The Volokh Conspiracy
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The Case Against Deporting Immigrants for "Pro-Terrorist" Speech [Updated]
It's both unjust and unconstitutional.
The Trump Administration has promised to deport immigrants and foreign students who engage in pro-"terrorist" speech related to the Israeli-Palestinian conflict. Yesterday, ICE arrested Palestinian activist and former Columbia student Mahmoud Khalil, and plan to deport him. To put it mildly, I have little sympathy for recent anti-Israel campus protests. Nonetheless, deporting people for engaging in anti-Israel, pro-terrorist, or pro-Hamas speech is both unconstitutional and unjust. It also risks creating a dangerous slippery slope.
The First Amendment's protection for freedom of speech, like most constitutional rights, is not limited to US citizens. The text of the First Amendment is worded as a general limitation on government power, not a form of special protection for a particular group of people, such as US citizens or permanent residents. The Supreme Court held as much in a 1945 case, where they ruled that "Freedom of speech and of press is accorded aliens residing in this country."
A standard response to this view is the idea that, even if non-citizens have a right to free speech, they don't have a constitutional right to stay in the US. Thus, deporting them for their speech doesn't violate the Constitution. But, in virtually every other context, it is clear that depriving people of a right as punishment for their speech violates the First Amendment, even if the right they lose does not itself have constitutional status. For example, there is no constitutional right to get Social Security benefits. But a law that barred critics of the President from getting those benefits would obviously violate the First Amendment. The same logic applies in the immigration context.
Nonetheless, as Eugene Volokh notes, there is some ambiguity under current precedent about the issue of whether non-citizens can be deported for speech. That ambiguity should be resolved against deportation.
There is also, tragically, a long history of speech-based restrictions on immigration and entry into the US. The Trump Administration cites 8 U.S.C. § 1182(a)(3), which bars "Any alien who … endorses or espouses terrorist activity or persuades others to endorse or espouse terrorist activity or support a terrorist organization."
Such laws, too, should be ruled unconstitutional. There is no immigration-restriction exception to the First Amendment.
In addition to legal issues, there are also good moral and policy reasons to oppose deportation for speech. If freedom of speech - including speech that promotes awful viewpoints - is a fundamental human right, there is no good reason to exempt migrants or foreign students from that principle.
I would argue that freedom of movement - including across international boundaries - is also a human right, one that should not be restricted based on arbitrary circumstances of parentage and place of birth. At the very least, migrants and students should not be deported for engaging in speech that is perfectly legal for native-born citizens. As a practical matter, native-born citizens with awful views pose a much greater threat to the future of US democracy than foreign students and recent immigrants, as the former have vastly greater political influence than the latter.
Finally, speech-based immigration restrictions create dangers similar to those of other forms of government suppression of speech. Conservatives who (rightly) don't trust government to define and suppress "misinformation" on social media should also distrust its efforts to police speech by immigrants. In both cases, there is a strong incentive to target speech that goes counter to the views of those in power, or those of current political majorities. There is no reason to trust government censors more when it comes to immigrant speech than elsewhere.
The concept of speech "espousing terrorist activity" or speech promoting "support" for a "terrorist organization" is easily susceptible to abuse. In the context of the Israel-Hamas War, it is not clear whether this means 1) only speech directly defending Hamas's terrorist attacks, or also includes 2) speech supporting the establishment of a Palestinian state (which is one of Hamas's objectives in the current conflict), and 3) speech attacking Israel's conduct of the war, including claims that Israeli forces are committing war crimes. Speech in categories 2 and 3 can be seen as "supporting" Hamas by helping it achieve its objectives, even if it doesn't directly endorse the group's terrorist actions.
Speech restrictions like this are also readily susceptible to discriminatory enforcement. For example, the Trump administration is targeting "Hamas sympathizers," but not supporters of Russia's invasion of Ukraine, which has resulted in atrocities comparable to those of Hamas, but on a larger scale. Those who support or justify Russian atrocities are far more aligned with the Trump Administration than those who support Hamas, and the administration acts accordingly.
There are many conflicts around the world that involve terrorism and atrocities against civilians. The government should not be allowed to selectively target immigrants and foreign students who express awful opinions about these conflicts, depending on whether their views align with those of the administration in power.
Finally, it may be worth noting that Mahmoud Khalil, the apparent first target of the administration's new policy, is not an entirely sympathetic figure. His activities may not have been limited to peaceful protest and speech. Apparently, he acted as spokesman and negotiator for protestors who illegally occupied buildings and other university property at Columbia. Such behavior is reprehensible. Nonetheless, he has not been convicted of any crime or even charged with one. And, as a green card holder, he has strong procedural rights against deportation that the administration must respect. If Khalil has committed a crime, then by all means prosecute him. But don't deport him for mere speech and protest, and don't punish or detain him without due process.
In my view, immigrants who commit crimes should be subject to the same punishment as native-born citizens who violate the same laws. They should not be subject to the severe additional punishment of deportation, merely because of morally arbitrary circumstances of parentage and place of birth. I explained the logic of that position and addressed various objections here. Most readers may not agree. But, at the very least, migrants and foreign students should not be punished for engaging in activities that are perfectly legal for natives, and indeed constitutionally protected rights.
Regardless, the administration has made clear that they intend to deport "Hamas sympathizers" generally, not just those who have engaged in criminal activity. That's pretty obviously targeting constitutionally protected speech.
UPDATE: Steve Vladeck has a helpful analysis of the legal issues involved in the Khalil case.
UPDATE 2: At the Instapundit blog, Glenn Reynolds agrees we should not deport immigrants for speech, but says "I would dispute that we are deporting immigrants for 'speech' when it involved violent protests in which buildings were seized and occupied and people were violently assaulted and harassed." As noted above, the Trump Administration has made clear they do intend to target migrants for speech. Whether that is what happened in the Khalil case is not yet clear. But it is their general policy.
