A federal appeals court on Thursday appeared unlikely to support Defense Secretary Pete Hegseth’s attempt to punish Democratic Senator Mark Kelly over comments encouraging U.S. service members to refuse illegal orders.
During a hearing at the U.S. Court of Appeals for the D.C. Circuit, two judges strongly questioned the Trump administration’s argument that Kelly’s remarks justified disciplinary action from the Pentagon.
Judges Push Back on Government’s Argument
The case centers around comments Kelly made in a November video alongside other Democratic lawmakers with military or intelligence backgrounds. In the video, they urged service members not to obey unlawful orders from the government.
Judge Nina Pillard pointed out that refusing illegal orders is a principle taught at military academies.
“That is something that is taught at Annapolis to every cadet,” Pillard said during the hearing.
Judge Florence Pan also criticized the administration’s position, saying veterans should not lose their rights for repeating basic military principles.
“These are people who served their country,” Pan said. “And you’re saying they have to give up their retired status in order to say something that is a textbook example taught at West Point and the Naval Academy.”
The third judge on the panel, Karen Henderson, appeared more open to the government’s position, noting that retired military members can still be recalled and disciplined under military law.
Why Mark Kelly Sued
Mark Kelly, a retired Navy captain and former astronaut, sued Defense Secretary Pete Hegseth in January after the Pentagon announced plans to punish him.
The proposed punishment included lowering Kelly’s military retirement rank, which would reduce his retirement pay, and issuing an official letter of censure.
Kelly argued the move was retaliation for protected political speech.
His lawyer, Benjamin Mizer, told the court that Kelly simply repeated a “bedrock principle of military law” and called the Pentagon’s actions “textbook retaliation for disfavored speech.”
Debate Over Veterans’ Free Speech Rights
The hearing focused heavily on whether retired military members have the same free speech protections as civilians.
Justice Department lawyer John Bailey argued that retirees are still connected to the military and can face punishment if their speech harms discipline or military order.
“In the military context, the First Amendment is going to function differently,” Bailey said.
But judges Pillard and Pan questioned whether Kelly’s comments crossed any legal line, especially since he never encouraged troops to disobey lawful orders.
“Sen. Kelly never says disobey lawful orders,” Pillard said.
The judges also noted there is very little legal precedent defining the speech rights of retired military members, creating a gray area in constitutional law.
Political Fallout Continues
Outside the courthouse, Kelly warned that the administration’s actions could have wider consequences for veterans and critics of the president.
“If you say something that the president and this administration does not like, they’re going to come after you,” Kelly said.
The case has become another major flashpoint in the ongoing political battle between President Donald Trump’s administration and high-profile critics, especially those with military backgrounds.
A final ruling from the appeals court has not yet been issued.
