Federal authorities arrested Mahmoud Khalil, one of the leaders of the pro-Hamas coalition at Columbia University, last weekend on the charge that he “led activities aligned to Hamas, a designated terrorist organization,” and posed a threat to national security and foreign policy.
Since that time, politicians and pundits, particularly on the left, have tried to lionize this anti-West terror-supporting radical as some kind of liberal icon and have questioned whether the government has the right to deport someone of his ilk. For the record, of course it does.
The Immigration and Nationality Act (INA) codified at 8 U.S. Code § 1182 applies to all aliens, meaning “any person not a citizen or national of the United States.” This term includes both visa holders and green card holders like Khalil.
The INA contains a number of activities for which a person can be deemed ineligible based on security and related grounds. The relevant subsection contains nine grounds related to terrorism, the majority of which are not controversial at all: members of terrorist organizations, people engaging in terrorism, etc.
The current debate concerns § 212(a)(3)(b)(i)(vii), which allows for the deportation of any alien who “endorses or espouses terrorist activity or persuades others to endorse or espouse terrorist activity or support a terrorist organization.” Some have claimed that deporting someone for these reasons violates the First Amendment. That is incorrect.
The premise of the question rests on the assumption that an alien (even a legal alien) has First Amendment rights that are exactly the same in every situation as the rights of a U.S. national or citizen. That is not the case. As the Supreme Court has made clear, sometimes the government may impose distinctions and conditions.
See, for example, Citizens United v. FEC (2010):
The Government routinely places special restrictions on the speech rights of students, prisoners, members of the Armed Forces, foreigners, and its own employees. When such restrictions are justified by a legitimate governmental interest, they do not necessarily raise constitutional problems. … [T]he constitutional rights of certain categories of speakers, in certain contexts, ‘are not automatically coextensive with the rights’ that are normally accorded to members of our society. (Emphasis added.)
The question then becomes, how might speech rights be applied differently to foreigners? For example, could such a condition involve not advocating for certain groups that the government, for good reason, considers dangerous and a threat to national security?
As it turns out, more than 120 years of Supreme Court precedent explain that this is just such a condition the government might legitimately put on the holder of a visa or a green card without offending the First Amendment. Turner v. Williams was a case about anarchists who wanted to violently overthrow the government, but you can substitute for anarchists Hamas-affiliated anti-West agitators who want to violently overthrow our institutions. In that case, the court held:
…Congress was of opinion that the tendency of the general exploitation of such views is so dangerous to the public weal that aliens who hold and advocate them would be undesirable additions to our population, whether permanently or temporarily, whether many or few; and, in the light of previous decisions, the act, even in this aspect, would not be unconstitutional, as applicable to any alien who is opposed to all organized government.
We are not to be understood as depreciating the vital importance of freedom of speech and of the press, or as suggesting limitations on the spirit of liberty, in itself, unconquerable, but this case does not involve those considerations. The flaming brand which guards the realm where no human government is needed still bars the entrance, and as long as human governments endure, they cannot be denied the power of self-preservation, as that question is presented here.
So it is clear the First Amendment might apply with some conditions to foreigners. Based on longstanding Supreme Court precedent, it is perfectly constitutional for one of those conditions to be not endorsing or supporting terror in ways the government deems dangerous to society.
Suppose we wanted to take the analysis one step further: Assuming we wanted to engage in a full traditional First Amendment analysis, we must ask whether the INA is constitutional if it imposes a restriction involving speech. The answer to that question is yes, for two reasons.
First, a restriction like the one in §212(a)(3)(b)(i)(vii), which is content-based, would be subject to strict scrutiny review, which means that for this statute to be constitutional — i.e., for the government to be able to regulate the content of a foreign person’s speech in this manner — the law would have to be narrowly tailored to achieve a compelling government interest.
Free speech is incredibly important. So when you have a constitutional imperative of that magnitude on one side of the equation, for the balancing test to come out in favor of the law you would need an equally important interest on the other side. In this case, we do have such an interest: national security. To bring it full circle, we also have 120-plus years of precedent explaining that national security is, in fact, a compelling governmental interest that can be triggered in this way (see Turner).
Nor is national security the only applicable concern. The statute also makes clear, for example, that any “alien whose presence or activities in the United States the Secretary of State has reasonable ground to believe would have potentially serious adverse foreign policy consequences for the United States is deportable.” The State Department has confirmed that both concerns are at play in the Khalil case.
Second, even if this were not true — i.e., even in a world where a green-card-holder had the same First Amendment rights as a citizen and a court determined there was not a national security concern — the statute would still be constitutional. The INA does not define the terms “endorse” or “support.” The second assumption this entire conversation rests on is that the INA must refer to the kind of endorsement or support that would be protected speech if done by a citizen. That is not, however, the only possible interpretation.
The doctrine of constitutional avoidance is a bedrock principle that states that “where a statute is susceptible of two constructions, by one of which grave and doubtful constitutional questions arise and by the other of which such questions are avoided, [the court] is to adopt the latter” out of respect for the legislature, which is assumed to legislate “in the light of constitutional limitations.”
In this case, it is possible to read the INA narrowly, as referring to the kind of endorsement or support that would not be protected speech even if done by a citizen — i.e., the provision of material support, including advocacy and even speech done in coordination with a foreign terrorist organization (see Holder v. Humanitarian Law Project). Under that reading, there is again no First Amendment concern because the First Amendment does not protect political speech or expressive conduct that materially supports foreign terrorist organizations. Several of the groups Khalil is affiliated with are accused of doing just that.
For all these reasons, Khalil’s arrest and the revocation of his green card are fully constitutional actions and well within the powers granted to the federal government.
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