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The US Constitution does not specify whether non-citizens are protected by the First Amendment. The text refers to 'the people', which could refer to a broad category of people, including non-citizens. The Supreme Court has not ruled definitively on the question, but the Department of Justice has argued that the First Amendment and other protections only apply to immigrants who enter the country legally and have a 'sufficient connection' to the US.
| Characteristics | Values |
|---|---|
| Who is protected by the Constitution? | The Constitution speaks about "the people" but it is unclear who this includes and excludes. |
| Who is not protected by the Constitution? | The Department of Justice has argued that unauthorized immigrants are not protected by the Constitution. |
| What rights are reserved for citizens? | Running for office, voting and serving on a jury. |
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What You'll Learn
The First Amendment and non-citizens
The First Amendment grants the freedoms of religion, speech, press, assembly, and petition. The Supreme Court has not ruled definitively on whether these rights apply to non-citizens, although it has been suggested that they only apply to immigrants who enter the country legally and have a 'sufficient connection' to the US.
In 2015, the Department of Justice argued in a federal class action lawsuit that unauthorized immigrants do not receive First Amendment protections. However, legal scholar and constitutional law professor Michael Kagen has argued that the First Amendment protects the rights of marginalised people to have a voice and prevents the government from preferring certain speakers over others based on their identity.
The only rights specifically reserved for citizens are running for office, voting, and serving on a jury. This means that non-citizens are still protected by most of the Constitution, which applies to 'persons' rather than just citizens.
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The Supreme Court and non-citizens
The Supreme Court has not ruled definitively on whether non-citizens are protected by the Constitution. The Constitution itself speaks broadly about 'the people', leaving room for interpretation. The First Amendment does not make clear whether 'the people' given the freedoms of religion, speech, press, assembly and petition are a narrow group of citizens or a broader category, some of whom come to the United States to visit, learn and work.
The question of non-citizens and the First Amendment has come up many times in U.S. laws and before the Supreme Court. In 2015, the Department of Justice argued in a federal class action lawsuit that unauthorized immigrants do not get First Amendment protections. The DOJ reasoned that the Supreme Court previously suggested First Amendment and other protections apply only to immigrants who enter legally and who have "sufficient connection" to the U.S.
Legal scholar and constitutional law professor Michael Kagen wrote in a 2016 Boston College law review article: "As the court explained (in Citizens United vs. FEC), the First Amendment protects the rights of marginalised people to have a voice and does not allow the government to prefer some speakers over others based on their identity."
Nearly all of the constitution applies to 'persons', meaning everyone (citizens, travelers, illegal immigrants). Only a few things like voting and running for office are reserved for 'citizens'.
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The Constitution and unauthorized immigrants
The Constitution of the United States does not specify whether the First Amendment applies only to citizens. Instead, the document refers to 'the people' and 'persons'. At the time the Constitution was written, many of 'the people' were born outside the young country.
The Supreme Court has not ruled definitively on the question of whether the First Amendment applies to unauthorized immigrants. In 2015, the Department of Justice argued in a federal class action lawsuit that unauthorized immigrants do not get First Amendment protections. The DOJ reasoned that the Supreme Court previously suggested First Amendment and other protections apply only to immigrants who enter legally and who have "sufficient connection" to the U.S.
However, the Supreme Court has upheld that certain constitutional rights extend to everyone living within the U.S., not just natural-born citizens or legalised immigrants. The U.S. Constitution protects all people living in the United States, regardless of immigration status. This includes the rights to own property, engage in lawful employment, and rights under the Due Process Clause and Equal Protection Clause.
The only rights specifically reserved for citizens are running for office, voting, and serving on a jury.
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The Constitution and voting rights
The Constitution does not specify whether the First Amendment applies only to citizens. Instead, it refers to 'the people'. At the time the Constitution was written, many of 'the people' were born outside the United States.
There is legal uncertainty about who is included and excluded by the term 'the people'. The group with the most questions around whether and how the First Amendment applies to them are those with no legal status: unauthorized immigrants. In 2015, the Department of Justice argued in a federal class action lawsuit that unauthorized immigrants do not get First Amendment protections. The DOJ reasoned that the Supreme Court previously suggested First Amendment and other protections apply only to immigrants who enter legally and who have "sufficient connection" to the U.S. To date, the Supreme Court has not ruled definitively on the question.
Legal scholar and constitutional law professor Michael Kagen wrote in a 2016 Boston College law review article: "As the court explained (in Citizens United vs. FEC), the First Amendment protects the rights of marginalised people to have a voice and does not allow the government to prefer some speakers over others based on their identity."
Nearly all of the Constitution applies to 'persons', meaning everyone (citizens, travellers, illegal immigrants). Only a few things like voting and running for office are reserved for 'citizens'.
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The Constitution and jury service
The Constitution does not specify whether the First Amendment applies only to citizens. The document refers to 'the people', and at the time it was written, many of 'the people' were born outside the United States. The Supreme Court has not ruled definitively on the question of whether non-citizens are protected by the Constitution.
The First Amendment itself does not make clear whether 'the people' given the freedoms of religion, speech, press, assembly and petition are a narrow group of citizens or a broader category. The legal scholar and constitutional law professor Michael Kagen wrote in a 2016 Boston College law review article:
> 'As the court explained (in Citizens United vs. FEC), the First Amendment protects the rights of marginalised people to have a voice and does not allow the government to prefer some speakers over others based on their identity.'
The group with the most questions around whether and how the First Amendment applies to them are those with no legal status: unauthorised immigrants. In 2015, the Department of Justice argued in a federal class action lawsuit that unauthorised immigrants do not get First Amendment protections. The DOJ reasoned that the Supreme Court previously suggested First Amendment and other protections apply only to immigrants who enter legally and who have 'sufficient connection' to the US.
The only rights specifically reserved for citizens are running for office, voting, and serving on a jury.
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Frequently asked questions
The Constitution does not specify whether the First Amendment applies only to citizens, but the Supreme Court has not ruled definitively on the question.
The Constitution speaks broadly about "the people", but there is legal uncertainty about who that includes and who it excludes.
The only rights specifically reserved for citizens are running for office, voting, and serving on a jury.
Nearly all of the Constitution applies to "persons", meaning everyone (citizens, travellers, illegal immigrants).
A refugee may ask the government to extend the length of their temporary protected status and to make it easier for other groups to get TPS and simplify the process for citizenship.
