This is the Kito Daily Podcast for Wednesday, July 5th, 2023.

I'm Caleb Brown.

The Supreme Court has long tended toward a broad conception of the First Amendment.

Last week's majority continues that trend in toward a broad conception of the First Amendment.

Last week's majority continues that trend in its ruling that governments may not simply,

in the words of Justice Gorsuch, compel an individual to create speech she does not believe.

Cato's Walter Olson discusses the case of

303 Creative versus a Lennis.

Let's get this out of the way first

when discussing the 303 creative case, this was a pre-enforcement challenge.

There was a lot of controversy about the details of this case, essentially being theoretical or being made up.

In the general run of litigation courts are reluctant at best to entertain cases that are based on fear of injury as opposed to

completed injury but important constitutional claims and especially

First Amendment claims have long been carved out as an exception

where courts do frequently not always let cases go forward based on reasonable

fear of enforcement if that's going to chill speech.

And so that's what happened here.

There's a lot of discussion about how the lawyers for Lori Smith of Three or Three Creative

were exploring multiple theories, including the theory that maybe she had actually had some transactions that the lie had referred with.

Well, the Tenth Circuit wound up giving her the green light not on that basis, that is of anything actually having happened to her,

but on the basis of a reasonable fear that the state of Colorado would enforce the law against her based in part on what the state of Colorado itself said.

And once it had accepted that route, then a lot of discontent or complaints about,

...