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WASHINGTON (CN) — A federal judge on Thursday blocked the Pentagon’s effort to demote and censure Arizona Senator Mark Kelly over a video in which he urged service members to reject illegal orders, finding the military’s First Amendment limitation clearly does not extend to retired members.
Senior U.S. District Judge Richard Leon granted the preliminary injunction and rejected Secretary of Defense Pete Hegseth’s defense that Kelly should be forced to exhaust his case before the Board of Correction of Naval Records before he can bring a First Amendment claim.
“This court has all it needs to conclude that defendants have trampled on Senator Kelly’s First Amendment freedoms and threatened the constitutional liberties of millions of military retirees,” the George W. Bush appointee wrote in a 29-page opinion. “After all, as Bob Dylan famously said, ‘You don’t need a weatherman to know which way the wind blows.’ To say the least, our retired veterans deserve more respect from their government, and our Constitution demands they receive it!”
Leon blocked the Department of the Navy from beginning a retirement grade proceeding against the former Navy captain and astronaut, which would impact Kelly’s status as a captain and his retirement pension. He also froze Hegseth’s findings, stated in a censure letter, that Kelly’s statements undermined the chain of command and “brought discredit upon the armed forces.”
At a hearing on Feb. 3, the Justice Department argued the court could not “second guess” the military’s judgment and thus Kelly’s censure was not subject to judicial review — an argument the government has made in numerous cases, even those unrelated to military matters — until Kelly had exhausted his claim internally.
Leon rejected that argument, noting courts regularly hear constitutional claims arising from military personnel matters and that Kelly’s First Amendment claim was clearly justiciable.
“Secretary Hegseth relies on the well-established doctrine that military service members enjoy less vigorous First Amendment protections given the fundamental obligation for obedience and discipline in the armed forces,” Leon wrote. “Unfortunately for Secretary Hegseth, no court has every extended those principles to retired service members, much less a retired service member serving in Congress and exercising oversight responsibility over the military. This court will not be the first to do so!”
He added: “Legislators like Senator Kelly carry ‘an obligation to take positions on controversial political questions’ both so their constituents may be ‘fully informed’ as to the legislator’s views and so constituents ‘may be represented in governmental debates by the person they have elected to represent them. Indeed, if legislators do not feel free to express their views and the views of their constituents without fear of reprisal by the executive, our representative system of government cannot function!”
In a footnote, Leon emphasized that the only related case the Justice Department could provide, *Closson v. U.S.,*an 1896 case in which a retired Army captain was arrested and subjected to court-martial after sending a “letter of an offensive character” to a high-ranking general, did not include any First Amendment claims.
In a video statement on X, Kelly lauded Leon’s decision and said he felt he had to bring the case to challenge the Trump administration’s effort to limit the First Amendment’s reach, for veterans and all Americans.
“This administration was sending a message to millions of retired veterans that they too can be censured or demoted just for speaking out,” Kelly said. “This is a critical moment to show this administration that they can’t keep undermining the freedoms that generations of Americans like me went to war to defend.”
He added that, while grateful for Thursday’s decision, he expected the Trump administration to appeal to the D.C. Circuit and argue the military was not afforded the proper deference — as the Pentagon did in a case challenging a ban on transgender soldiers now before the D.C. Circuit.
“This might not be over yet, because this president and this administration do not know how to admit when they’re wrong,” Kelly said. “But one thing is for sure — however hard the Trump administration may fight to punish me and silence others, I’m going to fight 10 times harder because this fight is too important.”
Thursday’s decision comes two days after reports that a federal grand jury in Washington rejected prosecutors’ efforts to indict Kelly, Michigan Senator Elissa Slotkin and four other Democratic lawmakers over their role in the video. During a press conference Wednesday, Slotkin suggested she may take similar legal action.
“Rather than trying to shrink the First Amendment liberties of retired service members, Secretary Hegseth and his fellow defendants might reflect and be grateful for the wisdom and expertise that retired service members have brought to public discussions and debate on military matters in our nation over the past 250 years,” Leon concluded. “If so, they will more fully appreciate why the Founding Fathers made free speech the first amendment in the Bill of Rights!”
The Pentagon did not respond to a request for comment.
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