A Flagstaff man facing 10 felony counts for allegedly possessing AI-generated child sexual abuse material has filed a motion to overturn the Arizona law under which he was charged. Shawn Roberts, 44, argues that the 2024 amendment to the state's sex crime statute conflicts with a 2002 U.S. Supreme Court decision that protects virtual or computer-generated images as free speech under the First Amendment.
Roberts was arrested in June and indicted in Coconino County Superior Court on 10 counts of sexual exploitation of a minor, each a Class 2 felony. The images that formed the basis of the indictment were created or modified using generative AI tools, according to multiple sources. Arizona's amended law treats sexually explicit images that are "indistinguishable from an actual minor" - including those made with AI - the same as photographs of real children.
The constitutional challenge
Defense attorney Ryan Stevens of Griffin & Stevens filed a facial challenge to the law on September 4. A facial challenge asserts that a statute is unconstitutional on its face, regardless of how it is applied in a specific case. Stevens' motion centers on Ashcroft v. Free Speech Coalition, the 2002 Supreme Court ruling that struck down provisions of the Child Pornography Prevention Act. The Court held that virtual images depicting minors cannot be banned under child pornography laws because no actual child is harmed in their creation.
"The arrival of artificial intelligence has not changed the Free Speech Coalition's rule, and a legislature may not issue a resemblance-based ban on synthetic imagery in the hope that technology has outpaced the doctrine," Stevens wrote in the motion.
Stevens asked the court to dismiss all charges against Roberts that rely on the provision defining illegal material to include depictions "indistinguishable from a minor." He also requested dismissal of any charges based solely on that statutory definition.
Ninth Circuit ruling adds weight
A recent federal appellate decision bolsters the defense position. On August 25, the U.S. Court of Appeals for the Ninth Circuit ruled that a defendant could not be prosecuted for possessing hyper-realistic, AI-generated images of minors engaged in sexual acts, citing the binding precedent of Free Speech Coalition. The judges acknowledged their own discomfort with the outcome.
"Given the relentless advancement in authenticity of artificial intelligence models, we have some concerns about the lines these cases draw, but we are not free to redraw them ourselves," the panel wrote. The judges explicitly invited further review, adding: "We would benefit from additional guidance from the Supreme Court regarding the intersection of the First Amendment and virtual/artificial intelligence if an appropriate case should arise."
What the indictment does and doesn't say
The grand jury's indictment against Roberts identifies 10 specific digital files but does not use the phrase "indistinguishable from an actual minor" in any count. Under current Arizona law, actual photographs and indistinguishable AI-generated images are treated identically, so the distinction does not appear on the face of the charging document. This leaves open the question of whether Stevens' motion, if granted, would eliminate all 10 counts or only a subset.
A critical factual distinction could determine the case's trajectory. If any of the images Roberts allegedly possessed were derived from or incorporated photographs of actual minors - rather than being wholly synthetic - prosecutors could potentially pursue charges on that basis, regardless of the constitutional challenge to the AI provision. At least one source has claimed such a connection exists, though the public record remains unclear.
Roberts remains in custody at the Coconino County Detention Facility. As of September 10, neither the prosecutor nor the judge had responded to the filing.
Why this matters for legal professionals
This case represents one of the first reported prosecutions under Arizona's amended statute targeting AI-generated child sexual abuse material, and it tests a legal tension that courts have been reluctant to resolve without clearer Supreme Court guidance. The Ninth Circuit's recent decision, combined with the explicit invitation for high court review, signals that the intersection of AI-generated imagery and First Amendment doctrine is approaching a inflection point. Criminal defense attorneys, prosecutors, and judges in Arizona and beyond should watch whether this facial challenge survives - and whether it draws the Supreme Court's attention. A ruling striking down the Arizona law would ripple across states that have passed similar amendments, potentially forcing legislatures to rewrite statutes to focus on images traceable to actual, identifiable minors.
Your membership also unlocks:
