First Amendment

Allowing Censorship of Military Retirees Like Sen. Mark Kelly Would Set a Chilling and Dangerous Precedent

To justify punishing a legislator for his speech, a FIRE brief notes, Defense Secretary Pete Hegseth relies on a Supreme Court precedent that is clearly inapposite.

Jacob Sullum | 4.24.2026 1:35 PM

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Defending his supposed authority to punish a member of Congress for criticizing him, Defense Secretary Pete Hegseth argues that retired military officers like Sen. Mark Kelly (D–Ariz.) are subject to speech restrictions because of their continuing connection to the armed forces. Hegseth relies mainly on the Supreme Court's 1974 decision in Parker v. Levy, which involved an active-duty U.S. Army captain who urged soldiers to defy deployment orders during the Vietnam War.

That precedent is clearly inapposite, the Foundation for Individual Rights and Expression (FIRE) argues in a brief urging the U.S. Court of Appeals for the D.C. Circuit to uphold a preliminary injunction that bars Hegseth from taking disciplinary action against Kelly. Extending the speech restrictions upheld in Parker to military retirees, FIRE warns in Kelly v. Hegseth, would create a new, status-based exception to the First Amendment that would have a chilling effect on political debate and invite censorship of other former government employees.

Hegseth's beef with Kelly, a retired Navy captain, stems mainly from a November 18 video in which the senator and five other Democratic legislators reminded military personnel of their well-established duty to "refuse illegal orders." Although the video did not mention any specific orders, it was produced in the midst of President Donald Trump's domestic military deployments and his murderous military campaign against suspected cocaine smugglers, both of which Kelly has criticized.

Hegseth cited that video in a letter of censure that he sent Kelly on January 5, which also noted other public remarks that Hegseth deemed "prejudicial to good order and discipline in the armed forces." The offending comments included Kelly's defense of the video, his accurate description of the principle it reiterated as legally uncontroversial, his promise that he would "ALWAYS defend the Constitution," and his statement that "intimidation would not work" to silence him. The defense secretary also was angry that Kelly had criticized the Pentagon's missile strikes on suspected drug boats, which Hegseth thought implied he was guilty of war crimes. And........

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