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 mot 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, at citations omitted thus, in fcc pacific a foundation, the court relied on the state’s interest in shielding
viewers sensibilities to uphold a prohibition against profanity in ratio 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. At citation omitted accord frisby Schultz, although in many locations, we expect
individuals simply to avoid speech they do not want to heat, the home is different see also lehman city of shaker
heights, plurality opinion upholding a content based restriction on the sale of advertising space on public transit
vehicles and nothing that the 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 home 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, at 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. Preventing unlawful or
in appropriate 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, sometime 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 contents based restrictions on patrons internet access. The
court’s first amendment cases draw vital distinctions between words and deeds, between ideas and conduct. Ashcroft,
at first amendment jurisprudence makes cleat that speech may not be restricted on the ground that restricting speech
will reduce crime or other undesirable behavior that the speech is through 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 ohio, per curiam the mere tendency of speech to encourage unlawful acts is insufficient reasons
for banning it. Ashcroft, at outside of the narrow incitement exception, the appropriate method of deterring unlawful or
otherwise undesirable behavior is not 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 abridgements of the rights of free speech. Kingsley intl pictures corp. regents of the univ.
of the state of newyork, quoting whitney cal brandeis, concurring see also bartnicki vopper, the normal method of
deterring unlawful conduct is to impose an appropriate punishment on the person who engages in it 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

PAGE 2