With ICE’s weekend arrest of a student who engaged in peaceful protests, Trump’s administration is flexing dangerously unconstitutional muscle and daring the nation to flinch.
Mahmoud Khalil, a graduate student at Columbia University, helped to organize several pro-Palestinian student protests last year, all of which were peaceful and non-violent. Khalil was pulled from his apartment by “special agents from a department in ICE” who informed Khalil that the State Department had revoked his student visa. When his attorney advised that Khalil was a green card holder and lawful permanent resident, ICE said his green card had been revoked too.
Khalil was not arrested for vandalism, trespassing, or for violating any laws. He was arrested for the political content of his speech criticizing Trump’s pro-Israeli policies.
Arresting people for their political speech is textbook unconstitutional
Arresting people for their political viewpoint has long been prohibited. Any government attempt to restrict speech based on thecontentof that speech must satisfy the strictest scrutiny, meaning the restriction adopted by the government must be narrowly tailored to serve a compelling government interest. “I don’t agree with what he said” has never been a compelling enough interest for the government to stop him from saying it.
Political speech is the heart ofthe First Amendment. Based on our founders' mistrust of governmental power, the premier and most exalted amendment to the U.S. Constitution was crafted to protect against the government's “attempts to disfavor certain subjects or viewpoints,” and soundly “prohibits the government from restricting speech based on content of that speech,” as the court wrote in U.S. v. Playboy Entertainment Group (2000). Trump using state power to silence political speech of students, protestors and critics has wider and more frightening implications than whether one agrees with his policies on Israel.
Silencing political opponents presents the steepest of autocratic slopes. If students and citizens lose the right to publicly criticize or disagree with their government, they have lost the right to choose who that government will be.
Trump is doubling down
The principal reason dictators control speech is to consolidate their own power. Silencing critics means that the state controls the narrative, and is free to create, spin and disseminate “alternative facts” which are almost always designed to ensure that those who hold power get to keep it.
Taking his cues from Russia’s Putin, known for arresting his critics in the night, Trump took to his rancid propaganda website to breast-beat, posting falsely that Khalil is an “anti-American terrorist:”
This is the first arrest of many to come… We know there are more students at Columbia and other Universities across the Country who have engaged in pro-terrorist, anti-Semitic, anti-American activity, and the Trump Administration will not tolerate it.
There is no credible claim that Trump’s actions are legal under the First Amendment. But Instead of acknowledging the elephant in the room, Fox News is parroting Trump’s unfact-checked claim that Khalil is a terrorist, repeating Trump’s King Kong declaration that, "If you support terrorism, including the slaughtering of innocent men, women, and children, your presence is contrary to our national and foreign policy interests, and you are not welcome here. We expect every one of America’s Colleges and Universities to comply."
Applying Trump’s sentiment to his support for Putin’s slaughter of innocent men, women and children in Ukraine should lead to his own deportation, but with Trump, pointing out inconsistencies is both quaint and futile.
Now is the time to speak out
In our founders' time, silencing political critics meantthe Intolerable Acts, passed in 1774 to punish colonists for their political speech against the British government. That act of political suppression led to the Revolutionary War, which eventually produced a brilliant treatise that was centuries ahead of its time. In laying out principles of freedom and free governance the world had not yet seen or conceived, the framers of the U.S. Constitution showed a singular and unmatched genius that, pre-Trump, inspired the world.
During our time, silencing critics and controlling political speech means that autocrats can say anything they want, and the public never hears information to the contrary. It means that half the US will believe Trump’s false claims that Ukraine was the aggressor, and should be punished for provoking Russia.
Having been punished, taxed and imprisoned for their speech against the government, our founders wrote the First Amendment to make sure it never happened again. Understanding that history, fully grasping what led desperate men to give their lives to to defend the right to criticize the government, is the only way to appreciate the First Amendment: "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…"
Revolutionary war heroes cry from the grave: America! Speak out now!
To understand the historical underpinnings ofthe First Amendment is to revere it for the stroke of genius, timeless insight into human conduct, and beacon for universal freedom that it was.
But the First Amendment cannot protect itself when malign forces like Trump rise and seek to benefit from its destruction.
Now is the time to speak out. Paint those signs. Go to your local protests. Get loud. Support Khalil on every social media you use, no matter how you feel about Israel. Understand—know it in your bones—that in America, the federal government can never silence you for the content of your speech.
In your spare time, read some early American history. To understand the singular beauty of the First Amendment is the only way to grasp the danger of allowing Trump and his anti-American goons to trample it.
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Sabrina Haake is a 25+ year federal trial attorney specializing in 1st and 14th A defense. Her columns are published in Alternet, Chicago Tribune, MSN, Out South Florida, Raw Story,Salon,Smart News and Windy City Times. Her Substack, The Haake Take, is free.
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