the case?
No. A concurrence by Lee, Circuit Judge, joined by Kolar, Circuit Judge, said the court would benefit from additional guidance from the Supreme Court regarding the intersection between the First Amendment and virtual CSAM if an appropriate case should arise. That is conditional and prospective, and it is a separate writing rather than the holding.
Is the decision precedential?
Yes. It is a signed authored panel opinion carrying no non-precedential or do-not-cite designation.
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