A federal judge appeared likely to side with Senator Mark Kelly in his challenge against Secretary of Defense Pete Hegseth's effort to demote the retired Navy captain for comments urging military members to reject illegal orders. Senior U.S. District Judge Richard Leon, a George W. Bush appointee, expressed strong skepticism toward the Justice Department's position during a hearing at the E. Barrett Prettyman Courthouse in Washington.
The case centers on whether the Pentagon can apply the same speech restrictions to retired service members that govern active-duty personnel. Leon seemed unconvinced by the government's argument that such restrictions should extend beyond active service. "Extending speech limits to retirees have never been done before," Leon said in an exchange with Justice Department attorney John Bailey. "You're asking me to do something the Supreme Court nor the D.C. Circuit have done; that's a bit of a stretch, don't you think?"
Kelly, a Democrat representing Arizona and member of the Senate Armed Services Committee, faces potential demotion in retaliation for his public statements. The controversy arose after Kelly urged military members to reject illegal orders, comments that apparently prompted Hegseth to pursue disciplinary action against the retired officer.
Speaking outside the courthouse following the hearing, Kelly characterized the case as defending fundamental constitutional rights. "There's nothing more fundamental to our democracy than our freedom of speech and the freedom to speak out about our government, and that's what I'm fighting for," Kelly said. "A lot is at stake. I wore the uniform to defend this country and to defend the Constitution. Secretary Hegseth censured me and is now trying to demote me for things that I said and for doing my job as a United States Senator."
During the hearing, Leon challenged the Justice Department's argument that Kelly could not claim his speech had been chilled because he has vowed to continue speaking. The judge noted that the chilling effect extended far beyond Kelly himself to millions of other retired service members, both in Congress and in civilian life.
Justice Department attorney Bailey argued that the military should retain authority to limit certain speech by retirees if such statements "undermine military discipline and obedience" according to military leadership. However, Leon warned that such broad authority could prevent veteran lawmakers from effectively performing their congressional duties, particularly problematic in Kelly's case given his role on the Senate Armed Services Committee.
Bailey defended the Pentagon's position by suggesting the military has a valid interest in limiting speech to maintain control over service members. The government's argument relies heavily on military deference, a legal doctrine that generally prevents courts from second-guessing military judgment on matters of discipline and order.
Kelly's legal team, led by Benjamin Mizer of Arnold Porter, urged Leon to reject the government's attempts to shield clearly retaliatory conduct behind military deference. The defense argued that the Pentagon's actions violated Kelly's constitutional rights and exceeded the military's authority over retired personnel.
The case presents novel questions about the extent of military authority over former service members who have transitioned to civilian roles, particularly elected officials. Traditional military speech restrictions apply to active-duty personnel to maintain discipline and unit cohesion, but extending these limitations to retirees raises significant First Amendment concerns.
Leon's questioning suggested skepticism toward the government's position, particularly regarding the unprecedented nature of applying active-duty speech restrictions to retired personnel. The judge appeared concerned about the broader implications for millions of veterans who might face similar restrictions on their constitutional rights.
The controversy highlights tensions between military discipline and civilian oversight, especially as retired military officers increasingly serve in Congress and other civilian leadership roles. Kelly's dual status as both a retired military officer and sitting senator creates unique constitutional questions about the boundaries of military authority.
The case also reflects broader debates about military leadership and civilian control, particularly relevant given recent controversies surrounding military appointments and political statements by current and former officers. The outcome could establish important precedent for how courts balance military interests against constitutional rights of retired service members.
Leon has not yet issued a ruling, but his extensive questioning of the Justice Department's arguments suggests the government faces an uphill battle in defending Hegseth's actions. A decision favoring Kelly would likely strengthen First Amendment protections for retired military personnel and limit the Pentagon's ability to retaliate against former officers for their civilian political activities.
The case underscores the complex intersection of military service, constitutional rights, and civilian governance, with implications extending far beyond Kelly's individual circumstances to affect millions of veterans across the country.