FIRE Brief Challenges Defense Secretary's Authority to Censure Retired Officer Sen. Mark Kelly

The Foundation for Individual Rights and Expression (FIRE) filed a brief with the U.S. Court of Appeals for the D.C. Circuit in the case Kelly v. Hegseth. The brief supports upholding a preliminary injunction that bars Defense Secretary Pete Hegseth from disciplining Sen.

Mark Kelly, a retired Navy captain, for his public statements. FIRE argues that applying the Supreme Court's 1974 decision in Parker v. Levy to retirees would create an exception to First Amendment protections. Hegseth cited Kelly's participation in a November 18 video where Kelly and five other Democratic legislators reminded military personnel of their duty to refuse illegal orders.

The video did not reference specific orders but occurred during President Donald Trump's domestic military deployments and operations against suspected cocaine smugglers. Hegseth sent Kelly a letter of censure on January 5, referencing the video and other comments, including Kelly's defense of the video, his description of the principle as legally uncontroversial, his pledge to defend the Constitution, and his statement that intimidation would not silence him.

Hegseth also noted Kelly's criticism of Pentagon missile strikes on suspected drug boats and Hegseth's decisions to fire admirals and generals while surrounding himself with yes men. Hegseth stated these remarks were prejudicial to good order and discipline in the armed forces and threatened to reduce Kelly's retirement rank and pension if such conduct continued.

The letter warned of potential criminal prosecution or further administrative action. FIRE's brief states that the government does not defend these actions under standard First Amendment rules and instead claims Kelly's retired status allows for punishment of his speech.

The brief argues this extends Parker v. Levy beyond its context, which involved an active-duty Army captain, Howard Levy, who urged soldiers to defy deployment orders during the Vietnam War. The Supreme Court upheld Levy's punishment, citing the military as a specialized society requiring obedience.

FIRE notes there is no historical precedent for restricting speech of military retirees based on their status. The brief cites retired Marine Major Gen. Smedley Butler, who after retiring in 1931, gave speeches and published a 1935 book criticizing American military intervention.

A separate brief filed by 73 former admirals, generals, and service secretaries states that the threat of censure has deterred military retirees from speaking on public issues. FIRE argues that retirees' experience provides valuable insights on topics like war powers, military law, and operations.

The brief states that allowing punishment for speech deemed disruptive would chill criticism while permitting praise of military leadership. The case remains pending in the appeals court.