Defense & National Security Newsletter

Judges seem skeptical of Pentagon arguments in case brought by Sen. Mark Kelly

by Ellen Mitchell - 05/07/26 7:14 PM ET

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by Ellen Mitchell - 05/07/26 7:14 PM ET

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Judges seem skeptical of Pentagon arguments in case brought by Sen. Mark Kelly

A federal appeals court panel didn’t appear convinced by Defense Department efforts to censure Sen. Mark Kelly (D-Ariz.) and lower his retirement rank over his role in a controversial video.

A three-judge panel on the U.S. Court of Appeals for the D.C. Circuit sharply questioned the Pentagon over its assertion that Kelly, a retired Navy captain, is subject to military punishment for participating in the video that called on service members to “refuse illegal orders.”

“You’re saying that, if he wants to speak freely, he should discharge himself, which means giving up his retirement pay, giving up his rank, giving up all of those things,” said Judge Florence Pan, an appointee of former President Biden. “That that is the price that our military retirees and veterans should pay if they want to speak freely?”

Kelly sued in January after Defense Secretary Pete Hegseth announced the Pentagon had initiated retirement grade determination proceedings and issued a formal letter of censure over the November video, in which Kelly and five other Democrats with intelligence or military backgrounds called on troops to “refuse illegal orders.”

A federal judge in February blocked the Pentagon’s efforts, asserting that while service members enjoy weakened First Amendment protections to preserve discipline in the armed forces, no court had ever extended that doctrine to retired service members.

Ben Mizer, a lawyer for Kelly, told the panel that the punishments imposed on the senator are “textbook retaliation against disfavored speech.”

The six lawmakers who participated in the video at the time it was shared did not specify which orders from the administration they viewed as illegal, but in later court filings, Kelly pointed to President Trump’s deployment of National Guard members to cities and a series of lethal strikes against boats allegedly smuggling drugs.

The judges seemed unconvinced by the government’s suggestion that the video made that clear.

The Justice Department has argued that the speech of veterans is more limited than that of regular civilians. It says that retirement from active service is not the same as separation from the military, requiring former service members to abide by stricter standards.

Pan pressed the government on a hypothetical, asking whether an individual who opens a military draft notice would immediately be limited in their First Amendment right to criticize the military. After demurring several times, the government agreed that immediately upon joining the armed forces, conditions fall in place.

“I think that kind of proves the point that that can’t possibly be the correct interpretation,” Pan said.

After the arguments, Kelly told reporters that he “will not back down” as his legal challenge proceeds.

Read the full report at thehill.com.

Welcome to The Hill’s Defense & National Security newsletter, I’m Ellen Mitchell — your guide to the latest developments at the Pentagon, on Capitol Hill and beyond.

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