Arrest of Pro-Palestinian Activist Mahmoud Khalil: First Amendment in Danger

People of all political persuasions should condemn Hamas's October 7, 2023 attack on Israel, an action that included taking *infants*  and preschool children as hostages. It is possible to support the Palestinian cause while, at the same time, condemning actions taken by some Palestinians as the war crimes that they are. 

At the same time, people of all political persuasions should condemn the March 8, 2025 arrest of Mahmoud Khalil, a Palestinian graduate student at Columbia University and a legal resident of the USA--he holds a green card--for his non-violent political activities. According to the Associated Press, no criminal charges have been filed against him. 

Presumably, if Khalil had committed a crime, he would have been arrested and charged with those crimes. The lack of criminal charges implies that Khalil was arrested for his political views and for the vague charge of anti-Semitism. A statement from a Department of Homeland Security official substantiates this motive: 

A spokesperson for the Department of Homeland Security, Tricia McLaughlin, confirmed Khalil’s arrest in a statement Sunday, describing it as being “in support of President Trump’s executive orders prohibiting anti-Semitism.”

Antisemitism poses a real threat to Jews and to the civic order as a whole. Therefore, all of us have a duty to oppose it, especially for humanitarian reasons but also for reasons of enlightened self-interest. 

The problem is that antisemitism, like pornography, is difficult to define. Some cases are obvious. According to a report prepared by a committee composed of Columbia University professors, Jewish students were chased out of dorms, spat upon, and pinnned to walls, and threatened with death. Yes, this kind of behavior is criminal and should be legally punished. 

Broader definitions of the term pose a problem. Some have wanted to include harsh criticism of the Israeli government or of Zionism as a political ideology under this term. Some have wanted to label the burning of Israeli flags as antisemitic, but this type of action has a long history and has been regarded as political speech. To name two examples, students protesting the Vietnam War often burned American flags and people protesting the Iranian capture of American hostages during the Carter administration burned Iranian flags. Court decisions have upheld such actions as symbolic free speech. To argue that burning the Israeli flag should be criminalized is to establish a dual system of laws depending on whose flag is being burned. 

If Mr. Khalil did not push, shove, or threaten anyone, what exactly did he do? Apparently, during the widespread Columbia University protests, Khalil distributed pro-Hamas literature and served as a negotiator between students and university officials who sought to close down a tent encampment.  Unless the pro-Hamas literature advocated violence outside of a military context--I do believe Gazans have the right to self-defense--distributing such material should be legal. Making the advocacy of military action a criminal offense would make any news organization supporting, for example, the Iraq War, the bombing of miltitary targets in the Horn of Africa, or the funding of Ukrainian soldiers by the US criminally liable as well if the same standard were to be applied equally to all. 

 The rationale appears to be that Hamas is a terrorist organization and supporting it, even by handing out literature, offers tacit support to terrorists. But how consistent do we want to be with that standard? Do we want to arrest Irish-Americans for handing out IRA literature? Jewish Americans for distributing Kahanist flyers? Indian Americans for supporting Prime Minister Modi, even though Human Rights Watch claims that his campaign was based in some part on hate speech against Muslims. 

Unless the government enforces such a standard equally for all groups, it should free Mr. Khalil and let him return home in time to witness the birth of his first child.