Judge Preliminarily Blocks Military Disciplinary Measures Against Senator (and Retired Navy Captain) Mark Kelly

An excerpt from Judge Richard Leon's long (and exclamation-point-filled) opinion today in Kelly v. Hegseth (D.D.C.):

United States Senator Mark Kelly, a retired naval officer, has been censured by Secretary of Defense Pete Hegseth for voicing certain opinions on military actions and policy. In addition, he has been subjected to proceedings to possibly reduce his retirement rank and pay and threatened with criminal prosecution if he continues to speak out on these issues. Secretary Hegseth relies on the well-established doctrine that military servicemembers enjoy less vigorous First Amendment protections given the fundamental obligation for obedience and discipline in the armed forces. Unfortunately for Secretary Hegseth, no court has ever extended those principles to retired servicemembers, much less a retired servicemember serving in Congress and exercising oversight responsibility over the military. This Court will not be the first to do so! …

Defendants boldly argue that Senator Kelly's speech was unprotected [by the First Amendment], citing to a line of precedent establishing that First Amendment protections are more limited in the military context. See, e.g., Parker v. Levy (1974)…. Defendants rest their entire First Amendment defense on the argument that the more limited First Amendment protection for active-duty members of the military extends to a retired naval captain.

To be sure, while soldiers "are not excluded from" the First Amendment's coverage, "the different character of the military community and of the military mission requires a different application of those protections." From Parker onward, the Supreme Court has recognized that "[t]he fundamental necessity for obedience, and the consequent necessity for imposition of discipline, may render permissible within the military that which would be constitutionally impermissible outside it." Therefore, given the countervailing interests at stake in the line of duty, "speech by a member of the military that undermines the chain of command, and the obedience, order, and discipline it is designed to ensure, does not receive First Amendment protection."

However, the cases in this area uniformly involve active-duty servicemembers or speech on military bases. While retired servicemembers have an "ongoing duty to obey military orders" and may be recalled to active duty, Defendants have not identified a single case extending Parker's reasoning outside the context of active-duty soldiers.

This makes sense. Active-duty soldiers operate in "a specialized society separate from civilian society," where the "law is that of obedience," lest the military's critical mission of maximum effectiveness and lethality be undermined. As such, active-duty soldiers urging others to "disregard orders" or "calling into question a commander's credibility" may directly "undermine the effectiveness of response to command." The military therefore has a "legitimate interest in prohibiting [such] conduct to promote discipline and uphold order among its members."

The same rationale does not hold true for retired servicemembers—and certainly not those in Senator Kelly's position. While still members of the military community, retired servicemembers are also part of the "civilian community" and are not fully immersed in the "specialized society" of the active armed forces. Speech from retired servicemembers—even speech opining on the lawfulness of military operations—does not threaten "obedience, unity, commitment, and esprit de corps" in the same way as speech from active-duty soldiers. Nor can speech from retired servicemembers "undermine the effectiveness of response to command" as directly as speech from active-duty soldiers. As such, the military cannot claim the same "legitimate interest in prohibiting" speech by retired veterans.

As applied to a sitting Member of Congress, the Parker rule has even less force! Our system of "representative government requires that legislators be given the widest latitude to express their views on issues of policy." Legislators like Senator Kelly carry "an obligation to take positions on controversial political questions" both so their constituents may be "fully informed" as to the legislator's views and so constituents "may be represented in governmental debates by the person they have elected to represent them." Indeed, if legislators do not feel free to express their views and the views of their constituents without fear of reprisal by the Executive, our representative system of Government cannot function! Between the lack of precedent extending Parker outside the context of active-duty military and the heightened free speech protection for legislators, Senator Kelly's speech must receive full First Amendment protection.

Defendants respond that Senator Kelly is seeking to exempt himself from the rules of military justice that "Congress has expressly made applicable to retired servicemembers." Horsefeathers! While Congress has chosen to apply the Uniform Code of Military Justice to military retirees as well as active-duty servicemembers, that choice has little bearing on the scope of First Amendment protections for retirees. The First Amendment "is a limitation on the power of Congress," not the other way around!

Without the benefit of Parker, Defendants have no other arguments for how Senator Kelly's speech is unprotected under the First Amendment. {Senator Kelly points out that the social media video does not fit into any other recognized category of unprotected speech, like incitement. Defendants do not press an incitement argument here—and for good reason. The video was not, in any meaningful sense, likely to produce "imminent lawless action." Brandenburg v. Ohio (1969).} …

Rather than trying to shrink the First Amendment liberties of retired servicemembers, Secretary Hegseth and his fellow Defendants might reflect and be grateful for the wisdom and expertise that retired servicemembers have brought to public discussions and debate on military matters in our Nation over the past 250 years. If so, they will more fully appreciate why the Founding Fathers made free speech the first Amendment in the Bill of Rights! Hopefully this injunction will in some small way help bring about a course correction in the Defense Department's approach to these issues….

Here are more details on Kelly, his statements, and the government's actions in response:

Plaintiff Mark Kelly is a retired United States Navy Captain and a sitting United States Senator from Arizona…. He serves on the Senate Armed Services Committee, which oversees the Department of Defense. He also serves on the Senate Select Committee on Intelligence….

[Among other speech critical of the Trump Administration, o]n November 18, 2025, Senator Kelly appeared in a video with five other members of Congress (all members of the Democratic Party and veterans of the armed forces or intelligence services) stating that members of the armed forces "can refuse illegal orders." In the video, Senator Kelly identified himself as a Navy veteran: "I was a captain in the United States Navy." The group sought to "speak directly to members of the military." Acknowledging the "enormous stress and pressure" facing servicemembers, the group argued that the Trump Administration was "pitting our uniformed military … [a]gainst American citizens." "Right now," the group argued, "the threats to our Constitution aren't just coming from abroad,… [b]ut from right here at home." Senator Kelly then stated, "Our laws are clear. You can refuse illegal orders." …

On January 5, 2026, Secretary Hegseth issued a Secretarial Letter of Censure against Senator Kelly. Secretary Hegseth found that "[b]etween June 2025 and December 2025, [Senator Kelly] engaged in a sustained pattern of public statements that characterized lawful military operations as illegal and counseled members of the Armed Forces to refuse orders related to those operations." Secretary Hegseth concluded that Senator Kelly's statements undermined the chain of command, counseled disobedience to lawful orders, created confusion about duty, and brought discredit upon the Armed Forces. Accordingly, the Secretary formally censured the Senator "for conduct prejudicial to good order and discipline in the armed forces and conduct unbecoming an officer."

Secretary Hegseth also determined, based on his findings, that "good cause" existed to "reopen the determination of [Senator Kelly's] retired grade," and he directed the Secretary of the Navy to recommend "whether a reduction in grade is appropriate." Secretary Hegseth further warned Senator Kelly that he may "subject [himself] to criminal prosecution or further administrative action" if he continued "to engage in conduct prejudicial to good order and discipline." Senator Kelly may submit a "written rebuttal" to the Letter, but he has no "right to appeal."

The same day, Senator Kelly received a letter from the Chief of Naval Personnel referring the Senator to retirement grade determination proceedings (hereinafter, "Retirement Grade Proceeding"). The Notification confirmed that Senator Kelly's "retirement will be revisited," with the sole "factual basis supporting [the] action" being the "Secretary of War letter of censure." …

I think the court generally reaches the correct result, and for largely correct reasons, though I think some of the rhetoric (e.g., "Horsefeathers!") undermines rather than strengthens the persuasive force of the argument.

Benjamin Mizer, Jeffrey Smith, Aaron Sobel, Bonnie Devany, Deborah A. Curtis, Samuel Francis Callahan, and Paul Joseph Fishman (Arnold & Porter Kaye Scholer LLP) represent Kelly.

Comments

[TwelveInchPianist]

"As such, the military cannot claim the same "legitimate interest in prohibiting" speech by retired veterans."

Sounds right to me.

[not guilty]

As I wrote on the open thread, Judge Leon's treatment of the merits is a tour de force. There is little decisional law dealing with the First Amendment rights of retired service members. The facts here are very favorable to upholding the exercise of free speech. As Judge Leon wrote at page 29:

Rather than trying to shrink the First Amendment liberties of retired servicemembers, Secretary Hegseth and his fellow Defendants might reflect and be grateful for the wisdom and expertise that retired servicemembers have brought to public discussions and debate on military matters in our Nation over the past 250 years. If so, they will more fully appreciate why the Founding Fathers made free speech the first Amendment in the Bill of Rights! Hopefully this injunction will in some small way help bring about a course correction in the Defense Department's approach to these issues.

I do have some concerns about whether the order fully complies with Rule 65 of the Federal Rules of Civil Procedure. Rule 65(d)(1) requires that:

Every order granting an injunction and every restraining order must:

(A) state the reasons why it issued;

(B) state its terms specifically; and

(C) describe in reasonable detail—and not by referring to the complaint or other document—the act or acts restrained or required.

I doubt that the instant preliminary injunction comports with subsections (B) and (C), in that what it prohibits is not clearly described in sufficient detail.

Likewise, Rule 65(c) states that: "The court may issue a preliminary injunction or a temporary restraining order only if the movant gives security in an amount that the court considers proper to pay the costs and damages sustained by any party found to have been wrongfully enjoined or restrained."

A preliminary injunction bond can be waived or fixed at a nominal amount, but only if the court states its reasons for such waiver.

[Absaroka]

"no court has ever extended those principles to retired servicemembers, much less a retired servicemember"

I wonder ... under the theory advanced, could President Eisenhower criticize the military? Defense Secretary Powell?

[David Nieporent]

Were they retired a la Kelly? Or instead were they whatever the status is called when one can't be recalled to active service, like the other video makers?

[ReaderY]

The judge might want to remove some of the exclamation points as well. I agree they are unnecessary.

I would have put nore emphasis on the absolute protection the constitution gives legislative speech under the Speech and Debate Clause. Senator Kelly’s election to Congress makes Congress his primary duty, and exempts him from any duties to the military that conflict with his duties to Congress.

I agree that retired members of the military do not have reduced speech protections. But in my view this case is first and foremost about the power and rights of Congress and its members, not about Mr. Kelly’s personal rights as an individual.

I would have framed it as an attempt to hinder Senator Kelly in conducting his legislative oversight functions of the Executive, and emphasize that such hinderance cannot be tolerated.

[David Nieporent]

I would have put nore emphasis on the absolute protection the constitution gives legislative speech under the Speech and Debate Clause.

How does putting out a video to the public in any way fit under the S&D clause?