Justice – A federal judge signaled Tuesday that he is inclined to rule in favor of Mark Kelly in the Democratic senator’s lawsuit accusing the Pentagon of violating his First Amendment rights by attempting to discipline him for publicly advising U.S. service members to refuse unlawful orders.
During a closely watched hearing in Washington, Senior U.S. District Judge Richard Leon expressed skepticism toward the Trump administration’s legal argument that constitutional speech protections for active-duty troops should be further limited, and extended to cover retired service members like Kelly.
“You’re asking me to do something the Supreme Court or the D.C. Circuit has never done,” Leon told a Justice Department attorney defending the Pentagon’s position. “That’s a bit of a stretch.”
Leon, who was appointed to the bench by former President George W. Bush, said he expects to rule by February 11 on Kelly’s request for an injunction that would temporarily block the Defense Department from moving forward with disciplinary action.
The hearing marked the latest clash in what critics describe as a broader effort by the Trump administration to use government authority against prominent critics of President Donald Trump. In several recent cases, federal courts have pushed back against such efforts, dismissing criminal actions involving former FBI Director James Comey and New York Attorney General Letitia James, and rejecting attempts to restrict the work of prominent whistleblower attorney Mark Zaid.
Kelly’s lawsuit was filed last month, shortly after Defense Secretary Pete Hegseth announced plans for administrative penalties against the Arizona senator. Those measures could include reducing Kelly’s retired military rank, a move that would cut his pension as a former Navy captain, and issuing a formal letter of censure.
Both Hegseth and Trump have publicly criticized Kelly over a video posted in November in which the senator, along with five other Democratic lawmakers with military backgrounds, reminded service members of their legal obligation to disobey unlawful orders that might be issued by a future administration.
In a letter sent to Kelly last month, Hegseth accused the senator of going beyond general legal guidance. “When viewed in totality, your pattern of conduct demonstrates specific intent to counsel servicemembers to refuse lawful orders,” the defense secretary wrote. He argued that Kelly’s remarks were not merely educational but amounted to advising troops to reject particular operations Kelly had labeled illegal.
Kelly’s attorneys counter that the Pentagon’s actions amount to retaliation for protected political speech and warn that expanding limits on speech to retired service members would represent a significant and unprecedented erosion of First Amendment rights.
By The Midtown Times Staff
