Last week, an immigration judge ruled that the Trump administration met the legal requirements under the Immigration and Nationality Act (INA) to deport Mahmoud Khalil, who is a U.S. permanent resident and also a prominent pro-Palestinian political organizer.
As a quick refresher, the arrest of Khalil is part of a broader crackdown by the Trump administration on revoking the student visas of political activists who have taken part, or supported, the Pro-Palestinian/Anti-Israel movements that have taken hold of American college campuses since the Oct. 7 Hamas attack on Israel.
Under the INA, while foreign nationals cannot be excluded or deported for lawful speech or action, an exception exists if the secretary of state personally determines that an alien’s presence or activities would potentially have serious adverse consequences for U.S. foreign policy.
This exception is the justification for deportations used by Secretary of State Rubio as well as White House Deputy Chief of Staff Stephen Miller, who assert that foreign nationals who advocate for causes like “The total eradication of Western Civilization” pose a serious threat not only to America’s foreign policy, but also America’s social fabric.
The case has stirred intense debate over constitutionally protected free speech in the United States and the chilling effect targeting political organizers under immigration law could have on political dissent.
Khalil’s attorneys echoed these concerns, stating, “This case is intentionally projecting a message of repression about who can say what in this country and the consequences to your liberty and your life if you object to U.S. policy.”
Libertarians, who are notorious free speech absolutists, have also expressed concern that the secretary of state possesses “seemingly unlimited discretion to decide when people are subject to deportation because of their political views” under the INA.
Admittedly, one individual determining what qualifies as acceptable political speech appears incompatible with modern “democratic” norms, particularly when people perceive the First Amendment and the U.S. Constitution as applicable not only to American citizens but to the entire world.
But the question of whether one person, in this case, the secretary of state, should have the power to decide what ideas are acceptable and which are not tolerated, the reality is that someone always decides, as German political theorist Carl Schmitt argued, “Sovereign is he who decides on the exception.”
The secretary of state’s ability to invoke the INA’s exception clause is a modern enactment of Schmitt’s sovereign argument — a clear exercise of power that targets a particular type of political speech as unacceptable. In this case, the Trump administration is targeting not only groups that they deem to be antisemitic but also groups that align more broadly with anti-Western movements.
On this point, an analysis by the Capital Research Center found that many “pro-Palestinian” groups share ties with broader movements that oppose the United States and the West in general. These groups frequently advocate violence to achieve their goals, including the destruction of the U.S., which they label an imperialist “settler-colonial” state.
As such, White House Deputy Chief of Staff Stephen Miller is correct when he posted on X that “the Trump Administration rejects the cult of suicide by hostile migration.” In other words, the First Amendment is not a suicide pact between a nation and foreigners who wish it harm, regardless of their immigration status.
Karl Popper, the renowned liberal author of The Open Society and Its Enemies (1945), introduced a philosophical concept he called the “paradox of intolerance,” which deals with the limits of tolerance in a liberal society.
Even Popper, who was staunchly anti-authoritarian and skeptical of any ideology that suppressed dissent, understood that if a society were unlimitedly tolerant, the intolerant would eventually destroy it from within.
The paradox is that when a tolerant society permits all viewpoints — even intolerant ones — to be freely expressed and acted upon, it risks empowering those who reject tolerance to dismantle it. If intolerant groups gain enough influence, they can suppress the rights of others and destroy the very freedoms that enabled their rise.
The question then must be asked, “Who decides what ideas are ‘intolerant?’”
Circling back to Carl Schmitt, the answer is “whoever is in power.”
This may make free speech absolutists uncomfortable, but the debate over what constitutes acceptable or unacceptable speech has been in flux since the founding of the United States.
Thomas G. West, a politics professor at Hillsdale College, identified four main types of “harmful” speech as understood during the Founders’ era: personal libel, libel against the government, speech that harms public health or undermines the moral fabric of society, and speech connected to or encouraging other harmful actions.
Yes, even some of the Founders believed that criticism of the government was not protected under the First Amendment, as evidenced by the passing of the Alien and Sedition Acts (1798), which made it a crime for American citizens to “print, utter, or publish … any false, scandalous, and malicious writing” about the government.
Though the Alien Act and the Sedition Acts are no longer in effect, the Alien Enemies Act remains, which is what the Trump administration is using as justification for deporting Venezuelan Tren de Aragua Gang members based on national security grounds.
Of course, there are “classical liberals” on the right who worry about wielding power in pursuit of their desired political ends. Often, someone will state in an appeal to neutrality some form of, “But imagine if the roles were reversed?”
To this, it’s important to point out that while some progressives in America today raise concerns about Algerian citizen Mahmoud Khalil’s right to free speech under the First Amendment, Democrats like John Kerry warned that the First Amendment, as it applied to American citizens, posed a significant obstacle to eliminating what progressives deemed “disinformation.”
Democrats hoped that after defeating Trump in the 2024 election, they could push through the legal changes necessary to combat “disinformation” and “misinformation,” thereby shaping political discourse in their favor, just as governments across Europe have done with their attempts at eradicating “hate speech.”
Progressives have no issue wielding political power in pursuit of their goals, and do not view the First Amendment as sacrosanct, as anyone who has lived through the era of politically correct woke cancel culture can attest.
The illusion of absolute free speech has always depended on the quiet exercise of sovereign judgment. Dating back to our nation’s founding, there has always been a battle between those in power and those outside of power to control what forms of speech are “acceptable” and what forms are deemed “intolerant” or “hateful.”
In the case of Mahmoud Khalil and other student activists who face deportation, the question has little to do with “free speech” but whether America will decide to defend its society and culture from foreign ideological subversion.