A federal appeals court doesn't look inclined to let the Pentagon dock Mark Kelly for telling troops they don't have to obey unlawful commands. During arguments on Thursday, two of three judges on a panel for the US Court of Appeals for the DC Circuit signaled support for the Arizona Democrat and former Navy captain, who sued Defense Secretary Pete Hegseth for trying to discipline him over a November video, reports the New York Times. In that clip, Kelly told active-duty service members, "You can refuse illegal orders," a basic tenet of military law taught at service academies.
The Trump administration argues that Kelly's comments were a coded push to defy lawful orders tied to National Guard deployments and anti-drug operations, and therefore not protected for military retirees by the First Amendment. Judge Florence Pan, however, pressed the Justice Department on why retirees should have to surrender rank and their pension to make such statements, while Judge Cornelia Pillard called Kelly's remarks simply an "abstract statement of principle."
Judge Karen Henderson appeared more sympathetic to the administration, citing Kelly's influence as a senator. A lower court had already blocked Hegseth from punishing Kelly. The appeals court's ultimate ruling will help define how freely retired officers can criticize government policy. "This was a day in court not just for me, but for the First Amendment rights of millions of us," Kelly said outside the courthouse after Thursday's hearing, per the Guardian.
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