FAC Weekly Update 2025-05-20-The Future of First Amendment Protections

Dear Members and Advocates,

We will start this weekly update with a strong disclaimer… The Florida Action Committee unequivocally condemns the creation, possession, or distribution of child sexual abuse materials (CSAM), whether real or AI-generated. That said, as legal definitions and criminal punishment expand, as they have in recent years, to include AI-generated images (content not involving real children) or “childlike sex dolls”, or bans on access to places such as public libraries (arguably THE center of information), serious questions emerge about the scope of the law, the nature of harm, and the future of First Amendment protections.

Florida is among the many states that have criminalized AI-generated CSAM, reflecting growing national momentum to treat computer generated images as indistinguishable from real images. But this approach raises some pretty significant ethical and legal issues, particularly when no actual child was involved in the image’s creation. At the core of this debate is a fundamental question: if no child was harmed in the making of an image, is the image itself a crime?

The argument behind criminalizing possession of actual CSAM has always been that these materials are not victimless. Behind every image is a real child and that real child is victimized every time their image is viewed by another person. But how far can that argument be stretched when there’s no actual child being victimized? In a recent case from the UK, a man was spared prison for creating AI-generated CSAM. The outraged prosecutor was quoted as saying that such images are built on the suffering of real victims, because the models are trained using real abuse images. This argument, while it might generate a strong emotional appeal, also blurs the line between actual harm and theoretical harm, raising the specter of punishing thoughts, rather than actions. It’s a slippery slope.

How about taking it one step further? Not CSAM in any form, but sex dolls? For example; Florida’s law criminalizing “child-like sex dolls”. Supporters of that law argued that the dolls could be used to desensitize or train would-be abusers, creating a gateway to actual crimes. Really?!?! These dolls, like AI images, do not involve real children—so is their mere existence inherently criminal?

Perhaps the most troubling issue in criminalizing AI-generated CSAM or “child-like sex dolls” is the subjectivity it introduces into what should be a matter of clear law. When a computer-generated image is judged illegal based on whether the character “appears” to be underage, we enter dangerously vague territory. What one expert sees as an AI depiction of a 17-year-old, another may interpret as a 19-year-old. How do you defend against something like that? “But Your Honor, the doll swore she was 18!” When criminal liability and a lifetime on the sex offender registry hinges on whether an AI-created figure looks 17 or 19, we are asking juries to decide guilt based not on fact, but on perception. Applying strict liability—a legal doctrine that imposes punishment regardless of intent or awareness—to something so subjective undermines fairness and opens the door to arbitrary enforcement.

We should really be questioning whether these laws are an effective crime-prevention strategy or simply moral panic creating laws that are quickly encroaching on first amendment rights. The U.S. Supreme Court’s 2002 decision in Ashcroft v. Free Speech Coalition ruled that virtual child pornography, which does not involve real children, is protected speech under the First Amendment. While AI may be a new frontier, it is still virtual, and the Ashcroft precedent raises significant doubts about the legality of broadly criminalizing fake images.

So we’ve thought about legal issues concerning AI CSAM and then we discussed what most would consider one notch lower; these “child-like sex dolls”. Now let’s take our thoughts one huge notch lower than that. Last month, the city of Clewiston, Florida, passed a law that effectively banned registrants from the library. It was not the first Florida municipality to do so. The Supreme Court described the “right to receive information and ideas” as a right which is most “fundamental to our free society”. It’s hard to imagine any place more illustrative of where one can receive information and ideas than the public library! So can a municipality pass a law that bans an individual from accessing a library? In 2012 the 10^th Circuit Court of Appeals  ruled that a policy barring registrants from public libraries in Albuquerque, New Mexico was unconstitutional. So how are cities and counties here getting away with it more than a dozen years later? Well, because we’ve let them. Nobody has challenged it. Within the coming months that will change.

Allowing lawmakers to pass laws unchecked has resulted in no clear definition of where the lines should be drawn. While it may seem like efforts to expand criminal laws come from a place of concern, the consequences of these decisions still require careful scrutiny. Overbroad laws not only fail to prevent any actual harm but risk punishing individuals based on thought, appearance, or practicing a completely legitimate and constitutionally protected fundamental right. We need to start pushing back and we will be! Now don’t get things confused. For absolute clarity (because someone will try to twist this message and use it against us) we are, in no way, suggesting that by “pushing back” we will ever be advocating for the legality of AI CSAM images or sex dolls of any age. However, the line needs to be drawn someplace and we intend to fulfill our commitment to justice, due process, and protecting the constitutional rights of ALL people.

Sincerely,

The Florida Action Committee