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