WASHINGTON – Federal appeals court judges voiced skepticism Thursday about the Pentagon’s efforts to discipline Arizona Democratic Senator Mark Kelly over public comments he made encouraging military personnel to reject unlawful commands.
During more than an hour of arguments before a three-judge panel at the U.S. Court of Appeals for the District of Columbia Circuit, the judges questioned the government’s position against Kelly, a former Navy captain.
“These are people who serve their country. Many of them put their lives on the line,” Circuit Judge Florence Pan questioned a Justice Department attorney. “You’re saying that they have to give up their retired status in order to say something that is a textbook example — taught at West Point and the Naval Academy — that you can disobey illegal orders?”
Speaking to reporters outside the Washington courthouse following the proceedings, Kelly emphasized the broader implications. “This was a day in court not just for me, but for the First Amendment rights of millions of us,” Kelly said.
Neither the Pentagon nor White House provided immediate responses when asked for comment.
Kelly filed a lawsuit against the Pentagon in January, claiming the Trump administration’s decision to strip his rank and cut his retirement benefits constituted retaliation that violated First Amendment free speech protections.
The Pentagon challenged a February ruling by U.S. District Judge Richard Leon, who issued a temporary order preventing the administration from proceeding with its disciplinary action against Kelly.
Defense Secretary Pete Hegseth initiated sanctions against Kelly, a former astronaut, following Kelly’s participation in a November 2025 video. The recording came amid growing controversy over the Trump administration’s use of National Guard forces in American cities and approval of deadly force against suspected Latin American drug trafficking vessels. In the footage, Kelly declared: “Our laws are clear: you can refuse illegal orders.”
During Thursday’s hearing, the government’s representative argued that constitutional protections don’t extend to military officers who encourage defiance of legitimate orders, regardless of retirement status.
“It’s very clear that this is about a pattern and totality of conduct, not any one line or any one statement taken in isolation,” Justice Department lawyer John Bailey told the court.
The Trump administration maintains that retired officers continue as part of the military structure, remain eligible for reactivation, and possess influence over active service members.
Kelly’s legal team argued the Pentagon’s response constituted punishment for constitutionally protected political expression on issues of public importance.
“The punishments imposed on Senator Kelly are textbook retaliation against disfavored speech,” Kelly’s attorney, Benjamin Mizer, told the appeals panel. “The censure letter says on its face that it’s targeting the Senator for his public statements.”
