When “Close Enough” Becomes a Crime: The Analogue Act, AI Images, and the Promise of Fair Notice

Justice Neil Gorsuch once called the federal Controlled Substance Analogue Act a “curious animal,” and Congress may finally be listening. A new bill from Rep. Steve Cohen, D-Tenn., would reform the law, which bans selling substances that are “substantially similar” to ones that have already been deemed illegal.

Congress passed it in 1986 to combat “designer drugs” (synthetic drugs). The problem is the phrase “substantially similar.” Its vague and unscientific nature has led to confusion in the courts, multiple federal judges have questioned its legality, and even chemists within the DEA have disagreed about its meaning. As a judge on the 10th Circuit, Gorsuch wrote that it remained an open question what it means for chemicals to have a substantially similar structure or effect, and whether such terms give citizens fair notice. When trained DEA chemists can’t agree on whether something is illegal, how is an ordinary citizen supposed to know?

Florida has written a similar law for the age of artificial intelligence. Section 827.072, Florida Statutes, created in 2024, makes it a third-degree felony to create, possess, or intentionally view “generated child pornography” (AI Images). The statute defines that as any image created, altered, adapted, or modified by computer-generated means to portray a fictitious person who a reasonable person would regard as being a real person younger than 18 years of age, engaged in sexual conduct. The person in the image doesn’t exist, so there is no victim to talk to, no birth certificate, and no date of birth. Whether a felony occurred depends on what a “reasonable person” thinks a fictional figure looks like.

Compare that to how these cases have traditionally worked. When an image involves a real person, investigators can establish facts. They can identify the victim, determine when and where the image was made, and prove the person’s age at that moment through records, testimony, and forensic evidence. A computer-generated figure has no birthdate, only an appearance. Nobody can reliably say whether a synthetic image is 17 or 18, any more than anyone can say whether a real person “looks” older on the day of their 18th birthday. Under § 827.072, two reasonable jurors could look at the same image and reach opposite conclusions, and the defendant’s freedom, and lifetime registration, would hang on which one sits in the jury box. That is the same “substantially similar” problem in a different form: a criminal law that turns on a judgment call instead of a fact.

The Due Process Clause exists to prevent this. The void-for-vagueness doctrine requires criminal laws to give ordinary people fair notice of what is forbidden, and to give police, prosecutors, and juries clear standards so enforcement isn’t arbitrary. The U.S. Supreme Court has already been wary of laws built on appearance alone. In Ashcroft v. Free Speech Coalition (2002), it struck down federal provisions banning virtual images that merely “appear to be” minors. It held them unconstitutionally overbroad under the First Amendment because they reached material that involved no real child. Congress responded by narrowing federal law. Florida’s statute brings back much of the same uncertainty by asking a fact finder to guess the age of someone who was never born.

This is not a defense of anyone who exploits children or creates images that are clearly illegal. But laws that protect children must also be laws that can be followed, and a statute that ordinary people, prosecutors, and jurors can’t apply consistently will produce inconsistent results. Justice Gorsuch saw the danger of letting juries guess at “substantial similarity” in chemistry. The danger is the same when they guess at the age of a person who does not exist.