Honestly with Bari Weiss Podcast on Mahmoud Khalil, Speech, and Deportation

I was delighted to be one of the guests on this podcast, which was recorded yesterday and just released this morning:

The other guests were Mark Goldfeder (National Jewish Advocacy Center) and Jed Rubenfeld (Yale Law School). I hope you folks enjoy listening to it as much as I enjoyed participating in it.

Comments

[Thought about __ all my life]

23:09
Because we can see how Mahmoud could and must be deported and still see some other issues we hereby applaud the binding of the President's hands . BULLSHIT

[Frank Drackman]

With apologies to the Late Great Meir Kahane,
Mahmoud must Go

[Commenter_XY]

I listened to the podcast. My main takeaway: Khalil is toast.

[SRG2]

Yes. The issue is how and why he should be toasted

[Commenter_XY]

Pretty straightforward now. Khalil lied on his form. He is f**ked.

[JoeFromtheBronx]

Can he be smeared with some margarine?

[mike petrik]

It was a good podcast, as I expected. The most interesting question to me is whether Congress can constitutionally offer legal residence to an alien conditioned upon the alien forfeiting certain free speech rights subject to deportation. Since Congress has plenary power over immigration I cannot imagine why it can’t. Professor Volokh offered some debatable but reasonable arguments why Congress should not do so but no reasons why it cannot not and therefore why the statutes that do just that are constitutionally infirm.

[JoeFromtheBronx]

Aliens are "persons" and Congress cannot deprive liberty of "persons" without due process. Free speech is a form of liberty.

"Critics of originalism can be deported" is fairly irrational even if it's an alien. The reason to limit free speech would have to be at least constitutionally reasonable. Supporting Hamas, for instance, is not the same thing as being somewhat critical of Israel's war policy in ways that many Israelis would agree with.

Speech can overlap with religious liberty. Congress cannot prohibit the free exercise of religion. Not just for citizens. If praying to Allah is going to be grounds for deportation, it might be a problem.

Limiting the free speech rights of aliens is also going to burden citizens in various cases. Expelling a British citizen who is a law professor is going to harm the rights of citizen listeners.

The reach of "certain" free speech rights is open-ended but there is likely some limits there. The Bill of Rights amended the original Constitution. It limits the government in ways the original does not.

Congress cannot do anything it wants when regulating immigration. There are constitutional limits.

[mike petrik]

If there are, there are not many. Moreover, there is plenty of law confirming that constitutional rights can be knowingly waived. The key to me is what Congress has stipulated by statute. Every alien is present in the US entirely at the indulgence of Congress — i.e., no alien has a right to be here beyond what Congress has granted. Whether Congress has granted the executive branch plenary power to make the salient determinations required by statute or instead contemplated some appeal process is a matter of statutory interpretation.
Your point about the potential harms to citizens is perfectly fair, but not of constitutional moment. Any harms, as well as any benefits, are matters to be determined by Congress acting on behalf of citizens.

[Please, Daivd, Seek Help]

I listened to the first 45 minutes and thought this was incredibly bad.

Not your fault. I think Bari's framing was completely unproductive. By juxtaposing two speech experts with a guy who asserted facts that this was not a speech issue at all, almost everything you said had to be disclaimed by a statement that if this issue was a completely different unrelated issue then it would be a different issue. No shit. Then, after you elegantly said that one reason to be skeptical of punishing speech is that if the shoe was on the other foot you'd oppose it, Bari ignores your answer and instead says exactly the same thing except this time with an idiotic and grievance-filled hypothetical thar was less effective than your examples. Then she asked you to comment on something you had just said. I am really stunned at how shallow and juvenile her engagement with issues is and have no idea how she has been elevated as a thoughtful, heterodox thinker. And her performance here is entirely consistent with her terrible JK Rowling podcast and her incredibly boring NYT oeuvre, including down to the fact that she tried to get fired for not being woke, they didn't fire her, and she quit and then blamed them for micro aggressions against her, completely ignoring that her entire schtick is complaining about how the left keeps punishing micro aggressions. Absolutely juvenile.

I think a competent moderator would have pursued literally any of the dropped threads. Even a total moron would have bitten on a panelist saying that, actually, any speech that could be considered propaganda is not speech, it's material support of terrorism. No mention of how domestic actors can be manipulated into being useful idiots, just straight up everyone who protests against Israel is perforce a terrorist because Hamas, like every other belligerent in the world (terrorist or state), recognizes the soft power of ideas. Truly insane tangent and it is completely avoided.

Likewise when Jed somewhat correctly points out that many people defending speech now supported the suppression of different categories of speech at some point in the past. No follow-up discussion on how to resolve the apparent hypocrisy. No follow-up up discussion on whether the two categories of speech are comparable. No follow-up discussion on the way political actors transparently use legal discourse as a shield to justify political ends.

So again, not your fault, I appreciate you weighing in, but I cannot imagine what kind of dumbass middle management type listens to this podcast and thinks they're learning something about anything.

[Champion]

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