Does deporting pro-Hamas campus agitators violate the 1st amendment?

Question

Currently, Trump administration is attempting to deport foreign nationals involved in pro-Hamas riots at Columbia University and elsewhere. What first amendment exceptions allow that?

Answer 1

Deporting rioters does not require a First Amendment exception, because rioting is not protected by the First Amendment to begin with.

Breaking windows, vandalism, and assault are generally not considered speech, so punishing those behaviors with deportation is not all that different from punishing them with fines or jail time.

The tougher question is whether the First Amendment permits the government to deport people for engaging in protest activities without engaging in any crime. The answer is not entirely clear, but Eugene Volokh does a good job breaking down the analysis at May Aliens Be Deported Based on Their Speech?, but the short version is that right now, it probably depends on which court the protestor lands in.

In some parts of the country, the courts would probably allow the deportation, relying on Harisiades v. Shaughnessy, 342 U.S. 580 (1952), where the Supreme Court upheld a law permitting the government to deport foreign nationals based on their affiliation with the Communist Party, but there are other courts that would probably reject that analysis based on subsequent developments in how the courts evaluate the First Amendment right to associate with the Communist Party or other disfavored groups.

Columbia University, though, is in the Second Circuit, so there is some precedent to suggest that the courts there would be less deferential to the government and closely scrutinize claims that it was engaged in First Amendment retaliation. See, e.g., Ragbir v. Homan, 923 F.3d 53, 68–72 (2d Cir. 2019).