Pentagon bid to censure Mark Kelly takes heavy fire at DC Circuit

WASHINGTON (CN) — A D.C. Circuit panel signaled Thursday it would likely side with Arizona Senator Mark Kelly in his case against Secretary of Defense Pete Hegseth challenging an effort to demote and censure him over a video urging service members to reject unlawful orders.

The three-judge panel seemed doubtful that the Pentagon could restrict the First Amendment speech of retired service members the same way it could for those in active service and took issue with the government's assertion that Kelly's speech was problematic considering he did not call for lawful orders to be disobeyed.

In November 2025, Kelly joined a group of other military veteran Democrats to warn U.S. service members that the Trump administration was threatening citizens' trust in the military and was actively violating the Constitution.

"Our laws are clear," the lawmakers said in the video. "You can refuse illegal orders. You must refuse illegal orders."

U.S. Circuit Judge Florence Pan, a Joe Biden appointee, pressed Justice Department attorney John Bailey on his position that Hegseth could determine a retired military officer's speech undermined military obedience.

"If he wants to speak freely, he should discharge himself, which means giving up his retirement pay, giving up his rank, giving up all those things, that is the price that our military retirees and veterans should pay if they want to speak freely?"

Bailey argued that retirees are still subject to the obligations of military service and thus cannot "counsel disobedience." He noted the totality of Kelly's public comments, including those that highlighted military strikes in the Caribbean and the deployment of National Guard troops domestically.

He added that if Kelly wanted to remind soldiers of their right to disobey illegal orders, he should do so as an instructor at the U.S. Naval Academy in Annapolis, Maryland, rather than as a sitting senator.

U.S. Circuit Judge Karen Henderson, a George H.W. Bush appointee, noted that Kelly holds a unique position as a "senator with a bully pulpit," and suggested his comments were more likely to undermine the military than a veteran critiquing the government at a local American Legion meeting.

On Feb. 12, Senior U.S. District Judge Richard Leon granted the preliminary injunction and rejected Hegseth's defense that Kelly should be forced to exhaust his case before the Board of Correction of Naval Records before he can bring a First Amendment claim.

The George W. Bush appointee blocked the Department of the Navy from beginning a retirement grade proceeding against the former Navy captain and astronaut, which would impact Kelly's status as a captain and his retirement pension. He also froze Hegseth's findings, stated in a censure letter, that Kelly's statements undermined the chain of command and "brought discredit upon the armed forces."

Benjamin Mizer, representing Kelly from the firm Arnold Porter, urged the panel to simply affirm Leon's preliminary injunction and hold that the Supreme Court's 1974 decision in Parker v. Levy does not control the case.

There, Army Dr. Howard Levy was court-martialed and sentenced to three years of hard labor for telling enlisted soldiers that the Vietnam War was wrong, that Black soldiers should refuse to go and that Special Forces personnel were "liars and thieves and killers of peasants and murderers of women and children."

In a 5-3 ruling — Justice Thurgood Marshall recused himself due to his experience in military cases as the solicitor general — the high court established First Amendment limits for commissioned officers when such speech encourages soldiers to refuse direct orders in combat.

Kelly, speaking outside the E. Barrett Prettyman Courthouse following the arguments, was joined by a group of combat veterans who he said have had their own speech chilled by Trump and Hegseth's actions against him.

"The president is trying to silence us, and I can't think of anything more un-American," Kelly said.

"Today, this administration argued in federal court that not only do I not have the same freedom of speech rights as other Americans, but that the millions of other retired veterans across the country don't either," Kelly continued. "According to them, anytime a retired veterans says something the secretary of defense doesn't like, they can be punished."

He said veterans have always provided a unique perspective in public debate, and that perspective was especially vital amid the ongoing Iran war.

"Retired veterans have always been an important part of our democracy, and that's exactly why I am not backing down," Kelly said. "After 25 years in the Navy, I've given too much to this country to be silenced by an administration that does not want to be held accountable. This was a day in court not just for me, but for the First Amendment rights of millions of us."

U.S. Circuit Judge Cornelia Pillard, a Barack Obama appointee, rounded out the panel.