Town of Gilbert

 The Town of Gilbert has three categories of “outdoor signs” that are allowed to be displayed without a permit. See p 1514

Ideological signs (“Abortion is a Woman’s Right” or “Abortion Takes an Innocent Life”) are most favorably treated.

Political Signs (“Vote for Grutz”) are treated somewhat less favorably.

“Temporary Directional Signs Relating to a Qualifying Event” (“Good News Church Services 10 PM Sunday June 4 at Lincoln Southwest High School”) are treated much less favorably than the other two categories.

Issue: Is this regulation of speech content-based or content-neutral?

Town of Gilbert is an important case because it makes clear that any law that "is content-based on its face is subject to strict scrutiny regardless of the government's benign motive, content-neutral justification, or lack of  'animus toward the ideas contained' in the regulated speech." p. 1514-1515

It also makes clear, once again, that viewpoint discrimination is a more blatant and egregious form of content discrimination. (edited from casebook)

In this case, what seems to be a reasonable attempt to regulate outdoor signs for purposes of community aesthetics and traffic safety is unconstitutional because it is content based--it treats, ideological signs better than political signs and political signs better than "temporary directional signs." Thus, on its face it is content-based and triggers strict scrutiny.

So, is there a compelling interest? Community aesthetics? Traffic safety?

See p. 1515: "Assuming for the sake of argument that those are compelling governmental interests, the Code's distinction fail as hopelessly underinclusive."

Would someone explain what that means? [Remember Lukumi's discussion of underinclusiveness]

Justice Kagan concurs in the judgment, but worries that a categorical rule about content-based goes too far.

But think of all the ways you can achieve your goals through content-neutral laws. See Alito's concurring opinion at p. 1516