Appeals Court Hears Arguments on Pentagon Authority to Punish Retired Senator Over Speech

Levy governs the speech of retired service members. One judge noted that Kelly, unlike the active-duty officer in that case, never urged service members to disobey lawful orders. The video instead addressed the duty to refuse illegal orders, a concept taught at military academies.

The judge observed that the video faulted the administration for pitting uniformed military and intelligence professionals against American citizens but provided no specific examples of illegal orders. Hegseth's censure letter similarly does not identify particular orders that Kelly supposedly encouraged troops to disobey.

A second judge highlighted the broader implications of the government's stance. Retired officers would have to surrender their rank, pay and retired status to speak publicly about obeying or disobeying illegal orders. The judge described such speech as a textbook example taught at West Point and the Naval Academy.

The third judge on the panel appeared more receptive to the government's position. The judge noted Kelly's role as a senator with a prominent platform and suggested his criticism of certain military deployments could be interpreted as urging troops to stop them.

The judge also pointed out that retired officers remain subject to court-martial.

A brief supporting Kelly was filed by 73 former admirals, generals and service secretaries who served under presidents of both parties. It emphasizes the speech-chilling impact if the defense secretary can police statements by retirees. Kelly's lawyer told the court that veterans are now afraid to speak on public policy or post on social media for fear of losing their pensions.

The government maintains that retired officers must give up their pensions if they do not want the defense secretary to regulate their speech. Kelly's lawyer described that position as an insult both to veterans' service and to the First Amendment. The district judge who issued the injunction emphasized that no cases directly address the speech rights of retired service members.

The government had argued Kelly's speech was unprotected under Parker v. Levy. The appeals court panel noted that the earlier case involved an active-duty officer urging refusal of orders to fight in Vietnam, while Kelly stated the accepted principle that illegal orders should not be followed.

The question before the D.C. Circuit is whether the Parker precedent governs this situation. If it does not, the injunction would likely stand. The panel observed that the district judge simply rejected the government's sole argument rather than adopting a new standard for retirees.

" — Benjamin Mizer, Kelly's lawyer (Reason) It remains possible that courts could eventually recognize an intermediate standard for military retirees that grants more leeway than active-duty personnel but less than ordinary civilians. That standard was not developed in this case because the government argued only that retirees should be treated the same as those on active duty.

If the government's position were accepted, Hegseth would have power to regulate the speech of approximately 2 million retired officers. The case could determine the extent to which veterans retain First Amendment protections when commenting on military and national security matters in their roles as private citizens or elected officials.