The First Amendment on Trial: The Case Against Mahmoud Khalil’s Detention
Mahmoud Khalil, face of the Columbia University pro-Palestinian protests, stands outside Columbia’s gates. Source: NBC News
CONTENT WARNING: This piece contains descriptions of and links to descriptions and videos of physical and sexual violence that may be upsetting to some. Reader discretion is advised.
Factual background
I. The attack and response
On October 7, 2023, designated terrorist group Hamas launched a coordinated surprise attack on a series of military and civilian locations in Southern Israel. The attack was defined by its inhuman brutality; at the Nova Music Festival, for example, militants launched a ground assault on unarmed festival-goers, massacring 364 and taking 40 hostage, including women, children, and the elderly. At the same festival, militants also committed unspeakable acts of sexual violence against women: according to a witness testimony, one woman was gang-raped and “passed around” between several militants before being unceremoniously executed by a shot to the head. At kibbutzim (settlements) in Southern Israel, photo and video evidence shows militants setting fire to homes and summarily executing civilians desperately trying to flee to safety. In total, nearly 1,200 civilians were killed and 251 were taken hostage to Gaza, of which an estimated 59 remain, where they face grueling conditions like starvation and neglect. Soon after October 7, the State of Israel responded swiftly, launching a ground invasion of the Gaza Strip to eliminate Hamas and prevent another similar attack from happening again.
II. Israel’s response inspires demonstrations across the US
In the United States, the conflict has inspired protests in support of both sides, taking place primarily on college campuses. The pro-Israeli camp has demonstrated to express solidarity with the hostages and relatives who were killed in the attack, while the pro-Palestinian camp has demonstrated for the “liberation” of Palestine “from the river to the sea,” a poorly-defined term which means the wholesale destruction of the Israeli state to the Jewish community and the goal of peace and equality in the West Bank for Palestinians. To date, the pro-Palestinian demonstrations have outnumbered the pro-Israeli ones, and have caused enough stir to become a prominent topic of public debate. At some of the demonstrations, pro-Palestinian agitators have accosted and even blocked Jewish or Jewish-looking students from going to class. At Columbia University, pro-Palestinian agitators occupied a building for more than 12 hours, forcing administrators to call in law enforcement to end the occupation. Right here at UNC, pro-Palestinian agitators trespassed and vandalized buildings with threatening language, such as “Death to US,” and “Israel is a terror state,” echoing many of the talking points used by Hamas itself.
III. The demonstrations become an issue of political significance
As a result, the actions of pro-Palestinian agitators on college campuses across the US drew bipartisan condemnation. Many Democrats, such as then-President Joe Biden, attempted to take a more conciliatory approach. In an address to the nation, he stated: “I understand people have strong feelings and deep convictions. In America, we respect the right and protect the right for them to express that. But it doesn't mean anything goes. It needs to be done without violence, without destruction.” Many Republicans, such as then-candidate Donald Trump, took a more hardline approach. If elected, he promised, he would deport all foreign students who engaged in pro-Palestinian protests and “set [the] movement back 25 to 30 years.” As the Presidential election approached, many pro-Palestinian voters resolved not to vote for Vice President Kamala Harris, even in light of then-candidate Trump’s more hardline stance, hoping to punish her for not being sympathetic enough to the Palestinian cause. Indeed, in part due to the efforts of pro-Palestinian voters, Donald Trump won the election by a comfortable margin and began implementing his agenda soon after taking office.
On January 29, President Donald Trump signed Executive Order 14188, titled “Additional Measures to Combat Anti-Semitism.” The Order resolved to reaffirm Executive Order 13899, signed during Trump’s first Presidency, which ordered the Justice Department to enforce Title VI of the Civil Rights Act – the statute that prohibits any discrimination on the basis of race, color, and national origin – using the International Holocaust Remembrance Alliance’s (IHRA) definition of antisemitism:
“Antisemitism is a certain perception of Jews, which may be expressed as hatred toward Jews. Rhetorical and physical manifestations of antisemitism are directed toward Jewish or non-Jewish individuals and/or their property, toward Jewish community institutions and religious facilities.”
To this end, Executive Order 14188 directs the Attorney General to remove any noncitizen in accordance with 8 U.S.C. § 1182, a statute that defines classes of noncitizens deemed inadmissible to the United States. The EO focused on subsection (a)(3), which provides “security and related grounds” for the removal of certain noncitizens. Among these grounds are if a noncitizen has engaged in “terrorist activities” or plans on “endors[ing] or espous[ing] terrorist activity.” Also among these grounds is if a noncitizen is deemed to have “serious adverse foreign policy consequences for the United States.”
IV. Mahmoud Khalil is arrested in connection to his activities at the Columbia University demonstrations
This brings us to the case before us today. In the early hours of March 7, 2025, Mahmoud Khalil, a lawful permanent resident (green card holder) and recently graduated Columbia University student, was arrested by Department of Homeland Security (DHS) agents at his apartment in New York City with no apparent warrant. When his lawyer, Amy Greer, pressed the agents on the basis for his arrest, they told her that Khalil’s green card had been revoked (a procedure to which he is entitled, but apparently denied, due process) and that he was to be put through immigration proceedings. Khalil was later taken to an immigration detention center in Jena, Louisiana. Greer immediately filed a habeas corpus petition (a petition challenging allegedly unlawful detention) asking Khalil to be released from detention and brought before a court to receive due process.
Khalil’s arrest and detention caused an uproar across the United States, in no small part due to his role as a student leader during the pro-Palestinian demonstrations at Columbia University. When pro-Palestinian agitators set up an illegal encampment on campus to demand that Columbia divest from Israel, Khalil was tapped as a lead negotiator between the agitators and Columbia administration. In that role, he gave speeches and press conferences in support of the agitators’ cause, though never directly participating in the encampments himself. When negotiations broke down, leading to pro-Palestinian agitators storming and occupying Hamilton Hall, Khalil was abruptly suspended, then reinstated, which he believes highlights how “random” and lacking in due process the suspension was.
In January 2025, Khalil was brought to the attention of the White House after Ross Glick, a pro-Israel activist, discussed Khalil with aides to Senators John Fetterman and Ted Cruz, who promised to “escalate” the issue. Sure enough, the issue was escalated, with DHS arresting and detaining Khalil. While the White House was initially silent on Khalil’s arrest, it eventually confirmed that his arrest was due to his participation in the pro-Palestinian demonstrations at Columbia University. During a press briefing, Press Secretary Karoline Leavitt stated: “Mahmoud Khalil was an individual who was given the privilege of coming to this country to study at one of our nation's finest universities and colleges and he took advantage of that opportunity, of that privilege, by siding with terrorists, Hamas terrorists.” Leavitt further cited EO 14188, and 8 U.S.C. § 1182, the statute which the EO purported to enforce, as the legal grounds on which the Administration believed Khalil’s deportation stood, arguing that his alleged organization of group protests and alleged distribution of pro-Hamas flyers made him “adversarial to the foreign policy and national security interests of the United States of America.”
While the case is still in its beginning stages, and at the time of writing, both parties have yet to reach the merits, a constitutional challenge to Khalil’s detention is very likely. Khalil and his legal team argue that his detention is an unconstitutional penalization of his protected speech, while Trump administration officials, like Secretary of State Marco Rubio, have argued that free speech is not at all implicated by the detention. However the courts will eventually rule on Khalil’s anticipated free speech claim, their decision will have major implications for the rights of noncitizens to endorse certain political views. If the Trump administration prevails, it could pave the way for thousands of foreign students to be deported on the basis of apparent support for American adversaries. If Khalil prevails, it could be a repudiation of President Trump’s hardline stance on pro-Palestinian agitators. Given the stakes in this case, it is useful to examine the legal merits of Khalil’s free speech claim.
Summary of Argument
Khalil’s arrest and detention based on his activities at pro-Palestinian demonstrations is an unconstitutional punishment of his protected speech. First, the statute the Trump administration cites as the legal basis for Khalil’s removal narrowly defines activities that have “serious adverse foreign policy consequences” as those that “compromise a compelling United States foreign policy interest.” (8 U.S.C. 1182 (a)(3)(C)(iii)). Khalil’s alleged speech, though deplorable and contrary to the United States’ long-standing foreign policy position on Israel if the allegations are due, does not go so far as to compromise a compelling foreign policy interest.
Second, Khalil’s speech cannot be considered to be an “endorsement or espousal of terrorist activity” for purposes of 8 U.S.C. § 1182 (a)(3)(B)(i)(VII). While one can argue that he expresses support for Hamas, a designated terrorist organization, he expresses support only for its ideology, and not for a specific terroristic activity that Hamas undertook. Support for ideologies, even hateful and destructive ones, has been ruled to be protected by the First Amendment by a long chain of precedents, most notably Brandenburg v. Ohio, 395 U.S. 444 (1969).
Finally, Khalil’s arrest and detention, having no statutory basis in 8 U.S.C. § 1182, can only be described as a nakedly viewpoint-based proscription of speech. Thus, it must be evaluated under strict scrutiny (Rosenberger v. Rectors and Visitors of the University of Virginia, 515 U.S. 819 (1995)). Failing strict scrutiny, Khalil’s arrest and detention stands on no legal basis, and Khalil, therefore, must be released from custody.
Argument
I. The Government uses an egregious misconstruction of the “adverse foreign policy consequences” clause of 8 U.S.C. § 1182 to justify Khalil’s arrest and detention
Subsection (a)(3)(C)(i) of 8 U.S.C. § 1182 states that “An alien whose entry or proposed 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 inadmissible.” Citing this subsection, Secretary of State Marco Rubio determined that Khalil fell under this class of noncitizens and allegedly personally signed off on Khalil’s arrest and detention. However, Secretary Rubio ignores subsection (a)(3)(C)(iii), which qualifies the discretion given to him by (a)(3)(C)(i). Subsection (a)(3)(C)(iii) states the following:
An alien, not described in clause (ii), shall not be excludable or subject to restrictions or conditions on entry into the United States under clause (i) 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, unless the Secretary of State personally determines that the alien's admission would compromise a compelling United States foreign policy interest.
We now examine if Secretary Rubio’s rationale for classifying Khalil as an “inadmissible alien” under subsection (a)(3)(C)(i) met this high bar.
A. Khalil’s “beliefs, statements, [and] expressions” are lawful within the United States
Secretary Rubio’s determination undoubtedly centers around the “beliefs, statements, or associations” made by Khalil during last year’s unrest at Columbia University. At a press conference in Shannon, Ireland, Secretary Rubio stated, “If you tell us… ‘I am a big supporter of Hamas…’ if you tell us you are in favor of a group like this… and intend to rile up all kinds of anti-Jewish activities… we would deny your visa.” We now turn to whether the “beliefs, statements, or associations” that Secretary Rubio wishes to target would be lawful within the United States. First, however, we must address the question of Khalil’s legal status as a legal permanent resident (green card holder). §1182 details the conditions of inadmissibility for noncitizen visa applicants who may not yet have any legal status in the United States. It is unclear if the conditions for inadmissibility can be stretched to conditions for expulsion for those who already have legal status in the United States, such as Khalil. Let us assume, however, for purposes of argument, that Khalil is a noncitizen visa applicant who has yet to be conferred legal status in the United States.
As noncitizen visa applicants have concededly fewer free speech rights than citizens (Turner v. Williams, 194 U.S. 279 (1904), Harisiades v. Shaughnessy, 342 U.S. 580 (1952), Kleindienst v. Mandel, 408 U.S. 753 (1972)), a good measure of whether their speech would otherwise be legal in the United States is whether American citizens could engage in the same speech with the protections of the First Amendment. An analysis of 935 arrests across 22 college campuses related to pro-Palestinian demonstrations revealed that virtually all arrests were made on the basis of the conduct of the pro-Palestinian agitators, such as criminal trespass, assault on a police officer, etc., and not on the content of their speech, off of which the Trump administration is basing Khalil’s arrest and detention.
1. Khalil’s alleged speech, though hateful and threatening, is protected by the First Amendment
To be sure, let’s examine the content of Khalil’s speech. According to Press Secretary Karoline Leavitt, Khalil allegedly circulated hateful posters at the encampments, which Khalil has denied. One poster contained a picture of former Hamas leader Yahya Sinwar accompanied by a message that read, “Sometimes history needs a push flood” (likely referring to Hamas’ code name for the October 7 attacks, Operation al-Aqsa Flood). Another poster read “Crush Zionism”, and another poster depicted a boot stepping on the Star of David. While these alleged statements are deplorable and unquestionably of a threatening nature, they do not rise to the level of a “true threat” that the Court has deemed to be proscribable.
a. Khalil’s alleged speech is not presumptively intimidatory or threatening
Virginia v. Black, 538 U.S. 343 (2003) guides our analysis here. In Black, the Court considered the case of a member of the Ku Klux Klan who had been convicted under a Virginia anti-cross burning statute for burning a cross at a rally. At issue was one provision of the statute that stated, “Any such burning of a cross shall be prima facie (based on first impression, accepted as correct until proven otherwise) evidence of an intent to intimidate a person or group of persons.” In other words, the act of cross-burning is presumptively intimidatory and punishable as threatening conduct. It is easy to sympathize with Virginia’s rationale for adopting this provision. While cross-burning has benign origins, in that it was a way in which ancient Scottish tribes communicated with each other, Justice O’Connor recognized that in the United States, cross burning was “inextricably intertwined” with the history of the Ku Klux Klan and its “reign of terror.” (Black 538 U.S. at 352-53). When Respondent Black was convicted under the anti-cross burning statute, he mounted a free speech challenge against the prima facie provision, arguing that it swept up protected core political speech. The Court sided with Black, holding the following:
The act of burning a cross may mean that a person is engaging in constitutionally proscribable intimidation. But that same act may mean only that the person is engaged in core political speech. The prima facie evidence provision in this statute blurs the line between these two meanings of a burning cross. As interpreted by the jury instruction, the provision chills constitutionally protected political speech because of the possibility that the Commonwealth will prosecute – and potentially convict – somebody engaging only in lawful political speech at the core of what the First Amendment is designed to protect.
Id. at 365
We now examine the flyers Khalil allegedly distributed in light of the above holding by the Black Court, in particular, the flyer depicting a boot stepping on the Star of David. We can sympathize with the Trump administration if it wishes to adopt a prima facie approach to addressing such a desecration of the Star of David. Much like how cross-burning is “inextricably intertwined” with the Ku Klux Klan’s hateful ideology, desecration of the Star of David is also inextricably intertwined with the centuries of persecution endured by the Jewish people. Most notably, during the Holocaust, the Star of David was desecrated with the word “Jude” (German for “Jew”) and forced to be worn by Jews to brand them for ostracism and extermination.
However, in recent years, the Star of David has also taken on a more political meaning. In 1897, the burgeoning Zionist movement adopted the Star as a symbol of its political ideology, the idea that the world’s Jews should return to and establish a state in their Biblical homeland. In 1948, as the State of Israel declared its independence from Britain and emerged victorious in the subsequent Arab-Israeli war, the Star also became a symbol of the State of Israel itself. If we declare desecration of the Star of David to be prima facie evidence of intent to intimidate Jewish individuals, we risk sweeping up constitutionally protected criticism of Zionism and the State of Israel.
b. Not only does Khalil’s alleged speech pass a presumption of intimidation, it also passes the standard used to proscribe intimidating speech
The Black court, however, in declaring the prima facie provision of Virginia’s anti-cross burning statute to be unconstitutional, did not purport to declare unconstitutional any efforts to combat intimidatory cross-burning. The Court, recognizing the state’s interest in “protect[ing] individuals from the fear of violence and the disruption that fear engenders,” (Black 538 U.S. at 360), outlined the true threats standard to distinguish between proscribable threats and constitutionally protected political hyperbole. We now evaluate the flyers Khalil allegedly distributed under this standard.
The true threats standard states that in order for threatening language to be proscribable, it must “communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals” (Id. at 359). The speech on the flyers Khalil allegedly distributed does not meet this standard.
First, the messages on the flyers lack specificity. As established in the preceding subsection, a message like a boot stepping on the Star of David can mean many different things. It is possible that Khalil did intend it as a direct threat of violence against Jewish students. However, it is also possible that he intended it as a hyperbolic criticism of Zionism or the State of Israel. In light of this uncertainty, we lean on the side of permitting his speech to avoid chilling constitutionally protected hyperbolic criticism of Zionism or Israel.
Second, the flyers lack reference to a specific act of violence. Let us assume, for purposes of argument, that Khalil intended for the flyers to threaten Jewish students. The boot stepping on the Star of David, though carrying violent undertones, is nonetheless only a threat of an abstract nature. It does not reference an imminent or impending act of violence that would force one to take preventative measures for their own safety. Nor does it threaten or insinuate bodily harm or death. As a result, Khalil’s speech does not meet the true threats standard and therefore cannot be proscribed.
B. The arrest and detention of Khalil do not serve a “compelling foreign policy interest”
The “compelling interest” standard has been one of the most widely used standards to evaluate governmental actions that burden constitutional rights. As part of the “strict scrutiny” standard of review (a standard of review which demands the government cite a “compelling governmental interest” if it wishes to burden a fundamental constitutional right), courts have struck down countless statutes on the grounds that there was no compelling interest to justify those statutes’ burden on constitutional rights. Despite its deeply rooted role in American constitutional law, the “compelling governmental interest” standard has yet to be explicitly defined by the Courts, much less a “compelling foreign policy interest.” Ronald Steiner, professor of Political Science at Chapman University, roughly defines a “compelling government interest” as one that is “essential or necessary rather than a matter of choice, preference, or discretion.” Governmental interests the courts have deemed to meet this rough standard are the regulation of violent crime, the requirements of national security and military necessity, and respect for fundamental rights.
We now consider whether the foreign policy interest the Trump administration seeks to serve with Khalil’s arrest and deportation rises to the level of a “compelling” foreign policy interest. Let us use Professor Steiner’s definition of “compelling” to guide us. Is it “essential or necessary” to arrest and detain Mahmoud Khalil on the basis of his speech? We answer in the negative.
1. Mahmoud Khalil can only do so much damage to American foreign policy
First, Mahmoud Khalil is only one person. He can do only so much damage, if any, to American foreign policy. However, we also recognize that in some cases, even a single person can do much damage. In Kleindienst v. Mandel, 408 U.S. 753 (1972), the Court upheld the Government’s power to deny a visa to a prominent Belgian academic, Ernest Mandel, based on his history of giving, and plans to give, talks about Marxist thought to universities across the US. Khalil cannot be said to be as impactful or as prominent as Mandel. First, he is only a student. Unlike Mandel, he is not a well-known academic whose views would hold significant weight. Second, any impact his speech may have had was limited to Columbia University. In fact, his impact was so limited that he had to be brought to the attention of the Trump administration before it decided to arrest and detain him. Therefore, Khalil’s limited impact on American foreign policy does not make his arrest and detention “essential or necessary.”
2. Any “adverse foreign policy consequence” that did result cannot reasonably be attributed to Khalil
Second, Khalil’s speech did not disrupt or alter American foreign policy in any way, shape, or form. The Trump administration may cite then-President Biden’s softening stance on Gaza, such as his decision to stop arms shipments to Israel, as evidence that views like that of Khalil’s compromised a compelling foreign policy interest.
First, a change in a foreign policy position does not mean foreign policy interests have been “compromised.” There is no “correct” policy position for the United States to take, and therefore, a change in foreign policy cannot be classified as objectively “good” or “bad.” Under this logic, President Trump’s economic warfare with long-standing allies could also be considered adversarial to American foreign policy interests.
Second, even if we accept the proposition that a shift in American foreign policy away from Israel is objectively bad, such a change can hardly be attributed solely to Khalil or other similarly situated noncitizens. In the wake of Israel’s retaliatory strikes against Hamas, it was, in fact, American-based grassroots groups who funded and organized demonstrations, rather than a concerted effort by noncitizens like Khalil to unduly influence US foreign policy. Even if we accept the argument that Khalil sought to unduly influence US policy, the impact he had can hardly make the interest in arresting and detaining him “compelling.” Khalil was only a negotiator and spokesman for one of over several hundred demonstrations across the United States. He did not organize, or even participate in, the illegal encampment at Columbia, and was never charged with a crime in relation to the unrest at Hamilton Hall. While the Trump administration can cite an interest in having Khalil arrested and detained, that interest does not rise to the level of a compelling one.
II. Khalil’s alleged support for Hamas does not amount to “endorse[ment] or espous[al] of terrorist activity” under 8 U.S.C. § 1182(a)(3)(B)(i)(VII)
Subsection (a)(3)(B)(i)(VII) of 8 U.S.C. §1182 renders a noncitizen visa applicant inadmissible if he “endorses or espouses terrorist activity or persuades others to endorse or espouse terrorist activity or support a terrorist organization.” Due to Khalil’s support for Hamas’ ideology, we anticipate an effort by the Trump administration to justify his removal using this provision.
1. Under Brandenburg, Khalil’s speech does not amount to “endorsement or espousal”
We submit that the Trump administration cannot justify Khalil’s arrest and detention using this provision as his protected speech does not amount to “endorse[ment] or espous[al] of terrorist activity.” First, we submit that Khalil’s support for Hamas does not constitute “endorsement or espousal” under subsection (a)(3)(B)(i)(VII). Brandenburg v. Ohio, 395 U.S. 444 (1969) guides our analysis here. In Brandenburg, the Court considered the case of Clarence Brandenburg, a Klan leader who had been convicted under an Ohio anti-terrorism statute with language similar to subsection (a)(3)(B)(i)(VII). The Ohio statute made it a crime to “advoc[ate] [for] the duty, necessity, or propriety of crime, sabotage, violence, or unlawful methods of terrorism as a means of accomplishing industrial or political reform.” At a Klan rally, Brandenburg had spewed racist and anti-Semitic rhetoric, and ended his speech with the following:
“We're not a revengent [sic] organization, but if our President, our Congress, our Supreme Court, continues to suppress the white, Caucasian race, it's possible that there might have to be some revengeance [sic] taken. We are marching on Congress July the Fourth, four hundred thousand strong. From there, we are dividing into two groups, one group to march on St. Augustine, Florida, the other group to march into Mississippi. Thank you.”
When his speech was picked up by a news crew and broadcast on local television, prosecutors indicted him under the statute, and he was subsequently convicted. On appeal, Brandenburg raised a free speech claim, arguing that his speech was protected by the First Amendment. In ruling for Brandenburg, the Court held that the Government cannot punish mere advocacy of violence unless such advocacy is “directed to inciting or producing imminent lawless action and is likely to incite or produce such action” (Id. at 447).
We now examine Khalil’s speech in light of Brandenburg. As we submit that the meaning of “endorse or espouse” is limited by Brandenburg, we will examine if Khalil’s alleged speech incites or produces imminent lawless action. Let’s consider the flyer that said, “Sometimes history needs a push flood.” There is no doubt that this message advocates for the necessity of violence like that which took place on October 7. However, it can hardly be said to incite “imminent lawless action.”
First, it refers to violent action in the abstract. It does not coordinate, direct, or instruct any specific act of violence. Even if a reader were inspired to commit violence based on the message, they would still be left with several unanswered questions. What does a “push flood” look like? Whom or what should I target? What day should I carry out the act? The connection between the message and any violent action that may spring forth from it would be too attenuated to establish any sort of causal link.
Second, even if we accept the argument that the message incites imminent violence, we must acknowledge that the message advocates for violence in Israel, not the United States. This is not to say that we can allow anyone on our soil to incite imminent violence on one of our closest allies simply because we will not be affected directly by the violence. It is to say that because of the distance between the United States and Israel, and the limited American audience the flyers reach, it is unlikely the message will reach the audience Khalil may hope to incite.
2. What Khalil supports does not meet the statutory definition of “terrorist activity”
Second, even if Khalil’s actions amount to “endorsement” or “espousal”, we submit that what Khalil is allegedly “endorsing or espousing” does not meet the definition of “terrorist activity” as defined in subsection (a)(3)(B)(iii). “Terrorist activity,” as defined by the subsection, includes “the hijacking or sabotage of any conveyance,” hostage-taking, and violence on an “internationally protected person” taking the form of assassination or a biological or explosive attack. With regards to Khalil, while he arguably does support Hamas, the Government has not cited any instance of him supporting any of Hamas’ terroristic activities as defined by subsection (a)(3)(B)(iii). As established in section I of our argument, the flyers he allegedly distributed, though carrying violent undertones, are instances of hyperbolic speech that amount to a generalized endorsement of Hamas’ activities rather than support for a specific terroristic activity that is imminent or impending. As a result, his alleged support for Hamas cannot be considered an endorsement of terrorist activities.
III. Lacking any statutory basis in 8 U.S.C. § 1182, Khalil’s arrest and detention must be evaluated as a regulation of his protected speech
So far, we have given wide deference to the Trump administration’s justifications to Khalil’s arrest and detention. We have accepted, for purposes of argument, that he has the legal status of a noncitizen visa applicant. We have accepted the Court’s long-standing rulings that noncitizen visa applicants are afforded fewer free speech rights than citizens or permanent residents. We have accepted, for purposes of argument, that conditions for inadmissibility are also conditions for expulsion. However, having shown that we still prevail in light of these concessions, we must recognize Khalil’s arrest and detention for what it is: a plainly unconstitutional instance of viewpoint discrimination.
First, it is indisputable that Khalil was targeted for his speech. The question now is how justifiable the targeting of his speech was. The Supreme Court has drawn three categories of speech regulation: time, place, and manner (TPM) restrictions, content-based restrictions, and viewpoint-based restrictions. Without paining the audience with an in-depth discussion of the three categories, a TPM restriction regulates the contextual factors surrounding speech (such as the time, place, and manner of the speech, as its name suggests) and does not examine the content of the speech. This restriction is subject to the lowest level of scrutiny, the rational basis test, which means the restriction need only serve a “legitimate government interest.” A content-based restriction, as its name suggests, examines the speech’s content and regulates the topics discussed. A content-based restriction is presumptively unconstitutional and must survive strict scrutiny, the highest standard of review (the restriction must serve a “compelling governmental interest” and be “narrowly tailored” to serve that interest) if the Government wishes for it to be upheld. Finally, a viewpoint-based restriction is a type of content-based restriction that not only restricts a topic from being discussed but also a particular viewpoint on that topic. This type of restriction is the most disfavored by the courts. Like a content-based restriction, it must survive strict scrutiny in order to be upheld.
A. Khalil’s arrest and detention are a textbook example of viewpoint discrimination
We now discuss under which of the above categories Khalil’s arrest and detention falls. We submit that it is a textbook example of viewpoint discrimination. Khalil was singled out because the Trump administration disapproved of his position on the debate surrounding the Israel-Hamas war. To illustrate this, we examine the following example: On the one-year anniversary of Hamas’ attack on Israel, an extremist faction of the American Zionist group Betar US allegedly vandalized a building at NYU and boasted about threatening members of the NYU chapter of Students for Justice in Palestine (SJP). The acts these individuals committed are arguably equal in magnitude to the acts the Trump administration has alleged Khalil to have committed. However, to date, the Trump administration has not threatened to deport pro-Israel noncitizens who commit acts like those committed by the extremist faction of Betar US. To be sure, the Executive Order (EO) does not provide for the deportation of pro-Israel foreign nationals who commit acts like those alleged to have been committed by Khalil. The deportation provision serves the EO’s stated purpose of combating anti-Semitic discrimination, vandalism, and violence rather than discrimination, vandalism, and violence more generally. While combating anti-Semitic discrimination is of utmost importance, the Trump administration cannot selectively crack down on pro-Palestinian anti-Semitic discrimination while ignoring pro-Israel Islamophobic discrimination.
B. The Trump administration’s discrimination against Khalil’s viewpoint does not serve a compelling government interest
In Section I of the argument, we discussed how Khalil’s arrest and detention do not serve a “compelling foreign policy interest.” Here, we discuss how it does not serve a broader compelling government interest either.
The other plausible “compelling interest” the Trump administration may cite is that of national security. Khalil’s alleged support of a terrorist group, the administration may contend, increases the risk that Americans may be recruited into terrorist groups and inspired to commit terrorist attacks. While the government does have a compelling interest in preventing terrorism, Khalil’s alleged support for Hamas does not rise to the level of support that the government has a compelling interest in preventing.
First, there is no imminent threat of terrorism arising from Khalil’s statements. As established in section II of our argument, Khalil’s alleged speech does not direct or coordinate any specific act of violence; it only advocates for the necessity of violence in the abstract. Such discussions are had by Americans every day; in fact, Thomas Jefferson went as far as to say that the people had a right to “alter or abolish” their government when it became destructive of the fundamental rights of life, liberty, and property. The millions of Americans who discuss the necessity of violence to achieve political change, such as the students who discuss the necessity of the American Revolution, or the Second Amendment advocates who argue that the right to bear arms gives Americans the right to revolt against tyrannical government, cannot possibly be deemed a national security threat, and neither should Khalil.
Second, Khalil’s statements are not so influential as to persuade one to commit a terrorist attack or to join Hamas. At most, by a stretch of the imagination, his alleged statements may persuade one to support the ideology of Hamas. The decision for one to commit a terrorist act or to join a terrorist organization is not a light one. One has to be convinced that the cause they are fighting for is worth more than their own life and the lives of the innocent people they will kill. While this process comes more easily to some, in most cases, it comes after a concerted effort of persuasion, manipulation, and indoctrination on the part of the terrorist recruiter.
The slogans on the flyers Khalil allegedly distributed, seen momentarily by their audience and likely thrown away after, can hardly be said to be so impactful as to spur one to commit an act of terrorism or to join a terrorist group. In fact, Khalil’s alleged speech may do little to change hearts and minds at all. It is unlikely for any person to change their opinion solely on the basis of seeing a flyer with incendiary rhetoric on it. What is more likely is that viewers of the flyers on both sides of the debate will be momentarily strengthened in their convictions: pro-Palestinian students will feel affirmed by the rhetoric on the flyers, while neutral and pro-Israel students will be further disgusted by the incendiary rhetoric on the flyers.
Given the negligible impact of Khalil’s alleged words, he cannot be said to compose a national security threat. As a result, the viewpoint-based proscription of his speech does not serve any compelling governmental interest, and he must be released from custody.
Conclusion
One can argue that Mahmoud Khalil is hardly a sympathetic character. The views he allegedly expresses are deeply polarizing and even threatening to some. However, it is how we treat these unsympathetic characters that truly test us as Americans. We pride ourselves on being guardians of freedom and liberty, and to our credit, that is a distinction we have rightfully earned. However, we must not become complacent. Freedom is not free until everyone enjoys it, and it is whether we decide to protect the freedoms of unsympathetic characters like Mahmoud Khalil that truly tests our commitment to our democratic principles.