Does the deportation of Mahmoud Khalil violate the First Amendment?

Praise for Hamas, for the October 7 massacre and for Yahiya Sinwar, constitute violations of Khalil's visa. A long history of statutory law and Supreme Court cases agree.

Pro-Hamas advocate Mahmoud Khalil was arrested yesterday, pending deportation from the United States. A U.S. legal permanent resident (a “green card” holder), Khalil is a former student, and current activist, at Columbia University. Khalil’s supporters argue that he was engaging in his constitutionally protected right to free speech. However, despite the noise, this question is actually not controversial: under U.S. law, the terms of his visa, and a long history of Supreme Court cases, Khalil does not have the right to advocate on behalf of the Hamas terror organization on U.S. soil.

Photo: AI image for illustration only. Not a real depiction.

White House Press Secretary Karoline Leavitt explained, “Khalil…was given the privilege of coming to this country to study at one of our nation’s finest universities…and he took advantage of that opportunity, of that privilege, by siding with terrorists.” Khalil’s deportation has been temporarily blocked by a New York Federal court as his lawyers argue that he has been unfairly targeted for exercising his First Amendment rights to free speech.

Can legal aliens support terror organizations?

In a word, no.

Khalil is a senior activist in the Columbia University Apartheid Divest (“CUAD”) organization, having acted as their lead negotiator with campus officials and having represented the group numerous times in media interviews, including on the Arab language Quds News Network. Khalil’s organization describes Hamas and Hezbollah as fighting “heroically” against the IDF, and praised the October 7 Massacre as “[Hamas leader Yahiyha] Sinwar’s crowning achievement” adding that “Al-Aqsa Flood [the October 7 massacre] was the very essence of what it is to resist.” Numerous other examples can be found on CUAD’s Substack page.

Photo: Khalil representing the CUAD organization in an interview on the Quds News Network.

This is against a background of massive protests on campus that included intimidation and antisemitic slurs such as “kill the Jews,” tent encampments, physically blocking Jewish students from attending class, seizing control of campus buildings, and cases of physical violence.

Visas to the United States, including legal permanent residency (a “green card”), are governed by the Immigration and Nationality Act (the “INA”). Sections § 237(a)(4) (8), § 1227(a)(4)) and §1182(a)(3) set out the reasons why an alien may be deportable, including if he or she, “is a representative…of a political, social, or other group that endorses or espouses terrorist activity” or “endorses or espouses terrorist activity or persuades others to endorse or espouse terrorist activity or support a terrorist organization.” There are also prohibitions against certain criminal acts, such as the violence on Columbia’s campus, however the government did not raise that particular issue.

In this case, there is no question that the October 7 massacre constitutes “terror activity.” Though we have written this numerous times in the past, it bears repeating: October 7, 2023 saw the largest murder of Jews since the Holocaust as the Hamas terror organization, along with Palestinian civilians and U.N. staff, invaded Israel, killed over 1,200 and took 251 hostage, all while committing mass torture and mass rape. To be unequivocally clear, this is the massacre that Khalil’s organization praised as “heroic” and “a crowning achievement.”

It is undeniable from its public statements that the CUAD organization “endorses or espouses” the October 7 massacre as well as the U.S. designated Hamas terror organization. It is also clear that Khalil is “a representative” of CUAD, which violates the INA. Moreover, through his activist activities, Khalil “persuades others to endorse or espouse terrorist activity” which is a further violation of the INA.

What about the First Amendment and free speech?

This is not a new question, in fact there is a long history of caselaw before the United States Supreme Court, on this very question. The Court has consistently supported the authority of the executive branch to revoke visas for violations of the INA, notwithstanding questions of free speech. The following are just two of many examples:

The case of Harisiades v. Shaughnessy (1952) involved the deportation of a legal permanent resident due to membership in the Communist party. The United States Supreme Court ruled that power to deport aliens is inherent in every sovereign state, that aliens are equal to full U.S. citizens in some, but not all, respects, and that in any case, the First Amendment does not protect calls for violence.

In Reno v. American-Arab Anti-Discrimination Committee (1999), members of the U.S. designated terror organization “PFLP” (Popular Front for the Liberation of Palestine) were arrested pending deportation. The defendants claimed that they were unfairly targeted for exercising their First Amendment rights to free speech. However, the United States Supreme Court ruled that the defendants were not unfairly targeted, and that U.S. Federal Courts do not have authority to overrule a White House decision in this matter.

It’s worth noting that the Reno case was prosecuted by the Clinton White House, and decided in favor of the government in an 8-1 decision by a relatively centrist to left leaning Supreme Court - highlighting that this is not a Democrat/Republican issue, but rather it is a well established consensus of American law.

Both statutory and case law are clear: the terms of a U.S. visa do not allow an alien to support or endorse terrorism, or even to represent any organization that does those things. Furthermore, a long history of U.S. Supreme Court cases confirm that visa holders do not have a First Amendment right to violate the terms of their visa, including “permanent residency” visas.

Khalil caused significant harm to Jewish students on Columbia’s campus, and to Americans in general, through his support for some of the most horrific terrorism of the modern age: all while he was a guest in the United States of America. A visa is a special permission to visit a country on certain very specific terms. Endorsing terrorism violates those terms, and nothing in American law, including the First Amendment, overrides this fundamental principle.