Legal Experts Decry Narrative Shielding Pro-Hamas Activist Behind First Amendment Claims
Following the Immigration and Customs Enforcement (ICE) arrest of Mahmoud Khalil, a pro-Hamas activist who spearheaded protests at Columbia University, legal experts are vehemently opposing the narrative that his detention represents an infringement on the First Amendment. They assert that the case is fundamentally rooted in national security concerns and that existing immigration laws provide a legal basis for the Trump administration’s efforts to deport Khalil.
Ilya Shapiro, director of constitutional studies at the conservative Manhattan Institute think tank, articulated his stance in an essay for the City Journal, stating that the State Department’s revocation of a foreign student’s visa for engaging in pro-Hamas disruptions is "the right thing to do if we want to fix campus cultures." He further clarified that such actions do not pose any First Amendment issues.
"While the government can’t send foreigners to jail for saying things it doesn’t like, it can and should deny or pull visas for those who advocate for causes inimical to the United States," Shapiro wrote. "There’s nothing objectional or controversial about removing those who harass, intimidate, vandalize, and otherwise interfere with an educational institution’s core mission."
Khalil’s arrest occurred a day after Shapiro’s essay was published. The Department of Homeland Security (DHS) identified him as a former Columbia graduate student who "led activities aligned to Hamas, a designated terrorist organization."
Former President Donald Trump, who has consistently condemned the protests on college campuses, vowed that Khalil’s arrest was merely the first of many. He signed an executive order in January signaling the intention to deport pro-Hamas protesters in the U.S. on student visas.
"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," Trump stated in a fact sheet accompanying the executive order. "I will also quickly cancel the student visas of all Hamas sympathizers on college campuses, which have been infested with radicalism like never before."
News reports indicate that Khalil, born in Syria in 1995, has been residing in the U.S. on a green card. He is currently under investigation as a potential threat to U.S. national security, with authorities reportedly uncovering "antisemitic and hateful" posts on his social media accounts. The investigation involves DHS, the Department of Justice, and the Secretary of State.
The arrest has drawn sharp criticism from Democrats and left-leaning groups, who claim it violates the First Amendment’s guarantees of free speech and assembly. The Senate Judiciary Democrats’ X account even called for Khalil’s release, prompting a response from the White House quoting Trump’s promise of further arrests.
Julian Epstein, an attorney and former chief counsel to the Democratic House Judiciary Committee, offered a contrasting viewpoint. "The arrests and deportation of pro-Hamas organizers seems not only legal but long overdue," he told Fox News Digital. "The Immigration and Naturalization Act allows the denial or revocation of any visa holder who espouses or otherwise supports terrorist organizations."
Epstein also cited 18 USC 245, which criminalizes the intimidation, harassment, or impediment of Jewish students from freely moving about campus and attending classes. He characterized deportation as a "mild step" and suggested that the DOJ should consider criminal prosecutions of violent protesters. "The Columbia University protesters’ support for Hamas has been widely reported, as have their violent actions targeted at Jews," he said.
Shapiro echoed this sentiment, emphasizing that immigration law permits the revocation of visas or green cards for individuals who are deemed "inadmissible" under the Immigration and Naturalization Act (INA). "Indeed, it’s a basic application of U.S. immigration law," he asserted.
Addressing the First Amendment concerns, Shapiro clarified that possessing a green card only alters the procedural aspects of deportation, requiring a hearing before an immigration judge, but does not change the fundamental legal principles or the likely outcome.
U.S. officials have consistently emphasized that Khalil’s detention is a matter of national security, not free speech. Secretary of State Marco Rubio has determined that Khalil’s presence in the U.S. poses "serious adverse foreign policy consequences."
A senior State Department official cited Section 237 (a)(4)(C) of the Immigration and Nationality Act, which allows for the deportation of an alien whose presence or activities are believed to have potentially serious adverse foreign policy consequences for the United States. This section does not require the commission of a crime, granting broad authority to the Secretary of State to deem an alien deportable.
Brooke Goldstein, a human rights attorney and executive director of the Lawfare Project, accused Khalil of "warping the First Amendment" to justify his actions. "Mahmoud Khalil is facing deportation because of his conduct, including allegedly engaging in building takeovers — criminal activity that endangers public safety — and endorsing and espousing terrorist activity in contravention of the Immigration and Nationality Act," she stated.
Goldstein argued that being a "spokesperson" for terror does not shield Khalil from liability for his actions and the actions of his co-conspirators. She emphasized that the U.S. government has the right to revoke visas or green cards of individuals who endorse or promote terrorism and whose conduct deprives Americans of their civil rights. She also reminded that a green card is a privilege, not a right.
New York State Assemblyman Jake Blumencranz echoed this, emphasizing that Khalil was not arrested "for holding a sign or chanting in a quad," but "because he actively engaged in activities aligned with Hamas." He added, "Let’s dispense with the nonsense — this isn’t a debate over free speech; it’s a matter of national security, plain and simple. The First Amendment protects words, not actions taken in service of a terrorist cause."
Blumencranz criticized New York leadership’s response to the protests, arguing that they turned a blind eye to the concerns of Jewish students who reported feeling unsafe on campus. He accused the radical left of "hijacking the language of civil rights to shield those who openly support terror."
Following Khalil’s arrest, a Manhattan federal judge issued a ruling temporarily blocking his deportation, pending further court orders. A hearing on his case is scheduled for Wednesday. Khalil is currently being held at the LaSalle Detention facility in Louisiana.
Khalil’s attorney condemned the arrest, claiming that it was intended to "stifle entirely lawful dissent in violation of the First Amendment." She said, "He was chosen as an example to stifle entirely lawful dissent in violation of the First Amendment."
