The Death Knell for American Free Speech Tradition

In a case that has received global attention and reproach, Mahmoud Khalil, a lawful permanent resident of the United States and recent graduate of Columbia University (another target of the Trump administration’s ire), was arrested on 8 March by Immigration and Customs Enforcement agents in front of his apartment in New York and subsequently transferred to a detention facility in Louisiana.  The American Civil Liberties Union is representing Mr. Khalil in a lawsuit challenging the legality of his detention, in which it alleges that the government’s actions, among other things, violate his right to free speech under the First Amendment, which protects citizens and noncitizens alike.

In this blog post, my aim is to show that the case of Mr. Khalil implicates perhaps the most sacrosanct of American constitutional rights: free speech.  Indeed, the United States is rightly regarded as an outlier among liberal democracies for its expansive approach to freedom of expression, which provides protection for hate speech and other types of expression that are commonly proscribed in other jurisdictions.  This is due to the Supreme Court of the United States’s (SCOTUS or Court) interpretation of the First Amendment, which generally prohibits the government from restricting speech based on content or viewpoint.  This is why the Trump administration’s apparent targeting of individuals for engaging in lawful speech under the United States Constitution is so significant and so troubling, particularly when viewed within the broader context of the administration’s multipronged approach to excising dissenting views from American public discourse.

Free Speech and the Arrest of Mr. Khalil

While a student at Columbia, Mr Khalil participated in campus protests concerning the war in Gaza, for which he gained national attention.  The Notice to Appear for Removal Proceedings (NTA) issued by the government to Mr Khalil states that Marco Rubio, in his role as Secretary of State, ‘has determined that your presence or activities in the United States would have serious foreign policy consequences for the United States’.  Relying on an obscure and rarely invoked provision of the Immigration and Nationality Act (Section 237(a)(4)(C)(i)), the NTA further states that Mr Rubio ‘has reasonable ground to believe that your presence or activities in the United States would have potentially serious adverse foreign policy consequences for the United States’.

In a filing weeks after his arrest the government alleged, for the first time, that Mr. Khalil withheld relevant information when he applied for permanent residency status. The sufficiency of this new allegation will be determined by the court.  Notably, the government is maintaining its claim under the Immigration and Nationality Act.  Accordingly, the government’s initial arrest and continuing deprivation of liberty is based on Mr Khalil’s speech, specifically, speech criticising the Israeli government for its conduct in the context of the ongoing military operations in Gaza and advocating for the human rights of Palestinians, both in the context of the war and more broadly.

Based on the Notice to Appear, Mr Khalil’s arrest and detention is best viewed as part of a broader campaign by the Trump administration to silence voices critical of the Israeli government and its actions, particularly student protests at prestigious universities like Columbia, to improperly conflate any and all criticism of the Israeli government with antisemitism (while criticism of Israel and antisemitism are not mutually exclusive, neither are they inextricably linked), and to characterise expressions of support for Palestinian human rights as support for Hamas, a designated ‘foreign terrorist organization’ in the United States.

Free Speech Tradition in the United States Constitution

In many countries, a government’s characterisation of speech as antisemitic or supporting a terrorist organisation is legally significant because such characterisation triggers the application of criminal law, for example, hate speech and/or glorification of terrorism-related offences.  However, this is not the case in the United States. This is because the American Constitutional tradition regards viewpoint and content-based proscriptions on expression as presumptively unconstitutional. For well over a century, SCOTUS has prided itself on taking a different path from other democracies in relation to free speech, a path that is unique precisely because it prohibits punishing speakers in any way or form for engaging in speech that the government deems offensive or harmful.

The principles underlying the American free speech tradition developed by SCOTUS are worth highlighting.  SCOTUS has long held, for example, that its expansive approach to free speech reflects the profound American commitment that debate on public issues should be ‘uninhibited, robust, and wide-open’ and to the principle that the government has no authority to limit expression based on ‘its message, its ideas, its subject matter, or its content’.  And while the Court recognises that speech ‘can stir people to action, move them to tears of both joy and sorrow, and…inflict great pain’, it prohibits the government from reacting to that pain by punishing speakers because the United States has ‘chosen a different course – to protect even hurtful speech on public issues to ensure that we do not stifle public debate’.

Moreover, while the exercise of the right to free speech may manifest as ‘verbal tumult, discord, and even offensive utterances,’ the Court regards these as necessary side effects of the more general values of freedom that the process of open debate is meant to achieve.  For these reasons, even hurtful speech on public issues is protected to ensure that the government does not encumber public debate.  The Court created these safeguards on speech to ‘assure unfettered interchange of ideas for the bringing about of political and social changes desired by the people.’  Thus, free speech protects the ‘opportunity for free political discussion to the end that government may be responsive to the will of the people and that changes may be obtained by lawful means,’ which is ‘essential to the security of the Republic.’ 

The fact that the administration is targeting individuals for speech while they were at university is also significant from a free speech perspective because SCOTUS holds that ‘[t]he vigilant protection of constitutional freedoms is nowhere more vital than in the community of American schools’ and that ‘the Nation’s future depends upon leaders trained through wide exposure to that robust exchange of ideas which discovers truth out of a multitude of tongues, (rather) than through any kind of authoritative selection’.

These foundational principles of America’s uniquely protective approach of free speech highlight why the Trump administration’s apparent targeting of individuals based on their publicly expressed views is so troubling, particularly because these views relate to a matter of significant importance to the American public and for which there is a need for public debate with respect to relevant foreign policy.  For example, the American response to the war in Gaza was a key issue in the 2024 election, and the government’s continuing support of the Israeli government’s actions is a matter of significant political contestation in the United States.

These long-standing constitutional safeguards, however, have not stopped the administration from engaging in what appears to be blatantly unconstitutional acts that stymie the type of robust and uninhibited public debate that the First Amendment is directed to achieving.  These efforts are packaged as promoting national security and fighting antisemitism in highly abstract terms.  Given the exceptional role that free speech serves in the American constitutional tradition, however, such packaging raises serious concerns as to the true aims of the government, which are also fundamentally antithetical to the role that free speech serves in the American approach to democracy and pluralism.  That all of this is taking place against a backdrop of efforts to undermine other key facets of American democracy, including courts and judges that rule against the administration, makes these actions all the more concerning.

Alarm Bells Are Ringing

Mr. Khalil’s case raises many alarm bells. That the Trump administration is behaving in a manner so fundamentally contradictory to the basic tenets of one of the most cherished American constitutional rights should serve as a warning sign to everyone in the United States, regardless of their immigration status, that their free speech rights are under threat.  The First Amendment, however, is not the only part of the United States Constitution that affords protection to noncitizens. Non-citizens also have due process rights under the Fifth and Fourteenth Amendments. Yet, developments to date, including deporting immigrants to an El Salvadoran mega-prison absent hearings regarding the sufficiency of the evidence upon which such deportations are based, do not instil confidence as to respect for this fundamental right, either.

At present, Mr. Khalil’s case is pending in federal court in New Jersey after an unsuccessful attempt by the government to transfer the case to Louisiana.  In the meantime, the administration is continuing to aggressively pursue foreign university students who participated in campus protests against the war in Gaza, conflating all such protests with antisemitism and characterising protesters as ‘terrorist sympathizers’.  In so doing, the government is chilling public debate on an issue of critical importance to American political discourse.  Such tactics would be cause for concern in any liberal democracy, but in the United States, they represent a brazen repudiation of longstanding American free speech tradition and portend a serious risk to the adequate protection of human rights posed by the current administration.