[00:00] Introduction: Welcome to Registry Matters, an independent production. Our opinions are our own, and we’re thankful for the support of our patrons. Truly, you make what we do here possible. Your contributions keep the conversation going, and always remember, F-Y-P.
[00:21] Andy: Recording live from FYP Studios East and West, transmitting across the internet. This is episode 387 of Registry Matters. Larry, it’s another fine Saturday evening. This recording is 9-5, so September 5th. Holy moly, it’s Labor Day weekend? Can you imagine? Where’s the year gone?
[00:38] Larry: Yeah, just for correction, it’s episode 387, and hopefully you’re on the right program outline. You’re on the right row. Episode 388’s already in there, but that’s not the one we’re doing.
[00:50] Andy: Well, then that would have made life very challenging for me.
[01:00] Larry: So, we’re on 387 of Registry Matters. Doing awesome. How are you?
[01:06] Andy: I am fine. I’m going to have to pause for a moment because I need to load the right thing. Oh, my God, it’s asking me to sign in.
[01:09] Larry: So, we’re going to be doing an episode tonight about a case from the United States Court of Appeals from the Seventh Circuit. And I can’t pronounce it, but I’m going to do the best I can. United States versus Anderreg. A-N-D-E-R-E-G-G. Okay. It’s a win for the team. And then we’re going to be having some of my favorite conversation. We’re going to be talking about politics and how you evaluate a legislator, if they can be effective, and if they’re worthy of working with. So, we’re going to go over some points. This was thrown at me at the last minute, but since this is my profession, I can actually do it with very little notice. So, this is what we’re doing tonight. Now I can hand it back to my co-host, who’s finally on the right screen.
[01:59] Andy: I think I am. Yes. Okay. 387. Well, I looked for the most recent document. It’s 388. So, poof. That’s how we got there. All right. Well.
[02:36] Andy: One of my very good friends, he is out in the Colorado area and said they have a constituent whose husband was incarcerated and on the registry. She thinks this guy, Rod Pelton, would be open to carrying a bill to make the registry have a path off in Colorado. Ha ha ha. So, my question is, how do you evaluate a politician to determine if they’d be your advocate or not? And I’m thinking, about two months ago, we had almost the equivalent question from someone in Kansas or a rural area. You looked him up and said he can’t do anything because he hasn’t passed any bills. He’s just introduced them. So, did that frame it correctly?
[03:33] Larry: You did. And boy, you’re going to be shocked. And so is the audience, because if I had the opportunity to vote for this legislator, Senator Rod Pelton, I would do so without any hesitation. He’s a Republican, but I’m policy driven. So one of the first things you want to look at when evaluating a politician is whether they can pass legislation. Well, I looked up his 2026 legislative history and he has either sponsored or co-sponsored 26 bills that made it to the governor and were signed by the governor. Now, if Colorado does things the same way we do, the first name on the list is usually the lead sponsor whose legislation it is. And then subsequent names are usually co-sponsors. I won’t make that assumption because I’ve never practiced in Colorado, but I would see the logic in it being different. But when you look at the co-sponsors, he has worked in a bipartisan fashion with the president of the Senate and the majority leader of the Senate. He’s not just working with backbenchers or new members. His record demonstrates that he is actually getting things done. 26 bills to the governor signed by the governor in one session.
[05:27] Andy: Can I ask? What does it take to be a co-sponsor? Isn’t it just like, yeah, I agree. I would like to put my name on it. Like, what does co-sponsor mean?
[05:39] Larry: Got a good question there. What it essentially means is that practically anybody can put themselves down as a co-sponsor in New Mexico. But here’s how it works: if you’re in a hyper-partisan situation, someone who doesn’t want to co-sponsor could sink your bill.
[05:58] Guest 1: If someone wants to co-sponsor, that helps your bill. So, for example, if Rod Pelton goes and co-sponsors a Democratic bill—
[06:09] Larry: —the Democrats might feel it would be a hindrance to their bill. But Rod has worked in a bipartisan fashion to pass 26 pieces of legislation, some of which appear to be sponsored by him. With the Democrats in strong control and having supermajorities, they don’t need Rod Pelton at all. So if he sponsors something, all they have to do is say, “Gee, that’s a pretty good piece of legislation,” get one of their Democratic members to sponsor it instead, and his bill sits and sits and never moves forward.
[06:50] Guest 1: Didn’t do that to him. That tells me he’s well respected by the majority party.
[06:59] Andy: We had a conversation during the week since you brought it up here. You said that a supermajority, in your opinion, is bad. I understand why you would say that. But I think that the majority of people in the United States want a supermajority so they can push everything through because it’s what they want. It’s not necessarily good for compromise and whatnot. But you’ve also bashed partisanship. I bash partisanship all the time.
[07:29] Larry: You’re asking me for a straight answer, but I think I’m giving you one. I bash partisanship every chance I get. So I’m at a loss to understand your question.
[07:43] Andy: Well, so you want this guy to be bipartisan. I’m sorry, not partisan. I meant bipartisan because if we have bipartisanship, then we have compromise. We don’t have everyone happy, but something gets through. And you have no bipartisanship.
[08:00] Larry: Then you’re misunderstanding my bashing. My criticism is just because something is bipartisan doesn’t necessarily make it good. OK? It can be good. But bipartisan bad legislation gets through like a lot of the PFR stuff because you can’t oppose it politically. So if it passes 100 to nothing, it’s bad public policy. Just because it’s bipartisan doesn’t mean it’s good. Sure. But I appraise bipartisanship if it results in good legislation. If you have a lopsided majority, there’s no need to compromise. You can tell the minority party, go F yourself. And when you do that, it means you don’t have to make any compromise whatsoever. You can look at them and say, well, you can have your three minutes or whatever the rules allow. And when you’re done, we’re going to vote you down. Would you? If you don’t have a supermajority, oftentimes you’re forced to listen to prevailing counterpoints of view and you have to stick things in legislation that you wouldn’t have put in there if it was all done by your party. And your party isn’t necessarily right about everything.
[09:13] Andy: But yeah, I think most people in the United States think that just straight up the other party is bad, regardless of whether you’re on Team Blue or Team Red. The other party is bad, just like the Georgia Florida game.
[09:25] Larry: Well, with our 900,000 subscribers, I’m trying to convince people that’s wrong. So I’m demonstrating that tonight. But beyond his ability, you ask yourself, can he get anything done? And we’ve answered that question. Then you ask the next question: Does he have the political capital to afford to take a little risk? So then you go look at his electoral history. I went back far enough and don’t see that he’s ever had less than 70% margin.
[09:59] Andy: Oh, OK. So he’s elected very heavily.
[10:03] Larry: Yeah. That tells me he’s got a little capital to burn. It doesn’t mean he wants to use it on PFRs, but he could. A person that won by 50.4% to 49.6% has no capital to put at risk. So Senator Pelton, with his resounding electoral majorities, can take a little risk. Few politicians can do that. So those are the two primary things I’ll look at. Then there’s other stuff I can look at without even looking at it. If he were a klutz and didn’t know how to speak eloquently or treat colleagues with respect, he wouldn’t be able to pass 26 bills as sponsor or co-sponsor. So that tells me he’s reasonable and patient, someone you can talk to and reason with. From half an hour of research today, I would say he leans more Democratic. You look at his latest list of passed bills; the titles tell a lot about what he’s doing. It’s not all right-wing fanatic stuff. For example, health care payment programs. I didn’t get into all the nuances of the bills, but he’s doing things that are typically more progressive. Like House Bill 26-1325 on natural medicine—though he didn’t sponsor it, he was open-minded enough to support it. Another one is a House bill he co-sponsored in the Senate about changes to practices relating to death. It sounds like something more progressive. Access to veterinary care—many of these bills that he co-sponsored need sponsorship in the Senate after passing the House.
[12:14] Andy: Tell me about the committee membership he has, because I’m seeing a bunch of bills related to animal stuff. For example, access to veterinary care and another one about stolen livestock. His committees include veterans, agricultural, and natural resources. Does it help if he’s on the legislative audit committee or something similar?
[12:41] Larry: I don’t know what the audit committee does, but those are good committee assignments. He’s a very moderate Republican—kind of like what has largely vanished from both parties. They’ve moved so far into polarization, but this is a very moderate, pragmatic Republican, like I used to enjoy working with back in the 70s and 80s.
[13:04] Andy: Would you put him on a similar playing field to Joe Manchin from West Virginia, who was in a super red state but identified as a Democrat?
[13:12] Larry: Yes, that would be the same type of person. Joe Manchin’s not very welcome in the Democrat Party, so they lost their majority because they were bullheaded and wanted Manchin out. They ended up turning over the seat to someone who was always going to vote with them on organizational matters.
[13:25] Andy: Somebody sitting there on their caucus.
[13:27] Larry: Yes, who was always going to vote with them on organizational matters, but not on things that really mattered. I think he declared himself independent toward the end, but he was voting organizationally with the Democrats, and they were too damn dumb to understand that. Very well. Any final points here? If Colorado needs any help, I’d be delighted to work with Senator Pelton if he’s amenable. Thank you. He’s got all the necessary makeup to do this; you just have to convince him it’s something he wants to do. Look at all those counties in his district. Find somebody on the PFR list or from a county he represents, and they might approach him as a constituent. Yes, I think he’d be a very good resource.
[14:25] Guest 2: Cameras on ordinary street corners photograph every car that passes. A private company keeps the pictures. Larry’s point is the uncomfortable one: a car never proves who was driving it, and a registry is just another status list waiting to be searched.
[14:54] Andy: All right, well, before we get into it, I’m going to try to lay this one out a little bit. I read this one twice while I was on the public train today going downtown. And I still want you to tell me where I’ve got it wrong because from what I can tell, from my minuscule brain reading, the government lost. This is the Seventh Circuit panel held that a federal child pran statute is unconstitutional. So on its face, it looks like this is a huge win for the defense. Is that right? Well, yes, so far, but I’m not sure what pran is. Can you enlighten the audience here?
[16:04] Larry: Well, I’m generally pleased with what the panel did with this decision. We’re going to spend some time on why they did what they did. But let’s try to bring you back from the ledge just a little bit before you jump. You’re reading correctly, but you left out three words that matter more than the rest of the sentence: “This is an as applied ruling on one count.” And then we get into procedural posture. When we slice this bigger pie, you’ll see that the government still has a nice fork in it.
[16:44] Andy: All right. Well, then I’m going to do the procedural thing. Anderegg was charged with four counts. The way the opinion describes it, he was charged with knowingly producing and distributing visual depictions of minors engaged in naughty behavior. He also knowingly transferred such material to a minor under the age of 16. That’s counts one, two, and three. Count four was this possession charge: knowingly possessing at least one visual depiction that depicted a minor engaging in naughty behavior. So Anderegg moved to dismiss the whole indictment, and here’s the key line: “The district court granted the motion as to the possession charge and denied the remainder.” The district judge threw out count four and kept counts one, two, and three.
[17:52] Larry: Who was actually the chief judge, Peterson out of the Western District of Wisconsin dismissed only the possession count. He held that section 1466(a)(B) is unconstitutional as applied under Stanley versus Georgia, a 1969 case that says you have a First Amendment right to possess obscene material in the privacy of your own home. Then the government took what’s called an interlocutory appeal, meaning they appealed the dismissal on that one count before the trial of the other three ever began. So the Seventh Circuit was only looking at count four; counts one, two, and three—production, distribution, and transfer to a minor—are still alive and will proceed to trial.
[18:41] Andy: But the government appealed. Can you explain to the audience what is an interlocutory appeal and what is the actual issue in this appeal?
[18:52] Larry: Sure. Normally, a case can’t be appealed until after its conclusion. So neither party can appeal until the case is over. An interlocutory appeal is an exception where a temporary interim decision made by the judge during pretrial motions is challenged. The government objected to the initial ruling and filed this rare type of appeal. It doesn’t end the case, but it addresses whether obscene virtual CSAM (child sexual abuse material) should be treated like actual CSAM for First Amendment purposes or if it’s similar to other obscene materials that are generally permissible in our society.
[20:20] Larry: The government argued that technological advances allow creators to render virtual images indistinguishable from real ones, making virtual CSAM potentially more dangerous than cartoons or video game references mentioned in the Free Speech Coalition case. They claimed offenders may use these images to groom minors and engage in sexually explicit conduct.
[20:39] Larry: The court countered that they cannot ignore the Supreme Court’s rejection of this argument in Free Speech Coalition, 535 U.S. at 251. The Supreme Court stated, “The government may not prohibit speech because it increases the chance that someone will commit a crime at some indefinite future time.” That’s quite an interesting quote.
[21:07] Andy: I guess I’m trying to really understand, but I’m getting confused.
[21:14] Larry: Well, he won on the possession count and lost on the other three counts. So not trying to downplay what the panel did; he won something real. But as a practical matter for this man, this defendant is still sitting in the Western District of Wisconsin facing production, distribution, and transfer of material to a minor under 16. Those carry heavy exposure. Dismissing count four changes almost nothing about what happens to Mr. Anderegg himself. It changes a great deal about the law for people accused of computer-generated CSAM, but for this man, it’s mostly window dressing.
[22:12] Andy: Well, let’s back up to the facts a little bit, because I think the trigger here is more ordinary. And people would guess this didn’t start with some grand FBI operation. Tell me if I’ve got the chain right. Meta, which owns Instagram, filed a report in October 2023. The opinion says that Meta reported the online transmission of potential CSAM to the cyber tip line of the National Center for Missing and Exploited Children (NCMEC). An Instagram user apparently sent a direct message with what looked like AI-generated images to an account belonging to a minor. And this is the part that got me: The responding message history showed the account user explaining to the minor how he had created the images by inputting text prompts into Stable Diffusion, a text-to-image generative AI model.
[23:11] Larry: Well, it seems like he told himself, or at least that’s how it reads. This is a mundane trigger of cyber crime. Meta filed a direct message report to the NCMEC tip line. An Instagram user sent a direct message with what looked like AI-generated images to an account belonging to a minor. The responding message history showed the account user explaining to the minor how he had created the images by inputting text prompts into Stable Diffusion, a text-to-image generative AI model. That didn’t read right. Who the hell wrote this? Well, I mean, the Android resume said he was a software engineer with background in AI models. So that explains why he knew what he was doing. They got a search warrant for his home, laptop, two cell phones and other devices. And then the government’s allegation is that he installed Stable Diffusion and added software to give it the ability to render human genitalia. And this is straight from the opinion: “used curated text prompts to generate these images and further refined the output by employing negative prompts to exclude depictions of adults.” Negative prompts? I have no idea what that means, but apparently he was engineering out the adults so it would only produce children. That’s the government’s allegation.
[24:24] Andy: Stable Diffusion is just like generating AI images, but you’re running it on your computer typically. So you get to run it at home on your own hardware. But the negative prompt thing is interesting because if a negative prompt doesn’t work very well, say “don’t make mistakes.” That’s a negative prompt—you’re telling it something not to do. In this case, he would have said, “don’t ever depict adults.” So that way, anything it was trying to do would then make sure they were less than adults. According to the government, this produced hundreds of images, but here’s the concession that I think is load-bearing: footnote number two says the government concedes that the images for which Andre is charged do not depict an actual child and cannot be linked to an actual child. They cite the oral argument at the 21 minute and 43 second mark. So the government stood up in open court and said, “these are not real children.”
[25:37] Larry: They did that. And that concession is everything because the whole architecture of child pornography law rests on the presence of a real child. Now, that’s not the case when it comes to solicitation—you can be soliciting a fake minor—but if you’re producing pornography, there has to be a real child. So let me lay out the precedent as the panel did because they walked through it carefully and I want listeners to have this map. You’ve got three Supreme Court cases involved: Stanley versus Georgia from 1969. Cops found three reels of eight millimeter obscene film in a man’s home, convicted him of possession, and the Supreme Court reversed the conviction. The court held that the state’s power simply does not extend to mere possession by an individual in the privacy of his own home. And then the line everyone quotes: “If the First Amendment means anything, it means the state has no business telling a man sitting alone in his own house what books he may read and what films he may watch.”
[26:39] Andy: All right. Well then Stanley is the home possession shield. What is the second case?
[26:46] Larry: The second case is New York versus Ferber from 1982. That’s where the court carved out child pornography from First Amendment protections, regardless of whether it’s obscene or not, because of the real child involved. The court said that the state has a compelling interest in protecting children, and that quote, “the distribution of this material is intrinsically related to the sexual abuse of children because the material itself is a permanent record of the child’s participation in the harm.” And a child’s trauma is exacerbated by the circulation of such materials. Now you’ve got to admit there’s some logic to that. That’s not totally off the wall.
[27:35] Larry: So Ferber is about the real child and the permanent record of the child’s abuse. The third case is Osborne versus Ohio in 1990. In this case, Osborne had four photographs of actual adolescents in his home, and the court said Stanley doesn’t protect him because quote, “the state does not rely on a paternalistic interest in regulating Osborne’s mind. Rather, Ohio has enacted a statute to protect victims of child pornography. It hopes to destroy a market for the exploitative use of children.”
[28:07] Andy: Okay. Right. So in Osborne, you’ve got real kids, a real market, and a real interest in stamping it out at every level of the distribution chain. But none of those three cases are about virtual AI-generated children. Where does the computer-generated stuff come into play then? Well, none of those cases were decided
[28:27] Larry: Before we had this technology. And that’s what we have to talk about. The fourth case comes in, which is Ashcroft versus Free Speech Coalition in 2002. Technology had evolved by then. Congress passed the Child Pornography Prevention Act (CPPA) in 1996, extending the ban beyond actual children to include any visual depiction, including computer-generated images or pictures that appear to be minors engaging in sexual explicit conduct. The Supreme Court struck this down. The court said the child protection rationale does not apply when there’s no real child involved. It quoted Williams, a case from around that era, saying virtual child pornography is not intrinsically related to the sexual abuse of children as it was in Ferber because those were real children.
[29:36] Andy: There’s some logic in that. I think so. And that’s the same logic the Seventh Circuit applied here. No child, no Ferber, no Osborne. Correct. Because the government conceded there was no actual child involved.
[29:47] Larry: They conceded there was no actual child. I bet they won’t do that again. They’ll say your honor, we have not been able to completely figure out if these could be children. And of course, I would say, well, then you’ve refiled the cases when you get it figured out. But they conceded no actual child. The panel said Ferber and Osborne don’t directly apply to this case. Those two are off the table. All you’ve got is Stanley, the home possession shield, and Free Speech Coalition, which says the state’s justifications for banning virtual material don’t hold up. And there’s where the opinion gets delicious because the government came in with arguments of why they should be able to ban this stuff. The panel put those arguments side by side with the government’s case that they lost 23 years ago. Same argument, same brief, 23 years apart. Didn’t change the wording. Admit that’s funny. They just copy and pasted a brief from 23 years ago. Funny, right?
[30:46] Andy: Yeah, totally. All right. Well, wait, they literally compared the briefs. Could you take us through that? Because that part made me laugh.
[30:58] Larry: You know, they literally quoted the brief side by side. So the government’s first argument was grooming, which we talked about early on. The offenders used this material to groom minors. The panel acknowledged that’s a real phenomenon and cited cases and congressional findings that the risk of grooming is the same whether the imagery shows actual or computer-generated children. But then the panel said they cannot ignore the Supreme Court flatly rejected that same argument in Free Speech Coalition. And the quote says, “the government may not prohibit speech because it increases the chance an awful act will be committed at some indefinite future time.” The registry might prevent a crime, but we can’t do it because we don’t do preventative things in this country.
[32:17] Andy: And then this is where the side-by-side comes in. That’s where it gets really funny.
[32:22] Larry: Comes in. And the footnote in the next panel wrote that instead of providing more support, the government merely restates the same arguments made in free speech coalition. And then in 2001, the government’s brief argued Congress found that child porn is often used as a method of seducing other children into sexual activity and that computer-generated images can be used to effectively seduce children into engaging in sexual conduct with real children. They don’t learn.
[32:56] Larry: And then in 2002, the government argued under the same premise: offenders may use images of the type Andrea possessed; they commonly use similar types of images to groom minors into engaging in explicit sexual conduct. The same argument plowed from 2001 and dragged into the same thing. Hey, guys, using AI is great, but twisted around a little bit, try to make it sound like you wrote it. It’ll help you a lot with the court.
[33:27] Andy: Let me play devil’s advocate for the government for a second because they had two other arguments that I thought were cleverly placed. When was the interstate commerce hook? They said, look, this isn’t just a guy sitting at home like Stanley, because to convict under this statute, we have to prove the material or computer crossed state lines. So Stanley shouldn’t apply because there’s a commerce nexus.
[33:56] Larry: The court didn’t do too much with that line of thinking. The government says Stanley doesn’t apply where the conduct was facilitated through the use of commerce. That doesn’t make sense, did you write that again? I noted at trial they intended to prove that the computer Andrew used to produce and possess the image had traveled in interstate commerce and he downloaded Stable Diffusion from the internet. You have to give them credit; they tried to make the connection. And the panel said that doesn’t change anything. They said the interstate commerce requirement does not change the fact that the government is using 1466A(d) to punish a reg for possessing obscene material in his own home.
[34:51] Andy: All right. Well, then this is the part that I wanted to dig on because reels of film cross state lines; they end up in the mail carrier’s pouch and it goes on a truck and then goes from Ohio to Kansas or wherever it goes. So Stanley’s eight millimeter films didn’t grow in his living room. It’s not a chia pet.
[35:09] Larry: Well, and they addressed that. They said the obscene materials in Stanley certainly moved in interstate commerce too. And it didn’t matter to the Supreme Court. The panel said once the materials left the public sphere and entered the home, the government’s regulatory power was eclipsed by the individual’s First Amendment right to receive information and ideas, regardless of the social worth. And there’s a footnote in five where they said that. So, uh, they didn’t do very well on this argument. Guys, you gotta do a little bit more work. You need to call me before you submit your next brief.
[35:48] Andy: The commerce nexus got shoved into a footnote as a jurisdictional afterthought. What was the government’s other clever play? Oh, well, they don’t give
[35:59] Larry: up easily. The other one was reading Stanley narrowly. They say it only protects obviously material depicting adults, not children. And then they leaned on a line from the Williams case that I don’t have the full citation for where the court said, quote: “We have held that the government may criminalize the possession of child pornography even though it may not criminalize the mere possession of obscene material involving adults.” So the government seized on those words involving adults and said, see Stanley’s about adults. And the panel said, no. You’re overreading a sentence from an opinion. It’s not always to be parsed through. Or we are dealing with the language of the statute and more fundamentally. The reasoning of Stanley did not turn on the content of the obscene material; it was predicated on the location in the home. That’s the catch that they adopted here. Seems like they’re respecting what you can do in your own home, which a lot of people have forgotten: you’re supposed to have privacy to do a lot of things in your own home.
[37:03] Andy: Okay. All right, but then, so to get the concession point head-on, because it feels like the whole thing is balanced on one admission, the whole thing turns on the government admitting these are not real children. And if they had changed this as morphed images of real kids, does Anderig lose? I don’t know.
[37:25] Larry: The whole thing hangs on there being no actual child at the moment. Pull that thread, and if they can, I don’t know what they’re going to do with this opinion, but the opinion tells you, remember Free Speech Coalition distinguished them as morphing provisions. Footnote three lays out: although morphed images may follow the definition of virtual child porn, they implicate the interest of real children, and they are, in that sense, closer to images than Ferber. So if you take a real child’s innocent photograph and morph it into something sexual explicit, now you’ve got a real child’s interest implicated, and you’re back to Ferber and Osborne, not Free Speech Coalition. This case only comes out this way because the government conceded there was no real child, no child ever. There was no morphing; there was no real child ever. It was created from scratch.
[38:20] Andy: And that brings me to the thing that really made me uneasy about calling this a win. It wasn’t a unanimous, confident, “this is the law” opinion. The panel kept apologizing for its own ruling. Did I catch that interpretation right?
[38:35] Larry: Mostly right. That’s why I say don’t get too giddy. The panel telegraphed misgivings all the way through. Early on, they wrote, “we have some concerns about the lines these cases draw, but we are not free to redraw them ourselves.” And then during the end, the money quote from the whole distrust reading: “We have some misgivings about applying Free Speech Coalition here. But unless we wish to anarchy to prevail within the federal judicial system, we’re duty bound to follow it.” And I’ve told you guys this in previous episodes. If you’re at a lower level court, you have a duty to follow precedent. They cite Hutto versus Davis: “Your precedent of this court must be followed by a lower federal court no matter how misguided the judges on the courts think them to be.”
[39:25] Andy: And they followed Free Speech Coalition on that, but you could hear the reluctance. I did.
[39:31] Larry: They followed Free Speech Coalition with a gun to their head, and you could hear them apologizing for it. And I don’t think that’s a court that really believes in the result. The court said it believes in the chain of command. So it’s inviting it to go back up.
[39:47] Andy: Well, then I think we get to the concurrence. This is the part that flipped my whole read of the case because two of the three judges—Judge Lee and Judge Kohler—wrote separately. The concurrence isn’t defending the ruling; it’s asking the Supreme Court to fix it. Now let me read it: “I write separately to note that given the significant advances in computer-generated image technology, particularly in the field of artificial intelligence, 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.” So two of the three judges just held up a sign that says, “Please take this case?” Yep.
[40:29] Larry: Two of the three judges wrote separately, basically asking the Supreme Court to fix it because ultimately, it’s the panel following what the Supreme Court told them to do. And for two of the three judges, it’s a win, but they’re saying, “Hey, we didn’t want to do this and if you don’t like it, you need to do something about it.” Which means that they invited the government to appeal. The concurrence doesn’t stop there; it practically drafts the government’s petition. It quotes Justice O’Connor and Justice Thomas from Free Speech Coalition predicting this exact day. Thomas wrote: “If technological advances thwart prosecution of unlawful speech, the government may well have a compelling interest in barring otherwise lawful speech in order to enforce effectively laws against prawn made through the abuse of real children.” The concurrence pulls that quote out. So they are not happy about what they did.
[41:29] Andy: Right. And then there’s this training data piece, which I want you to explain because this is the part of the concurrence flags as the argument the government didn’t make. Quote, a major data set used for training image generating AI contain hundreds of CSAM images. And quote, the market for AI generated virtual CSAM images may impact the demand for actual CSAM on which the AI models can train. Such a finding would implicate many of the concerns raised in Osborne. So it isn’t just a blueprint for the next prosecution.
[42:01] Larry: Yep. That’s what they said. And that’s the crack which the state could reenter. The concurrence held the flashlight up to it. And it’s not the state. It’s the federal government. But here’s the logic. Free Speech Coalition said virtual material isn’t linked to real children. But if the AI model that generated that material was itself trained on a real CSAM, then you can argue that there is a market connection back to real children, real abuse and so forth. And that’s an Osborne argument, which we talked about earlier. Market for real kids, not the real Free Speech Coalition argument. The concurrence flat out said in this case, the record is insufficient to evaluate these complex issues. Translation: the government didn’t build the record here, but somebody should build it next time. And that’s where this is going. They’re going to build this next time.
[42:55] Andy: And then the next prosecutor reads this opinion and does what? Develops the record.
[43:02] Larry: The concurrence told them to develop a record with evidence about training data sets, which I don’t understand. It’s about putting on evidence regarding the market for actual CSAM. They slot the case into Osborne instead of free speech coalition. They forget about that case. And I expect possibly a different postured case with a better-developed record that could flip the result.
[43:26] Andy: You keep saying this pattern repeats. Could you lay that out? Because the opinion actually narrates the last time it happened?
[43:36] Larry: Yes, the opinion laid it out. Congress passed the CPPA in 1996. The Supreme Court struck it down in Free Speech Coalition. And then after Free Speech Coalition, Congress went back to the drawing board and enacted a statute called the Protect Act of 2003. So the pattern is: lose, redraft, come back with more findings, morphing findings, training data findings, whatever they can think survives the next challenge. They’re going to pass new laws in Congress after this.
[44:21] Andy: And I’ll ask the question our audience is actually going to ask though. Does this ruling touch the registry at all? Or is this just a first amendment possession case that just happens to walk through our neighborhood?
[44:35] Larry: It doesn’t touch the registry. This is just a first amendment possession holding. The court’s conclusion is, “We conclude that 18 U.S.C. § 1466A(b)(1) is unconstitutional as applied and on its face.” And that’s about whether the government can criminalize in-home possession of this particular type of material that’s not a real child. It’s not a registry case, not a residency case, not a supervision case. It’s just about first amendment.
[45:06] Andy: And then give me your bottom line. Is this a win or is it not a win?
[45:11] Larry: It’s a narrow, hollow win for the moment. The 7th Circuit affirmed the dismissal of the possession count. And so that’s a solid win on that one count. I don’t see how they can bring that back now. But the panel refused to redraw the Supreme Court’s lines. They’re following their protocols about the court, and the panel telegraphs misgivings. Above all, the concurrence invites the Supreme Court to revisit this doctrine.
[45:40] Andy: How much weight does that have? Two of the three judges openly asking the Supreme Court to revisit what? How much weight does that carry in them taking a case?
[45:50] Larry: It carries a lot because normally when you’re doing, there are two steps you can take. You can do a motion to hear the case on bank and usually just cite to one circuit that went your way. This time, you’ve got two judges out of three on the panel citing to them. So this is much more significant. It gets them either a full court review or they do a cert petition to the Supreme Court directly off of this.
[46:23] Andy: All right. And then this protects Anderig on possession today, but it doesn’t settle the law.
[46:28] Larry: It does protect Anderig on possession today. It doesn’t settle the law. This is well plowed earth in the South, and the plow is rusting, but the government is already sharpening a new one. It’s a good ruling for now.
[46:48] Andy: All right. Then I’m going to try to filter some questions that people have asked in chat. So couldn’t the no child, no crime be somehow applied to sting operations? I don’t know. I got to think
[47:02] Larry: About that. The way the statutes are usually drafted, they cover that. Saying “a person acting as a child, pretending to be or depicted as a child,” or however they word it in various statutory schemes. So they don’t say if you’re looking at something designed to make you think it’s a child. I don’t know if it would hold the same type of persuasive power because it would totally shut down sting operations. There are actually very few people out there trying to solicit minors.
[47:43] Andy: Right. They’re going to, at some point in time, they’ll speak about going after the training data and all that stuff. To explain it to you in analog terms, everything you know about law is something you’ve read. So to teach a computer how to analyze law, draw images, or write a computer program, you feed it what’s called training data. Which are examples of what you’re trying to get it to do. And that’s how it learns. Hey, Larry, how did you learn how to write your first brief? You didn’t just make it up on your own one day; you followed what someone else had done. And then eventually you internalize it and it becomes yours in your version format. You like to put things centered this way, whatever font you prefer, that’s how it becomes yours. But you still learned from someone else. The whole internet is full of examples, and that’s what training data is. It’ll be interesting to see how they crack down on the fact that the internet exists and you can certainly find adult people who look childish and extrapolate from that. You could turn that into whatever you wanted it to be.
[48:54] Larry: Sure you could, but that makes it a little more understandable to me because that’s exactly how we did learn or did learn was we would take briefs and in the old days before we had this elaborate way of copying and pasting, we would type them up on an old-fashioned computer. But now we just copy and paste, tell the AI to generate a brief, and then fix it after we get the product.
[49:22] Andy: Hopefully there’s plenty of stuff coming out where people aren’t checking it afterwards and they have citations to court cases that do not exist. They look perfect. They’ll say, for example, “seventh circuit, whatever paragraph,” this and doesn’t exist. It’s completely fabricated. But it looks right and convincing.
[49:40] Larry: It does. And we’ve got a letter that we might go over next week from our person who asked me a question out of my domain but in yours about AI. So I’ll put that in next week if I can condense it down to something understandable. But that’s how we did it—we learned from what other people have done. We don’t reinvent the wheel.
[50:03] Andy: I mean, there’s a saying—I’m going to trash this expression. Nobody does anything by themselves except for the first guy who made fire. You know, back in your day, somebody in your clan struck two rocks together and made fire. That guy is the first.
[50:29] Larry: Well, how do you know that they did that that way? How do you know that they didn’t just see a lightning strike sort of fire? And I said,
[50:33] Andy: Hmm, I wonder what caused that. So everyone is standing on the shoulders of all those who came before them to do all the things they’ve done. I rest my case. Nope. You’re perfectly right. So anything before we head out?
[51:02] Larry: Trying to figure out all this stuff. Cause it’s out of my area of expertise.
[51:07] Andy: So, I have a quick question for you. Cause there’s an individual that I communicate with who is in a prison in the Northeast. And, uh, I ended up getting an email from his sister telling me he won’t be calling for a while because he’s on phone restriction. He lost phone privileges because he was feeding the pigeons. He wasn’t selling contraband or fighting. I mean, I can see there’s a sanitary aspect to it, but you lose your phone privileges for feeding the pigeons? That seems extreme.
[51:50] Larry: At first blush, it does seem extreme, but we don’t know how many times he had been asked. We don’t know the severity of the pigeon infestation. We don’t know if they’ve had to deal with medical issues related to sicknesses. There’s a lot we don’t know. And we don’t know how many previous write-ups he has for other reasons. So, I think it’s just a lot of stuff that finally said, “We’re tired of dealing with you.” But standing alone, yes, it seems very extreme.
[52:17] Andy: That’s prison for you. Well, I’m done. Head over to registrymatters.co. You can find show notes and links to everywhere you want to go. You can email us at registrymatterscast@gmail.com. You can leave an old-fashioned voicemail message. The number is 747-777-DOPE (3673). For the few dozen people listening live, you can do that if you sign up at patreon.com/registrymatters. It’s incredibly helpful to us and shows your love and support, which helps us stay motivated to keep doing this kind of program. If you want to buy some swag without becoming a patron, head over to fypeducation.org/shop. You can find very cool merch like our Kabuki Machine shirt. I really appreciate Zero10Brands for helping us put that stuff online. Larry, I hope you have a fine fantabulous Labor Day weekend. Do you want to tell me a quick story about how Labor Day came to be? I don’t have any idea; you tell me.
[53:27] Andy: The 40-hour work week is where it comes from, so
[53:29] Larry: So, we’ve sold about 100 of those kabuki machine shirts, I think.
[53:36] Andy: It’s been a very good seller. Someone asked to have it put on the back of the shirt, so we made that happen. They got their shirt made with the thingamajigger on the back, and all is well. So, Larry, I hope you have a great weekend and stay cool and whatnot. I hope your air conditioner is working. I will talk to you soon. Good night.
[53:55] Guest 1: You’ve been listening to FYP.