Sen. Mark Kelly, D-Ari., speaks at a rally on Capitol Hill in Washington, May 6, 2025. A federal judge temporarily blocked the Pentagon from punishing Kelly over his participation in a video reminding troops they can resist unlawful orders. (Eric Kayne/Stars and Stripes)
WASHINGTON — A federal judge on Thursday temporarily blocked Defense Secretary Pete Hegseth from attempting to punish Democratic Senator Mark Kelly of Arizona for reminding troops in a video that they can refuse illegal orders.
U.S. District Judge Richard J. Leon wrote in a 29-page ruling that the Defense Department’s retaliatory actions to discipline Kelly, a retired Navy captain and former astronaut, trampled on Kelly’s freedom of speech and threatened the rights of other military retirees.
“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 wrote.
The decision came two days after a grand jury in Washington, D.C., rejected an attempt by federal prosecutors to indict Kelly and five other Democratic lawmakers who participated in a video directed at active-duty members of the military and intelligence community.
“Our laws are clear,” Kelly said in the video, released in November. “You can refuse illegal orders.”
The video infuriated President Donald Trump, who accused the lawmakers of “SEDITIOUS BEHAVIOR, punishable by DEATH!” The Pentagon then launched an investigation into Kelly, the only retired military veteran in the group, and began a process to reduce his retirement rank and pension.
Kelly sued Hegseth and the Defense Department in January after Hegseth announced the demotion proceedings and censured Kelly for allegedly undermining the chain of command, counseling disobedience and engaging in a “pattern of reckless misconduct.”
In a statement Thursday, Kelly said he appreciated the judge’s ruling but believes the Trump administration will continue its efforts to punish him.
“I didn’t ask for this fight, but I have been defending the Constitution since I was commissioned as an ensign in the U.S. Navy,” he said. “After decades of public service, I can’t think of anything more important I can do for my country than defending the free speech rights of millions of retired veterans and all Americans.”
Hegseth said the court’s decision will be “immediately appealed,” writing in a post on X that “Sedition is sedition, ‘Captain.’”
The Justice Department had argued that the video and Kelly’s comments criticizing the Trump administration’s military policies and actions, including the firing of admirals and generals, undermined military discipline.
But Judge Leon, a nominee of President George W. Bush, wrote that Kelly was acting within his role as a member of the Senate Armed Services Committee and as a veteran and was not subject to the more limited freedom of speech protections of active-duty service members.
He also dismissed arguments from government lawyers that Kelly should have gone through the military appeals process first, deeming it an attempt by the military to “have the first crack at adjudicating his First Amendment rights.”
“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,” wrote Leon. “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!”
The ruling also cited a friend-of-the-court brief filed by 41 former high-ranking military officers supporting Kelly who warned that veterans are now declining to participate in debate on matters of public importance due to fear of reprisal from the government.
“That is a troubling development in a free country!” Leon wrote.
