Sen. Mark Kelly remains a member of the military and should be held to the same rules regarding his public speech as any other active-duty member, the government countered in legal papers ahead of a key court hearing next week.
The April 27 filing in the U.S. Court of Appeals for Washington, D.C., offered the Pentagon’s response to Kelly’s own legal arguments over the “illegal orders” video that snowballed into an effort to censure and demote Kelly, D-Arizona.
The case is scheduled for arguments before the appeals court on May 7.
U.S. District Judge Richard Leon ruled in February that retired veterans such as Kelly don’t forfeit their First Amendment rights, even on matters relating to the military. He at least temporarily halted Pentagon chief Pete Hegseth’s move to demote Kelly, which could reduce his retirement pension, over a video he and President Donald Trump view as “seditious.”
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On appeal, the Pentagon looks to reverse Leon and force Kelly, who is a retired Navy combat pilot, to work through the military’s administrative process. Kelly has sought to keep in place Leon’s ruling, but does so using faulty logic, the government argued.
“The district court here held that the military has no ability to restrict the speech of retired officers — not even speech that counsels disobedience to lawful orders,” the government wrote. It described the court’s ruling “plainly wrong” and again sought to have Kelly treated as anyone else currently serving.
“Kelly does not contest that he is currently in the armed forces. He does not dispute that he could undermine military discipline by influencing active-duty servicemembers. And he does not disagree that these are the very reasons that the Supreme Court and this Court have rejected First Amendment claims by other servicemembers who counseled disobedience to lawful orders.”
The legal distinction is central to Kelly’s legal battle with the Pentagon.
Kelly
In November, he and five other congressional Democrats released a viral video that reminded service members they must disobey illegal orders. That has been a longstanding military policy safeguarded by legal rulings.
But the timing of the message wrapped it in political overtones.
It happened as the Trump administration put the military on a more aggressive posture worldwide, including with strikes on suspected drug boats in international waters.
The Democrats have never said what, if any, orders should have been disobeyed.
The government has argued throughout its case with Kelly that his words have undermined the authority of the Pentagon. It contends the same message from someone on active duty would not survive legal scrutiny.
Kelly, a member of the Senate Armed Services Committee, which has oversight of the military, has argued that his views of the military are protected speech and are heightened by his membership in Congress, which has its own ability to weigh in on issues of public concern.
But Kelly has long argued that the case is about more than his own free speech rights.
Six different groups, ranging from retired senior officers to the libertarian Cato Institute, have filed court papers outlining their own arguments for siding with Kelly.
They have framed the issue as potentially chilling free speech for every veteran who might criticize the Pentagon’s policies.
Kelly and the other five Democrats have faced Trump’s ire since they published the video in November.
On Feb. 10, a federal grand jury in Washington, D.C., refused to criminally indict all six of them in another rebuke to the Trump administration.
In ruling for Kelly, Leon noted that active duty servicemembers have long had “less vigorous First Amendment protections” to ensure order in the military.
“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,” Leon wrote. “This Court will not be the first to do so!”
