Commentary: Mahmoud Khalil's pro-Palestinian comments are protected speech, not grounds for deportation

Erwin Chemerinsky, Los Angeles Times on Mar 13, 2025

Published in Op Eds

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I have been outspoken, including in the Los Angeles Times, about my concern about increasing antisemitism on college campuses. But the solution cannot be to deport those who express messages that President Donald Trump, or anyone else, dislikes. Arresting and seeking to deport a Columbia University student for his speech activities clearly violates the 1st Amendment — and does nothing to combat antisemitism on campus.

On Saturday night, Mahmoud Khalil, a Columbia University student and Syrian national, was arrested in New York by federal immigration authorities. He is lawfully in the United States, possessing a green card. The only known basis for his apprehension is his having been a leader of pro-Palestinian demonstrations at Columbia last spring and allegedly to have said objectionable things about Israel and Zionists.

Trump was explicit in his posts on Truth Social that the arrest and planned deportation were entirely about Khalil’s speech. Trump wrote: “We know there are more students at Columbia and other Universities across the Country who have engaged in pro-terrorist, anti-Semitic, anti-American activity.” He said, “We will find, apprehend, and deport these terrorist sympathizers from our country — never to return again.”

This follows an executive order that called for revoking student visas for individuals suspected of sympathizing with Hamas. The White House said: “To all the resident aliens who joined in the pro-jihadist protests, we put you on notice: come 2025, we will find you, and we will deport you.”

On Monday, Trump declared that the action against Khalil is the first “of many to come.” Secretary of State Marco Rubio posted on social media that the government “will be revoking the visas and/or green cards of Hamas supporters.”

Trump’s statements, his executive order and his actions against Khalil show a profound disregard of the 1st Amendment. All in the United States — citizen and noncitizen — have freedom of speech. No one can be punished under the law, including by deportation, for the ideas they express.

The Supreme Court long has stressed that the Constitution protects the ability to express views that many find deeply objectionable. It has declared, “If there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea offensive or disagreeable.”

Even if Khalil’s speech was hateful, and even if it was antisemitic, it was protected by the 1st Amendment. The Supreme Court repeatedly has made clear that hate speech is constitutionally protected and cannot be a basis for punishment by the government. In fact, even if Khalil voiced his support for Hamas, that, too, is an idea that can be expressed under the 1st Amendment. Speaking in favor of Hamas is not, by any stretch of the definition, material support for a terrorist organization.

Thus, even those who loathe what Khalil said should fervently defend his right to say it and oppose the Trump administration’s actions. Otherwise, the federal government would have the power to deem any view so objectionable that it could deport noncitizens expressing it. As I constantly explain to my students, the only way my speech will be safe tomorrow is to protect the speech that I detest today.

I recognize that criticisms of Israel, at times, have become antisemitic, using awful stereotypes about Jews. (It also must be stressed that criticism of Israel’s policies is no more antisemitic than it is anti-American to criticize the federal government’s policies.) When there is antisemitism on campus, schools have a duty to respond. But this must be achieved in a way that does not violate the 1st Amendment. Campus officials can condemn antisemitic expression. Schools can ensure that Jewish students are not harassed. There can be programs and trainings about antisemitism. But under the 1st Amendment, the solution must be more speech, not punishing expression.

The arrest and deportation of Khalil followed a day after the Trump administration cut off $400 million to Columbia University because of its alleged failure to deal with antisemitism. This, too, is deeply disturbing. A school legally cannot and should not be held responsible for the views expressed by its students. Indeed, to punish the university for the speech that occurred there is, once again, a violation of the 1st Amendment. Cutting off $400 million without a semblance of due process is a blatantly illegal attempt to intimidate universities across the country.

While the actions of the Trump administration will greatly chill speech, they will not address the problem of antisemitism on campuses. My hope is that Jews, whether liberal or conservative, will say loudly: Do not do this in our name or to protect us. We know all too well how government power can be used against a minority group.

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Erwin Chemerinsky, a contributing writer to Opinion, is dean of the UC Berkeley Law School. His latest book is “No Democracy Lasts Forever: How the Constitution Threatens the United States.”