Sorry Mahmoud Khalik, Aliens Do Not Have the Same First Amendment Rights as American Citizens

On Wednesday night, my colleague Andrew Arthur and Raul Reyes were interviewed by Laura Coates on CNN regarding the Trump administration’s efforts to deport Mahmoud Khalik. Khalik, according to the White House press secretary, “organized group protests [at Columbia University] that not only disrupted college campus classes and harassed Jewish-American students and made them feel unsafe on their own college campus, but also distributed pro-Hamas propaganda flyers”.

Reyes, who graduated from the Columbia Law School (yes, that Columbia University), is “a CNN opinion writer and immigration analyst”. He proclaimed during the interview that “when it comes to the First Amendment, they [aliens] have the same rights as the rest of us [U.S. citizens].” But that is most assuredly not the case.

It is certainly true that the Supreme Court ruled in 1969 in Brandenburg v. Ohio that it is a violation of the First Amendment for persons to be subject to criminal penalty for endorsing or espousing terrorist activity (except to the extent such speech is “directed to inciting or producing imminent lawless action” and “likely to incite or produce such action”). Brandenburg applies to citizens and aliens alike.

But, as Michael Kagan, professor of law at the William S. Boyd School of Law at the University of Nevada, Las Vegas, has explained:

[T]he Supreme Court through the years has sent ambivalent and conflicting signals about immigrant free speech rights. It has never quite said that immigrants do not all have freedom of speech. It has, however, never unequivocally said that they all do. Additionally, it has issued recent decisions that affirm government power to limit immigrant speech, either in the election campaign context or in terms of selective enforcement of immigration law.

And Jeanne Butterfield, former executive director of the American Immigration Lawyers Association, has written that the Supreme Court has sent the “simple, clear message[ that] immigrants have no First Amendment rights”.

Supreme Court Justice Brett Kavanaugh himself concluded in 2012 in his majority opinion in Bluman v. FEC (while serving as a judge on the D.C. Circuit) that:

We … know from Supreme Court case law that foreign citizens may be denied certain rights and privileges that U.S. citizens possess. … The Court has further indicated that aliens’ First Amendment rights might be less robust than those of citizens in certain discrete areas. See Harisiades v. Shaughnessy … (First Amendment does not protect aliens from deportation because of membership in the Communist Party).

Consider that while the Supreme Court has somewhat circumscribed Congress’s plenary power over immigration over the years, this has only been the case regarding procedural due process rights, not substantive rights such as freedom of speech. Consider that the Court has found campaign finance restrictions directed at aliens to be constitutional. Consider that the Court has made clear that deportation does not equate to punishment and has allowed the federal government to single out illegal aliens for deportation based on their support of terrorism.

I have concluded that it is very likely that the government can deport aliens for the very same speech for which they cannot be criminally convicted per Brandenburg. As U.S. Sen. Tom Cotton (R-Ark.) explained to President Biden’s Secretary of Homeland Security Alejandro Mayorkas, “While American citizens may have a First Amendment right to speak disgusting vitriol if they so choose, no foreign national has a right to advocate for terrorism in the United States.”

For those interested in more background on the constitutional issues, here is a piece I have written: “Deport Foreign Students Who Celebrate Mass Murder: Should We? Can We? Demands from members of Congress are well-founded in law”.