WASHINGTON—A federal appeals court on May 7 seemed to side with Sen. Mark Kelly (D-Ariz.) in his First Amendment suit against Secretary of War Pete Hegseth.
Kelly, a veteran of the U.S. Navy, appeared in a video last November with other Democratic lawmakers urging soldiers to disobey any “unlawful” orders they received. All of those members of Congress are military or intelligence community veterans.
Hegseth responded with a letter in January censuring Kelly, saying that his actions “undermined the chain of command,” “counseled disobedience,” and were “conduct unbecoming an officer.”
He also said he would initiate proceedings to reduce the senator’s military rank and retirement pay because of his “seditious” conduct.
Department of Justice attorney John Bailey told the three-judge panel at the May 7 hearing that the lower court’s ruling meant that the military could not even take “modest” action in regard to Kelly’s speech.
Judge Cornelia Pillard of the U.S. Court of Appeals for the District of Columbia Circuit said the actual speech in the video is the “fulcrum of this entire case.”
“Nobody in the video says service members have a duty to disobey lawful orders,” she told Bailey.
Bailey argued that Kelly’s comments had to be taken in context with other statements outside the video, which together led Hegseth to determine that the senator intended to undermine troop loyalty and obedience. The court owed “deference” to Hegseth’s finding, he said.
Judge Florence Pan responded that Bailey’s argument would require soldiers to have understood Kelly’s words to mean the opposite of what he said.
“It would be astounding” for the panel to accept that assertion, she told Bailey.
Kelly said during a news conference following the May 7 hearing, “What I said was a true and accurate statement of the law.”
He was flanked by more than a dozen retired veterans who had come to support him.
“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 said.
The Uniform Code of Military Justice, which Hegseth cited in his letter, governs troop behavior, and the appellate judges noted that previous court decisions have found that it can limit the First Amendment rights of active-duty soldiers.
But they noted that those restrictions have never been applied as strictly to retirees such as Kelly. The senator also sits on defense and veterans advisory groups, which means that he has a degree of oversight concerning the military.
The Epoch Times has reached out to the Justice Department for comment.