Free Speech Hypocrites
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.
Instead, they have explicitly and repeatedly cited his “pro-Hamas” and “anti-American” protests as the primary motivating factor for his arrest. “He was mobilizing support for Hamas and spreading antisemitism in a way that is contrary to the foreign policy of the U.S.,” the official said. In an interview on Morning Edition, Troy Edgar, the deputy secretary of the Department of Homeland Security, seemed to conflate pro-Palestinian protests with pro-Hamas and terrorist supporting activities. When asked to substantiate Khalil’s support for terrorism, Edgar stated, “This is somebody that we’ve invited and allowed … to come into the country, and he’s put himself in the middle of the process of basically pro-Palestinian activity.” And then there was Homan’s use of the “can’t shout ‘fire’ in a crowded theater” argument on Wednesday.
Legal precedent gives green card holders like Khalil the First Amendment rights afforded to U.S. citizens (though as we’ll see, the administration thinks it has found a way around this). A closer examination of the case that led to the “fire in a crowded theater” trope, however, highlights why Khalil’s detention and planned deportation may run afoul of the First Amendment.
Contrary to popular belief, the Supreme Court never ruled on a case involving a fire in a crowded theater. Rather, the line came from a 1919 opinion, Schenck v. United States, that arose from the prosecution and conviction of Philadelphia socialist leader Charles Schenck, who had distributed leaflets claiming that the military draft was unconstitutional. Federal prosecutors took offense, prosecuting him as a national security threat under the Espionage Act.
The Supreme Court unanimously upheld Schenck’s conviction. Writing for the Court, Justice Oliver Wendell Holmes Jr. offered a hypothetical to illustrate the limits of protected speech: “The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic,” he wrote. “The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent.”
In other words, Holmes used his theater hypothetical to justify a low-burden exception to the First Amendment in which speech that poses a “clear and present danger” is unprotected.
But Holmes himself quickly developed reservations about this approach. Later in 1919, he dissented from a Supreme Court opinion that imposed penalties for similar anti-government speech. In Abrams v. United States, Holmes wrote that “the best test of truth is the power of the thought to get itself accepted in the competition of the market.”
This set the groundwork for the “marketplace of ideas” theory of free speech, which the Supreme Court would gradually accept as its primary method of resolving free speech disputes. Rather than immediately resorting to imprisonment and fines for “bad speech,” the court is inclined to allow that speech to compete on the open marketplace. And the Court would eventually come to substantially narrow the “clear and present danger” test exclusively to cases in which advocacy “is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.”
So this brings us back to Homan’s use of “fire in a crowded theater” to justify the government’s detention and attempted deportation of Khalil. Homan is correct that the First Amendment is not absolute. There are even some circumstances in which the government could prosecute someone for falsely shouting fire in a crowded theater. But the administration has to prove that this threshold was met in Khalil’s case, and so far it hasn’t.
Can the government deport him anyway?
The Trump administration perhaps senses that it would lose its case on First Amendment grounds, so it has attempted to justify its actions on the basis of national security instead.
On Tuesday, White House Press Secretary Karoline Leavitt stated that Secretary of State Marco Rubio has the power to revoke Khalil’s status under the Immigration and Nationality Act of 1952. This law contains a vague standard that they claim gives them the ability to target legal residents if their “presence or activities” pose “serious adverse foreign policy consequences for the United States.” In the interview on Morning Edition, Troy Edgar argued that “the Secretary of State can review [Khalil’s] visa process at any point and revoke it.”
It seems to be the administration’s position that it has full discretionary powers to revoke any permanent resident’s green card based on any statement that the government deems adverse to its foreign policy interests and national security—including speech protected by the First Amendment.
Apart from a few very old rulings, the Supreme Court has yet to provide authoritative guidance in deportation cases arising from protected speech. If this case makes its way to SCOTUS, we can only speculate how it will rule.
What we do know is that, if upheld, the administration’s promise to crack down on an extremely broad definition of “terrorism”—and the even more vague concept of “anti-American” sentiments—would have a chilling effect on millions of permanent residents who live in America and contribute to American society. The administration has already promised to implement a “Catch and Revoke” policy using AI to identify and deport foreign students alleged to be “pro-Hamas” or to have engaged in “antisemitic activity.”
There’s no telling how far it could go. For instance, could the administration deport Canadian green card holders protesting the administration’s tariffs and calls to make Canada the 51st state? Could Ukrainians be deported for calling the U.S. administration a supporter of a genocidal tyrant due to its apparent policy reversal toward the Ukraine conflict? Could the government deport legal immigrants from Denmark who vociferously oppose and protest the administration’s ever-louder calls for taking over Greenland?
The administration’s free speech hypocrisy
The Trump administration is contributing to a larger global free speech recession. As we have seen in many countries in Europe, hate speech laws continue to be used by powerful politicians and institutions to suppress dissent in ways that often target the very minorities they were supposed to protect. Last year, an imam who had lived in France for almost 40 years was deported under the country’s hate speech laws after he was accused of saying that the French flag was “Satanic” and had “no value with Allah.” Meanwhile, a recent documentary by CBS 60 Minutes shows the extent to which police in Germany routinely investigate people for online speech.
But even Europe has limits on the type of speech that can get you deported. An immigration tribunal in the UK recently found that the attempt to strip a student visa from a Jordanian-Canadian citizen of Palestinian origin for calling Israel an “apartheid state” and describing Palestinians as “actively resisting” and having “broke free” after October 7 was a disproportionate restriction of her right to freedom of expression under the European Convention of Human Rights.
The administration has once again shown its lack of guiding principles by, on the one hand, criticizing European leaders for undermining democracy by limiting free speech (as Vice President J.D. Vance did in his recent speech at the Munich Security Conference), while on the other hand arguing for fewer protections against deportation than are currently afforded to people in much of Europe.
On his first day in office, Trump proudly signed an anti-censorship executive order and proclaimed that he would “bring back free speech” to America. Two months in, he is insisting that any legal alien who espouses anti-American sentiments can be deported. Even if the courts find in his favor, the president should live up to the wisdom in his own executive order and exit the crowded theater.
Jacob Mchangama is the Executive Director of The Future of Free Speech and a research professor at Vanderbilt University. He is also a Senior Fellow at The Foundation for Individual Rights and Expression (FIRE) and the author of Free Speech: A History From Socrates to Social Media.
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Speaking an opinion vs taking a leadership position resulting in inciting violent protests... where has Persuasion landed on that point related to Jan-6? I think if we are talking about hypocritical positions, there is a glaring one with Persuasion.
And let's not also forget the difference between 1A rights for a citizen verses a LPR. The LPR is a US resident on probation. The rules are different. Constitutional rights are different. As they should be.
Khalil is an alien and can be deported if he violates Terrorism-Related Inadmissibility Grounds (TRIG) law- see USCIS.gov. TRIG law applies only to aliens. The scope of this law is very broad, it was broadened after 9/11. An alien can be deported for any reason which, if known, would have denied him/her entry into the U.S. Khalil belongs to CUAD- Columbia University Apartheid Divestment- its stated aim is ''fighting for the total eradication of Western civilization'' with special emphasis on destroying the U.S. and Israel. Had Khalil stated that his purpose in entering the U.S. was to destroy the U.S. he would have been denied entry. An alien, when applying for a U.S. visa must promise to comply with U.S. laws and not engage in activities harmful to the U.S.. Clearly entering the U.S. with the purpose of destroying it violates the conditions of his visa and gives grounds for deportation. This is not a free speech issue.