On Mahmoud Khalil, NY Times Misrepresents Speech Law

The March 2025 arrest of green card holding Columbia graduate student Mahmoud Khalil for his alleged role in leading the anti-Israel protests, building take-overs, and campus encampments has unsurprisingly sparked vigorous advocacy about the merits of that arrest.

Too many of those advocates, however, repeatedly misrepresent the state of United States law on free speech and the First Amendment. Foremost among those are NY Times columnists David French (Don’t Fool Yourself Into Thinking It Will Stop With Columbia)  and Michelle Goldberg (This Is the Greatest Threat to Free Speech Since the Red Scare), whose columns recently invoked the Red Scare of the 1940s and 1950s. And in the March 24, 2025, NY Times daily newsletter (The Morning: Do immigrants have freedom of speech?), NY Times writer German Lopez continued the attack, stating: “The First Amendment allows us to speak freely without fear of legal retribution.”

These scare tactics are not only wrong; they seriously mislead and take an absolutist approach to First Amendment protections that has never been the law and has been expressly rejected by multiple Supreme Court opinions.

Mr. French, former President of the free speech advocating NGO, Foundation for Individual Rights and Expression (FIRE), asserts (emphasis added):

. . . even if Khalil did endorse terrorist attacks on Israel, that is still constitutionally protected speech. The First Amendment permits advocacy of violence, including illegal violence, so long as the speaker isn’t inciting imminent lawless action.

This standard protects the campus protesters who chanted “Globalize the Intifada,” and it protects people who call for the forcible removal of Palestinians from Gaza. In both circumstances, protesters are endorsing illegal, violent actions. Yet in both circumstances, the Constitution protects their speech.

From a pure legal perspective, Mr. French’s assertion is wrong. The “imminent lawless action” standard he cites is from the Supreme Court’s 1969 decision in Brandenburg v. Ohio. But in 1973, only four years later, in the context of obscenity law, the Supreme Court expressly rejected “an absolutist, “anything goes” view of the First Amendment” in Miller v. California. Indeed, in that same year, the Court expressly adopted a balancing test in Paris Adult Theatre I v. Slaton for evaluating speech claims:

[W]e hold that there are legitimate state interests at stake in stemming the tide of commercialized obscenity, even assuming it is feasible to enforce effective safeguards against exposure to juveniles and to passersby. . . . These include the interest of the public in the quality of life and the total community environment, the tone of commerce in the great city centers, and, possibly, the public safety itself.

Nor is that all, because thirty-four years after Brandenburg, the Supreme Court evolved First Amendment jurisprudence further by adopting the “true threats” doctrine in Virginia v. Black in 2003:

“True threats” encompass those statements where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals. A speaker need not actually intend to carry out the threat. Rather, a prohibition on true threats “protect[s] individuals from the fear of violence” and “from the disruption that fear engenders;” in addition to protecting people “from the possibility that the threatened violence will occur:’ Intimidation in the constitutionally proscribable sense of the word is a type of true threat, where a speaker directs a threat to a person or group of persons with the intent of placing the victim in fear of bodily harm or death.

Mr. French’s own column confirms that what occurred on the Columbia campus (and others as well) – and what Mr. Khalil is accused of taking a leading part in – falls well within the realm of the true threats doctrine. As he notes:

Supporters of Hamas celebrated the attacks, and protests against Israel spiraled out of control. Protesters occupied large segments of campus grounds for days on end, and at Columbia a faction of protesters took over Hamilton Hall, a central administrative building.

According to a 234-page complaint filed against Columbia by a coalition of Jewish students and Jewish organizations, “Jewish and Israeli students have been spat at, physically assaulted, threatened and targeted on campus and social media with epithets,” including statements such as “death to Jews,” “Zionist pig” and “baby killer.”

Indeed, his column gives short shrift to what occurred at Columbia and at so many other campuses, where Jewish students were denied access to so-called “liberated zones,” were prevented from entering campus buildings where classes were being held, and were advised to avoid even returning to campus at all. It is not seriously debatable that the anti-Israel activities on campus, often by keffiyeh-wearing masked figures, were intended to intimidate Jewish and other pro-Israel students and faculty.

Yet Mr. French, a purported First Amendment expert, makes no mention of the true threats doctrine and its potential applicability to the events in which Mr. Khalil allegedly led. Instead, he invokes the Red Scare and an earlier standard for “imminent lawless action” that, while still one valid ground for proscribing speech, is far from the only one and has since been substantially modified by later Supreme Court jurisprudence.

One might indeed take issue with the manner of the government’s arrest, the alleged delay in allowing him to speak to an attorney, and other due process issues – even those who applaud his arrest recognize his right to a hearing and that the government has the burden of proving facts to support his involvement and that it meets the standards for the government’s proposed actions (see, e.g., The Lawfare Project’s Brooke Goldstein on Fox News, acknowledging this even as she appropriately highlights that it is Khalil’s actions, not his speech, that are the nub of the case against him).

But that is orders of magnitude different from what these NY Times columnists are wrongly asserting in their absolutist arguments about the scope of the First Amendment. In his famous 1927 concurrence (it was not the majority’s view) in Whitney v. California, Justice Brandeis initiated the “more speech” principle so often urged by free speech absolutists: “If there be time to expose through discussion the falsehood and fallacies, to avert the evil by the processes of education, the remedy to be applied is more speech, not enforced silence.”

Jewish students and faculty at Columbia and other campuses did not have the “time to expose through discussion the falsehood and fallacies” of the defamatory claims of “genocide,” “apartheid,” and “settler colonialism.” Indeed, there was zero “time to expose” because the campuses were shut down immediately; there was no “discussion” because protesters like Mr. Khalil actively refused to engage in discussion at all – one of the fundamental principles of the BDS movement is refuse dialog. The “liberated zones” had no discussion – no debate – no consideration of the viewpoints of others, but rather demonized all Zionists and took actions to intimidate them.

If columnists like Mr. French, Ms. Goldberg, and Mr. Lopez are genuinely interested in debating the merits of cases like that of Mr. Khalil and engaging in the “more speech” that Justice Brandeis suggests to explore the parameters of both what free speech policy is and ought to be, fine. They should at least avoid the intellectual dishonesty of stating in such an unequivocal and hyperbolic manner that the accusations against Mr. Khalil are related solely to speech rather than conduct and that whatever he said was protected speech.

I, for one, will see how the process plays out  and will attempt to do so with an appreciation of the nuance of First Amendment jurisprudence – something that the NY Times columnists have either forgotten or deliberately ignored.