One of Donald Trump’s first official actions as president was to sign an executive order designed to protect freedom of expression against government pressure. Soon after, Vice President J.D. Vance issued a vigorous challenge at the Munich Security Conference to speech restrictions in Europe. After years of government assaults on freedom of expression, people who cared about First Amendment values were cautiously optimistic.
Then came the administration’s attempted deportation of Mahmoud Khalil.
Khalil, a permanent legal resident of the United States who is married to an American citizen and who is soon to be a father, was detained by the government after he participated in protests focused on the plight of people in Gaza.
In a court filing supporting the decision to deport him, the administration maintained that his “presence or activities in the United States would have serious adverse foreign policy consequences for the United States.”
Obviously, this can’t mean that he was physically impeding the formulation or implementation of foreign policy. He threatened, if he did, to bring about “serious adverse foreign policy consequences for the United States” because what he did had the potential to change people’s minds. He was targeted because of the anticipated impact of his actual (and potential) expressive activity.
Secretary of State Marco Rubio offered a similar rationale for Khalil’s deportation. “And if you tell us, when you apply for a visa, ‘I’m coming to the U.S. to participate in pro-Hamas events,’ that runs counter to the foreign policy interest of the United States of America,” according to the Secretary. “If you had told us that you were going to do that, we never would have given you the visa.” (He makes a separate point about Khalil’s involvement in disruptive activities on the Columbia University campus, which I’ll bracket here.)
Rubio’s claim about “the foreign policy interest of the United States” makes sense only if, again, the worry is that the kind of protest in which Khalil was involved risked contributing to changes in policy, or at least signaled Khalil’s personal opposition to the that policy. (Rubio conveniently equates current U.S. foreign policy with “the foreign policy interest of the United States.” But let that slide.)
Khalil has been targeted because of core First Amendment activity: speech and assembly.
Rubio and other defenders of the administration’s position might argue for the legitimacy of Khalil’s deportation by arguing that, as a non-citizen, he’s not protected by the First Amendment. But the Constitution’s language makes no reference to citizens. And there are good reasons for treating it as applicable to Khalil.
The Bill of Rights appears to be intended to apply across the board to those affected by the actions of the U.S. government. Does anyone seriously think that the government could deny non-citizens the protection of the Seventh Amendment right to trial by jury in civil cases, or claim that the Eighth Amendment’s prohibition of excessive bail is inapplicable to non-citizens? Unless the Constitution explicitly limits a given safeguard to citizens, we should read it as protecting everyone the government can impact.
And permanent residents, like Khalil, seem especially worthy of constitutional protection. After all, they are not tourists or brief visitors. They have established substantial ties to the United States and have demonstrated that they are good neighbors. They are often on the road to citizenship.
Whatever we judge to be the primary focus of the First Amendment, singling our people for sanctions because of what they say is deeply problematic. When the government targets the nonviolent expression of particular ideas, on anyone’s part, it sends the message that those ideas are disfavored and that others expressing them can expect to be penalized. Deporting Khalil because of the potential impact of his expressive acts exerts a chilling effect on the expression of officially disapproved ideas about the Middle East—by citizens as well as non-citizens.
The content-focused rationale the government has offered for Khalil’s deportation is a rationale it could invoke to attack citizens for what they say, too. A U.S. citizen who writes an op-ed criticizing some aspect of current foreign policy and whose action the government believes could influence others to avoid supporting its position could be penalized in multiple ways. Citizens (probably) can’t be deported for political dissent. However, if the rationale the government has offered here is upheld, they could be denied other discretionary benefits.
The First Amendment should also be read as protecting Khalil from deportation for the content of his speech because it doesn’t primarily or exclusively serve the interests of speakers. At least as important is the protection it offers to listeners.
Restricting listeners’ access to information undermines democracy and the free formation of public opinion. The more people have the chance to encounter varied voices, the more they have the chance to weigh arguments, evaluate insights, and assess factual claims for themselves. A government that can filter what people hear can artificially insulate its policies against critical push-back and keep them from being altered in light of relevant facts and norms. (Consider, for instance, how frequently governments that rush to war try to censor not only stories about specific military actions or espionage techniques but also arguments for peace.)
There’s no Middle East exception to the First Amendment. The administration can underscore its commitment to freedom of expression by not acting as if there were. The Constitution weighs strongly against deporting Khalil on the basis of what he’s said. Freeing him will benefit not only him and his family but also all Americans.
