Is Wisconsin's law against AI child porn still intact after ruling?

USA TODAY NETWORK A federal appeals court panel ruled Aug. 25 that the First Amendment protects a Wisconsin man who prosecutors say used generative artificial intelligence software to create images of children engaging in sexually explicit acts. The case dealt with a federal statute, rather than a Wisconsin law enacted in 2024 that created a new, felony-level crime for receiving, distributing, producing or possessing AI-generated child pornography, regardless of whether the child is real. The Wisconsin law is still intact after the ruling, but the new precedent raises questions. Lawyers defending clients in similar child pornography cases could use the appeals court decision to argue the state law is unconstitutional. The goal of the state law is to protect children, said state Sen. Jesse James, a Republican who authored the bill. James, who's also a part-time police officer, said perpetrators could transition into abusing a real child. 'We're not [talking] about adult AI-generated porn. We're talking about child AI-generated pornography,' James said. 'Just the idea of that in itself is absolutely disgusting.' In the Aug. 25 ruling, Judge John Z. Lee of the U.S. Court of Appeals for the 7th District urged the U.S. Supreme Court to reconsider the issue of virtual abuse material of children as AI rapidly evolves. 'Given the relentless advancement in artificial intelligence models, we have some concerns about the lines these cases draw, but we are not free to redraw them ourselves,' Lee wrote. Here's what to know about the state law, which isn't implicated in the court ruling but could be called into question in future cases: What is the Wisconsin law against AI-generated child pornography? Wisconsin Act 224 created a new crime called 'possession of virtual child pornography' that prohibits receiving, distributing, producing, possessing or accessing with the intent to view obscene material that contains a depiction of a 'purported child' engaging in sexually explicit conduct. Under the law, the person must reasonably know the material contains sexually explicit imagery and that the child is under 18. The law defines 'obscene material' to include digital or computer-generated images. The law imposes consequences for the new crime that are similar to other child pornography convictions, according to a summary of the bill. Those include a minimum of three years in prison, a requirement that the individual register as a sex offender and a $500 fine for each image associated with the crime. The bill was led by Republican lawmakers and signed into law by Democratic Gov. Tony Evers as part of a package of bills aimed at crimes against children. The law took effect March 29, 2024. Legislative records show no individuals or groups testified against the bill in public hearings. It was supported by religious groups, including the Wisconsin Catholic Conference, and law enforcement groups like the Wisconsin Sheriffs and Deputy Sheriffs Association. Nearly every state has enacted laws related to pornographic deepfakes or child sexual abuse material, also called CSAM, according to a Ballotpedia analysis. James, who's among the Republican lawmakers retiring this year, said future legislators should keep pace with the rapidly advancing technology and ensure investigators have the proper resources to review internet crimes against children. '[Perpetrators'] whole concept is they want to target a child victim. That's their bottom line,' James said. 'We need to make sure that we're keeping up with the speed of this.' Could Wisconsin's law against AI child pornography go away? The federal appeals ruling has no immediate impact on the state law, so it's still in effect. But attorneys could cite the precedent in similar Wisconsin criminal cases to argue the state law is unconstitutional. In one case, an Illinois man was sentenced to three years behind bars after pleading guilty in Waukesha County to charges based on the new law. Prosecutors say he used an AI generator and photos of a 15-year-old Lisbon girl he knew in real life to create sexually explicit videos and images that were later saved on his cellphone. Anthony Cotton, the attorney for the man in the federal case, praised the appeals ruling and said it supported his long-held assertion that the Wisconsin law runs counter to the First Amendment. Cotton previously told the Milwaukee Journal Sentinel that he expected the decision to have rippling effects on his client's case and those of others at some point, though it's too early to tell what they'll be. 'This is an unconstitutional statute … that should be struck down,' Cotton said. What other AI-related laws does Wisconsin have? Wisconsin has enacted other laws in recent years that respond to the rapidly growing capabilities of artificial intelligence, including in political campaign advertisements. One law signed in 2025 made it illegal to distribute sexually explicit deepfakes without the consent of the person being depicted. The law makes it a felony to publish or distribute a synthetic intimate representation, also known as a deepfake, of a person 'with intent to coerce, harass or intimidate.' State Sen. André Jacque, a Republican from New Franken who authored the deepfake law, was also concerned with the potential impact of the federal appeals ruling. 'Anytime you have a legal loophole … it only emboldens people to try to find ways to exploit it,' Jacque, who's also retiring this year, told the Journal Sentinel on Aug. 31. '[I] have a lot of concerns over the lack of guardrails over some of these potentially damaging behaviors.' Jacque doesn't recall any First Amendment concerns being brought up in hearings for the AI-related measures, which had bipartisan support. Evers' spokeswoman pointed to a letter the governor sent to Wisconsin's members of Congress earlier this year, urging them to vote against the Trump administration's efforts to block state-level AI laws and regulations. 'Here in Wisconsin, we've passed bipartisan laws to hold bad actors accountable who abuse AI and use it to hurt, harass, manipulate, and target others …,' Evers said in a statement Aug. 4. 'I think it's patently irresponsible for President Trump, Republicans who represent us in Congress, and others, to be trying to undermine Wisconsin's AI laws, which will end up making our kids, our families, and our communities less safe.' Chris Ramirez of the Milwaukee Journal Sentinel contributed to this story. Hope Karnopp can be reached at [email protected]. This article originally appeared on Milwaukee Journal Sentinel: Is Wisconsin's law against AI child porn still intact after ruling? Reporting by Hope Karnopp, Milwaukee Journal Sentinel / Milwaukee Journal Sentinel USA TODAY Network via Reuters Connect Related