Clarification of My Stance on the Khalil Case: Where Free Speech Meets Incitement

When I last examined Mahmoud Khalil's case and Columbia University, my focus was on the complexities of free speech and Title VI protections. Public campuses must adhere directly to the First and Fourteenth Amendments, including protections derived from Title VI. Private institutions like Columbia, while not bound directly by the First Amendment, must still follow Title VI's requirements against discrimination.

Previously, I argued that our debates around freedom of speech often obscure the genuine harms caused by speech that incite violence or harassment. Here, I wish to clarify my positions explicitly and highlight why this matters. I continue to be concerned that popular conceptions of free speech are overshadowing empirical evidence, as well as more complex constitutional issues that determine the difference between free speech and discriminatory behavior. As I noted in my previous essay, the left is unable to acknowledge that the anti-Israel violence that occurred on the Columbia campus may very well be the culmination of anti-Israel protests. The left also has trouble acknowledging that harassment, intimidation, and violence occurred in the context of these protests. Meanwhile, many on the right recognize the illegal activity, but are not engaging with the erosion of fundamental rights, such as free speech and due process.

Under these polarized conditions, I think my argument can be easily misinterpreted, so I’d like to confirm my positions:

• Constitutional protections for Khalil and others facing deportation are paramount. The Trump Administration has repeatedly ignored the law, and it is highly likely that Khalil and other permanent residents’ rights are being trampled as part of the dismantling of democracy. No matter how offensive I find Khalil’s positions, he has a right to due process.
• I am not for censoring speech. My concern is that the left’s understanding of free speech overshadows the direct harm speech can cause. Speech can lead to harassment, intimidation, and incitement. These are Fourteenth Amendment issues that need to be balanced, not overshadowed by the First Amendment. I believe that the current “imminent danger” test is inadequate for determining the difference between free speech and unlawful activity, leaving victims of harassment, intimidation, and violence with almost no legal recourse.
• The inability of the left to examine a possible relationship between campus protests and violence plays directly into the Trump administration's claims that it is simply restoring law and order, not trampling rights. In addition, if the left is ignoring violations of the law, it is very hard to find common ground with those to the center and right who see the imbalances in the enforcement of equal protection. This situation hinders effective resistance.
• All of the above is difficult to address with nuance since repugnant speech is being treated as an end in itself to demonstrate the health of the Republic.

Nevertheless, recent developments this week may put a wrench in the left’s free speech defense of campus protesters — or at least complicate it. On March 24, a lawsuit was filed in the Southern District of New York, Haggai et al v. Kiswani et al. The plaintiffs include Iris Weinstein Haggai and others impacted by Hamas’ October 7, 2023 atrocities. The defendants are alleged to have collaborated with Hamas and affiliated groups to spread propaganda, incite violence, and disrupt institutions under the pretense of activism.

The lawsuit is relying on evidence supplied by Canary Mission, an anonymous organization that “investigates hatred across the entire political spectrum, including the far right, far left and anti-Israel activists.” Because Canary Mission does not disclose its leadership and funding sources, the evidence they provided requires corroboration (their research can be accessed here). If their evidence is credible, it could very well complicate the left’s reliance on protected speech to defend pro-Hamas protesters.