Speech Or Silence: Free Speech Is Also A Question Of Law
Do Not Debate The Morals. Debate The Law.
Are there limits to Free Speech?
A textualist, originalist approach to the First Amendment would, to my way of thinking at least, argue that there are not.
My own stance on Free Speech is rhetorically simple: I believe Free Speech to be a Moral Imperative. I believe Free Speech is the foundation of a Free Society, and that without Free Speech we are lost as a society.
That said, why do I not join the prevailing trend among self-anointed libertarians and decry the deportations of Mahmoud Khalil and Rumesya Ozturk as violations of their rights of Free Speech? Why am I not up in arms at this naked attempt by the Trump Administration to silence legitimate political discourse?
My answer to such questions is also rhetorically simple: because this is not an issue of Free Speech—nor, if we are to properly defend and preserve Free Speech, can we allow these deportation actions to be seen through the lens of Free Speech.
We must understand this, because Free Speech is not merely a moral imperative, it is an essential part of the fabric of the Constitution of the United States.
The preservation of the right of Free Speech is not merely a philosophical talking point in the United States. The preservation of the right of Free Speech is the law. The preservation of the right of Free Speech is the Supreme Law.
So says the First Amendment.
Because Free Speech is a matter of law, when defending Free Speech we must necessarily debate the law. That Free Speech is a Moral Imperative is the rationale for the law, but the defense of Free Speech necessarily will be found in the law, not the Moral Imperative.
The First Amendment
Respect for first principles obligates us to begin with the text of the First Amendment itself. In all debates over Free Speech, the First Amendment is necessarily our lodestone, our needle pointing to Constitutional North.
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
The language certainly seems simple enough: Congress shall make no law that abridges a person’s freedom of speech. Certainly the definition of the term “abridge” is simple and straightforward, even using a dictionary of the time.
1. To make shorter; to epitomize; to contract by using fewer words, yet retaining the sense in substance - used of writings.
2. To lessen; to diminish; as to abridge labor; to abridge power of rights.
3. To deprive; to cut off from; followed by of; as to abridge one of his rights, or enjoyments. to abridge from, is now obsolete or improper.
4. In algebra, to reduce a compound quantity or equation to its more simple expression. The equation thus abridged is called a formula.
Accordingly, we may restate the First Amendment in modern terms simply by saying that Congress may not pass any law that shortens or diminishes a person’s freedom of speech, or deprives them of that freedom completely.
The prohibition, moreover, is absolute. There is no law which abridges a person’s freedom of speech that Congress may lawfully pass. There is simply no option, no condition, no exception by which that can ever be understood to happen.
We must understand that this is the position of the law, because we must also understand that when we look to the courts to adjudicate our disputes, we necessarily ask them to state with finality the particulars of the law. We do well to remember this is the duty of every jurist, as Chief Justice John Marshall stated so eloquently:
It is emphatically the province and duty of the Judicial Department to say what the law is.
As this is our bedrock understanding of the law, we may also be certain, as Marshall was certain, that it was logically, conceptually, and Constitutionally impossible for the Congress to pass a law which violated the particulars of the Constitution, including its Amendments.
Certainly all those who have framed written constitutions contemplate them as forming the fundamental and paramount law of the nation, and consequently, the theory of every such government must be, that an act of the legislature, repugnant to the constitution, is void.
The Constitutional standard is therefore clear: any act of Congress which stands in contradiction to the Constitution—which is therefore repugnant to the Constitution—is from the outset null and void. There is not one single moment when such an act ever enjoys actual force of law, and there is not one single moment when such an act need ever be apprehended by any person as actual law.
An act of Congress which goes contrary to the Constitution is automatically null and void, whether or not the Supreme Court has ruled as such.
Moreover, as the Fourteenth Amendment guarantees to all persons the equal protection of the laws, the prohibition which is explicitly applied to the Congress is necessarily applied to all state law.
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
Thus we may be certain that no valid law which has been enacted by any legislature anywhere in the United States violates the tenets of the First Amendment. Any act of the legislature which did would not be valid law and would, legally speaking, never take effect.
Thus we may state as a logical principle that there is no law in the United States which actually abridges a person’s right of Free Speech. Constitutionally, they cannot exist.
Yes, this means that there are likely a myriad of laws on the books at both the federal and state level which arguably should not be counted as law, and should be considered vacated at once. For reasons of brevity that are intuitively obvious, I shall not be discussing those laws here.
What Of The Law?
As we must debate the law when we are defending Free Speech, we must necessarily apprehend which laws are in play.
In the cases of Mahmoud Khalil and Rumesya Ozturk, the applicable laws are those laws which govern visas and deportations—i.e., Title 8, Chapter 12, Subchapter II, Part II and Part III of the US Code1.
The basic requirement of the law is that every immigrant except for refugees must have a properly issued visa in order to be admitted into the United States2. Refugee status is the only exception in the law, and even that exception is qualified under law3.
Nor is there any doubt but that this requirement is entirely Constitutional. Article 1 Section 8 of the Constitution explicitly authorizes and obligates the Congress to regulate both Commerce with foreign nations and a uniform law of naturalization. Every aspect of the act of entry into the United States, from the commercial act of travel to the legal act of seeking citizenship, falls entirely within the scope of Congress’ authority to legislate.
Further, we can clearly see that no concern regarding Free Speech arises merely from that regulation. Congress has the Constitutional power to decide who may enter this country and under what circumstances. This is black letter law and not subject to dispute at any level.
Drilling further into the law, we encounter the next section in the statutes, §1182, which details various criteria for denying a visa to a prospective immigrant alien4. For the purposes of the cases in question here, we need only look at one key part of that statute: prohibitions surrounding terrorism, involvement with terrorist groups, and support for terrorist groups, terrorism in general, or any terrorist acts or activities. The specifics are laid out in subsection §1182(a)(3)(B)(i). In summary, if one has any involvement in terrorist activity or any engagement with a terrorist group, the State Department can (and probably will) deny a visa application.
With respect to Mahmoud Khalil and Rumesya Ozturk, it is important to understand that one need not be specifically identified as a terrorist for the particulars of this statute to be applied. §1182(a)(3)(B)(i)(VII) encompasses any support for terrorism, defined as follows:
endorses or espouses terrorist activity or persuades others to endorse or espouse terrorist activity or support a terrorist organization;
§1182(a)(3)(B)(iii) goes on to define “terrorist activity” in detail. Suffice it to say, the activities of Hamas, particularly those which occurred on October 7, 2023 and since, very much fall within the scope of the applied definition: there was murderous violence, there was the taking of hostages, and it was clearly not for mere personal monetary gain.
Here we potentially encounter an issue of Free Speech. Is this statute saying that a person is prohibited from ever expressing support for activities legally declared to be terrorist activity, or for groups legally declared to be terrorist organizations?
If we accept the arguments of the self-anointed libertarians who make the Khalil and Ozturk cases into Free Speech issues, we must conclude that the statute does exactly that, and, arguably, would be therefore void as an impermissible violation of the right of Free Speech. In order for the visa revocations involving Mahmoud Khalil and Rumesya Ozturk to be issues of Free Speech, §1182(a)(3)(B)(i)(VII) at the very least needs to be understood to be void and not US law.
Ironically—and lethally, for their arguments—those who argue on behalf of Khalil in particular do their level best not to argue a nullification of this part of the statute. In its amicus brief filed with the courts on behalf of Mahmoud Khalil5, the Rutherford Institute glosses over this aspect of the law completely, and by so doing fundamentally concedes the point.
That is a problem for their argument, because by their silence they implicitly accept this portion of the statute under the legal principle of qui tacet consentire videtur (“He who is silent appears to consent”). As the late Justice Antonin Scalia pointed out in his concurrence in United States v Irvine6, such implicit acceptance has legal substance and legal ramifications.
In the case of Mahmoud Khalil’s deportation, the ramification is that if §1182(a)(3)(B)(i)(VII) is not unconstitutional, then no abridgement of Khalil’s freedom of speech can have occurred. Remember, the First Amendment is categorical and absolute, and precludes the Congress from every making a law which abridges the freedom of speech.
I will interject here that I do not see such a criterion for receiving or holding an immigrant visa to be an abridgement of the freedom of speech. The operation of §1182 is not to regulate what people may lawfully say but to regulate whom shall be deemed eligible for an immigrant visa—which regulation Congress has been given explicit and direct authority to make. Were the Rutherford brief to make an argument of unconstitutionality on such grounds I would have to say that argument was simply in error.
These points take on particular relevance because once a visa is issued, whether that visa is or is not revoked is entirely at the discretion of the Secretary of State—a point I have explored at length previously in discussing Rumesya Ozturk’s deportation:
Ms. Ozturk’s detention is due to her visa having been cancelled and deportation proceedings commenced. The State Department is within its rights to revoke her visa, at which point deportation is the default outcome. That’s the letter of the law3.
After the issuance of a visa or other documentation to any alien, the consular officer or the Secretary of State may at any time, in his discretion, revoke such visa or other documentation. Notice of such revocation shall be communicated to the Attorney General, and such revocation shall invalidate the visa or other documentation from the date of issuance: Provided, That carriers or transportation companies, and masters, commanding officers, agents, owners, charterers, or consignees, shall not be penalized under section 1323(b) of this title for action taken in reliance on such visas or other documentation, unless they received due notice of such revocation prior to the alien’s embarkation. There shall be no means of judicial review (including review pursuant to section 2241 of title 28 or any other habeas corpus provision, and sections 1361 and 1651 of such title) of a revocation under this subsection, except in the context of a removal proceeding if such revocation provides the sole ground for removal under section 1227(a)(1)(B) of this title.
Does the revocation of the visa violate Ms Ozturk’s First Amendment rights? No. Her utterances are not being criminalized—we know this because no charges have been filed. However, her utterances in support of the terrorist activity of Hamas and in particular the genocidal attack on October 7, 2023, places her very much in the category of a resident alien with a conflict against the United States.
Such is the letter of the law. These are the statutes as they exist, and with the ramifications being what they are, including that Mahmoud Khalil and Rumesya Ozturk are to be deported. The Rutherford brief—and the broader arguments made in presumed “defense” of the First Amendment—do not challenge the constitutionality of these statutes as they exist.
How Should We Apply The Law?
From the Free Speech perspective, our choices are simple: either §1182(a)(3)(B)(i)(VII) is an unconstitutional abridgement of speech or it is not. If it is, then it is automatically void and cannot be used in any capacity. If it is not, then its application cannot possibly be a Free Speech issue. There is not a third option rationally available.
Following the logic of the Rutherford amicus filing, the self-anointed defenders of Free Speech do not challenge the Constitutionality of the particulars of §1182(a)(3)(B)(i)(VII). They concede the core of a substantive “Free Speech” challenge to Mahmoud Khalil’s deportation.
Instead, the Rutherford brief attempts to construct a Free Speech issue by characterizing the visa revocation and deportation as a “punishment”:
Our “liberty-loving society” does not permit deportation as a punishment solely based on expression the government disfavors
The Rutherford filing then attempts to litigate whether or not Mahmoud Khalil’s commentaries and actions warrant visa revocation as activities hostile to the foreign policy of the United States under §1182(a)(C):
An alien whose entry or proposed activities in the United States the Secretary of State has reasonable ground to believe would have potentially serious adverse foreign policy consequences for the United States is inadmissible.
The filing goes on to argue that the Secretary of State does not have the power to revoke a visa on the basis of a person’s advocacy. There are two problems with this argument. The first is that the filing has already conceded the Constitutionality of §1182(a)(3)(B)(i)(VII), and thus has already conceded the legitimacy of using advocacy as a basis for visa or permanent residency status revocation. Related to that is the second defect, which is that the text of §1201 clearly states that visa revocation is at the Secretary’s discretion.
Obviously, the Secretary’s discretion does not extend to include unconstitutional abridgements of the freedom of speech. However, as the Rutherford filing already concedes that §1182(a)(3)(B)(i)(VII) is not an unconstitutional abridgement of the freedom of speech, it is contradictory to then argue that the Secretary cannot have discretion to use that statutory language as a criterion for visa revocation.
The Rutherford amicus brief, despite its protestations to the contrary, cannot be posited as a defense of Free Speech because it seeks to litigate its position on the content of Khalil’s speech. Straight away, that moves outside the boundaries of the First Amendment, because if we are litigating the content of Khalil’s speech we cannot be arguing that his capacity to engage in that speech has been in any way abridged. His utterances are a matter of record—clearly, they were not abridged. Indeed, in Holder the Court made that very observation, rejecting plaintiff’s First Amendment claims.
The Rutherford filing also ignores a statutory disqualification for naturalization in §1424(a)(5)7 for those who advocate violent overthrow of government—which again amounts to a tacit acceptance that such disqualification is not an abridgement of the freedom of speech. Specifically, naturalization is denied to all persons who
who writes or publishes or causes to be written or published, or who knowingly circulates, distributes, prints, or displays, or knowingly causes to be circulated, distributed, printed, published, or displayed, or who knowingly has in his possession for the purpose of circulation, publication, distribution, or display, any written or printed matter, advocating or teaching opposition to all organized government, or advocating (A) the overthrow by force, violence or other unconstitutional means of the Government of the United States or of all forms of law; or (B) the duty, necessity, or propriety of the unlawful assaulting or killing of any officer or officers (either of specific individuals or of officers generally) of the Government of the United States or of any other organized government, because of his or their official character; or (C) the unlawful damage, injury, or destruction of property; or (D) sabotage; or (E) the economic, international, and governmental doctrines of world communism or the establishment in the United States of a totalitarian dictatorship
As I have detailed previously, the public statements of Columbia University Apartheid Divest (CUAD) are an unambiguous celebration of and support for Hamas, which equally unambiguously desires the violent assaulting and killing of members of the Israeli government, which is just as unambiguously an organized government. The position of CUAD, and Mahmoud’s clear and close involvement with CUAD, are on their face compelling arguments disqualifying Khalil for naturalization—and thus for revocation of permanent resident status.
Ah, but what of the consequence of being deported? Is that not a “chilling” effect on speech? Might that not have the effect of dissuading speech and thus is an abridgement of speech?
Here we run into the problem of construction. Khalil is not being charged with any crime. Rather, his visa is being cancelled and he is being deported. As a basic matter of statutory construction, an administrative proceeding is not comparable and should not be conflated with punishment or any form of criminal sanction.
While the Rutherford brief is substantively correct that a “liberty loving society” does not “punish” on the basis of political advocacy, the Rutherford brief is substantively incorrect to assert that the administrative proceeding of a visa and permanent resident status revocation is a punishment. This error of construction is made even more glaring by the brief’s tacit acceptance of the Constitutionality of statutory provisions which make specific forms of advocacy disqualifications for receiving a visa, holding a visa, or being naturalized as a US citizen.
The Rutherford brief attempts to argue that the position of the Supreme Court in Holder v Humanitarian Law Project8 precludes taking any action against Khalil. However, in Holder the finding of the Court was that mere expression of support for a terrorist organization is not “material support”. Unfortunately for Mahmoud Khalil, the standard of §1182 is not “material support”—which is itself a crime9—but merely “support”. As a visa revocation is not a criminal proceeding, but an administrative one, and as Holder spoke specifically to the pretexts for criminal prosecution, that standard has no bearing on the administrative proceeding revoking Mahmoud Khalil’s visa and permanent resident status.
Further, we must also understand that such administrative proceedings are, in large measure, not “justiciable”, for the simple reason that the courts have long held that they have limited authority over purely executive functions. Such has been the stance of the Court since Mississippi v Johnson10 in 1866. Much as is the case regarding adjudications of the Alien Enemies Act, the courts, by longstanding precedent, have limited jurisdiction regarding visa cancellations.
As Chief Justice Salmon P. Chase noted in Mississippi, the courts do not have the authority to enjoin the Executive Branch from carrying out its executive functions. Rather, Mississippi reiterates that the role of the court is to say what the law is.
As regards Free Speech, the operative question for the courts must be whether or not the First Amendment precludes the statutory language regarding support for terrorism in §1182(a)(3)(B)(i)(VII). The Rutherford amicus brief is unwilling to argue that point, preferring instead to litigate the Secretary of State’s decision to cancel Khalil’s visa on policy grounds.
If the “defenders” of Free Speech are not willing to make “Free Speech” arguments, we must conclude that Free Speech is not an issue, and that the First Amendment is not an issue.
If Mahmoud Khalil were charged with a crime as a result of his documented pro-Hamas advocacy, there would be potential questions regarding whether the charges were an impermissible abridgement of his right of Free Speech. If Mahmoud Khalil were charged with providing “material support” to Hamas on the basis of what is publicly known about his activities with CUAD, I would have no hesitation in calling such charges unconstitutional lawfare.
That is not the case here. Neither is it the case with Rumesya Ozturk. These are visa revocation and deportation proceedings, not criminal cases.
Do Khalil and Ozturk have rights even in administrative proceedings? Absolutely. However, rights of due process are not First Amendment rights of Free Speech. An argument that the government is depriving an individual of Fifth and Sixth Amendment rights of due process is not an argument that the government is abridging their First Amendment right of Free Speech. For the purposes of defending the principle as well as the right of Free Speech, I need go no further, as such defenses of right have moved out of the realm of the First Amendment.
Free Speech is a Moral Imperative. Free Speech is the foundation by which we have a Free Society and it is essential if we are to have a healthy society.
Yet Free Speech is not and never has been a complete freedom from consequence. Free Speech has never given any person license to lie—particularly to slander or defame another person—and neither has it given any person license to create imminent threats of harm. Free Speech has never given any person license to unilaterally abrogate an agreement—and a visa is fundamentally an agreement between a person and the government of the nation they wish to visit.
For the United States, part of the agreement for receiving an visa is that the individual will not advocate, endorse, or espouse any terrorist activity or terrorist group. Similarly, naturalization is itself an agreement, whereby the aspiring citizen-to-be pledges allegiance to the United States and fidelity to the Constitution of the United States, among other pledges and representations. Where an applicant for citizenship lies or makes any material misrepresentation of fact, or perpetrates any fraud during the naturalization process, citizenship can be revoked.
Free Speech cannot therefore be used to preclude visa cancellation when a person has violated the particulars of the visa agreement. Every visa comes with strings attached, and the government, for better or worse, is both authorized and obligated to pull on those strings to effect US policy, both foreign and domestic.
People who wish to advocate on behalf of Mahmoud Khalil and Rumesya Ozturk are certainly free to do so. I certainly will not advocate here that their obvious Free Speech rights be so abridged.
I will, however, point out the imperative when defending the principle of Free Speech to debate the laws. The moral question of Free Speech was answered over two centuries ago in this country, with the ratification of the First Amendment. The moral position of the United States is that people have an inalienable right of Free Speech. As the moral question is a settled question, when we defend Free Speech particularly against government action we must argue not the moral question but the legal question. We must be prepared to argue that laws are unconstitutional because they abridge the freedom of speech.
If the laws are not unconstitutional, and the amici filers in the Khalil case are not arguing that laws are unconstitutional, then by definition we do not have a Free Speech question. We cannot magically transform a question into a Free Speech question merely by blustering “but…but…Free Speech” because we find a particular policy or action disturbing or distasteful.
Government actions are at times distasteful. Unfortunately, those government actions are at times needed. Those government actions are at times permissible even if not absolutely essential.
When we find government action distasteful, we should speak out against it. We should argue passionately against it and seek to be a barrier to that action’s completion. That is the right of Free Speech writ large.
Yet if we wish to be effective in our advocacy, we must argue the particulars of policy, and we must argue the particulars of the law. We must not be content to merely vilify that which we find distasteful and rationalize that vilification as somehow relevant to Free Speech. We must be ready and willing to argue that laws are unconstitutional and should be voided.
Unless and until we take the firm stand that a law is unconstitutional because it abridges freedom of speech, we cannot argue a defense of Free Speech. Unless and until we take the firm stand that a law is unconstitutional, we are not arguing Free Speech at all, and we are hypocritical to claim otherwise.
As the Rutherford brief makes clear, the questions surrounding the deportations of Mahmoud Khalil and Rumesya Ozturk are many things. Questions involving Free Speech, however, are not among them.
8 USC §§1181-1205
Brief of Foundation for Individual Rights and Expression, National Coalition Against Censorship, The Rutherford Institute, Pen America, and First Amendment Lawyers Association as Amici Curiae in support of Petitioner’s motion for Preliminary Injunction, Khalil v. Joyce, 3:25-cv-01963, (D.N.J.)
United States v. Irvine, 511 U.S. 224 (1994)
8 USC §1424(a)(5)
Holder v. Humanitarian Law Project, 561 U.S. 1 (2010)
Mississippi v. Johnson, 71 U.S. 475 (1866)
Hands down the best analysis I’ve read to date on this issue.
Thank you for this! What a great distillation of the core issues at play here. While I’m delighted that more people are starting to recognize the importance of freedom of speech after the last four years, in this case they’re clearly missing the point. I’m going to refer folks to this post in future discussions!