The U.S. and UN at Odds Over Child Smut

By | 2026

Negotiations of the UN Treaty on Cybercrime, August 2024

NEW YORK, September 4 (C-Fam) Should predators be allowed to produce, distribute, and keep virtual pornographic content depicting children?

This question is being asked in courts and legislatures across the globe. A new UN treaty expressly allowing virtual child pornography is slowly making its way across capitals.

In U.S. courts and Congress, this question has been unpacked more than once.

Last week a federal judge in Wisconsin dismissed a charge of “possession” of virtual child pornography against Steven Anderegg, a man accused of producing and distributing AI-generated child pornography. The judge cited U.S. Supreme Court precedent and said virtual child pornography is constitutionally protected speech.

The pornography industry has long claimed that virtual child pornography is harmless or even protected speech, most famously in the U.S. Supreme Court Case Ashcroft v. Free Speech Coalition. In that case, the U.S. Supreme Court sided with the pornography industry and struck down the federal statute against child pornography for being “overbroad.”

Justice Kennedy’s roaming majority decision discussed the need for artists to have wide latitude to depict youth sexuality. He said perverts could keep a private stash of virtual child pornography, so long as no one was harmed in making it. And he gave his blessing for the pornography industry to continue to use actors who seem like minors in their obscene productions. Fortunately, that decision was not the end of it.

Congress responded by writing a new child pornography statute in 2003. The new statute is more specific and comprehensive at the same time. It criminalizes any conduct in connection with the possession, production, and distribution of child pornography, including virtual child pornography. It was carefully crafted precisely to get around the Free Speech Coalition case.

As a result, Anderegg still faces charges of production, distribution, and transferring virtual child pornography to a minor. The only charge against him that was dismissed was a charge of “possession.” And even the dismissal of that charge can be challenged by the government. Indeed, whether the Wisconsin judge decided the case rightly remains an open question.

While the threat to children from Justice Kennedy’s jurisprudence about child pornography has been largely neutralized by Congress, the more recent UN treaty on cybercrime continues to threaten children across the world. The end of the story might have been different if Steven Anderegg lived in a country that legalized virtual child pornography, following the approach in the UN cybercrime treaty.

The new UN treaty on cybercrime expressly allows for the possession, creation, and distribution of virtual child pornography. This would include hyper-realistic pornographic materials depicting children or animal figures with child-like features known as “furies.” These provisions were added in the final text of the binding agreement at the insistence of European delegations. Some of their delegates argued the familiar points made by the pornography industry in the Free Speech Coalition case.

Unfortunately, the Biden administration went along with the treaty when it was negotiated and did not try to uphold federal law. The treaty was adopted in 2024 and was open for signatures last year. So far, three countries have ratified it, even though over eighty have signed it.

The rapid spread of hyper-realistic AI-generated pornographic content depicting children may yet force Europeans to re-evaluate their position. This summer, a committee of experts of the Council of Europe called on European nations to review their position on virtual child pornography with a view to adopt a no tolerance approach. Last Fall, a majority of the UN General Assembly voted with the Trump administration against the European approach.

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