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