The Free Press
Imagine a German neo-Nazi who supported the Holocaust had received a visa and green card and then proceeded to lead pro-Nazi encampments and protests against blacks, gays, and Jews. If the government moved to revoke his status and deport him, would there be academic and left-wing protests against the alleged violation of his First Amendment rights?
To help us answer that question, let’s go back nearly half a century. In 1977, a group of neo-Nazis were denied the right to march through a neighborhood of Jewish Holocaust survivors in Skokie, Illinois. The American Civil Liberties Union—on whose national board I then served—made the courageous decision to defend their right to march on First Amendment grounds. This led to massive resignations from the organization and a significant cutback in contributions. I agreed with the decision then and continue to do so.
Now, nearly 50 years later, the ACLU has decided to defend the right of Mahmoud Khalil not to be deported for allegedly spreading leaflets in support of disruptive protests on the Columbia University campus. A senior ACLU attorney put it this way:“This seems like one of the biggest threats, if not the biggest threat, to First Amendment freedoms in 50 years. It’s a direct attempt to punish speech because of the viewpoint it espouses.“
I am aware of no resignations or protests against this ACLU decision. To the contrary, Khalil has become something of a hero. Thousands of people have signed a petition supporting his release, while demonstrations in support of him and his views have appeared at Harvard and on other campuses.
There are of course differences between the cases, but they cut against Khalil, who is not a citizen, whereas the nasty Nazis were. Khalil has a visa and green card, but they may have been obtained fraudulently. If Khalil had answered the visa application question on whether he intends to provide “support to terrorist organizations” in the affirmative, his applications would have been denied. If he answered it falsely, as he presumably did, he would have obtained his documents by fraud. In that case it should be revoked and he should be deported.
The Nazis were universally condemned by those who defended their free speech rights. But many of those who are defending Khalil’s free speech rights are also supporting the substance of what he has said and done. As one of the speakers at the Harvard rally acknowledged: “It is important that we understand that we are not simply here in defense of free speech or constitutional rights. Our fight cannot end nor begin at the restriction of free speech.” He insisted that protesters should recognize Khalil had been arrested specifically because of his support for pro-Palestinian causes. Some of Khalil’s supporters claim that his deportation is in retaliation for his opposition to Israel, describing him as a human rights activist. Never mind that the White House has accused of Khalil of distributing leaflets referring to Hamas’s October 7, 2023 attack on Israel by the group’s own name, “Operation Al-Aqsa Flood.” Others are remaining silent about the content of his despicable views, refusing to condemn them, as virtually everyone did with the Nazis’.
The question is: Why the difference?
To me, the Khalil case bears a striking resemblance to Skokie, because what Khalil has supported bears a striking resemblance to what the Nazis advocated. In fact, his First Amendment claims are weaker because he is not a citizen.
If the Trump administration was seeking to deport a green card-holding leader of the Ku Klux Klan who had led masked demonstrations that glorified the lynching of blacks, the raping of women, and the beheading of babies, I doubt that the current ACLU would be defending his free speech rights. But even if they did, I’m certain there would be mass resignations by members. There would be few if any petitions or demonstrations on behalf of the KKK green card holder, and no one except fellow racists would be making him a hero.
So why the difference? Khalil claims a First Amendment right to demonize Israel. Meanwhile, the Nazis claimed the right to march through Skokie, glorifying the Holocaust and demonizing its survivors. The difference is not in the First Amendment, under which the Nazi claims are stronger. It is in the way in which too many students, civil libertarians, and the media are treating Khalil now, as contrasted with the way the Nazis were treated back then.
The First Amendment is designed to protect the most despicable hate speech, so long as it does not constitute incitement to immediate violence. That is why both the Nazis and Khalil should be treated similarly by the courts of law, without regard to the content of their speech. But the court of public opinion should also treat them similarly, though in this case it has not. Both the KKK and Hamas advocate violence against vulnerable minorities. It is constitutionally justifiable to support such advocacy of violence through speech and demonstrations (though not through material support of designated terrorist groups, an issue not directly involved in these cases.) But it is not morally justifiable to defend the substance of what Khalil has supported, any more than it would be to defend the substance of the views of the despicable Nazis who marched in Skokie.
Even with regard to the free speech and academic freedom issue, Khalil’s case is weaker than the Nazis’. Khalil would retain his right to espouse antisemitic hate speech even if he were deported. He could do it by Zoom, and his Zoom casts would be heard by his bigoted supporters on Columbia and other campuses. Moreover, Khalil is far from being a poster child for freedom of speech or academic freedom. The protest movement he helped lead has denied these rights to others, by preventing Jewish students from going to classes, by disrupting classes, and by harassing those with opposing views.
So let civil libertarians treat Khalil the way we treated the Nazis in Skokie: Defend his First Amendment right not to be punished (in this case deported) if what he said and did is protected by the First Amendment and if he did not obtain his visa and green card by fraud. But do not defend him on the merits and demerits of what he said and did. Two things can be true at the same time, especially when it comes to freedom of speech: What a person said and did may be constitutionally defensible; at the same time, it may be morally condemnable. That may well be the case with Khalil.
Luigi Mangione is not the first alleged bourgeois terrorist to be feted as a rock star. More than 50 years ago, Ulrike Meinhof threw her life away for the thrill of political violence. This week on Breaking History, Eli Lake unpacks the Luigi Mangione moment and the unsettling phenomenon of turning killers into icons.
