By Jacob Mchangama
The arrest of Mahmoud Khalil and the threat to go after others prove the hollowness of Trump’s claims to be a champion of free speech.
When asked on Wednesday about the arrest and planned deportation of Mahmoud Khalil for his pro-Palestinian protest activities last year, Trump administration border czar Tom Homan resorted to a common refrain often used to justify egregious censorship.
“When you are on campuses, I hear, ‘freedom of speech, freedom of speech, freedom of speech,’” Homan said. “Can you stand at a movie theater and yell ‘fire?’ Can you slander? Free speech has limitations.”
Homan’s comments come on the heels of the administration’s high-profile arrest of Khalil, a recent Columbia University graduate student who was detained by U.S. Immigration and Customs Enforcement on March 8. Although Khalil, who was born in Syria, is a legal permanent resident married to an American citizen (his wife is eight months pregnant), the administration accuses him of coordinating “activities aligned to Hamas,” citing the distribution of “pro-Hamas propaganda” as part of the Columbia protests.
Is Khalil protected by the First Amendment?
We don’t yet know all the details. There is a strong argument that Khalil’s actions during the protests were hateful. Among other things, he allegedly handed out fliers bearing the insignia of Hamas, which the United States has designated as a terrorist organization for decades. He served as a key leader of a student movement that engaged in illegal activities, including occupying a Columbia building. It is possible that he himself has committed crimes in the course of his activism, and if this is the case, the government has every right to prosecute him.
But this doesn’t give the government a blank check to punish Khalil for his speech, however distasteful. The First Amendment does not have an exception for hate speech, and for good reason. Free speech has been an instrumental tool for political, racial, and religious minorities facing injustice and discrimination. Hate speech can only be punished if it meets the high bar of imminent incitement to lawless action.
So far, the administration and arresting authorities have not presented evidence showing Khalil’s involvement in any sort of criminal activity. Nor have they alleged that he has incited “imminent lawless action” or provided material support for terrorism. “The allegation here is not that he was breaking the law,” an administration official told The Free Press.
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Jacob Mchangama is the Founder and Executive Director of The Future of Free Speech. He is also a research professor at Vanderbilt University and a Senior Fellow at The Foundation for Individual Rights and Expression (FIRE).