The government's compelling interest in protecting the well- being of its youth justifies laws that criminalize not only the distribution to minors of material that is harmful to minors, but also the possession and distribution of child pornography. See Osborne v. Ohio, 495 U.S. 103, 111 (1990) (holding that a state "may constitutionally proscribe the possession and viewing of child pornography"); Ferber, 458 U.S. at 757, 763 (noting that "[t]he prevention of sexual exploitation and abuse of children constitutes a government objective of surpassing importance," and holding that "child pornography [is] a category of material outside the protection of the First Amendment"). Thus, a public library's use of software filters survives strict scrutiny if it is narrowly tailored to further the state's well-recognized interest in preventing the dissemination of obscenity and child pornography, and in preventing minors from being exposed to material harmful to their well-being. 2. Protecting the Unwilling Viewer Several of the libraries that use filters assert that filters serve the libraries' interest in preventing patrons from being unwillingly exposed to sexually explicit speech that the patrons find offensive. Nearly every library proffered by either the government or the plaintiffs received complaints, in varying degrees of frequency, from library patrons who saw other patrons accessing sexually explicit material on the library's Internet terminals.

In general, First Amendment jurisprudence is reluctant to recognize a legitimate state interest in protecting the unwilling viewer from speech that is constitutionally protected. "Where the designed benefit of a content-based speech restriction is to shield the sensibilities of listeners, the general rule is that the right of expression prevails, even where no less restrictive alternative exists. We are expected to protect our own sensibilities simply by averting our eyes." Playboy, 529 U.S. at 813 (2000) (internal quotation marks and citation omitted); see also Erznoznik v. City of Jacksonville, 422 U.S. 205, 209 (1975) ("[W]hen the government, acting as censor, undertakes selectively to shield the public from some kinds of speech on the ground that they are more offensive than others, the First Amendment strictly limits its power."). For example, in Cohen v. California, 403 U.S. 15 (1971), the Supreme Court reversed defendant's conviction for wearing, in a municipal courthouse, a jacket bearing the inscription "Fuck the Draft." The Court noted that "much has been made of the claim that Cohen's distasteful mode of expression was thrust upon unwilling or unsuspecting viewers, and that the State might therefore legitimately act as it did in order to protect the sensitive from otherwise unavoidable exposure to appellant's crude form of protest." Id. at 21. This justification for suppressing speech failed, however, because it "would effectively empower a majority to silence dissidents simply as a matter of personal predilections." Id. The Court concluded that "[t]hose in the Los Angeles courthouse could effectively avoid further bombardment of their sensibilities simply by averting their eyes." Id.

Similarly, in Erznoznik, the Court invalidated on its face a municipal ordinance prohibiting drive-in movie theaters from showing films containing nudity if they were visible from a public street or place. The city's "primary argument [was] that it may protect its citizens against unwilling exposure to materials that may be offensive." 422 U.S. at 208. The Court soundly rejected this interest in shielding the unwilling viewer: The plain, if at times disquieting, truth is that in our pluralistic society, constantly proliferating new and ingenious forms of expression, we are inescapably captive audiences for many purposes. Much that we encounter offends our esthetic, if not our political and moral, sensibilities. Nevertheless, the Constitution does not permit government to decide which types of otherwise protected speech are sufficiently offensive to require protection for the unwilling listener or viewer. Rather, absent . . . narrow circumstances . . . the burden normally falls upon the viewer to avoid further bombardment of his sensibilities simply by averting his eyes.

422 U.S. at 210-11 (internal quotation marks and citation omitted). The state's interest in protecting unwilling viewers from exposure to patently offensive material is accounted for, to some degree, by obscenity doctrine, which originated in part to permit the state to shield the unwilling viewer. "The Miller standard, like its predecessors, was an accommodation between the State's interests in protecting the sensibilities of unwilling recipients from exposure to pornographic material and the dangers of censorship inherent in unabashedly content-based laws." Ferber, 458 U.S. at 756 (internal quotation marks and citation omitted); see also Miller, 413 U.S. at 18-19 ("This Court has recognized that the States have a legitimate interest in prohibiting dissemination or exhibition of obscene material when the mode of dissemination carries with it a significant danger of offending the sensibilities of unwilling recipients or of exposure to juveniles.") (citation omitted). To the extent that speech has serious literary, artistic, political, or scientific value, and therefore is not obscene under the Miller test of obscenity, the state's interest in shielding unwilling viewers from such speech is tenuous.

Nonetheless, the Court has recognized that in certain limited circumstances, the state has a legitimate interest in protecting the public from unwilling exposure to speech that is not obscene. This interest has justified restrictions on speech "when the speaker intrudes on the privacy of the home, or the degree of captivity makes it impractical for the unwilling viewer or auditor to avoid exposure." Erznoznik, 422 U.S. at 209 (citations omitted). Thus, in FCC v. Pacifica Foundation, 438 U.S. 726 (1978), the Court relied on the state's interest in shielding viewers' sensibilities to uphold a prohibition against profanity in radio broadcasts: Patently offensive, indecent material presented over the airwaves confronts the citizen, not only in public, but also in the privacy of the home, where the individual's right to be left alone plainly outweighs the First Amendment rights of an intruder. Because the broadcast audience is constantly tuning in and out, prior warnings cannot completely protect the listener or viewer from unexpected program content.

Id. at 748 (citation omitted); accord Frisby v. Schultz, 487 U.S. 474, 485 (1988) ("Although in many locations, we expect individuals simply to avoid speech they do not want to hear, the home is different."); see also Lehman v. City of Shaker Heights, 418 U.S. 298, 302 (1974) (plurality opinion) (upholding a content-based restriction on the sale of advertising space in public transit vehicles and noting that "[t]he streetcar audience is a captive audience").

Although neither the Supreme Court nor the Third Circuit has recognized a compelling state interest in shielding the sensibilities of unwilling viewers, beyond laws intended to preserve the privacy of individuals' homes or to protect captive audiences, we do not read the case law as categorically foreclosing recognition, in the public library setting, of the state's interest in protecting unwilling viewers. See Pacifica, 438 U.S. at 749 n.27 ("Outside the home, the balance between the offensive speaker and the unwilling audience may sometimes tip in favor of the speaker, requiring the offended listener to turn away.") (emphasis added). Under certain circumstances, therefore a public library might have a compelling interest in protecting library patrons and staff from unwilling exposure to sexually explicit speech that, although not obscene, is patently offensive. 3. Preventing Unlawful or Inappropriate Conduct Several of the librarians proffered by the government testified that unfiltered Internet access had led to occurrences of criminal or otherwise inappropriate conduct by library patrons, such as public masturbation, and harassment of library staff and patrons, sometimes rising to the level of physical assault. As in the case with patron complaints, however, the government adduced no quantitative data comparing the frequency of criminal or otherwise inappropriate patron conduct before the library's use of filters and after the library's use of filters. The sporadic anecdotal accounts of the government's library witnesses were countered by anecdotal accounts by the plaintiffs' library witnesses, that incidents of offensive patron behavior in public libraries have long predated the advent of Internet access.

Aside from a public library's interest in preventing patrons from using the library's Internet terminals to receive obscenity or child pornography, which constitutes criminal conduct, we are constrained to reject any compelling state interest in regulating patrons' conduct as a justification for content-based restrictions on patrons' Internet access. "[T]he Court's First Amendment cases draw vital distinctions between words and deeds, between ideas and conduct." Ashcroft, 122 S. Ct. at 1403. First Amendment jurisprudence makes clear that speech may not be restricted on the ground that restricting speech will reduce crime or other undesirable behavior that the speech is thought to cause, subject to only a narrow exception for speech that "is directed to inciting or producing imminent lawless action and is likely to incite or produce such action." Brandenburg v. Ohio, 395 U.S. 444, 447 (1969) (per curiam). "The mere tendency of speech to encourage unlawful acts is insufficient reason for banning it." Ashcroft, 122 S. Ct. at 1403. Outside of the narrow "incitement" exception, the appropriate method of deterring unlawful or otherwise undesirable behavior is not to suppress the speech that induces such behavior, but to attach sanctions to the behavior itself. "Among free men, the deterrents ordinarily to be applied to prevent crime are education and punishment for violations of the law, not abridgement of the rights of free speech." Kingsley Int'l Pictures Corp. v. Regents of the Univ. of the State of New York, 360 U.S. 684, 689 (1959) (quoting Whitney v. Cal., 274 U.S. 357, 378 (1927) (Brandeis, J., concurring)); see also Bartnicki v. Vopper, 532 U.S. 514, 529 (2001) ("The normal method of deterring unlawful conduct is to impose an appropriate punishment on the person who engages in it.").

4. Summary In sum, we reject a public library's interest in preventing unlawful or otherwise inappropriate patron conduct as a basis for restricting patrons' access to speech on the Internet. The proper method for a library to deter unlawful or inappropriate patron conduct, such as harassment or assault of other patrons, is to impose sanctions on such conduct, such as either removing the patron from the library, revoking the patron's library privileges, or, in the appropriate case, calling the police. We believe, however, that the state interests in preventing the dissemination of obscenity, child pornography, or in the case of minors, material harmful to minors, and in protecting library patrons from being unwillingly exposed to offensive, sexually explicit material, could all justify, for First Amendment purposes, a public library's use of Internet filters, provided that use of such filters is narrowly tailored to further those interests, and that no less restrictive means of promoting those interests exist. Accordingly, we turn to the narrow tailoring question. 2. Narrow Tailoring

Having identified the relevant state interests that could justify content-based restrictions on public libraries' provision of Internet access, we must determine whether a public library's use of software filters is narrowly tailored to further those interests. "It is not enough to show that the Government's ends are compelling; the means must be carefully tailored to achieve those ends." Sable Communications of Cal., Inc. v. FCC, 492 U.S. 115, 126 (1989). "[M]anifest imprecision of [a] ban . . . reveals that its proscription is not sufficiently tailored to the harms it seeks to prevent to justify . . . substantial interference with . . . speech." FCC v. League of Women Voters of Cal., 468 U.S. 364, 392 (1984). The commercially available filters on which evidence was presented at trial all block many thousands of Web pages that are clearly not harmful to minors, and many thousands more pages that, while possibly harmful to minors, are neither obscene nor child pornography. See supra, Subsection II.E.7. Even the defendants' own expert, after analyzing filtering products' performance in public libraries, concluded that of the blocked Web pages to which library patrons sought access, between 6% and 15% contained no content that meets even the filtering products' own definitions of sexually explicit content, let alone the legal definitions of obscenity or child pornography, which none of the filtering companies that were studied use as the basis for their blocking decisions. Moreover, in light of the flaws in these studies, discussed in detail in our findings of fact above, these percentages significantly underestimate the amount of speech that filters erroneously block, and at best provide a rough lower bound on the filters' rates of overblocking. Given the substantial amount of constitutionally protected speech blocked by the filters studied, we conclude that use of such filters is not narrowly tailored with respect to the government's interest in preventing the dissemination of obscenity, child pornography, and material harmful to minors.