Protecting free speech can be a very bitter pill to swallow. Sometimes even its most ardent defenders find it hard to embrace the admonition Justice Oliver Wendell Holmes Jr. issued in 1929: “If there is any principle of the Constitution that more imperatively calls for attachment than any other, it is the principle of free thought — not free thought for those who agree with us but freedom for the thought that we hate."
Today, millions of Americans hate Hamas. That hatred is fueling the cancellation of hundreds of student visas and the deportation of many pro-Palestinian advocates beginning with Mahmoud Kahlil, a Columbia University graduate and legal permanent resident. Citing Khalil, Secretary of State Marco Rubio vowed that the Trump administration “will be revoking the visas and/or green cards of Hamas supporters in America so they can be deported.” The Department of Homeland Security has accused Khalil of leading “activities aligned to Hamas, a designated terrorist organization.”
The White House claimed that “pro-Hamas propaganda” was distributed at the Columbia University protests organized by Khalil. “This administration is not going to tolerate individuals having the privilege of studying in our country and then siding with pro-terrorist organizations that have killed Americans,” White House press secretary Karoline Leavitt asserted.
In fact, Khalil and his lawyers deny that Khalil’s ardent pro-Palestinian advocacy is “pro-Hamas.” It is clear that the government is purposely describing Khalil as “pro-Hamas” and a “terrorist” to up the ante. But then the more difficult questions are before us: What if someone really does make statements in support of Hamas? What if the statements do not make actual threats or seek to incite violence but are simply statements of support? If the First Amendment is to mean anything, it means that pro-Hamas speech — speech we may hate — is protected by the First Amendment.
Can immigrants express their beliefs without fear of deportation?
The Immigration and Nationality Act of 1952 allows the secretary of state to deport noncitizens if the secretary determines their presence in the United States "would have serious adverse foreign policy consequences." When immigration judge Jamee E. Comans, who is presiding over Khalil’s case in Louisiana, asked the administration to present evidence supporting Kahlil’s deportation, Rubio responded with a one and a half page letter. It contained no allegations of criminal activity. Instead, Rubio claimed Khalil would compromise U.S. foreign policy interests based solely on his “beliefs, statements or associations” and specifically his participation in "antisemitic protests and disruptive activities, which fosters a hostile environment for Jewish students in the United States." The actions and continued presence of Khalil in the U.S. “undermine U.S. policy to combat anti-Semitism around the world and in the United States, in addition to efforts to protect Jewish students from harassment and violence in the United States,” the memo continued.
In response, Khalil's lawyer, Baher Azmy, said "What this case is really about is whether lawful permanent residents — and other immigrants to this country — can speak out about Israel’s brutal attacks on Gaza and Palestine, or any other important matters of discussion in the national discourse, without fear of deportation for expressing beliefs that the First Amendment completely protects." "Are U.S. citizens going to be next?” he asked.
Case of Mahmoud Khalil spotlights free speech issue
On April 11, 2025, Judge Comans issued a narrow ruling that did not reach Khalil’s First Amendment arguments. The judge found that the government had met its burden to establish “removability” but she specifically noted that she was “without jurisdiction to entertain challenges to the validity of this law under the Constitution.”
The New York Times reported that the “ruling is far from the final word on whether Mr. Khalil” will be deported, indicating that his lawyers “will continue their fight in Louisiana and New Jersey, arguing that he has been targeted for constitutionally protected speech.” The Times explained that immigration judges “are employees of the executive branch, not the judiciary, and often approve the Homeland Security Department’s deportation efforts. It would be unusual for such a judge, serving the U.S. Attorney General, to grapple with the constitutional questions raised by Mr. Khalil’s case. She would also run the risk of being fired by an administration that has targeted dissenters.”
Khalil’s lawyers pointed out that their client has said, in remarks on CNN, that “antisemitism and any form of racism has no place on campus and in this movement,” and that Jewish demonstrators were “an integral part of this movement.”
After Judge Comans delivered her ruling, Khalil, who had been silent throughout the hearing, spoke directly to her. “I would like to quote what you said last time, that there’s nothing that’s more important to this court than due process rights and fundamental fairness,” he said. “Clearly, what we witnessed today, neither of these principles were present today or in this whole process. This is exactly why the Trump administration has sent me to this court, 1,000 miles away from my family.”
Other students being targeted for ‘beliefs, statements or associations’
Khalil is only one of an increasing number of students targeted by the Trump administration based on their “beliefs, statements or associations.” Badar Khan Suri, an Indian citizen studying as a postdoctoral fellow at the Alwaleed Bin Talal Center for Muslim-Christian Understanding at Georgetown University, was arrested by Homeland Security agents outside his home in Virginia and sent to the same detention facility in Louisiana where Khalil is being held.
According to Homeland Security Assistant Secretary Tricia McLaughlin in a post on X, "Suri was a foreign exchange student at Georgetown University actively spreading Hamas propaganda and promoting antisemitism on social media." She added, "Suri has close connections to a known or suspected terrorist, who is a senior advisor to Hamas. The Secretary of State issued a determination on March 15, 2025, that Suri's activities and presence in the United States rendered him deportable."
The Trump administration has not disclosed the evidence it is using to justify deporting Suri or the nature of his alleged connection to “a senior Hamas advisor.” The Washington Post reported that the "advisor to Hamas" is likely a reference to Suri's wife, "a U.S. citizen who once worked with the Gaza foreign ministry and whose father, Ahmed Yousef, is a former political advisor to the now-deceased Hamas leader Ismail Haniyeh." In a statement to CBS News, a Georgetown spokesperson said that the school "[has] not received a reason for his detention," adding that, "We support our community members' rights to free and open inquiry, deliberation and debate, even if the underlying ideas may be difficult, controversial or objectionable. We expect the legal system to adjudicate this case fairly."
"The Trump Administration has openly expressed its intention to weaponize immigration law to punish noncitizens whose views are deemed critical of U.S. policy as it relates to Israel," according to Suri's lawyer, who added that the deportation is "plainly intended as retaliation and punishment for Mr. Suri's protected speech."
A federal judge ruled that Suri could not be deported without due process, ordering that he "shall not be removed from the United States unless and until the Court issues a contrary order."
Federal judge: Pro-Hamas speech is protected by First Amendment
So is pro-Hamas speech protected by the First Amendment? At least one federal judge has recently ruled that it is.
Almog Meir Jan is an Israeli citizen who was kidnapped on Oct. 7, 2023, and held hostage by Hamas operative Abdallah Aljamal before being rescued by the Israel Defense Forces. On July 9, 2024, Jan sued People Media Project and two of its officers, alleging they employed and compensated Aljamal as a journalist and provided him a U.S.-based platform to publish articles supporting Hamas, thereby aiding and abetting Jan’s kidnapping and imprisonment, as well as aided and abetted terrorism in violation of the Alien Tort Statute.
Specifically, Jan's complaint alleged the following:
- "[O]n October 23, 2023, Defendants published a propaganda piece by Hamas Operative Aljamal calling October 7 a 'daring attack' and accusing Israel of starting a 'war on the Gaza population' in order 'to forcefully displace Palestinians from their homeland.'"
- "Other pieces highlighted Palestinians killed or injured in Israel's targeted responses to Hamas's attack…."
- "[W]hen Hamas falsely claimed that it captured Israeli soldiers in Jabaliya, Hamas Operative Aljamal wrote an article repeating that false claim on Defendants' platform."
- "Aljamal even eulogized known Hamas terrorists….Aljamal accused Israel of assassinating Iyad Maghari, the mayor of Nuseirat….Aljamal's propaganda piece painted Maghari as a hero and martyr…Aljamal failed to mention that, according to the IDF, Maghari was a terrorist 'with an extensive history in Hamas.'"
- "Aljamal was instrumental in spreading misinformation about an Israeli airstrike that targeted a school run by the United Nations Relief and Works Agency…Aljamal called the attack a 'gruesome massacre' and accused Israel of 'targeting displaced civilians.'"
People Media Project and the other defendants moved to dismiss the lawsuit on the grounds that simply publishing pro-Hamas propaganda was protected by the First Amendment.
On Jan. 31, 2025, in a 24-page decision, U.S. District Judge Tiffany M. Cartwright, granted the motion. She held that the “Free Speech Clause of the First Amendment — 'Congress shall make no law … abridging the freedom of speech’ — can serve as a defense in … tort suits,” citing the case of Snyder v. Phelps (2011). In that decision, the Supreme Court, in an 8-1 ruling, upheld the free speech rights of seven members of the Westboro Baptist Church to picket the funeral of U.S. Marine Matthew Snyder, who was killed during the Iraq War, on public land about 1,000 feet from where the funeral was taking place, carrying placards that read "Thank God for Dead Soldiers," "God Hates Fags,” and "You're Going to Hell," among others.
Speech of public concern, political advocacy protected
Judge Cartwright explained that the determination of whether the First Amendment prohibits holding defendants liable for their written articles turns largely on whether their speech is of public concern and is limited to theoretical political advocacy, or whether instead it is speech meant to incite or produce unlawful activity, citing Brandenburg v. Ohio (1969). In that decision, Clarence Brandenburg, a Ku Klux Klan leader in rural Ohio, speaking to several men wearing robes and hoods, some carrying firearms and flaming crosses, called for "revengeance" [sic] against "black peoples,” "Jews,” and those who supported them. He claimed that "our President, our Congress, our Supreme Court, continues to suppress the white, Caucasian race,” and he announced plans for a march on Congress on the Fourth of July. He also advocated the forced expulsion of African Americans to Africa and Jewish Americans to Israel.
Dismissing Brandenburg’s criminal conviction, the Supreme Court unanimously held that the government cannot punish inflammatory speech unless that speech is "directed to inciting or producing imminent lawless action and is likely to incite or produce such action.” The Court explained that "the mere abstract teaching of the moral propriety or even moral necessity for a resort to force and violence, is not the same as preparing a group for violent action and steeling it to such action." The Court pointed out that the Constitution distinguishes between supporting the political goals of an organization — even a violent one — and either inciting imminent unlawful conduct or using speech for the "management of actual crimes.”
Oct. 7 Hamas attacks, Israel response is of political concern
In rejecting Jan’s lawsuit, Judge Cartwright noted that “[t]he terrorist attacks on October 7, and Israel's military response, are subjects of extensive news interest and political concern to the global community… Many of the positions taken by the (Palestine) Chronicle, such as highlighting the deaths of Palestinian civilians and criticizing Israeli airstrikes, have been echoed by countless news organizations, protesters, and political leaders around the world.”
Judge Cartwright then ruled that these articles:
do not cross the line from protected speech to inciting or preparing for unlawful activity. Nothing in the complaint alleges that Defendants advocated for, incited, or planned specific human rights violations. Even taken as true, Jan's allegations that the articles unfairly characterize or falsely report Israel's military actions do not change the protected nature of political speech. The Supreme Court has long recognized that ‘erroneous statement is inevitable in free debate, and that it must be protected if the freedoms of expression are to have the breathing space they need to survive.’
Judge Cartwright also pointed out that “even if Aljamal's description of October 7 as a ‘daring attack’ and his eulogy for the mayor of Nuseirat are read as praise for Hamas and its acts of terrorism, Brandenburg holds that this is not enough to defeat the protection of the First Amendment.”
Like the ugly celebration of the deaths of American soldiers on the picket signs displayed by the Westboro Baptist Church in Snyder, “even articles sympathizing with Hamas remain protected when they speak on matters of public concern.” Because defendants' articles are shielded from tort liability by the First Amendment, the court concluded that Jan's claims that those articles aided and abetted Hamas must be dismissed.
We’ve been here before
During dark periods in American history, repressive and xenophobic administrations frequently target foreigners and alien ideologies.
The Alien Enemies Act of 1798, which Donald Trump has resurrected to justify rendering hundreds of Venezuelan immigrants to a notorious prison in El Salvador, was enacted amidst rising fear of the French.
The Espionage Act of 1917 was used to punish and deport Russian anarchists, such as Emma Goldman.
Amid wartime hysteria, over 120,000 innocent Japanese-Americans, two-thirds of whom were American citizens, were sent to internment camps.
In the wake of 9/11, George W. Bush rounded up innocent Muslims in the United States and sent almost 800 Muslims from the Middle East and Pakistan to the notorious detention center at Guantanamo. Trump began his first term by imposing a Muslim Ban.
Targeting pro-Palestinian students is echo of McCarthyism
Of all of our dark periods, the McCarthy era is particularly relevant to Trump’s targeting of pro-Palestinian students. After World War II, fear of Communism swept through the United States, exemplified by Sen. Joe McCarthy’s infamous witch hunt. Fortunately the Supreme Court eventually protected the constitutional rights of Communists, though it took a decade and several decisions.
In Yates v. United States (1957), the Court limited the Smith Act of 1940 (which, among other things, had criminalized advocating for the violent overthrow of the U.S. government and organizing or belonging to groups that did so) so that it remained criminal to actually incite the forcible overthrow of government but not to teach the abstract doctrine of such forcible overthrow. As the Court explained, the “essential distinction is that those to whom the advocacy is addressed must be urged to do something, now or in the future, rather than merely to believe in something.”
In Scales v. United States (1961), the Court narrowed the membership clause of the Smith Act to require active membership in the Communist Party and specific intent to forcibly overthrow the government, noting that a “blanket prohibition of association with a group having both legal and illegal aims” would pose “a real danger that legitimate political expression or association would be impaired.” In Albertson v. Subversive Activities Control Board (1965), the Court held that requiring an individual to register as a member of a “Communist-action organization” amounted to self-incrimination in violation of the Fifth Amendment.
And in United States v. Robel (1967), the Court held as unconstitutional the provision of the law prohibiting employment in any defense facility by a member of a Communist organization. The justices found that it abridged the First Amendment’s right of association, noting that the law “sweeps indiscriminately across all types of association with Communist-action groups, without regard to the quality and degree of membership.”
Punishing Communist sympathizers
The Immigration and Nationality Act of 1952, which Rubio is now using to deport “Hamas supporters,” was also used back then to punish “Communist sympathizers.”
In 1990, this law was amended to create a “safe harbor” that explicitly prevents removal “because of the alien’s past, current, or expected beliefs, statements, or associations, if such beliefs, statements, or associations would be lawful within the United States,” unless the government can show that the individual’s continued presence would “compromise a compelling United States foreign policy interest.” According to an amicus brief filed in the Khalil case by more than 150 immigration law scholars, Rubio’s “unprecedented” use of the law fails to demonstrate that a college student’s peaceful protest on a university campus alone is sufficiently “compelling” to strip them of their permanent residency and remove them from a country that prides itself on protecting speech with which the government disagrees.
Federal judge found 1952 immigration law violated First Amendment
It is noteworthy that in 1996 a federal judge found the 1952 law relied on by Rubio to be unconstitutional. She was U.S. District Judge Maryanne Trump Barry, Donald Trump’s sister, whom he once called “a great Judge, and a great sister.” She was appointed to the federal district court in New Jersey by President Ronald Reagan. In her ruling, Judge Barry asked whether the 1952 statute could be squared with the Constitution. “The answer,” she wrote, “is a ringing ‘no.’”
The case involved Mario Ruiz Massieu, a former Mexican official whom the Clinton administration sought to deport to Mexico. The secretary of state at the time, Warren M. Christopher, told Ruiz Massieu what Rubio told Khalil: “Your presence or activities in the United States would have potentially serious adverse foreign policy consequences for the United States.”
The law, Judge Barry wrote, “confers upon a single individual, the secretary of state, the unfettered and unreviewable discretion to deport any alien lawfully within the United States” if “that person’s mere presence here would impact in some unexplained way on the foreign policy interests of the United States.”
That violated the Constitution in at least two ways, Judge Barry held. First, it was too vague to give notice to the people subject to it of what conduct it prohibited. She explained that under the law “all legal aliens, whether here for a day or 50 years and visiting or resident in this country, must live in fear of the secretary of state informing them, at any time, that our foreign policy requires their deportation to a particular country for reasons unknown to them and beyond their control.”
Second, according to Judge Barry, the law was an unconstitutional delegation of legislative power to the secretary of state, granting him complete discretion in violation of the “nondelegation doctrine,” which forbids Congress from giving too much leeway to executive branch officials with insufficient guidance.
Judge Barry’s ruling was reversed on a procedural issue by the U.S. Court of Appeals for the Third Circuit, in Philadelphia — a court to which she would be appointed in 1999 by President Bill Clinton. The author of the appeals court’s opinion was Judge Samuel A. Alito Jr., who would join the Supreme Court in 2006. Judge Alito did not address Judge Barry’s constitutional rulings, saying instead that Ruiz Massieu had pursued his claims in the wrong forum. “We do not reach the merits of the constitutional questions decided by the district court,” he wrote. Although not a binding precedent, Judge Barry’s sound reasoning and convincing analysis should be taken very seriously by every court that addresses this important question.
Law has moved to even greater protection of speech
Since Judge Barry’s decision, First Amendment law has moved steadily in the direction of greater and greater protection for free speech — even speech we hate — and away from allowing the government to employ vague accusations (activities “aligned” to Hamas or distributing “pro-Hamas propaganda”) and guilt by association (“close connections to a known or suspected terrorist”) to punish constitutionally protected political speech and dissent. Judge Cartwright’s lucid and compelling recent decision now further reinforces the importance of protecting such speech.
It’s high time that draconian laws written in the fever of fear in 1798 and the frenzy of paranoia in 1952 be subjected to the rigors of modern First Amendment analysis to ensure that in our wrongheaded urge to purge our country of foreign students whom the government dislikes and alien ideas to which it objects, we don’t sacrifice cherished constitutional rights.
Stephen Rohde is a retired constitutional lawyer, lecturer and writer.