I think prosecutors would probably argue that even using a pencil purchased locally meets the bar of making the "visual depiction... produced using materials.. or that have been shipped or transported in interstate or foreign commerce by any means, including by computer".

The Commerce Clause has been read very expansively since the Wickard v. Filburn[1] in the New Deal era. One of the current legal projects of the Federalist Society, the conservative legal movement the current Supreme Court majority stems from, is rolling this back, and limiting the power of the Commerce Clause. They argue that reading the Commerce Clause so expansively coupled with modern technological/economic change gives the Federal Government effectively unchecked power to regulate behavior, which was contrary to the intention/design of the Constitution. Supporters of the current status quo argue that reading the Commerce Clause too narrowly would make the modern economy unmanageable and ungovernable. It's an open question how far the current Supreme Court will go in paring it back, but they have started narrowing parts of this doctrine.[2]

(There are no prior cases on this in the context of AI generated content in the United States, because this is the first time this offense has been charged for AI generated content in the United States. That's why it's so newsworthy and why I posted it - it's going to set some precedent, one way or another.)

I personally find the much more interesting argument here to be about obscenity. The obscenity doctrine places "obscene" speech completely outside the protection of the First Amendment. Previously, the Supreme Court ruled in Ashcroft vs FSC that for CSAM to be illegal, it must at least meet the bar for obscenity, or it must be produced via actual exploitation.[3] This is the most similar case I am aware of.

Obscenity doctrine in the United States is... a bit of a hot mess, in my humble opinion. The current test is as follows:

> The basic guidelines for the trier of fact must be: (a) whether "the average person, applying contemporary community standards" would find that the work, taken as a whole, appeals to the prurient interest; (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.

To be blunt, I don't think anyone really knows what that word salad means. What are the "contemporary community standards"? Who is the "community"? What does it mean to be "patently offensive"? According to whom? The whole thing that makes exclusions to the First Amendment tenable is that they need to be really, really clear. Otherwise ambiguity in the standard leads to curtailment of expression by a chilling effect.

Furthermore, there's also this ruling[4] - that as far as I can tell is still good law - which makes it unconstitutional to ban the mere possession of obscene material. I don't think that applies here, because in this case, the defendant is alleged to have distributed the material widely. Furthermore, it also stems from a "right to privacy" the current Supreme Court is rather skeptical of.

There's not really a conclusion to all this. The main point here is that something is happening and that will probably result in interesting decisions later on.

[1] https://fedsoc.org/case/wickard-v-filburn; held that Congress could bar farmers from growing wheat on their own land for their own consumption.
[2] https://www.nlc.org/article/2023/06/15/supreme-court-decides... limited the related Dormant Commerce Clause doctrine.
[3] https://www.oyez.org/cases/2001/00-795
[4] https://en.wikipedia.org/wiki/Stanley_v._Georgia