Five things to remember as the Mahmoud Khalil case develops

The story is still developing and it’s complicated, but there are still concrete lessons to learn here.

Seth Harrison / The Journal News / USA TODAY NETWORK

If you’ve been paying attention to the news the last week, you’ll know that all eyes are currently on Columbia University (again).

First came the recent announcement that $400 million worth of federal grants and contracts to Columbia have been “immediately” canceled “due to the school’s continued inaction in the face of persistent harassment of Jewish students.”

The National Institutes of Health recently announced that $250 million of those canceled grants is their doing. However, it remains unclear overall what money Columbia is losing or under what authority that’s happening.

Title VI of the Civil Rights Act requires recipients of federal grant money to ensure they don’t discriminate based on race, color, or national origin — but the process for withdrawing funding under that law would at the very least entitle Columbia to an administrative hearing, which would mean the cancellation is hardly “immediate.”

And while the feds have more freedom to end government contracts with Columbia for research and other services, refusing to pay out those contracts is a prescription for endless litigation in the Court of Federal Claims. (Even the government has to pay when it breaks a contract, if the contract provides for it.)

And then, of course, there’s ICE’s arrest of Columbia student and Syrian national Mahmoud Khalil who, as first revealed by a White House official to

The Free Press

, has been deemed a “threat to the foreign policy and national security interests of the United States.”

The Khalil story is still developing, and complicated.

Importantly, the government has not alleged that Khalil was engaged in any criminal activity. But the arrest follows contentious campus protests that included violations of Columbia campus rules as well as straight-up illegal behavior. This includes the student takeover of Columbia’s Hamilton Hall last year, as well as the recent forced entry into Barnard College, which ended with the hospitalization of a school employee. To what extent, if any, Khalil was involved in misconduct is unclear.

We also have the aforementioned White House official telling The Free Press that “the allegation here is not that he was breaking the law.” Rather, the official noted that Khalil “was mobilizing support for Hamas and spreading antisemitism in a way that is contrary to the foreign policy of the U.S.” and that the Trump administration considered him a national security risk. Later statements by Secretary of State Marco Rubio and others have confirmed that this was the administration’s reasoning.

As Greg posted this week on X, this is an admission that clearly makes this situation about the First Amendment rights of a green card holder.

There are a lot of questions left unanswered on this topic. (We recommend checking out Steve Vladek’s recent piece about this.) And there’s a lot that may have changed or come to light just in the time it takes to publish this piece. It’s going to take some time to disentangle the details. On March 10, FIRE sent a letter to the Department of Homeland Security, the Department of Justice, ICE, and the State Department asking for answers, and we will be following this case closely.

In the meantime, here are five things you should keep in mind as the case develops:

1. Many campus protests after Oct. 7 at Columbia and elsewhere veered into lawlessness

Since the October 7th Hamas attack on Israel, Columbia has been embroiled in an unending series of protests and disruptions, and has handled the situation with what can only be called incompetence. As we mentioned above, many of the protests violated campus rules, and several involved illegal behavior.

Yet Columbia, along with its sister college Barnard, has routinely refused to enforce its own rules until the problem became too big to ignore.

Let us be clear: students must have the right to protest. FIRE is second to none in defending that right. But protesters don’t have the right to get classes canceled, to shut down study in the library, or to engage in violence.

Columbia’s failure to manage the situation seems designed to do maximum damage to free speech. Campuses with far fewer resources routinely manage to allow both protests and studying without incident, and yet Columbia quickly became ground zero for the campus chaos after October 7.

What’s more, pro-Palestinian protesters have been responsible for almost all of the unprecedented level of shout-downs and disruptions of campus speakers over the last couple of years. Not only does this turn off many of those who would ordinarily defend these protesters’ rights, it also incentivizes and emboldens censorial actions from those who were already unsympathetic. President Trump, both as a candidate and since taking office, has made no secret of his hostility to what he sees as “foreign Jihad sympathizers and Hamas supporters.”

FIRE is committed to protecting the free speech and protest rights of all students on campus the way we always have. When that protest spills over into unprotected speech like violence and harassment, these student activists are breaking the law and harming the rights of others. The authorities play a necessary role in pushing back against such behavior, which also tends to undermine the demonstrators’ own cause.

But the administration’s focus on viewpoint rather than behavior presents serious and unavoidable First Amendment issues.

2. The First Amendment applies to green card and student visa holders, but how it applies is complicated.

ICE alleged that Khalil “led activities aligned to Hamas, a designated terrorist organization,” and reportedly told Khalil at the time of his arrest that his student visa had been revoked. This seems to have been an error, as Khalil’s attorney pointed out that he held a “green card” and was a lawful permanent U.S. resident. Permanent residents don’t need visas to be in the United States, but ICE took him off to a detention center anyway.

It wasn’t clear at first whether Khalil had perhaps been accused of some kind of lawbreaking, but White House Press Secretary Karoline Leavitt on Tuesday confirmed that wasn’t the issue. She announced that Khalil is being targeted under a law that she characterized as allowing the secretary of state to personally deem individuals “adversarial to the foreign policy and national security interests of the United States of America” and have them removed.

Unfortunately, there are many complications in this case, and as

Jed Rubenfeld

wrote recently for The Free Press, “anyone who says the law is settled or obvious here is wrong.”

The law on “deportable aliens” is 8 U.S.C. § 1227, part of the Immigration and Nationality Act. Section (a)(4)(C), on “Foreign policy,” states that “An alien whose presence or activities in the United States the Secretary of State has reasonable ground to believe would have potentially serious adverse foreign policy consequences for the United States is deportable.”

This appears to be the closest match to what Leavitt cited (she added “national security interests.”) We have “reasonable grounds,” then, to ask whether Khalil’s activities in the U.S. actually have “potentially serious adverse foreign policy consequences.” Congress realized the effect this broad grant of discretion might have on First Amendment rights, since it is also subject to an exception under another section of the law: § 1182 (a)(3)(C)(iii), which does not allow for removal “because of the alien’s past, current, or expected beliefs, statements, or associations, if such beliefs, statements, or associations would be lawful within the United States.”

But there’s an exception to that exception: it’s “unless the Secretary of State personally determines that the alien’s admission [in this case, deportation] would compromise a compelling United States foreign policy interest.”

Did Secretary Rubio make that personal determination, and will it stick? We’ll presumably find out.

In his excellent piece for The Free Press (which we highly recommend reading), Rubenfeld highlights just how complicated this whole situation can get:

On the right, people point to Supreme Court cases like Turner v. Williams (1904), which upheld the deportation of aliens who express views determined by Congress to be “so dangerous to the public weal that aliens who hold and advocate them would be undesirable additions to our population.” Indeed, Turner could almost be read to suggest that deportable aliens enjoy little or no constitutional rights at all: Aliens “who are excluded [by Congress] cannot assert the rights in general obtaining in a land to which they do not belong as citizens.” And Turner is still cited as good law even today.

But Turner is not close to the end of this story. Only fifteen years later, in Abrams v. United States, Justice Oliver Wendell Holmes handed down one of the most celebrated First Amendment opinions in constitutional history. Abrams had been convicted under a First World War–era sedition statute for distributing anti-war leaflets, and the majority upheld that conviction. Dissenting, Holmes wrote that the “defendants had as much right to publish” their dissident opinions “as the Government has to publish the Constitution of the United States now vainly invoked by them.”

What is often forgotten about Abrams is that the defendants in that case were aliens. They were Russian immigrants — not citizens. And in many subsequent cases, the Court has not only endorsed Holmes’ great Abrams dissent, but expressly held, as in a 1945 case called Bridges v. Wixon, that “[f]reedom of speech and of the press is accorded aliens residing in this country.”

Passion over the underlying issue has also led many to make an argument we often hear when dealing with speech by non-citizens: the idea that non-citizens do not have First Amendment rights, or constitutional rights more generally. That’s simply not true. Foreigners in the U.S. do have some constitutional rights to the same extent as citizens, even if they’re not here legally at all. Most obviously, the government can’t execute or jail a non-citizen without trial, nor can you enslave anyone within the United States, foreigner or not.

Other rights, like the right to vote or to purchase firearms, are denied, in whole or in part, to some or all foreigners. But the First Amendment is among those rights that are not limited only to citizens. As Rubenfeld noted, Bridges v. Wixon plainly states that “Freedom of speech and of press is accorded aliens residing in this country.”

That’s not to say that it is accorded to the same extent as it is to citizens, though. For example, even though political donations are considered a form of speech under Citizens United v. Federal Election Commission, 558 U.S. 310 (2010), in 2012 the Supreme Court nevertheless summarily affirmed a case finding that foreign citizens may not donate money to U.S. political campaigns (Bluman v. FEC, 800 F. Supp. 2d 281 (D.D.C. 2011), aff'd, 565 U.S. 1104 (2012). And in Holder v. Humanitarian Law Project, 561 U.S. 1 (2010), the Court upheld a law that included providing “expert advice or assistance” — in that case meaning “advice or assistance derived from scientific, technical or other specialized knowledge” — as a form of “material support” for terrorism that Congress could prohibit.

None of these cases are exact parallels to what we currently know of Khalil’s case. Generally speaking, federal courts will do what they can to allow the political branches of government to make whatever decisions they see fit when it comes to foreign policy. But will they do so to a foreigner engaged only in expression for which an American would go entirely unpunished — assuming that’s true for Khalil, as it currently appears?

Not only do we think that unlikely, but even if the government can do this, it shouldn’t. As FIRE’s March 11 statement on the Khalil case notes:

If constitutionally protected speech may render someone deportable by the secretary of state, the administration has free rein to arrest and detain any non-citizen whose speech the government dislikes. The inherent vagueness of the “adversarial to the foreign policy and national security interests” standard does not provide notice as to what speech is or is not prohibited. The administration’s use of it will foster a culture of self-censorship and fear.

This is America. We don’t throw people in detention centers because of their politics. Doing so betrays our national commitment to freedom of speech.

3. The deportation violates a bedrock principle of the First Amendment.

Again, based on what we know now, the only basis for Khalil’s deportation is that the Secretary of State deemed his participation in demonstrations at Columbia “adversarial to the foreign policy and national security interests of the United States of America.”

Obviously, this could be true of someone accused of committing criminal acts, but the government has, as of this writing, cited none. That leaves only Khalil’s viewpoint to justify his arrest and detention. And if there is one primary takeaway from First Amendment law, it is that the government is almost never allowed to officially punish someone simply because it doesn’t like their viewpoint. That is the very bedrock of freedom of speech, outlined in cases like 1989’s Texas v. Johnson, which reversed Gregory Lee Johnson’s conviction under a Texas law for publicly burning an American flag in protest. The Texas Court of Criminal Appeals held that the state, consistent with the First Amendment, could not punish Johnson for burning the flag. In other words, the government can’t ban your speech simply because it’s unpopular.

This goes even for speech that most people find highly offensive, like animal “crush” videos or protests at soldiers’ funerals. That some, most, or even all people may hate what you have to say is not, by itself, sufficient reason to silence you. And while this principle keeps us all out of jail, it’s not always pleasant to experience. But allowing that dissent is to the benefit of everyone. As John Stuart Mill pointed out in “On Liberty,” “Complete liberty of contradicting and disproving our opinion, is the very condition which justifies us in assuming its truth.”

Fundamentally, this is about consistency of principle. Imagine you’re at Boston College during the heyday of the Irish Republican Army and car bombings in Belfast. Irish Catholics on your campus get together for a peaceful protest celebrating the IRA — but it actually turns out one of the protesters is here on a student visa. What message does it send if every other student is allowed to protest without punishment, while the one student here on a visa is summarily deported?

Although there is some confusion in the state of the law, this fundamental unfairness and undermining of the principle of free expression is why we believe that, if you are in the country, the same kind of ban on viewpoint discrimination should apply whether you’re a full citizen or not. Yes, the state can and will take into consideration things like a potential immigrant’s viewpoint for granting a green card, visa, or citizenship in the first place. But once they’re here, we believe the clearest and most pragmatic approach is for the First Amendment to apply consistently.

4. Remember the lessons from ‘Defending My Enemy’.

FIRE rightfully does not take a position on the offensiveness of the speech we defend. As Greg mentioned in a recent ERI post, it confuses defending the right to free speech with the content of the speaker.

For example, Mahmoud Khalil was allegedly circulating pro-Hamas flyers that seemed to celebrate “Operation Al-Aqsa Flood,” which is what Hamas calls the October 7 attacks.

For most Americans, this falls into the category of profoundly objectionable speech. But as we and countless other free speech advocates have said for years, decades, and even centuries, there’s nothing particularly commendable in defending speech you agree with. Everyone does that — even in dictatorships. The true sign of a commitment to free expression, the real instance where the mettle of that bedrock principle gets tested, is in the highly unsympathetic cases with which the vast majority of people disagree.

Given that this principle underpins all our free speech protections in America — and that Europe and the Anglosphere lack it, which has unfortunately led to a very stark cautionary tale for us — we squander it at our peril.

Few people understand this better than human rights activist, Holocaust survivor, and former ACLU executive director Aryeh Neier. This fall, Neier’s seminal 1979 book, “Defending My Enemy: American Nazis, the Skokie Case, and the Risks of Freedom,” will be returning in a powerful new edition titled “Defending My Enemy: Skokie and the Legacy of Free Speech in America,” made possible in part by support from FIRE.

In the book, Neier confronts the uneasy reality that the vitality of a democratic society depends on our willingness to protect free speech — even when it takes the form of repugnant and dangerous ideas.

Neier recounts in painstaking detail how, in a town marked by a deep Jewish heritage and the scars of the Holocaust, neo-Nazis sought to march as a provocative assertion of their constitutional rights, igniting a legal and moral firestorm. He argues that the Skokie episode is not an aberration, but in fact a critical test case for our commitment to free expression, demonstrating that ceding even the most vile rhetoric to censorship ultimately weakens the very foundations of liberty.

By dissecting the legal battles, public outrage, and ethical dilemmas that ensued, Neier urges readers to embrace the idea of defending the enemy on principle — a stance that, paradoxically, safeguards our shared democratic values and ensures the resilience of open debate.

This edition of “Defending My Enemy” includes a foreword by Congresswoman Eleanor Holmes Norton. As an ACLU attorney, Norton played a key role in the landmark Supreme Court case Brandenburg v. Ohio, which set the modern standard for protecting speech even when it is controversial or provocative. There’s also a new afterword by FIRE Senior Fellow and former ACLU president Nadine Strossen, which further underscores the book’s enduring relevance in the fight for free expression.

Most importantly, this edition features a new foreword by Neier himself, wherein he draws important connections between the First Amendment battles of nearly half a century ago and the challenges we’re facing today — including those coming into sharp focus with the Mahmoud Khalil case.

We can’t recommend this book highly enough, and encourage you to pre-order the new edition now. As we’re currently seeing, the lessons and principles in “Defending My Enemy” have never been more important and applicable.

5. Don’t let what just happened at Georgetown slip by you

While the Khalil case has understandably taken up everyone’s bandwidth — raising complex issues of immigration law and questions about unprotected speech versus unprotected behavior — Georgetown Law School received a disturbing letter about which everyone should be just as alarmed.

On March 6, acting U.S. Attorney for Washington, D.C. Ed Martin sent Georgetown a letter urging the school to eliminate certain classes related to diversity, equity, and inclusion — a clear content-based restriction on Georgetown’s First Amendment rights. Martin has been aggressive since taking office, making headlines for threatening to “chase” critics of the Department of Government Efficiency, Elon Musk, and Supreme Court justices “to the ends of the Earth.” Unlike the Khalil case, the threats to free speech and academic freedom posted by Martin’s letter are straightforward. Yet that threat has been largely overlooked.

Martin opens the letter by saying that he has been informed that Georgetown “continues to promote and teach DEI. This is unacceptable.” He claims to be launching an “inquiry,” demands Georgetown Law “eliminate all DEI from [its] school and its curriculum,” and states that his office will not accept applicants or even interns from Georgetown or other schools with “DEI.”

At no point does Martin explain what he means, exactly, by “DEI.” If he means illegal discriminatory practices, which are arguably present in many DEI programs, that might justify an “inquiry” by federal authorities. But Martin specifically doesn’t restrict his objection to unlawful practices, demanding that Georgetown even remove the concept from its “curriculum.” Would a criminal law discussion about racial disparities in sentencing be off-limits? What about a student-led discussion on issues of sex and gender? Martin’s letter suggests that yes, these have to go.

This is no business of the U.S. Attorney’s office.

Georgetown Law has rightly pushed back against the demands. And while its record of ignoring its own free speech promises — like, for example, its treatment of Ilya Shapiro — is damaging to its credibility on this issue, it’s very likely that Georgetown would be able to successfully defend its academic freedom in court.

But winning a potential case over Georgetown’s DEI efforts, however defined, is almost certainly not Martin’s point. The point is to strong-arm schools into ideological compliance by presenting them with the prospect that if they don’t play ball, they will be made to suffer endless expensive and distracting litigation. That will have negative effects on academic freedom that go far beyond Georgetown.

Remember: campus censorship can go from bad to worse very quickly

In attempting to comply with Trump’s demands and preserve their federal funding, campuses will doubtlessly target fully protected speech along with illegal behavior. It’s exactly the type of speech-chilling overcorrection you’d expect from someone who’s been threatened, and it’s already begun. Columbia is predictably casting a wide dragnet over speech in response to this latest move from the Trump administration. If that behavior spreads, it would be a true disaster for free speech and academic freedom everywhere.

SHOT FOR THE ROAD

FIRE’s very own Executive Vice President and

So to Speak

podcast host

Nico Perrino

was on Jake Tapper’s show recently to discuss the Khalil case. Not only does he clearly and succinctly present the relevant free speech implications of Khalil’s arrest and potential deportation, he also looks really sharp in that blue suit!