D.C. Circuit Skeptical of Pete Hegseth’s Bid to Punish Senator Mark Kelly Over Speech

Defense Secretary Pete Hegseth asserts he can discipline Sen. Mark Kelly (D–Ariz.), a retired U.S. Navy captain, for speech he unilaterally deems "prejudicial to good order and discipline" in the military. This claim is the core of Kelly’s First Amendment lawsuit against Hegseth, which faced significant skepticism at the U.S. Court of Appeals for the D.C. Circuit during oral arguments on Thursday, May 15, 2025.

Hegseth is seeking to overturn a preliminary injunction issued by U.S. District Judge Richard Leon on February 12, 2025. Leon’s order blocks Hegseth from taking disciplinary action against Kelly, including potential reductions in his retirement rank and pay, stemming from a November 18, 2024 video. In the video, Kelly and five other Democratic lawmakers reminded military personnel of their duty to resist unlawful orders.

Judge Leon, a George W. Bush appointee, ruled that Kelly was likely to succeed in his claim that such retaliation would violate the First Amendment. During Thursday’s hearing in Kelly v. Hegseth, Kelly’s attorney, Benjamin Mizer, argued that "the punishments imposed on Senator Kelly are textbook retaliation against disfavored speech."

The letter of censure Hegseth sent Kelly on January 5, 2025 explicitly targets the senator’s public statements, Mizer noted. These include Kelly’s criticism of military leaders for firing admirals and generals, his remarks about their reliance on "yes men," and his assertion that he will always defend the Constitution. Mizer emphasized that Kelly made these statements in his official capacity as a member of the Senate Armed Services Committee and the Senate Intelligence Committee, roles that impose a constitutional duty to oversee the military. He added, "The fact that he is also a highly decorated war veteran who receives a military pension does not give defendants license to retaliate against his protected political expression."

Hegseth’s legal argument hinges on the Supreme Court’s 1974 decision in Parker v. Levy, which upheld a court-martial sentence against an active-duty officer who publicly urged soldiers to disobey deployment orders during the Vietnam War. The Court ruled that the "fundamental necessity for obedience" in the military’s "specialized society" justified speech restrictions that would otherwise be unconstitutional. The central question in Kelly v. Hegseth is whether this logic applies to retired officers like Kelly, meaning they could be penalized for speech the defense secretary deems harmful to discipline.

Attorney John Bailey, representing the Justice Department, urged the D.C. Circuit panel to accept this proposition. However, two of the three judges appeared reluctant to equate Kelly with Capt. Howard Levy, the Army physician whose punishment the Supreme Court approved in Parker v. Levy.

Judge Nina Pillard, an appointee of President Barack Obama, pointed out that Kelly, unlike Levy, was not subject to the Uniform Code of Military Justice (UCMJ) and was acting in his capacity as a senator, not a service member. Her remarks suggested skepticism toward Hegseth’s expansive interpretation of military discipline authority over retired officers.