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WASHINGTON — A federal appeals court appeared ready Thursday to reject Defense Secretary Pete Hegseth’s effort to punish Democratic Sen. Mark Kelly over his call to US service members to refuse illegal orders.
A majority of judges on a three-member panel at the DC US Circuit Court of Appeals spent more than an hour and a half throwing cold water on arguments pushed by the Justice Department to revive Hegseth’s plans, which were shut down earlier this year by a federal judge who said they were unconstitutionally retaliatory.
“That is something that is taught at Annapolis to every cadet,” Judge Nina Pillard, an appointee of former President Barack Obama, said of Kelly’s comments last year.
“These are people who served their country – many put their lives on the line,” said Judge Florence Pan, an appointee of former President Joe Biden. “And you’re saying that they have to give up their retired status in order to say something that is a textbook example taught at West Point and the Naval Academy – that you can disobey illegal orders.”
The third member of the panel – Judge Karen Henderson, an appointee of former President George H. W. Bush – seemed at least somewhat sympathetic to the administration’s arguments. She said at one point that since Kelly could be recalled at any time and court-martialed, it must be the case that other tools are also available for the military to use to go after him over his conduct.
The closely watched case is a key test of the reach of free speech protections for former US military members and the latest flashpoint in President Donald Trump’s campaign to use the levers of government to punish high-profile critics.
Kelly, a retired Navy captain and former astronaut, sued Hegseth in January after the defense secretary announced the Pentagon would pursue administrative action against the Arizona senator, including reducing his last military rank -which would lower the pay he receives as a retired Navy captain – and issuing a letter of censure.
Both Hegseth and Trump have attacked Kelly over a video posted in November by the lawmaker and five other Democrats with a history of military or intelligence service. In the video, they urged service members not to obey unlawful orders that could be issued by the Trump administration.
The lawmakers didn’t specify which orders service members have received, or might receive, that could be illegal but the video was released as some, including US allies, questioned the legality of a series of military strikes targeting suspected drug traffickers in the Caribbean and eastern Pacific. It also came as the Trump administration faced multiple court challenges to the president’s decision last year to send scores of federalized state National Guard members to Democratic-led cities.
Federal prosecutors in Washington, DC, also attempted to indict the lawmakers over the video, but were rebuffed by a grand jury in a remarkable push back that is rarely seen.
First Amendment protections for veterans
At issue in Thursday’s case were a series of thorny questions about how much First Amendment protection retired service members have over speech directed at serving members of the military.
Justice Department lawyer John Bailey contended that, like active-duty members, retirees can have their speech curtailed or be punished for objectionable speech if officials believe it impacts the discipline and good order of the troops.
“In the military context, the First Amendment is going to function differently,” he said, arguing Kelly’s comments last year were not an “abstract legal education.”
“This is a pattern – a totality of conduct,” Bailey said, pointing to the fact that Kelly’s comments in the video needed to be understood in the context of other remarks he made last year about how the military was being used to carry out counter-narcotics operations.
“This was a wink-wink and a nod,” Bailey said.
Bailey repeatedly said that Kelly’s case was controlled by a 1970s Supreme Court decision in which the justices said an active-duty officer could be punished for imploring service members not to fight in the Vietnam War. But Pillard and Pan made clear that they didn’t see that case as having any use for the government given the stark factual differences between the two.
“Sen. Kelly never says disobey lawful orders,” Pillard said at one point, describing his comments later as an “abstract statement of a principle.”
“There are no cases that we have about the speech rights of retired service members,” she added.
Both judges seemed to agree with Kelly’s argument that retired service members have neither the full free speech protections enjoyed by civilians nor the limited First Amendment rights active-duty service members have. Instead, the millions of retirees like Kelly who still receive pay from the military are likely in a third category that has never before been sketched out by a court, the judges acknowledged.
“It’s not clear what the standard is for a retiree,” Pan said, adding later that the court may not need to define that standard at all. In the end, she said, the panel could reject the government’s position that retirees are on par with active-duty service members without going any further.
Kelly’s lawyer, Benjamin Mizer, told the court that Hegseth’s plan to reduce the senator’s pay and censure him represented “textbook retaliation for disfavored speech” and argued that he was being targeted for stating something that has traditionally been viewed as uncontroversial.
“He simply recited the bedrock principle of military law,” Mizer said.
Outside the courthouse after the hearing, Kelly issued a warning about the purpose of the censure effort: “If you say something that the president and this administration does not like, they’re going to come after you.”
The administration, he said, argued in court that “any time a retired veteran says something the secretary of defense doesn’t like, they can be punished.”
“The people who have given the most in service to this country wouldn’t be free to say what they believe,” Kelly added.
This story has been updated with additional details.
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