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A federal judge on Thursday ordered the Pentagon to stop any punishment of Democratic Sen. Mark Kelly over his participation in a video urging troops to resist unlawful orders, saying the action would violate Kelly’s First Amendment rights. U.S. District Judge Richard J. Leon also said the Pentagon’s move would “threatened the constitutional liberties of millions of military retirees,” rejecting government arguments in a lawsuit brought by Kelly against Defense Department officials.
Leon’s order prohibits the Pentagon from implementing or enforcing Kelly’s Jan. 5 censure while the court case is pending. Leon directed the parties to provide him with an update in 30 days, according to the Associated Press report.
In the ruling, Leon rejected the government’s contention that Kelly was trying to exempt himself from rules of military justice, invoking the rebuke “Horsefeathers!” Leon wrote that retired veterans “deserve more respect from their Government, and our Constitution demands they receive it!” Leon was nominated to the bench by Republican President George W. Bush.
Kelly, a former Navy pilot who represents Arizona, filed suit after the Defense Department moved to censure him, the AP reported. Leon said Kelly “is likely to succeed on the merits” of his free speech claim, and he found that Kelly had shown irreparable harm while the balance of the equities favored him, according to the report.
Leon also concluded that Kelly’s speech is entitled to full First Amendment protection. In the same opinion, Leon wrote that rather than “trying to shrink the First Amendment liberties of retired servicemembers,” Defense Secretary Pete Hegseth and other 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.”
The judge’s language also addressed what Leon called the constitutional backdrop for the dispute. He wrote that the Founding Fathers made free speech the First Amendment’s guarantee in the Bill of Rights, adding “If so,” they “will more fully appreciate why” that protection was adopted.
Kelly said after the decision that the case involved more than him personally, warning that the administration “was sending a message to millions of retired veterans that they too can be censured or demoted just for speaking out.” He added in a video statement that “This might not be over yet,” and said the administration “do not know how to admit when they’re wrong.”
Pentagon and administration officials said they planned to appeal Leon’s decision. Hegseth posted that the dispute involved what he called “Sedition,” writing “Sedition is sedition, ‘Captain,’” and characterizing Kelly by his retired military rank.
The underlying fight stems from a broader dispute between Democratic lawmakers and the Trump administration over the video. In November, Kelly and five other Democratic lawmakers appeared in a 90-second video urging troops to uphold the Constitution and not to follow unlawful military directives from the Trump administration, the AP reported.
After the video’s release, Republican President Donald Trump accused the lawmakers of sedition “punishable by DEATH” in a social media post, according to the report. A Washington grand jury later declined to indict the lawmakers over the video earlier this week, and the matter continued in court as part of the Pentagon investigation and censure process.
The Pentagon began investigating Kelly in late November, citing a federal law allowing retired service members to be recalled to active duty on orders of the defense secretary for possible court-martial or other punishment. Hegseth said Kelly was the only one of the six lawmakers to be investigated, because Kelly was the only one who formally retired from the military and still fell under the Pentagon’s jurisdiction, according to the AP account.
Kelly’s lawyers argued in court papers that the censure and the Pentagon’s efforts to reduce his retirement grade and pay amount to an unprecedented attack on veterans’ rights to publicly debate national security issues. The government argued the case was not about legislative independence or freedom of speech in civilian society, but about a retired military officer seeking to use his military status as a sword and his legislative position as a shield against consequences in military personnel matters, the AP reported.
The lawsuit names Hegseth, the Defense Department, Navy Secretary John Phelan and the Navy as defendants, and Leon’s ruling came as the dispute entered its next stage with Kelly seeking to keep the censure from taking effect while the court reviews his claims.