Free Speech, Natural Rights and Mahmoud Khalil

Some thoughts regarding Mahmoud Khalil, the Green Card holder who is currently being held in detention by the Trump administration pending deportation.

First, Laughing Wolf wrote about Khalil being a planned op. I have similar thoughts that this was fishy given the way the various pieces fit together, and will note my suspicions at the end.

Given that the Khalil affair deals with free speech and citizenship, it applies pressure across several points within not only Trump’s coalition but his larger base of support in the country. Trump drew on a lot of defections from Democrats, Tech, and others regarding threats to civil liberties. Now you sense a hesitancy among some of his supporters.

Khalil’s case actually has two dimensions, freedom of speech and the status of citizenship in a society with accordant rights and responsibilities.

The American concept of “freedom of speech” is held to be a sacred right, though mostly in a confused way since it is viewed mostly as a constitutional right and almost exclusively as a process.

The right of freedom of speech in the Constitution is grounded as a restriction of the government’s ability to abridge it. This has given birth to the popular perception that freedom of speech is a process, a marketplace of ideas, where the actual content isn’t as important as the freedom to express it.

This has generated a masochistic element in our political culture that seems to seek out the most noxious elements and grants them the right to speak and/or express themselves. Take the case of the Nazis wanting to march through Skokie or the placement of a Satanic Temple display in the Iowa Capitol.

Should Satan be given the same privileged place as a Christmas tree, as it was in the Iowa Capitol? A free-speech absolutists would see such an act as a noble concession of principle along the lines of “I disapprove of what you say, but I will defend to the death your right to say it.” A restriction on even such a symbol of evil would be seen as placing the right of free speech on a slippery slope, subject to the prevailing values of the day. The absolutist would say that the solution to noxious speech is more good speech. Process regnum supremus.

Freedom of speech under the First Amendment was never thought to cast a Constitutional protection on any and all acts performed through speech — say, certain types of speech dealing with libel, or the incitement of attacks on religious or political minorities.

By definition, then, there are needed restrictions on speech. The question then becomes to what extent and under what form (e.g., prior restraint) such restrictions may take place. This makes restrictions a moral, in the sense of virtue, question which then makes it one of politics. That concept may make a libertarian uncomfortable because it opens up the possibility of the “slippery slope,” and they would claim it’s better to allow all speech, even that of Satan, rather than risk opening the door to the slightest chance of censorship.

Yet that still leaves the question of what the value of free speech is. To answer that question and gain a better understanding of the value of free speech, we are forced to ground the right to free speech in nature.

By nature, I mean such rights as are universal and exist outside of place and time. This used to be widely accepted in American society, until the Progressive Era which saw rights subjected to a historical process, an evolution over time from lower to higher development. The belief that natural rights, even right and wrong themselves, exist separately from temporal political power is also in direct contrast to the neo-Marxist and postmodern views that permeate the Left and higher education.

The value of free speech lies in natural rights: rights not granted to individuals because those rights are instrumental but because those rights are part of human nature. The Founders, and those upon whose work the Founders based their own work, saw that value resting on the right of the individual to pursue truth on matters of public concern, in order to not only increase their own capacity for moral character and self-government but the capacity of society as well. This means that freedom of speech can only be fulfilled within a social context, a public sphere.

This definition raises two problems. The first is the question of what speech would qualify as valuable or moral in nature. The second is the question to what extent and in what form such speech may take place.

The use of “morals” is for many people problematic. Yet morals are interwoven into every aspect of society by everyone who participates in it. Even the biggest advocates of postmodernism and the Woke adhere to this principle with their definition of what parts of the population and their beliefs are to be outcasts. Even a libertarian’s view of society itself rests on an implied moral structure. The advocacy of pure relativism is either a Machiavellian tactic of the dishonest or a symptom of a disordered mind.

Hadley Arkes and other natural rights scholars point to the fact that moral judgments in certain domains are so obvious that we have woven them into our practical lives without much awareness that we have done so, and indeed truncated or limited the range of our choices in this way in every domain of our freedom. As he puts it:

“The question of ‘rights’ will always hinge then on whether those reasons for restricting freedom are justified or unjustified. And we gauge that matter of “justification” in the most demanding way by those measures of common sense that are anchored in the axioms of moral judgment.”

James Wilson of Pennsylvania stated that it was commonsense (“Right Reason”) that freedom of speech did not encompass valueless speech. Using the definition above, moral speech, valued speech, is that which provides for the individual’s pursuit of various virtues: truth, moral character, self-government.

We have of course have moved beyond freedom of speech to issues centering on “freedom of expression.” The idea contained in the 1942 Supreme Court case Chaplinsky, that the First Amendment doesn’t protect words (or actions) that by their very utterance inflict injury, now seems quaint.

However, since Chaplinsky, the Supreme Court has upheld the rights of those people who protest at military funerals with vile signage (Phelps), and of those who burn the American flag. The courts upheld the right of Nazis to march through Skokie, a town which at the time had hundreds of Holocaust survivors, by talking itself into the notion that “we must be free to hear the Nazis because we must be free to choose the Nazis and their policies in a free election,” so that democracy, like speech is also process and no content.

These are cases which are burned into the American consciousness. What is left unsaid is whether in these cases such expression, such “speech,” could be restricted based on the existence of alternative media. After all, the Westboro Church in Phelps could have expressed its views without provocatively protesting at private funerals, the Nazis could have found another place to protest that didn’t have hundreds of Holocaust survivors.

The greatest danger in the cases of Phelps, Skokie, and flag burning lies not in their particulars, but rather that they are connected to a lack civilizational confidence in the moral order to which they belong. To say that Nazis, Quakers, Presbyterians, and Satanists are on the same level is to fail to pay heed to the dictum, “Don’t be so open minded that your brain falls out.”

Without an understanding of nature, the morals and prudence it provides, we are unaware of the larger issues involved in such freedoms. A civilization that places Abrahamic religions on the same moral plain as Satanism has lost its way and would be incomprehensible to most of American history.

Natural rights don’t prohibit reasonable regulation based on prudence. There are other places to put Satanic symbols than in a state Capitol, a symbol of self-government and the virtues implied. Denying the Nazis’ relatively arbitrary claim to march through Skokie in favor of another town doesn’t restrict anything but the ability of those Nazis to display their vanity to taunt Holocaust survivors.

As Alito said in Phelps:

“The First Amendment does not shield utterances that form ‘no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality.’”

So what are we to make of Mr. Khalil?

The first is that the official reason he is being deported is that he is in violation of the terms of his Green Card as outlined on application form DS-260, which prohibits entry based on past support of terrorism or its future support. Khalil, as part of his involvement in the Columbia University protests, is a member of Columbia University Apartheid Divest (CUAD) which exists as a front for Hamas and the Muslim Brotherhood and has hosted events with groups designed as fronts for the PLFP.

Secretary of State Rubio has rested Khalil’s deportation on this conduct as a violation of terms of his Green Card. To those who see this as a technicality, establishing a dangerous precedent, I state the following:

1) Using the aforementioned natural law definition, the right of free speech while universal can only be understood through the particular social, political context in which it is used. Khalil at a certain level understands this; his conduct at Columbia University can only be understood by his membership at Columbia. His conduct, which has been tolerated by Columbia, such as the appropriation of private property in form of buildings and outdoor space, would not have been tolerated outside of the University.

2) The larger context for this discussion is the American political community (as opposed to that of Columbia) and those who are citizens. Khalil, while a permanent resident courtesy of his Green Card, has not taken the Oath of Allegiance and therefore has not gained either all of the rights or the responsibilities of citizenship. His involvement in the larger political community is by definition limited, as indicated by his inability to vote and his continued residence contingent upon his behavior as partially defined in form DS-260. His membership in the community, limited as it is, may be revoked.

3) As to whether the terrorist provisions in DS-260 violate Khalil’s natural rights to free speech there is legal precedent that suggests otherwise. In 1904 the Supreme Court upheld the Immigration Act of 1903 ruling that Congress had the authority to exclude anarchists and others deemed a threat. That would seem to breathe air into the provisions of DS-260 prohibiting entry to supporters of terrorism.

Outside of legal statute, it is common sense that it is one thing to tolerate speech from citizens which supports terrorism and other vile conduct, but quite another to allow non-citizens to enter the country to do the same thing. To the free speech absolutists, ask them whether they would grant a visa to a member of the Nazi party for the expressed purpose of coming to the US and marching in Skokie.

This is not say that the federal government should always expel non-citizens for engaging in noxious speech, let alone political speech, but to state that there are natural and common sense guidelines to which everyone should adhere.

To go back to Alito’s argument above, Khalil could have found ways of promoting the Palestinian cause that did not involve building occupations, intimidation, or promoting terrorist groups. The large and successful pro-Palestine National March on Washington in November, 2023 provides such a model. To those who say that Khalil’s illegal activities were only a small part of his political activities, I would state that in the vernacular of the 2020 BLM riots, that would make his activities “mostly legal” — which is to admit that they are not legal at all.

Going to back Laughing Wolf’s concerns as stated earlier, there are several pieces of this episode which don’t fit together. The first is Khalil’s British security clearance, issued based on work that he did in Beirut. So at the very least, before he came to the US he was not an unknown entity but had been vetted for a western intelligence service.

This raises questions. What was the nature of the clearance? What sort of work did he (really) perform for the British? Did that clearance, and the paperwork behind it, play any part in evaluating the applications for his Green Card or student visa?

The second and more curious question is about the Green Card itself, which he received last year after the Spring protests at Columbia. Khalil was suspended last year by Columbia for occupying campus property, which would have jeopardized his student visa, but he was quickly reinstated. Some months after that he received his Green Card.

A Green Card, as opposed to a student visa, would have solidified his standing to continue Columbia protests. A Green Card can take years to get but he had only applied for his the previous year. That turn-around time seems awfully quick. Where’s the paperwork at CIS for this? Was Khalil’s application expedited?

Typically, in a marriage with an American that is less than two years old, the foreign spouse’s Green Card is conditional. Was Khalil’s Green Card conditional?

Who exactly is Mahmoud Khalil?