How Gates fares before the state Supreme Court may be influenced by a similar case that is being brought to the U.S. Supreme Court for the second time in as many years.

In March of 1991, about the same time that Douglas Gates was making his secret tapes in Glendale, a former grade school teacher in Pennsylvania was charged with receiving child pornography through the mails, a federal offense.

Stephen Knox had already been convicted once for possession of pornography. Trying to satisfy his pedophile urges without breaking the law, he had ordered three videotapes from a Las Vegas distributor that the distributor promised were legal.

The tapes featured young girls ranging in age from 11 to 17 dancing in an outdoor park. All of them were clothed in bathing-suit bottoms or leotards or panties, but the camera focused on their crotches as they bounced across the screen, opening and closing their legs, "dancing or gyrating in a fashion indicative of adult sexual relations," as the court described it.

Knox was found guilty in district court and his conviction was upheld in the circuit court. Then Knox appealed to the Supreme Court, and the solicitor general in the Bush administration Department of Justice had decided to present the case to the high court.

But when the Clinton administration came to power, it thought otherwise. Drew Days, the Clinton-appointed solicitor general, returned the Knox case to the Third Circuit Court with a scolding. The Knox tapes contained no nudity, Days argued, and therefore did not qualify as "lascivious exhibitions" of the genitals. The Third Circuit was to reconsider its guilty verdict.

When word got out that the Clinton Department of Justice wanted to acquit a pornographer, there was an uproar in Congress. More than 200 members of Congress filed as friends of the court to protest Days' reluctance to accept that the Knox tapes were pornographic. The national press theorized the opinion caused Days, a prominent African-American jurist with a distinguished record in civil rights law, to be passed over for a vacancy on the Supreme Court.

The Third Circuit Court, however, refused to comply with Days' suggestion. "We upheld Knox's conviction," the decision read. "In doing so, we interpreted the statutory phrase 'exhibition of the genitals or pubic area' as encompassing the lascivious focus on these body parts even though they were always covered by underwear, leotards, or other thin but opaque clothing. . . . We are the first, and, to date, only court which has interpreted the statute to allow for a conviction under these circumstances."

The Phoenix Gazette editorialized about Days' remanding the case to the circuit court as proof of the degeneracy and promiscuous permissiveness of the Clinton administration.

"Ask the Phoenix Gazette the next time they publish women's underwear ads if they're showing pictures of women's genitals," quipped one Department of Justice official who did not want to be identified.

Of the Knox tapes, he added, "I kept waiting for the good parts. It's not enough that a dirty old man takes pictures of children doing innocent things to show to other dirty old men."

The Knox case is back at the Supreme Court, and whether it hears the case or just lets the lower-court decision stand may depend more on politics than on legal interpretation.

As in the Gates case, the Third Circuit judges and the Congress were outraged by the intent of the videotapes that Knox received in the mail. Although the company marketing them was trying to stay legal, it was clearly pandering to pedophiles. Its advertising catalogue copy read, "Just look at what we have in this incredible tape: about 14 girls between the ages of 11 and 17 showing so much panty and ass you'll get dizzy. There are panties showing under shorts and under dresses and skirts; there are boobs galore and T-back (thong) bathing suits on girls as young as 15 that are so revealing it's almost like seeing them naked (some say even better)."

And even if Knox and his lawyers claimed that the videos did not meet the legal definitions of lewd exhibition of the genitals, Knox had written notes on the videotape boxes to describe the tapes' contents: "15 year old shows nipple" and "13 year old flashes."

While the Knox tapes showed lascivious views of children's crotches but no nudity, the Gates tapes showed nudity without lascivious behavior.

Before retiring to deliberations, the Gates jury had been read a list of criteria to consider called "Dost factors," named for another federal child pornography case. Among the Dost factors is one that reads ". . . whether the pictures are intended or designed to elicit a sexual response from the viewer."

Indeed, Gates admitted that he made his tapes for his own sexual needs.
But the Dost factor wording does not appear anywhere in the actual statute defining sexual exploitation of children. The appeals judge was considering the black-and-white terminology of the law, not the instructions given to the lower-court jury, and he overturned the guilty verdict.

Richard Hertzberg, a Phoenix attorney who has defended many obscenity cases, comments, "I think the prosecutors [in the Gates case] made a legitimate effort here. I don't think anyone's out to stifle free press in this case or to prevent adults from seeing what they want. They just ran into a tough judge. He read the statute like it's written.

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