First Amendment

D.C. Circuit Seems Disinclined To Let Pete Hegseth Punish a Senator for His Speech

The defense secretary argues that military retirees like Sen. Mark Kelly are not allowed to say things he unilaterally deems "prejudicial to good order and discipline."

Jacob Sullum | 5.8.2026 2:00 PM

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Sen. Mark Kelly (C-SPAN)

Defense Secretary Pete Hegseth maintains that he has the authority to punish 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. That claim, which is at the center of Kelly's First Amendment lawsuit against Hegseth, ran into stiff resistance at the U.S. Court of Appeals for the D.C. Circuit during oral arguments on Thursday.

Hegseth is asking the appeals court to overturn a preliminary injunction that U.S. District Judge Richard Leon issued on February 12. Leon's order bars Hegseth from proceeding with disciplinary action against Kelly, including a possible reduction in his retirement rank and pay, based primarily on a November 18 video in which the senator and five other Democratic legislators reminded military personnel of their well-established duty to resist unlawful orders. Leon, a George W. Bush appointee, concluded that Kelly was likely to prevail in his claim that such retaliation would violate the First Amendment.

During Thursday's D.C. Circuit hearing in Kelly v. Hegseth, the senator's lawyer, Benjamin Mizer, argued that "the punishments imposed on Senator Kelly are textbook retaliation against disfavored speech." The letter of censure that Hegseth sent Kelly on January 5, Mizer noted, "says on its face that it is targeting the senator for his public statements."

Those statements include Kelly's "criticism of the military leaders for firing admirals and generals, his criticism of them for surrounding themselves with 'yes men,'" Mizer noted. "And [the letter] even attacks him for saying that he will always defend the Constitution. The senator made all those statements, including [the video], as a member of the Senate Armed Services Committee and the Senate Intel Committee, which gives him a constitutional duty to oversee the military. The........

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