Mar 14 - Written By A More Perfect UnionDiving Deeper on Mahmoud Khalil and Free Speech
Context
At A More Perfect Union, we cherish the free exchange of ideas – particularly with people who may not agree with us, and especially when those debates are held respectfully and in good faith.
We were grateful to have received a wide range of responses to our recent piece on Mahmoud Khalil and free speech. Some of these were very supportive, others deeply critical, but nearly all represented the ideals of ideological pluralism and the principles of democracy that we have worked hard to cultivate in our network. Thank you to everyone who engaged with us in this way.
We wanted to honor the spirit of these ongoing conversations by sharing some of the deeper thinking underlying the positions we take in the piece. We acknowledge that this is not a simple topic; smart and good people can (and do) disagree about it. And even when we agree, the complexity and emotional weight can leave people feeling deeply unsettled and dissatisfied. With that in mind, here are some of the things we considered in formulating our thoughts.
Permanent residents & their rights
There is currently a vigorous debate between legal experts about whether lawful permanent residents are guaranteed the protections outlined in the Constitution. There are experts and deep thinkers articulating compelling cases on both sides of this issue, including conservatives arguing that Mr. Khalil is indeed protected by the First Amendment. We have considered – and continue to consider – all of these perspectives when evaluating this matter.
First, we looked to relevant legal precedent and the specific facts of this case to formulate our opinion. There is strong Supreme Court precedent establishing that lawful permanent residents indeed have Constitutional rights and protections. The following language is pulled directly from the cases without editorializing, though we added the emphasis:
In Kwong Hai Chew v. Colding (1953), the Court ruled that "It is well established that if an alien1 is a lawful permanent resident of the United States and remains physically present there, he is a person within the protection of the Fifth Amendment. He may not be deprived of his life, liberty or property without due process of law."
In Bridges v. Wixon (1945), a concurring opinion stated: "The Bill of Rights is a futile authority for the alien seeking admission for the first time to these shores. But once an alien lawfully enters and resides in this country he becomes invested with the rights guaranteed by the Constitution to all people within our borders. Such rights include those protected by the First and the Fifth Amendments and by the due process clause of the Fourteenth Amendment. None of these provisions acknowledges any distinction between citizens and resident aliens. They extend their inalienable privileges to all 'persons' and guard against any encroachment on those rights by federal or state authority."
In Johnson v. Eisentrager (1950), the Court stated: "The alien, to whom the United States has been traditionally hospitable, has been accorded a generous and ascending scale of rights as he increases his identity with our society. Mere lawful presence in the country creates an implied assurance of safe conduct and gives him certain rights; they become more extensive and secure when he makes preliminary declaration of intention to become a citizen, and they expand to those of full citizenship upon naturalization. During his probationary residence, this Court has steadily enlarged his right against Executive deportation except upon full and fair hearing."
That case also recognized that, "At least since 1886, we have extended to the person and property of resident aliens important constitutional guarantees—such as the due process of law of the Fourteenth Amendment."
Free speech & Mahmoud Khalil
There are also philosophical and practical considerations to weigh. For instance, free speech only works when it applies to everyone – limiting protected speech in one instance weakens protected speech in all instances. As a minority community, Jews should be particularly concerned about the limiting of civil liberties, since throughout American history, efforts to restrict rights have disproportionately affected minorities.
It is the interplay between the above implications and legal precedents that motivated our position about protecting speech as much as possible.
It is worth noting that the government is not making an argument that Mr. Khalil met the legal standard for true threats or incitement which would not be protected by the First Amendment, but rather that he is challenging government policy. Challenging government policy is, in almost all situations, protected by the First Amendment – including, as referenced in some of the cases above, for legal permanent residents.
Thus, our argument is that, while Mr. Khalil's speech may be deeply upsetting, false, and even hateful, the available evidence does not warrant government action on the basis upon which it is being justified. If further investigation reveals additional evidence that justifies government action, that action should be determined after the due process of a court case. Without this evidence and due process, the government should not be permitted to punish Mr. Khalil – or anyone else protected by the Constitution – for exercising the right to free speech.
Final thoughts
We appreciate that this is a complex and nuanced issue, and that the courts should have the ultimate decision after a full and fair hearing of the facts and a forthright application of the law. We intend to continue holding the government accountable to that standard, and will honor any decision that fully and fairly weighs Mr. Khalil's rights in its determination.
We welcome the opportunity to continue the conversation with you. We will continue to explore diverse viewpoints on this and other matters related to the challenges and issues facing American democracy today, and we encourage our partners and friends to do the same. This is exactly the kind of robust and thoughtful engagement our democracy needs to thrive.
Testing our hypothesis
By way of testing our thinking around this situation, we wondered how we would respond to the following scenario:
An Israeli legal permanent resident in the United States engages in campus activism calling for the expulsion of Palestinians from Gaza and the West Bank in terms that imply support for or toleration of violence. Referencing American diplomatic interests in the Middle East, the Secretary of State invokes their statutory power to deport non-citizens whose “presence or activities in the United States would have potentially serious adverse foreign policy consequences.” Never charged with a crime, the student is arrested and threatened with deportation without a trial.
We believe that we would feel the same under this scenario as we do in the case of Mr. Khalil. If Mr. Khalil’s situation proceeds on its current trajectory, the scenario above becomes far more likely to occur in the future. That is why we are speaking out now.