A three-judge panel on the U.S. Court of Appeals for the D.C. Circuit pressed hard against the Department of Defense's case Thursday, questioning whether the Pentagon can strip a sitting senator's retirement rank and censure him over a political video, and whether doing so amounts to punishing free speech.
The case centers on Sen. Mark Kelly (D-Ariz.), a retired Navy captain who appeared in a November video alongside five other Democratic lawmakers with military or intelligence backgrounds. The video called on service members to "refuse illegal orders." Defense Secretary Pete Hegseth responded by launching retirement grade determination proceedings against Kelly and issuing a formal letter of censure.
Kelly sued in January. A federal judge blocked the Pentagon's efforts in February, granting a preliminary injunction on First Amendment grounds. Now the administration's appeal has landed before a D.C. Circuit panel that, based on Thursday's oral arguments, appears deeply skeptical of the government's position.
Justice Department lawyer John Bailey argued that Kelly's video was not the benign civics lesson his legal team portrays. Bailey told the panel that Hegseth viewed the video as a veiled call to reject lawful directives, not a neutral recitation of military law.
"It was the secretary's inference that this was a 'wink, wink and a nod.'"
Bailey contended that the video related to "specific ongoing operations" and that Hegseth "looked at the totality and drew an inference that it was counselling disobedience." The Justice Department's broader legal argument rests on the principle that retirement from active service is not the same as separation from the military, and that former service members must abide by stricter speech standards than ordinary civilians.
That argument has a certain logic. Military retirees draw retirement pay, hold their rank, and can theoretically be recalled to active duty. The government's position is that these ongoing ties to the armed forces carry ongoing obligations, including limits on speech that could undermine discipline or encourage insubordination.
But the judges were not buying it Thursday. Judge Florence Pan, an appointee of former President Biden, zeroed in on what the government's position would mean in practice for every retired service member in the country.
"You're saying that, if he wants to speak freely, he should discharge himself, which means giving up his retirement pay, giving up his rank, giving up all of those things. That that is the price that our military retirees and veterans should pay if they want to speak freely?"
Pan also posed a hypothetical about a military draft notice and First Amendment rights, pressing the government on the outer limits of its theory. When Bailey reiterated that Hegseth drew his inference from the totality of the circumstances, Pan was blunt.
"I think that kind of proves the point that that can't possibly be the correct interpretation."
Judge Cornelia Pillard, an appointee of former President Obama, raised a different problem with the government's case, timing. She noted that when the November video was released, it contained no specifics about which orders Kelly considered unlawful. Those details came months later, in subsequent court filings where Kelly pointed to President Trump's deployment of National Guard members to cities and a series of lethal strikes against boats allegedly smuggling drugs.
"Here, the details about what Sen. Kelly thinks are unlawful orders come months later. Like, somebody who's a service member who's listening to that video, is there any basis to think that they would infer when he says, 'unlawful orders,' that he's characterizing some category of what the secretary thinks are lawful orders to be unlawful?"
That question cuts to the heart of the matter. If the video itself was too vague for a reasonable service member to know which orders Kelly meant, the Pentagon's claim that it constituted actionable incitement to disobedience starts to crumble.
Ben Mizer, a lawyer for Kelly, framed the Pentagon's actions in stark terms, telling the panel the censure and retirement proceedings amount to "textbook retaliation against disfavored speech." The case has drawn attention from those who worry about the precedent it could set, not just for lawmakers, but for the roughly two million military retirees across the country who hold opinions about government policy. A grand jury recently rejected a separate effort to indict Democratic senators over the same video, underscoring how the legal system has struggled with attempts to punish lawmakers for political speech related to military affairs.
Mizer argued that Kelly's words were nothing more than a restatement of basic military law, the principle, taught in basic training, that service members have a duty to refuse unlawful orders.
"The senator did not counsel disobedience of lawful orders. He simply recited the bedrock proposition of military law that every service member learns when they enter the military, which is that service members can refuse illegal orders."
The district court judge who issued the February injunction agreed, at least in part. That ruling found that while service members enjoy weakened First Amendment protections to preserve discipline in the armed forces, no court had ever extended that doctrine to retired service members. The injunction applied solely to Kelly's First Amendment claim, with the court reserving judgment on his other arguments, including alleged violations of the separation of powers, his due process rights, and the Speech or Debate Clause.
Kelly was not alone in the November video. Sen. Elissa Slotkin (D-Mich.) and Reps. Chris Deluzio (D-Pa.), Maggie Goodlander (D-N.H.), Chrissy Houlahan (D-Pa.), and Jason Crow (D-Colo.) also appeared. All have intelligence or military backgrounds. Yet it is Kelly, the retired Navy captain, whom the Pentagon targeted for military discipline.
The case arrives at a moment when multiple Democratic figures have made provocative statements about military orders, raising fair questions about where the line falls between protected political speech and conduct that genuinely threatens good order and discipline.
Conservatives rightly expect military discipline to be maintained. A retired officer who actively encourages insubordination against lawful orders deserves scrutiny. But the government's own lawyer conceded that Hegseth's case rests on an "inference" drawn from the "totality", not from any explicit call to disobey a specific lawful directive. When a cabinet secretary's primary evidence is a subjective reading of tone, the precedent gets dangerous fast.
The appeals court's skepticism also reflects a practical reality that other recent appellate battles involving the Pentagon have highlighted: courts are reluctant to let executive agencies expand their disciplinary reach into territory that brushes against core constitutional protections, especially when the factual basis is thin.
After Thursday's arguments, Kelly told reporters he "will not back down."
"They're trying to send a message to other retired veterans, and really, to all of us. If you say something that the president or this administration does not like, they're going to come after you."
He added: "The president is trying to silence us, and I can't think of anything that's more un-American."
That framing is, of course, politically convenient for Kelly. He gets to cast himself as a free-speech martyr while the underlying video was plainly a partisan production, six Democrats, all with military credentials, releasing a coordinated message timed to a political moment. Kelly's later court filings, which cited specific Trump administration military operations as examples of "illegal orders," make the political motivation even clearer.
But political motivation does not automatically strip speech of constitutional protection. And the government's argument, that a vague, general video about "illegal orders" amounts to actionable incitement, requires a leap that two of the three judges on Thursday's panel seemed unwilling to make. The broader trend of appellate courts scrutinizing executive overreach suggests the administration may face an uphill fight here.
The identity of the third judge on the panel was not disclosed in reporting on the hearing, and the court has not indicated when it will rule. The stakes extend well beyond Mark Kelly's retirement rank.
If the Pentagon can censure and demote a retired officer for a political video that restates a general principle of military law, without pointing to any specific lawful order that was disobeyed or any concrete harm to military discipline, then every retired service member in America is on notice. The question is not whether Kelly's video was in good taste or good faith. The question is whether the executive branch can punish political speech it dislikes by reaching back into a retiree's military file.
Thursday's arguments suggest at least two members of the panel think the answer is no.
Conservatives should want military discipline enforced, and they should want it enforced through process, evidence, and law, not through inference and political payback dressed in uniform. If the government's best argument is a "wink, wink and a nod," it doesn't have much of an argument at all.
