To Deport, Or Not To Deport

The Basic Case Against Deporting that Columbia Protester . . . And Why it Fails.

Most all are welcome to the opportunity to be in this country, and, compared to other places, there are very few rules.

The arrest and intended deportation of Mahmoud Khalil has sparked the latest partisan debate, with liberals zeroing in on the free speech concerns particular to arresting protesters, while typical “free speech” conservatives are more concerned with enforcing a coherent, ‘America First’ immigration policy grounded in national security. Whether deportation is proper tends to turn on two main issues: should all people within the U.S. enjoy the same first amendment protections as U.S. citizens; and, if so, did anti-Israel protesters like Khalil exceed the limits of those protections.

The most important thing to remember: despite common misconception, free speech is just not absolute, and the very narrow exceptions to it are exceedingly important. It seems the Courts recognize this as well, despite MSM coverage on today’s ‘shocking’ outcome . . .

There are Facts. And Then There Are Mainstream Media Facts

On March 8, ICE officers arrested Khalil, a recent graduate of Columbia University, after he helped lead 2024 ‘pro-Palestine’ protests on and around the University’s campus. Khalil is a 30 year old, Syrian-born ‘Palestinian refugee’ who was in the country first with a student visa, and then with a permanent resident status as a green card holder. Khalil was a key figure in Columbia’s protests against Israel’s actions in Gaza, although sources tend to disagree on the degree of his participation.

According to the Left, Khalil was illegally arrested and detained in retaliation for his advocacy for ‘Palestinian rights’ at Columbia University, and then transferred 1,400 miles away from his American-citizenship holding, heavily pregnant wife and legal counsel for holding at a Louisiana detention facility. The Left alleges that Khalil is expected to be deported for supporting terrorism, but claim ‘no evidence’ has been provided of that and no criminal charges filed. Some compare this to “red scare” tactics, and many point out how curious and convenient it is for the ‘free speech warriors’ typically on the Right to suddenly throw free speech out the window in order to enforce an esoteric, barely-ever invoked immigration clause (the “Deportation Statute”) to deport those that they disagree with. The Left argues that you should care when anyone threatens the foundations of free speech—and that we are now faced with this threat.

Now that we’ve fairly portrayed their position—Are they right? In short: No.

This line of thinking relies on a lot of half-truths and omissions, and it is perfectly possible to reconcile a staunch free speech spirit with these immigration policies. Civil Liberties lawyer Jenin Younes—a reasonably uncompromised legal authority on free speech, given her willingness to at least challenge the Biden Administration’s free speech violations—has covered many of the ‘best’ arguments being raised against deportation, with less of the frills and incendiary rhetoric than left-wing propaganda institutions like the ACLU, who just republished MSNBC’s predictable take on this matter. We will summarize those arguments and why they ultimately fail, but please check out her interview in her own words with

The Black Sheep

.

Argument #1: The deportation is unconstitutional because it invokes an old statute which nobody uses.

Love it or hate it, most people can recognize that the Deportation Statute explicitly authorizes the sitting Secretary of State to deport any non-citizens he subjectively deems to be a national security risk. As Tom Homan points out, it should go without saying that it is irrelevant how old or infrequently invoked a statute is: our Constitution is even older, and we still care about that. This argument is a great example of a red herring: it sounds like a point, but it’s basically an irrelevant distraction that just dilutes the argument.

Argument #2: The deportation is unconstitutional as a violation of the First Amendment.

Many see the deportation of Khalil as this clash between the Deportation Statute (which, again, empowers the executive to engage in pretty much unfettered deportation of any non-citizen who poses a national security risk) and the Constitution (given that Courts generally agree that green-card holders are entitled to the same constitutional rights as citizens). If, as Khalil supporters suggest, the question just becomes whether the Deportation Statute supersedes the Constitution . . . of course the answer is no. Any statute which conflicts with the Constitution is unconstitutional and must fall. Accordingly, if Khalil was engaging in behavior protected by the First Amendment, it would be unconstitutional to arrest him for that activity under any other statute . . . But that’s a big if.

Khalil supporters argue that Khalil’s deportation violates his First Amendment rights because ‘all available evidence’ suggests he was nothing but a peaceful protester. This fails on many fronts. Firstly, the First Amendment is not a blanket protection allowing you to say or do anything, as long as you remain peaceful. Speech like incitement, fraud, or even defamation or obscenity is unprotected. Even broadly assuming that Khalil never expressed any anti-Semitic or terror-sympathizing sentiment, and even if we mostly just have videos of other people’s lawless protest activity (which we typically would not hold Khalil responsible for, unless we find evidence to support conspiracy, aiding and abetting, etc.), that does not mean we cannot conclude that Khalil engaged in categories of unprotected speech based on what is known.

For instance, “incitement” is unprotected speech defined as inciting or producing imminent lawless action, such as speech urging a mob to take over a nearby building. We may not have Khalil on video calling for a siege of Columbia campus buildings, but we do know based on the statements of many Palestine-sympathizing news organizations like CNN and The New York Times, Columbia University, as well as Khalil and his own attorneys, that Khalil was a leader and negotiator on behalf of the mob taking the buildings. This is a universally accepted fact, even if other evidence proffered as a basis to deport is more speculative. In this sense, we do not need Khalil on camera calling for seizure of buildings to know that he was part of that activity: Only people with authority to direct the will of the mob (that is, to direct them to release or continue to unlawfully hold buildings and university common spaces hostage, pending Columbia’s satisfaction of certain conditions) could be negotiating on the mob’s behalf.

Further, even if we conclude against all evidence that Khalil did not engage in any unprotected speech—that he only engaged in ‘peaceful’ protest activities—it doesn’t change the fact that not all protests are automatically protected under the First Amendment. In fact, these Columbia protests were textbook unlawful, and all those participating were engaged in unlawful activity regardless of content or technical nonviolence. Why? Because they violated reasonable time, place, and manner restrictions. As explained by even the most sympathetic entities to cases like Khalil’s (the ACLU and Freedom Forum), protestors (regardless of the content of their speech) cannot protest anywhere, anytime, at any size or magnitude without limit. This is why we can arrest protesters locking arms across or otherwise blocking public walkways and roads, taking over private property to make demands of the property owners, or screaming into megaphones at 3am in residential areas—it is irrelevant how peaceful they are or ‘righteous’ their cause. Even if you are sympathetic to the Columbia protesters’ cause and believe they were completely peaceful, that does not mean they can block common areas and take over buildings on private property—and not only has Khalil openly admitted to his participation in the protests, but conceded that he held a leadership role.

In this sense, he was not arrested for his speech, but for his participation in lawlessness—it is not as if Khalil was arrested for writing a book or blog on his political positions, or standing on a soapbox on a street corner, or organizing a permitted speaking event to address students. We are emphatically not in that territory of punishing someone for speech, and anyone trying to twist this into such a ‘free speech’ issue is intellectually dishonest—especially if they suggest US citizens are somehow in similar danger. Further, if it comes out that Khalil was indeed engaging in pro-Hamas activity, that is a whole different hill to die on—and again stretches far beyond the intended boundaries of free speech. When boiled down, the entire ‘free speech’ argument is a red herring meant to incite our libertarian principles against all those rooted in rational, national security.

Argument #3: Even if the First Amendment does not protect Khalil, the Deportation Statute being invoked is otherwise unconstitutionally vague and thus unenforceable.

Even if the First Amendment protections do not apply, the Deportation Statute still must be constitutional on all other grounds to be enforceable. Accordingly, another argument against the Deportation Statute relies on the common sense principle of unconstitutional vagueness: if a new law is too confusing or vague for a person to reasonably determine how to comply with it, then it is unconstitutional and cannot be enforced. Here, love it or hate it, the Deportation Statute empowers the executive branch to engage in pretty much unfettered deportation of any non-citizen who poses as a national security risk, without defining what that is—it’s left up to the SOS’s discretion. Younes rightly points out we do have one decision in 1996 wherein a lower federal court agreed the Deportation Statute was unconstitutionally vague—not defining what counts as a “national security threat” means people lack “fair notice” about what exactly they can’t do to avoid deportation.

This reasoning is unpersuasive chiefly because the constitutional concern about “fair notice” does not apply: Khalil was engaging in plainly deportable activity regardless of how specifically the Deportation Statute defined “national security threat.” There are well-documented categories of behavior that all non-citizens know puts them at risk for deportation. While typically green-card holders will only be deported for crimes of moral turpitude, certain categories of deportable activity do not require such a criminal conviction, such as where a green-card holder:

Engaged in or appears likely to engage in terrorist activity, or has incited terrorist activity, or is a representative a terrorist organization or group that endorses or espouses terrorist activity, or are a member of a terrorist organization (unless the person proves that he had no idea of its terrorist aims), or endorses or espouses terrorist activity or persuades others to do so, or have received military-type training from or on behalf a terrorist organization, or are the terrorist's spouse or child, if the relevant activity took place within the last five years.

In this sense, any potential connection to pro-terror activity would put Khalil at risk for deportation—and, based on what we know, Khalil was not only affiliated with protesters handing out Pro-Hamas and pro-October 7^th fliers (even if Khalil claims he did not participate in that specific act), he was negotiating demands on behalf of a group that itself engaged in activity that fits the FBI’s definition of terrorism: a violent, criminal act to further ideological goals, such as those of a political or social nature. The videos of other Columbia protesters engaging in anti-Semitism, violence, building takeovers, etc. demonstrate domestic terror activities, and Khalil aligned himself with and negotiated demands on behalf of this group—whether or not he approved of or engaged in such activities himself.

Khalil supports create another “red herring” when they bring up the fact that Khalil was never charged with a crime—that is not a requirement for deportation, and it is not a requirement under the Deportation Statute that the Trump administration invoked. Again: unless there’s a well-founded challenge to the constitutionality of the statute, the deportation according to its terms is constitutional. As explained in Arguments 2 and 3, constitutional challenges rely on half-truths and incendiary rhetoric, and ultimately fail.

Argument #4: Khalil’s Deportation Will Have a Chilling Effect on Similar Speech.

Here . . . well, if its not protected speech, who cares if there’s a chilling effect? Next.

Argument #5: Khalil is Entitled to Due Process and Cannot be Deported Without a Hearing.

This is 100% true, and the guarantee of due process is one of the most important civil liberty protections this country must respect for any person legally present. Accordingly, this argument only fails because it really is not one at all. Concerns about Khalil’s due process rights are another red herring, as he is indisputably receiving due process—Khalil has legal representation, has filed relevant documents to dispute his detainment, and his case was under review by an Immigration Judge as I was writing this. What’s more: he’s got all of us hashing out the facts and laws in the court of public opinion—as if there are not millions of people that would cause no trouble at all if given a chance to take his place for the privilege to be in this country. This is also why arguments about the “precedential effect” of Khalil’s deportation fail: the process Khalil is going through is the same process all similarly situated detainees will experience.

Due Process is happening. Democracy is working. And, as usual, both would work even better if people do their best to understand the deeper issues before getting frazzled by the MSM takes.

In Conclusion: Common Sense and Free Speech are Not Mutually Exclusive

One point we can all agree on, is that we all knew Khalil’s case would be heading for SCOTUS. Interestingly, Younes expresses some concern for Khalil in this respect, stating the Justices she’d normally trust to staunchly defend the First Amendment are also very national security oriented. This encapsulates the entire point of this article: that of course national security concerns are completely reconcilable with staunch defense of the First Amendment . . . one need only stay within First Amendment bounds.

Put simply: Everyone needs to stop pretending free speech is absolute, and instead engage with the common sense nuances. While it’s true that free speech degrades most easily when we don’t enforce it to protect those we disagree with, other freedoms degrade just as well when we wrongfully invoke free speech to prevent common sense policy. While it is true that ‘you need free speech the most when you’re going to wish you defended it for others’ . . . the same can be said for national security. When you need your country to secure its borders and protect you from the consequences of criminal infiltration, global proxy wars, and ever-growing international and domestic networks of terror . . . that is precisely when you’re going to wish the federal government was empowered—within narrow, well-defined parameters—to identify and remove those that promote the downfall of our country and its values.

Most all are welcome to the opportunity to be in this country, but there have to be a few rules.