Independent New Hampshire Journalism · Northfield, NHOn August 25, 2026, a federal appeals court refused to enforce the narrower federal version of New Hampshire’s AI child-abuse-image clause. The state statute passed without a recorded no vote, still cites a case that cuts against it, and has never been read against the ruling Concord lost in 2008.
Correction, Sept. 22, 2026, 10:25 a.m. EDT: An earlier version of this article said two judges of the Seventh Circuit panel in United States v. Anderegg asked the Supreme Court to take up the question. Their concurrence says the courts would benefit from further Supreme Court guidance if an appropriate case arises (Seventh Circuit opinion, No. 25-1354). The same version said the parties in State v. Zidel stipulated that nothing below the necks belonged to a real child; the stipulation, as quoted in the opinion, is that there was no specific evidence the images contained body parts of actual children other than heads and necks. The article, fact-check rows 2 and 13, and the opinion link for Zidel, which now points to CourtListener, have been corrected.
Correction, Oct. 1, 2026, 11:50 a.m. EDT: This article said Justice Hicks, dissenting in State v. Zidel, would have read “child” to mean a real child and upheld the conviction on that narrower ground. His dissent says the opposite: he would not have construed RSA 649-A:3 narrowly, would have held it not fatally overbroad under the State Constitution, and would have affirmed. The sentence describing the dissent was corrected.
On January 18, 2008, the New Hampshire Supreme Court threw out nine felony convictions and told the state something it did not want to hear. A man who kept sexual images built from the faces of real children, images no child had been abused to make, had committed no crime by keeping them to himself. The state’s lawyer on the losing side was Attorney General Kelly Ayotte. The case is State v. Zidel, and no court has overruled it.
Sixteen years later the legislature passed a law that reaches further than the one the court rejected. Senate Bill 564 of 2024, now Chapter 43, rewrote the definition of “child” in RSA 649-A so that a computer-generated image of a child who does not exist is a class A felony to possess, provided an ordinary person would think it looks real. No real child. No requirement that the image be legally obscene. Not one recorded vote against it in either chamber.
On August 25, 2026, the U.S. Court of Appeals for the Seventh Circuit held that the federal version of that idea, a narrower one that at least requires obscenity, cannot be enforced against a man who kept such images at home. The panel said it disliked the result and was bound to reach it. New Hampshire’s statute sits on the wrong side of a line the U.S. Supreme Court drew in 2002 and New Hampshire’s own high court applied in 2008.
Images that record no abuse: New Hampshire law, 2008–2026
- Jan. 18, 2008State v. ZidelN.H. Supreme Court reverses nine possession convictions: private possession of morphed images that record no abuse is protected.
- 2008Chapter 323 (SB 495)Legislature adds the identifiable-child clause and lets juries find a depicted child’s age by viewing the images.
- May 31, 2024Chapter 43 (SB 564)Adds the “indistinguishable” clause: no real child needed, no obscenity element. Effective Jan. 1, 2025.
- July 15, 2025Chapter 259 (SB 300)New class B felony for synthetic intimate images of an identifiable child. Effective Jan. 1, 2026.
- Aug. 25, 2026United States v. Anderegg (7th Cir.)Federal possession ban on obscene AI images of non-existent children held unconstitutional as applied to the home.
Granite State Report, from the RSA 649-A source notes, the SB 564 docket (LSR 3089), and the Seventh Circuit opinion in No. 25-1354.
What the 2024 law says
Before 2025 the chapter reached two kinds of image: those whose production involved the use of a real child, and, since 2009, those altered to make an identifiable real child appear to be engaged in sexual conduct. SB 564 added a third. Any digital or computer-generated image that “is, or is indistinguishable from,” a child engaged in sexually explicit conduct is now a covered “visual representation.” The bill then defined the new word. An image is indistinguishable when an ordinary person viewing it would conclude it shows an actual child. Drawings, cartoons, sculptures and paintings are carved out. Everything photorealistic is in.
Possession under RSA 649-A:3 is a class A felony on a first offense. Under RSA 651:2 that carries a maximum of fifteen years. The bill’s sponsors were Senators Debra Altschiller (D, District 24), Sharon Carson (R, District 14), Regina Birdsell (R, District 19) and Donna Soucy (D, District 18).
The word “indistinguishable” is not New Hampshire’s invention. Congress adopted nearly the same definition in 2003 after the Supreme Court struck its first attempt, and the Court has never said whether that wording survives. New Hampshire borrowed the untested version and dropped the one element, obscenity, that federal prosecutors still have to prove.
The case Concord already lost
The defendant in Zidel took photographs at a summer camp in Amherst for children fifteen and younger. In July 2005 he handed the camp director three discs. Alongside the ordinary camp pictures were nine images that placed the heads and necks of teenage campers on the bodies of naked adult women engaged in sex acts. The parties stipulated that, other than the heads and necks, there was no specific evidence that the images contained the body parts of actual children. He was convicted of nine counts of possession under RSA 649-A:3.
The Supreme Court reversed, two to one. Justice Duggan’s opinion for the majority concluded that the two cases allowing states to punish possession, New York v. Ferber and Osborne v. Ohio, rest on protecting the children abused to make the image. Where no part of the picture is the product of abuse and the possessor keeps it to himself, the court held, “mere possession does not cause harm to the child.” Every fallback the state offered, that the images might be distributed later, might be used to groom, might feed a market for real abuse, had been rejected by the U.S. Supreme Court six years earlier. Justice Hicks dissented; he would have held that RSA 649-A:3 is not fatally overbroad under the State Constitution, declined to construe it narrowly, and affirmed the convictions.
The legislature answered within the year. Chapter 323 of 2008 added the “identifiable child” category to RSA 649-A:2, aimed at the Zidel facts, and added RSA 649-A:6, which lets a jury decide a depicted child’s age “by viewing the images.” That amendment criminalizes the conduct the court had just said could not be criminalized as mere possession. It has not been tested in a reported New Hampshire decision that Granite State Report could locate. Nor has the 2024 clause, which goes a full step further: it needs no real child at all.
The line the U.S. Supreme Court drew
Three cases carry the weight. Stanley v. Georgia, 1969: the state cannot punish a person for what he keeps in his own home, even when the material is obscene. Ferber, 1982, and Osborne, 1990: images of a child being sexually abused are the exception, because the picture is a permanent record of a crime against a living person and possession bans dry up the demand that pays for the abuse. Ashcroft v. Free Speech Coalition, 2002: the exception ends where the real child does. Congress had banned images that “appear to be” minors. The Court struck that provision because such an image records no crime and creates no victim when it is made.
The government told the Court in 2002 that computer images would soon be impossible to tell from photographs and that prosecutors would be paralyzed. The Court answered that lawful speech does not lose its protection because it resembles unlawful speech. That is the argument SB 564 is built on. The Supreme Court rejected it once, and the state’s own high court applied that rejection to RSA 649-A in 2008.
What happened in Chicago on August 25
Steven Anderegg, a Wisconsin software engineer, allegedly ran Stable Diffusion on his own laptop to generate photorealistic sexual images of children, then sent some of them over Instagram to a minor under sixteen. Meta reported the messages. Federal prosecutors charged him under 18 U.S.C. § 1466A, the statute Congress wrote after 2002, which bans obscene depictions of minors “of any kind” and says the minor need not exist. The government conceded the charged images depict no actual child.
The district court dismissed the possession count. On August 25 the Seventh Circuit affirmed. Judge John Z. Lee’s opinion runs the same three cases and lands where Zidel did. Stanley covers what a person keeps at home, and Free Speech Coalition says a virtual image is not the Ferber exception. Each justification the government offered, grooming, normalization, market deterrence, the difficulty of proving an image is real, was the same one the Supreme Court turned away in 2002. The panel wrote that it had “some concerns about the lines these cases draw” and no authority to redraw them. Two of the three judges wrote separately that the courts would benefit from further guidance from the Supreme Court if an appropriate case arises, and flagged a wrinkle the 2002 Court never faced: a major AI training set has been found to contain real abuse images, so the market for generated pictures may feed the market for real ones. The production and distribution counts stand. The ruling reaches only what Anderegg kept at home.
New Hampshire sits in the First Circuit, so the Seventh Circuit’s decision does not bind a judge in Concord. The three Supreme Court decisions it applied bind every judge in the country. And the federal clause the Seventh Circuit refused to enforce is narrower than RSA 649-A:2, IV(b). Federal law requires the image to be obscene under Miller v. California. New Hampshire’s chapter says, in its own statement of purpose, that it applies whether or not the image is legally obscene.
How it passed
The docket is short. Senate Judiciary heard SB 564 on January 16, 2024, and reported it out 5-0 on the consent calendar. The Senate passed it by voice vote March 7. House Criminal Justice and Public Safety heard it April 10 and voted 19-0, again on consent. The House passed it by voice vote May 2. Governor Chris Sununu signed it May 31. It took effect January 1, 2025.
The committee put its reasoning in writing. Sen. Shannon Chandley of Amherst, writing for Senate Judiciary, said people who make computer-generated child sexual abuse material escape the criminal code because the depicted children are not actual people, that the definitions in RSA 649-A:2 leave New Hampshire residents vulnerable, and that the bill would “close the loophole and keep the children of this state safe.” That account comes from Citizens Count, the nonpartisan group that tracks New Hampshire bills, which also reported that eight people signed in against SB 564 and none of them testified.
Read against Zidel, that sentence calls the constitutional floor a drafting gap. The absence of an actual child is not a loophole. It is the line both courts drew, and the reason the state lost in 2008.
The bill also arrived with the state’s top prosecutor already on record. In September 2023, Attorney General John Formella joined a fifty-four-state-and-territory letter urging Congress to expand child sexual abuse material laws to cover AI-generated images. Four months later the Senate took up a bill doing that at the state level, and the Department of Justice was on the fiscal note’s contact list. Whether anyone at either hearing raised the 2008 loss or the 2002 ruling is a question for the people who were in the room.
A statute that argues with itself
RSA 649-A:1, the chapter’s declaration of purpose, still reads the way it did in 1983. It says the legislature is acting against the exploitation of children as subjects in sexual performances, and that the chapter operates in accordance with New York v. Ferber. Ferber is the case about real children. The 2024 clause covers images with no child in them. The same purpose clause says the chapter criminalizes images of children “under the age of 16.” The definitions section has said eighteen since at least 2009. Neither the 2008 legislature nor the 2024 legislature fixed it. A prosecutor defending IV(b) will have to explain why the chapter cites Ferber for a provision Ferber does not reach.
Then there is RSA 649-A:6. When the child is real, letting a jury find age by looking at the picture is a shortcut past expert testimony. When the child is generated, there is nothing else to look at. The jury studies a picture of nobody and decides how old nobody is.
What still stands
None of this touches the core of the chapter. Images of real children abused to make them are unprotected in every court in the country, and RSA 649-A:2, IV(a) covers them. Zidel reserved the question of altered images that leave a person’s home. And in 2025 the legislature added RSA 649-A:3-c, Chapter 259, a class B felony for creating a synthetic intimate image of an identifiable child for prurient purposes. Governor Kelly Ayotte signed it on July 15, 2025; her office called it a measure aimed at AI-generated child sexual abuse material. Seventeen years earlier, as attorney general, she was the State’s lawyer of record in Zidel. The 2025 law has a real person in it and a real injury behind it. The clause that is exposed is the one with no person in it at all.
The exposure is not academic. Forty-six states have written AI-generated images into their child sexual abuse material statutes, according to the advocacy group Enough Abuse, most of them in 2024 and 2025 with the same drafting shortcut. Defense lawyers read appellate opinions. The next New Hampshire possession case built on IV(b) will arrive with a motion to dismiss attached, and the motion will cite a New Hampshire case.
What Concord owes the public
The four sponsors owe an answer to a plain question: when SB 564 was drafted, did anyone read Zidel? The Department of Justice was consulted on the fiscal note; did it tell either committee that the state had lost a possession case on this reasoning in 2008? The Attorney General’s office owes a number: how many people have been charged under RSA 649-A:3 on the strength of IV(b) since January 1, 2025, and whether any of them has raised Free Speech Coalition.
The fix is not complicated, and saying so is not legal advice. The legislature can add an obscenity element to IV(b), which puts New Hampshire where federal law already is, though the Seventh Circuit says even that may not hold for home possession. It can narrow IV(b) to manufacture and distribution and leave possession to the real-child and identifiable-child prongs, the line Zidel itself drew. And it can rewrite the 1983 purpose clause so the chapter stops citing a case that cuts against it and stops saying sixteen when it means eighteen. A law meant to protect children should be one prosecutors can win with. On the AI clause, they are one motion away from finding out whether they can.
— Dexter Dow, Granite State Report
Fact check
| # | Claim | Status | Source |
|---|---|---|---|
| 1 | State v. Zidel, 156 N.H. 684, decided Jan. 18, 2008, reversed nine RSA 649-A:3 possession convictions, 2-1 (Duggan, J.; Broderick, C.J., concurring; Hicks, J., dissenting); Attorney General Kelly Ayotte on the brief for the State. | VERIFIED | Opinion text, 940 A.2d 255 (Free Law Project / CourtListener mirror). |
| 2 | Zidel facts: Amherst camp photographer; nine images placing campers’ heads and necks on adult bodies; stipulation that, other than heads and necks, there was no specific evidence the images contained body parts of actual children; convicted on stipulated facts. | VERIFIED | Opinion text, 156 N.H. at 684-85. |
| 3 | Zidel holding: mere private possession of morphed images that record no abuse is protected; U.S. Supreme Court precedent compelled the result; distribution question reserved. | VERIFIED | Opinion text, 156 N.H. at 686, 693-96. |
| 4 | SB 564 (2024): sponsors Altschiller (D-24), Carson (R-14), Birdsell (R-19), Soucy (D-18); Senate Judiciary hearing Jan. 16, 2024; committee 5-0 consent; Senate voice vote Mar. 7; House Criminal Justice and Public Safety hearing Apr. 10; committee 19-0 consent; House voice vote May 2; signed May 31, 2024; Chapter 43; effective Jan. 1, 2025. | VERIFIED | N.H. General Court bill docket, LSR 3089; LegiScan action history; enrolled bill text. |
| 5 | Governor Chris Sununu signed SB 564. | VERIFIED | Docket entry “Signed by the Governor on 05/31/2024”; Sununu held the office in May 2024. |
| 6 | RSA 649-A:2, I defines “child” to include something portrayed to be under 18 and therefore indistinguishable from a child; IV(b) covers computer-generated images that are, or are indistinguishable from, a child; VIII defines “indistinguishable” by the ordinary-viewer test and excludes drawings, cartoons, sculptures, paintings. | VERIFIED | RSA 649-A:2, current text (gc.nh.gov); source note 2024, 43:1. |
| 7 | Possession under RSA 649-A:3 is a class A felony (first offense); class A felony maximum is 15 years. | VERIFIED | RSA 649-A:3, II; RSA 651:2, II(a) (gc.nh.gov). |
| 8 | RSA 649-A:1, II cites New York v. Ferber, refers to children “under the age of 16,” and states the chapter applies irrespective of obscenity; RSA 649-A:2, I has defined “child” as under 18 since at least the 2008 amendment. | VERIFIED | RSA 649-A:1 (source 1983, 448:2, unamended); RSA 649-A:2 (source 2008, 323:1). |
| 9 | RSA 649-A:6 lets a jury find a depicted child’s age by expert or lay testimony “or by viewing the images”; enacted 2008, 323:3. Chapter 323 of 2008 also added the identifiable-child category (649-A:2, IV(c)). | VERIFIED | RSA 649-A:2, IV(c) and 649-A:6 source notes; 2008 Chapter 323 (SB 495) text. |
| 10 | RSA 649-A:3-c (creation of child intimate visual representations, identifiable child, class B felony) enacted as 2025, 259:1, effective Jan. 1, 2026 (SB 300). | VERIFIED | RSA 649-A:3-c text and source note (gc.nh.gov); SB 300 enrolled text. |
| 11 | Senate Judiciary committee report on SB 564, written by Sen. Shannon Chandley (D, Amherst): people making computer-generated material escape the criminal code because the depicted children are not actual people; the RSA 649-A:2 definitions leave residents vulnerable; the bill would “close the loophole and keep the children of this state safe.” Eight people signed in against SB 564; none testified. | ATTRIBUTED | Citizens Count, “NH legislators take action on AI,” April 24, 2024, quoting the committee report and the hearing sign-in sheet. Attributed to that account rather than to the committee report itself. |
| 12 | SB 300 (2025) was signed by Governor Kelly Ayotte on July 15, 2025 (Chapter 259, effective Jan. 1, 2026); the Governor’s office described it as targeting AI-generated child sexual abuse material. | VERIFIED | LegiScan status line for NH SB300 (2025); Office of the Governor press release, “Governor Ayotte Signs New Laws to Protect Crime Victims” (July 2025). |
| 13 | United States v. Anderegg, No. 25-1354 (7th Cir. Aug. 25, 2026): affirmed dismissal of the 18 U.S.C. § 1466A(b)(1) possession count as applied; Judge Lee for the panel (Lee, Pryor, Kolar); Lee, joined by Kolar, concurring that further Supreme Court guidance would help; government conceded no actual child; production, distribution and transfer counts remain pending. | VERIFIED | Seventh Circuit opinion, media.ca7.uscourts.gov. |
| 14 | Anderegg facts as alleged: Stable Diffusion on a personal laptop; images sent by Instagram direct message to a minor under sixteen; Meta report to the NCMEC CyberTipline; defendant a software engineer. | VERIFIED | Seventh Circuit opinion, Part I (allegations accepted as true for the motion). |
| 15 | The panel wrote it had “some concerns about the lines these cases draw”; the concurrence noted research finding a major AI training set contained abuse images and that generated-image demand may affect demand for real images. | VERIFIED | Seventh Circuit opinion at 3; concurrence at 27 (citing Sobel, 124 Mich. L. Rev. 871). |
| 16 | 18 U.S.C. § 1466A bans obscene depictions of minors “of any kind” and does not require the minor to exist (§ 1466A(c)); obscenity is an element. | VERIFIED | Statute as quoted in the Seventh Circuit opinion at 13-14. |
| 17 | Judge’s full name is John Z. Lee. | VERIFIED | Opinion caption (“LEE, Circuit Judge”); Seventh Circuit roster; Snopes fact-check (Aug. 28, 2026). An AEI commentary of Sept. 9, 2026, misnames the judge as “Milton C. Lee.” |
| 18 | Stanley (1969), Ferber (1982), Osborne (1990) and Free Speech Coalition (2002) hold as described; Kennedy quotation is exact. | VERIFIED | Ferber, 458 U.S. 747 (Justia); Free Speech Coalition, 535 U.S. 234 (Cornell LII); restatements in Zidel and Anderegg. |
| 19 | Congress adopted “indistinguishable” wording in 2003 after Free Speech Coalition; the Supreme Court has not ruled on it. | ATTRIBUTED | 18 U.S.C. § 2256(8)(B) and (11), as amended by the PROTECT Act of 2003; statute text not independently opened for this article. |
| 20 | Attorney General John Formella joined a 54-state-and-territory letter in September 2023 urging Congress to expand CSAM laws to cover AI-generated images. | ATTRIBUTED | N.H. Department of Justice press release; Associated Press coverage, Sept. 6, 2023. |
| 21 | SB 564 fiscal note lists the Department of Justice among agencies contacted. | VERIFIED | Enrolled bill, LBA fiscal note 24-3089. |
| 22 | Forty-six states have laws criminalizing AI-generated or computer-edited CSAM; more than half enacted in 2024-2025. | ATTRIBUTED | Enough Abuse state-law tracker, as of August 2026 (advocacy-group count). |
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Editor’s note. Every factual claim above was verified against the statute text, the bill docket, and the court opinions named in the fact-check table. Four items are attributed rather than verified: the 2003 federal “indistinguishable” definition, the September 2023 attorneys general letter, the SB 564 committee report language, and the hearing sign-in count, the last two reported by Citizens Count. This article is reported from the public record; the bill’s sponsors and the Attorney General’s office are invited to respond, and any response received will be published in full. Nothing in this article is legal advice. Corrections: Granite State Report corrects verified errors promptly and appends a note identifying what changed and when.
Corrections: Granite State Report corrects verified errors promptly and appends a dated note identifying what changed and when. The corrections policy and the corrections register are public, and correction notes are never removed.
