Court Leans to Mark Kelly Over Pentagon in Free-Speech Fight

A federal appeals court panel appeared likely to uphold a lower court order temporarily barring Defense Secretary Pete Hegseth from penalizing Sen. Mark Kelly (D-Ariz.) over remarks telling service members they may disobey unlawful orders.

Though Judge Karen Henderson, who was appointed to the court by President George H.W. Bush, appeared sympathetic to the government’s position during oral argument at the US Court of Appeals for the District of Columbia Circuit Thursday, Democratic-appointed judges Nina Pillard and Florence Pan seemed likely to side with Kelly.

Pillard and Pan laid into the administration during oral arguments, which Kelly attended with his wife and daughter, telling Justice Department lawyer John Bailey that a video of Kelly and several Democratic congressional colleagues addressing service members didn’t appear to counsel disobedience of lawful orders — the government’s justification for treating the remarks as unprotected speech.

“If a retired military service member wishes to say things in the public sphere about military policy: ‘Don’t obey illegal orders;' they have to give up what they’ve earned by being military service members, by serving their country?” Pan asked. “They have to give that up in order to say these things, that’s your position?”

“If a retired officer wants none of the obligations that come with membership in the military, they must give up the benefits,” Bailey responded. The administration is arguing that later remarks criticizing the administration’s military decisions that followed Kelly’s video support Hegseth’s inference that Kelly was counseling service members to disobey lawful orders.

The Trump administration is appealing a lower court ruling earlier this year that the Pentagon’s move to penalize Kelly for his comments in the video was likely unconstitutional.

Hegseth in January sent Kelly a censure letter stating that his public criticism of the Pentagon “undermines the chain of command” and that “good cause” exists to consider reducing Kelly’s retirement grade, which determines his pension.

Kelly, represented by Arnold & Porter, sued shortly thereafter, asking the US District Court for the District of Columbia to block the Pentagon’s move to demote him and dock his pension. The Defense Department’s actions violated Kelly’s right to free speech under the US Constitution’s First Amendment, the Jan. 12 complaint said.

The administration has contended that First Amendment protections for service members — including retirees — are more limited than those for private citizens.

But Benjamin Mizer, arguing for Kelly, said the categories of unprotected speech are “few and narrow.” Kelly hadn’t advised service members to disobey lawful orders, but rather had recited a bedrock principle of military law, Mizer said, contending that it would be “quite extraordinary” to allow the executive to punish a senator for public statements.

Pan said the court wasn’t likely to address what test should be applied to the speech of retired service members. The panel may affirm the lower court’s ruling rejecting the government’s argument that a decision addressing speech by an active-duty officer applied to Kelly’s case without setting forth the standard for retirees, she added.

The case is Kelly v. Hegseth, D.C. Cir., No. 26-05070, oral argument 5/7/26.