AP Photo/Ted Shaffrey, file
Mahmoud Khalil, the Columbia University anti-Israel protest leader slated for deportation, released a letter proclaiming that he is “a political prisoner” and that “my arrest was a direct consequence of exercising my right to free speech.”
This is false.
First, Khalil is not a political prisoner. He is free to leave the United States whenever he chooses.
Second, as an alien, he does not have the same First Amendment rights as an American citizen.
Brandenburg v. Ohio, the 1969 decision in which the Supreme Court ruled that the First Amendment does not allow persons to be subject to criminal penalty for endorsing or espousing terrorist activity, has an important caveat: Brandenburg does not protect speech “directed to inciting or producing imminent lawless action” that is “likely to incite or produce such action.”
Did Khalil incite pro-Hamas protesters to illegally occupy and vandalize a Columbia campus building? Did he incite the protesters to threaten Jewish students with violence or bar them from entering Columbia classrooms?
The Trump administration argues that he did. But even if he didn’t, it’s still not the end of the argument.
For the government can deport aliens for the very same speech that they cannot be prosecuted for under Brandenburg. Why? Because under the First Amendment, the speech of aliens is not protected to the same extent as the speech of American citizens. Consider the following:
In 2012, the Supreme Court in Bluman v. FEC gave its thumbs up to a statute barring non-permanent resident aliens from making contributions of money or things of value in connection with Federal, State, or local elections.
Now Supreme Court Justice Brett Kavanaugh concluded in the underlying district court decision in Bluman v. FEC that the court had “indicated that aliens’ First Amendment rights might be less robust than those of citizens in certain discrete areas.”
Kavanaugh also pointed to the Supreme Court’s 1952 decision in Harisiades v. Shaughnessy, which he characterized as setting forth that the “First Amendment does not protect aliens from deportation because of membership in the Communist Party.”
And in Citizens United v. FEC, liberal Supreme Court Justices John Paul Stevens, Ruth Bader Ginsburg, Stephen Breyer and Sonia Sotomayor stated their belief that “The Government routinely places special restrictions on the speech rights of students, prisoners, members of the Armed Forces, foreigners, and its own employees. When such restrictions are justified by a legitimate governmental interest, they do not necessarily raise constitutional problems.”
In 2005, Congress made deportable any alien who endorses or espouses terrorist activity.
In 2004, Congress expanded the genocide ground of deportability by making any alien deportable who incites genocide, in order to “broaden [its] reach … to apply not only to those who ‘engaged in genocide’” and “address a more appropriate range of levels of complicity.” There is no indication in the statute that deportable incitement has to rise to the Brandenburg level.
In 1999, the Supreme Court in Reno v. American-Arab Anti-Discrimination Committee ruled that “when an alien’s continuing presence in this country is in violation of the immigration laws, the Government does not offend the Constitution by deporting him for the additional reason that it believes him to be a member of an organization that supports terrorist activity.” Reno involved the Popular Front for the Liberation of Palestine, another State Department-designated Palestinian terrorist organization.
Again and again, the courts have found that the administration’s decision to deport an agitator such as Khalil is justified.
Khalil is a guest in our country. Guests do not have a First Amendment “right” to endorse or espouse terrorist activity or incite genocide. They do have a “right” to the first plane out of here.
George Fishman is the senior legal fellow at the Center for Immigration Studies.