Judge Leans to Mark Kelly Free-Speech Claim in Hegseth Fight (1)

A Washington federal judge appeared likely to block Defense Secretary Pete Hegseth from penalizing a Democratic senator over public remarks criticizing Trump administration military actions.

Senior Judge Richard Leon of the US District Court for the District of Columbia heard arguments Tuesday in a case stemming from the Pentagon’s efforts to cut military retirement benefits for Sen. Mark Kelly (D-Ariz.), over a video in which the US Navy veteran told service members that they can refuse illegal commands.

Leon appeared skeptical during the hearing, which Kelly attended, that free speech restrictions imposed on active duty service members should extend to those who have retired as well.

“You’re asking me to do something the Supreme Court has never done,” Leon told Justice Department lawyer John Bailey. “That’s a bit of a stretch, is it not?”

Leon raised concerns that the Pentagon’s actions could chill not only Kelly’s speech, but also discourage other military veterans from speaking freely. And he questioned how a sitting US senator who is a military veteran is “supposed to do his job or her job” if they can’t share their opinions.

The judge also stressed the issues presented are “very novel” and that he wasn’t aware of another First Amendment case in the Washington federal court of this nature involving a sitting US senator.

Kelly told reporters after the hearing that “today was a day in court not just for my constitutional rights, but for millions of retired service members, and really all Americans.”

“There’s nothing more fundamental to our democracy than freedom of speech, and the freedom to speak out about our government, and that’s what I’m fighting for,” Kelly said.

The November video by several lawmakers, who like Kelly are also former members of the military or intelligence community was posted amid increased scrutiny into President Donald Trump’s use of the military, including National Guard deployments across the country and military strikes on alleged drug smuggling boats in the Caribbean Sea.

“Our laws are clear. You can refuse illegal orders,” Kelly said in the video. Kelly, who has represented Arizona in the Senate since 2020, previously served as an officer and naval aviator for the US Navy. He’s also a veteran of multiple NASA space shuttle flights.

Trump posted on TruthSocial shortly after the video was released that the lawmakers’ remarks amount to “SEDITIOUS BEHAVIOR AT THE HIGHEST LEVEL” and that “each one of these traitors to our Country should be ARRESTED AND PUT ON TRIAL.”

And in January, Kelly received a censure letter from Hegseth that his public criticism of the Pentagon “undermines the chain of command” and “counsel disobedience.” The letter also threatens criminal prosecution and states that “good cause” exists to consider reducing Kelly’s retirement grade, which determines his pension.

Kelly, represented by lawyers with Arnold & Porter, argued in his lawsuit that these actions violate his free speech rights, particularly as a member of Congress, and “trample on” the independence of the legislative branch.

The Justice Department has argued service members don’t have the same First Amendment protections as private citizens, and that retirees aren’t exempted from that.

The government also claimed Leon couldn’t review the case because Kelly hadn’t first completed the military’s administrative process.

The military tribunals are “best positioned” to take a “first cut” at these novel First Amendment issues, Bailey said at Tuesday’s hearing. He also said that a decision vetoing an ongoing military process would be “very detrimental” to the military’s ability to maintain order.

However, Leon said the court doesn’t need anything further to decide a First Amendment violation.

The judge said he’ll aim to issue a decision by Feb. 11, and predicted it would be appealed.

The case is Kelly v. Hegseth, D.D.C., No. 1:26-cv-00081, hearing held 2/3/26.