As has become summer tradition, we’re turning the reins over to our summer fellows for their take on a First Amendment issue. Kicking us off this summer is Karem Herrera, who wrote about the Oath of Allegiance and compelled speech requirements by non-citizens.
Embracing Diversity of Thought and Protecting Noncitizens’ Freedom of Speech during the U.S. Naturalization Process
Becoming a U.S. citizen is a momentous occasion for new Americans. New citizens often celebrate the day with friends and family at a naturalization ceremony where they recite the Oath of Allegiance. The oath is long; it contains promises to “renounce all former allegiances” (which is confusing and somewhat moot because some new citizens can retain their former citizenship through dual citizenship), and it contains promises of service in the U.S. Armed Forces. But the Oath of Allegiance is not just a symbolic statement, it is the mandatory final requirement to obtain U.S. citizenship. Without a pre-approved accommodation, failure to recite the oath
verbatim, will result in the denial of a person’s citizenship application – even if they otherwise met all other criteria to naturalize. As the final hurdle to obtain U.S. citizenship, the compulsory nature of the Oath of Allegiance essentially coerces allegiance from noncitizens.
The Oath of Allegiance is standardized; it is available on the
U.S. Citizenship and Immigration Services’ (USCIS) website. Currently, Congress has allowed for limited
ways to alter the oath through modifications and waivers. There are three permitted modifications for the oath. Two of these modifications revolve around the promises to perform military service in the U.S. Armed Forces, and the third modification removes the words “so help me God” at the end of the oath. Congress has also allowed for waiver of the oath for children under 14 and for certain individuals who have a physical or developmental disability. The modification of any other portion of the oath is not allowed. Therefore, if an applicant would like to amend the oath or decline to recite it altogether, but they do not qualify for any of the permitted modifications or waivers, they are compelled to say the oath or be denied citizenship.
This resulting dilemma for an applicant creates a possible infringement on the applicant’s freedom of speech rights protected by the First Amendment. Courts have interpreted the First Amendment to protect a person’s “autonomy to
choose the content of [their] own message”. The First Amendment also protects a person’s “
freedom to make, or decline to make, one's own speech”. Courts have grappled with the issue of mandatory speech and pledges, holding that the government cannot compel public school students to
salute the flag or to recite the Pledge of Allegiance if this is contrary to their religious beliefs. Courts have extended these First Amendment protections to noncitizens holding that once a noncitizen lawfully enters and resides in the U.S.,
they become “invested with the rights guaranteed by the Constitution to all people within our borders [and] such rights include those protected by the First [Amendment…]”.
If a prospective citizen would like to amend the oath they recite and choose the content of their own message or decline to make a statement, the current requirements of the oath infringe on an applicant’s ability to do so without facing repercussions by the U.S. Government. This dynamic and the applicability of First Amendment protections to noncitizens raises serious implications about the abridging of free speech rights of noncitizens through a compulsory oath. Congress should remove the compulsory requirements of the Oath of Allegiance. Doing so protects the First Amendment rights of noncitizens, and it allows noncitizens the freedom to craft their own expressions to mark the momentous occasion of becoming U.S. citizens.
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Karem Herrera (pronounced "KAH – rem") is a law school student at CUNY School of Law, and she earned her B.A. from the University of California, Berkeley. Karem serves on the board of the Public Interest Law Association at CUNY Law, and she worked as a legal intern with the Center for Constitutional Rights and the National Domestic Workers Alliance. Read more about Karem and all our 2023 IfRFA fellows here.