A protester’s deportation

MYRNA BROWN, HOST: Coming up next on The World and Everything in It :free speech for people who aren’t American citizens.

REUTERS: Down down with occupation!

Pro-Palestinian protests have roiled many universities and colleges in the US since the Oct. 7, 2023 terrorist attack by Hamas on Israeli civilians, along with Israel’s response.

MARY REICHARD, HOST: The Trump administration has responded by pledging to combat anti-Semitism. Part of its response are efforts to deport student protesters it claims are Hamas supporters—among them, Mahmoud Khalil.

PROTEST LEADER: Release Mahmoud.

PROTESTERS: Right now.

Khalil’s supporters say the First Amendment protects him… the Trump administration says he’s supporting a terrorist organization.

BROWN: Joining us now to talk about it is Steve West. He’s a reporter for WORLD who worked for more than 30 years as a federal prosecutor in Raleigh, N.C.. Steve good morning.

STEVE WEST: Good morning, Myna.

BROWN: Steve, Mahmoud Khalil has been in the news. Remind us who he is.

WEST: Khalil is a recent Columbia University graduate who was significantly involved in the protests on that campus. He was an outspoken critic of Israel and its military response to the attacks by Hamas. He often served as a negotiator between the administration and protesters—some of whom were simply protesting but others of whom were illegally occupying buildings or encampments. He’s not an American citizen but is a legal permanent resident—he has his “green card”—and was on track to becoming an American citizen until he was taken into custody by immigration agents on March 8th.

BROWN: The Trump administration has called for his deportation. What is the administration’s case?

WEST: Secretary of State Marco Rubio has said it’s not a case about free speech. I think what he really means to suggest is that it’s about immigration law and whether the government’s foreign policy and national security interests trump Khalil’s free speech rights. The government is relying on a provision of federal law that allows it to remove or deport someone if “the secretary of state has reasonable grounds to believe that their presence or activities in the United States would have potentially serious adverse foreign policy consequences for the United States.” The government says Khalil was a supporter of Hamas, a designated terrorist organization, that he distributed pro-Hamas leaflets on campus. But so far it hasn’t really been put to its proof.

BROWN: Some advocates are jumping in…saying this is an infringement on free speech rights. What is their case?

WEST: They have a strong case. Once someone is legally in the country, they have the same free speech rights as an American citizen. And the First Amendment protects all kinds of despicable, hateful speech—speech that may evoke strong emotions. And, in Khalil’s case, speech that may make us want to kick him out of the country. It doesn’t protect conduct that is criminal in nature. But so far the government hasn’t contended that Khalil was involved in criminal activity or gave any material support to Hamas. That may come, but not yet. Until yesterday, the court in New York has been hearing arguments over where the case will be heard. Now we know: It’s been transferred to New Jersey, where Khalil was confined when the petition for his release was filed.

BROWN: What are the larger stakes in this case?

WEST: If this can happen to Khalil over anti-Semitic speech that most people would deplore, what’s to keep a different administration from deporting those who voice support for other culturally unpopular ideas? And can the constitutional guarantee of free speech be overridden when the government simply says the person’s presence or activities will cause potentially adverse forfeit policy consequences? Or does it have to make a showing of what that will be? We’re about to find out.

I asked Brad Jacob, a constitutional law professor at Regent College of Law, to weigh in.

BRAD JACOB: What if Kamala Harris had won the presidential election and she's now president of the United States and you have somebody who's in the country on a green card who goes and does a pro-life protest outside of an abortion clinic and they're screaming, you know, you're murdering your baby, you're murdering your baby. And so President Harris says, "Well, we're revoking your green card. We're going to kick you out of the country because this is so offensive, what you've been saying. Same situation. You just flipped the politics.

BROWN: The Trump administration has threatened that this is only the first of many other similar actions…how important is Khalil’s case to their future plans?

WEST: I’d say pretty important. They’ve claimed a very powerful right to deport anyone deemed against the foreign policy interests of the United States. I don’t expect the federal district court will be the end of it but it will likely be appealed at least to the court of appeal if not the Supreme Court. And undoubtedly there are other ways to work on this issue—like whether to grant a student visa or let someone in the country in the first place. Or, as has already occurred, threatening to withdraw federal funding from universities that don’t take actions to curb anti-Semitic activity.

BROWN: It’s not just the government making this a case of national significance, is it?

For their part, Khalil’s attorneys have sought to make his case a referendum on the Trump administration’s goal of quelling what it has termed anti-Semitic activity. Earlier this week they asked the court to block the administration’s efforts nationwide to arrest, detain, or remove any noncitizens who engage in constitutionally protected expressive activity in support of Palestinian rights or who are critical of Israel. So, it’s a bellwether case for the Trump administration efforts to quell anti-Semitism, and it could also be its judge.

BROWN: Steve West is a legal reporter for WORLD and editor of the weekly Liberties newsletter. We encourage listeners to check that out. Steve, thanks for this report.

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