What changed

## In the

Appeal from the United States District Court for the

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1 Federal criminal law defines “child pornography” as the “visual depiction” of a minor “engaging in sexually explicit conduct.” 18 U.S.C.

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.justice.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 exploitative 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.

CSAM depicting actual children. 495 U.S. 103, 109–11 (1990). The government then filed this interlocutory appeal, challenging the dismissal of the possession charge.

According to the government, in October 2023, Meta Platforms, 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 apparently sent a direct message containing what appeared to be AI-generated images depicting CSAM to an account belonging to a minor. According to Meta, at least one image depicted

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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. (citation 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 patently 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)).

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 declared, “we cannot fault Ohio for attempting to stamp out this vice at all levels in the distribution chain.” Id. at 110. What is

## 2. Free Speech Coalition—Virtual CSAM

“digital image or picture, computer image or picture, or computer generated image or picture.” 18 U.S.C. § 1466A(f)(1). And it expressly does not require that “the minor depicted actually exist.” 18 U.S.C. § 1466A(c).

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 requires several parts. First, assuming for the sake of argument that obscene virtual CSAM is equivalent to other forms of obscenity, 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 Stanley’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.

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

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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).

No. 25-1354 materials, we conclude that the facts of this case fall within the bounds of Stanley.

Because the images for which Anderegg is charged do not depict an actual child, Ferber and Osborne do not directly apply 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.

In this case, the record is insufficient to evaluate these complex issues, and, of course, we are bound by the dictates of Free Speech Coalition. But it goes without saying that “[t]he prevention of sexual exploitation and abuse of children constitutes a government objective of surpassing importance.” Ferber, 458 U.S. at 757. The stakes are high, and we must be mindful of the ever-accelerating advancements in image generation technology.