Federal Judge Likely to Favor Senator Kelly in First Amendment Case Against Trump Administration

A federal judge appears poised to rule in favor of Senator Mark Kelly in his legal battle against the Trump administration, which aimed to lower his retirement rank in the Navy after he used a video message to encourage military personnel to refuse unlawful orders.

During a hearing on Tuesday, U.S. District Judge Richard Leon focused on the First Amendment rights of Kelly, a Democratic senator from Arizona who also served as a Navy captain. Judge Leon noted the novelty of the issues presented in the case, commenting, “Lots and lots of novel issues in the case. Not sure we’ve ever seen a case like this.”

In January, Defense Secretary Pete Hegseth announced that steps were being taken to downgrade Kelly’s military retirement rank and compensation due to what were described as “seditious statements.” The statements in question appeared in a video featuring Kelly and other veterans-turned-Congress-members, urging service members not to follow illegal orders.

In response, Kelly filed a lawsuit, claiming that Hegseth’s actions violated his First Amendment rights and the speech and debate clause of the Constitution, which protects lawmakers from being questioned about legislative acts.

“There are restrictions on the speech of active members of the military,” Judge Leon noted. “But Kelly is no longer active.”

Justice Department attorney John Bailey suggested that such restrictions should also apply to retired military members, yet could not reference specific laws or precedents in court. Leon retorted, “You’re asking me to do something the Supreme Court and the D.C. Circuit have never done,” further illustrating this by invoking Bob Dylan’s famous line, “You don’t need a weatherman to know which way the wind blows.”

Bailey argued against the notion that Kelly deserved immunity simply by virtue of being a U.S. senator. Back in November, shortly after the video was released, Hegseth indicated his intention to take action against Kelly. Unlike the other legislators in the video, Kelly is the only one who retired from the military, thereby making him eligible for recall due to urgent situations such as war or national emergency, but also subject to court-martial.

Kelly’s legal representative, Benjamin Mizer, emphasized that a ruling against Kelly could impact any retired service member, even if they were also a senator. Judge Leon committed to delivering a decision by February 11.

The lawsuit demands that the court declare Hegseth’s actions unlawful, asserting, “Allowing Defendants to punish a Senator through military proceedings for his political speech erodes the separation of powers and gives the Executive a power over legislators that the Constitution does not contemplate.” It further claims that both Hegseth and former President Donald Trump unjustly labeled Kelly’s speech as “sedition” and “treason,” thereby infringing upon his due process rights.

After Tuesday’s session, Kelly told reporters, “There’s nothing more fundamental to our democracy than the freedom of speech and the freedom to speak out about our government, and that’s what I’m fighting for.”

In early January, Hegseth issued a formal censure, denouncing Kelly’s actions as reckless and undermining military leadership. The censure letter accused Kelly of endangering discipline and tarnishing the integrity of the officer corps.

Kelly rebuked the censure during the press briefing, remarking, “Secretary Hegseth censured me and is now trying to demote me for things that I said and for doing my job as a United States senator. This administration has repeatedly gone after First Amendment rights of many Americans.”