The D.C. federal court stepped in this week to halt the Pentagon’s attempt to punish Sen. Mark Kelly over his public comments, with Judge Richard Leon granting a preliminary injunction that blocks a formal Letter of Censure, a possible retirement-grade proceeding, and related punitive threats tied to Kelly’s speech. The ruling leans heavily on First Amendment protections for retirees and lawmakers, and Leon’s opinion uses blunt, colorful language to make its point while forecasting an appeal by the administration. This case tests how far the Defense Department can reach into the speech of retired servicemembers who also serve in Congress.
The dispute began after the military signaled punitive steps against Senator Mark Kelly following his appearance in a controversial video, and the War Department moved to censure him and potentially reduce his retirement rank and pay. Kelly challenged those actions in federal court, arguing they amounted to unconstitutional retaliation for his speech. On Thursday, Judge Leon agreed that Kelly likely will prevail on his First Amendment claim and that an injunction was necessary to prevent ongoing harm.
Leon’s written opinion runs 29 pages and does not mince words about the legal limits on military authority over retired personnel who are also lawmakers. He emphasized that courts have never stripped retired servicemembers of the more robust constitutional protections afforded to civilians and legislators, and he rejected the government’s argument that military process must be exhausted before judicial review. That conclusion matters not only for Kelly but for millions of military retirees who could otherwise have their speech chilled.
United States Senator Mark Kelly, a retired naval officer, has been censured by Secretary of Defense Pete Hegseth for voicing certain opinions on military actions and policy. In addition, he has been subjected to proceedings to possibly reduce his retirement rank and pay and threatened with criminal prosecution if he continues to speak out on these issues. Secretary Hegseth relies on the well-established doctrine that military servicemembers enjoy less vigorous First Amendment protections given the fundamental obligation for obedience and discipline in the armed forces. Unfortunately for Secretary Hegseth, no court has ever extended those principles to retired servicemembers, much less a retired servicemember serving in Congress and exercising oversight responsibility over the military. This Court will not be the first to do so!
Worse still, Secretary Hegseth contends that this Court is not yet competent to decide the issues in this case. He and his fellow Defendants argue that military personnel decisions are exempt from judicial review and, in any event, that Senator Kelly should first be required to go through the military appeals process so the military can have the first crack at adjudicating his First Amendment rights. I disagree. This Court has all it needs to conclude that Defendants have trampled on Senator Kelly’s First Amendment freedoms and threatened the constitutional liberties of millions of military retirees. After all, as Bob Dylan famously said, “You don’t need a weatherman to know which way the wind blows.” To say the least, our retired veterans deserve more respect from their Government, and our Constitution demands they receive it!
Judge Leon punctuates his opinion with rhetorical flourishes, including multiple exclamation points and an outright “Horsefeathers!” when rejecting the government’s framing of congressional authorization and the Uniform Code of Military Justice as controlling the scope of retirees’ free speech. That language reflects frustration at the notion that military rules can swallow constitutional limits when applied to retired personnel who remain active participants in civilian oversight of the armed forces.
Defendants respond that Senator Kelly is seeking to exempt himself from the rules of military justice that “Congress has expressly made applicable to retired servicemembers.” Defs.’ Opp’n at 1. Horsefeathers! While Congress has chosen to apply the Uniform Code of Military Justice to military retirees as well as active-duty servicemembers, see 10 U.S.C. § 802(a)(4), that choice has little bearing on the scope of First Amendment protections for retirees. The First Amendment “is a limitation on the power of Congress,” NLRB v. Cath. Bishop of Chicago, 440 U.S. 490,499 (1979), not the other way around!
From a Republican perspective, this ruling underscores important constitutional guardrails against an expanding administrative state that would use disciplinary processes to silence political opponents. Courts exist to prevent executive branches from weaponizing routine personnel procedures into tools of political censorship, especially when speech intersects with legislative oversight. Judge Leon’s decision reads like a reminder that constitutional liberties do not shrink because a speaker once wore a uniform.
The administration has indicated it will appeal, which was predictable given the stakes and the department’s posture. The next stop will likely be the D.C. Circuit, where appellate judges will face the question of how to balance military discipline with First Amendment protections for retirees and members of Congress. That appeal process promises to clarify whether this injunction is an outlier or the start of a broader reaffirmation of free speech for veterans.
For now, the immediate effect is protective: Kelly cannot be forced into the penal processes the department threatened while the case moves forward. The case will remain a focal point in debates about civil-military relations, the scope of administrative authority, and how far the Defense Department can go in policing the political speech of those who once served.
Editor’s Note: Unelected federal judges are hijacking President Trump’s agenda and insulting the will of the people.
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