“This seems like one of the biggest threats, if not the biggest threats to First Amendment freedoms in 50 years,” said Brian Hauss, a senior staff attorney at the American Civil Liberties Union. “It’s a direct attempt to punish speech because of the viewpoint it espouses.”
Khalil, who grew up in a Palestinian refugee camp in Syria, hasn’t been charged with any crime. A dossier on him compiled by Canary Mission, a right-wing group that tracks anti-Zionist campus activists, includes no examples of threatening or violent speech, just demands for divestment from Israel. Last year Khalil was suspended from his graduate program for his role in the campus demonstrations, but the suspension was reversed soon after, apparently for lack of evidence, and he completed his degree. The Department of Homeland Security claimed he “led activities aligned to Hamas,” but that’s an impossibly vague, legally meaningless charge.
It’s true that, under the Immigration and Nationality Act, any foreigner who “endorses or espouses” terrorist activity is considered inadmissible to the United States. But Margo Schlanger, a law professor who served as head of civil rights in the Department of Homeland Security under Barack Obama, points out that that provision is hardly ever used, especially against people already in the country, who largely have the same free speech protections as citizens.
You don’t need to take this from a liberal law scholar: During Trump’s first term, a legal analysis from Immigration and Customs Enforcement concluded the same thing. “Generally, aliens who reside within the territory of the United States stand on equal footing with U.S. citizens to assert First Amendment liberties,” it said. Khalil’s arrest, said Schlanger, “seems like an incredible overreach in light of the First Amendment concerns that even the government in the last Trump administration documented.”
During periods of nationalist hysteria, however, overreach is common. The closest analogue to this squalid moment is the Red Scare of the late 1940s and 1950s, when the right exploited widespread fear of communist infiltration to purge leftists from government and cultural institutions. In his new book “Red Scare,” my colleague Clay Risen writes about a 1952 Supreme Court case allowing for the deportation of three immigrants who had each joined but later left the Communist Party. Justice Hugo Black, who had dissented in the case, said that the country at that moment was in “more desperate trouble on the First Amendment than it has ever been in.”
