Appeals Court Hears Pentagon Case Against Sen. Mark Kelly

A federal appeals court appeared skeptical Thursday of the Pentagon's bid to censure Sen. Mark Kelly over a video urging service members to refuse illegal orders. The three-judge panel on the U.S. Court of Appeals for the D.C.

Circuit sharply questioned the government's position during more than an hour of arguments in Washington. One judge told a Justice Department lawyer that service members put their lives on the line and questioned whether they must give up retired status to state what is taught at military academies about disobeying illegal orders. Kelly spoke to reporters outside the courthouse afterward.

"This was a day in court not just for me, but for the first amendment rights of millions of us," Kelly said. The case stems from a video Kelly participated in during November 2025 amid criticism of the Trump administration's deployment of the National Guard in U.S. cities and authorization of lethal strikes on suspected Latin American drug smuggling boats.

A district judge issued a preliminary injunction in February blocking the administration from pursuing the censure. The Pentagon appealed that ruling.

Officials argue that retired officers remain part of the armed forces, are subject to recall to active duty and can still influence service members. A Justice Department lawyer told the court Thursday that the Constitution does not protect speech by military officers who urge disobedience to lawful orders, even if retired.

"It's very clear that this is about a pattern and totality of conduct, not any one line or any one statement taken in isolation," the government lawyer said.

Kelly's attorneys countered that the actions amounted to retaliation against protected political speech on matters of public concern. "The punishments imposed on Senator Kelly are textbook retaliation against disfavored speech," one of his lawyers argued.

Kelly, a Democrat from Arizona, had joined the video as criticism mounted over certain administration policies involving military and law enforcement actions domestically and abroad. Kelly maintains his remarks reflected standard military instruction taught at West Point and the Naval Academy.

The appeals court's questions suggested the panel may not allow the Pentagon to proceed with disciplining the senator and lowering his retirement rank. A ruling has not yet been issued.

“This was a day in court not just for me, but for the first amendment rights of millions of us.”