Crafting New Boundaries: Model Legislation to Address the New-Real Threat of Virtual Child Pornography without Running Afoul of Ashcroft v. Free Speech Coalition

Authors

Abbey Marzen

First Page

20

Document Type

Article

Abstract

In 2002, the United States Supreme Court held in Ashcroft v. Speech Coalition that virtual child pornography is protected speech under the First Amendment. While the threat of virtual child pornography may not have been pressing when this case was decided, we are now feeling the far-reaching effects of the Court's decision in Ashcroft, especially in the era of generative artificial intelligence ("Gen Al"). Gen Al has created a portal for child predators to easily create virtual child pornography. Despite several attempts to pass legislation prohibiting the possession and creation of virtual child pornography, many state courts have struck down this legislation as unconstitutional in violation of the First Amendment. Recently, Wisconsin became the first state to specifically prohibit the possession and creation of virtual child pornography. While federal law, under 18 U.S.C. § 1466A, prohibits the creation and distribution of obscene material depicting a minor engaging in sexually explicit conduct, state law must be implemented to wholly protect against the dangers that Gen Al threatens to impose. Despite the National Center for Missing and Exploited Children's ("NCMEC") CyberTipline receiving 4,700 reports related to child sex abuse material ("CSAM") involving Gen Al, there is currently only one pending federal criminal case alleging an individual created virtual child pornography using Gen Al. This lack of criminal prosecution at the federal level suggests that state legislators need to take action to prohibit virtual child pornography, lessening the burden on the federal government, which will only get heavier with the rise of artificial intelligence. This article suggests that other states should take Wisconsin's lead by incorporating elements of Wisconsin's virtual child pornography statute and other pending proposed state legislation into a comprehensive statute. Accordingly, this article proposes a model statute that state legislators may use as a guide in passing legislation prohibiting virtual child pornography, specifically created by Gen Al, while remaining constitutional under Ashcroft.

Recommended Citation

Abbey Marzen, Crafting New Boundaries: Model Legislation to Address the New-Real Threat of Virtual Child Pornography without Running Afoul of Ashcroft v. Free Speech Coalition, 37 St. Thomas L. Rev. 20 (2024).
Available at: https://scholarship.stu.edu/stlr/vol37/iss1/3