A US federal appeals court on Thursday appeared sceptical of the Trump administration's ability to legally punish Democratic Senator Mark Kelly for urging service members to refuse unlawful orders. During a hearing before a three-judge panel of the US Court of Appeals for the District of Columbia Circuit, judges criticised the government's effort to censure Kelly, a retired navy captain and former astronaut.
Circuit Judge Florence Pan challenged a justice department lawyer, saying: 'These are people who serve their country. Many of them put their lives on the line. 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?'
The case stems from a video Kelly made in November 2025, amid rising criticism of the Trump administration's use of the National Guard in US cities and authorisation of lethal strikes on suspected drug smuggling boats. In the clip, Kelly stated: 'Our laws are clear: you can refuse illegal orders.' Defence Secretary Pete Hegseth subsequently moved to demote Kelly and reduce his retirement pay, prompting Kelly to sue the Pentagon in January. He alleges the action is retaliatory and violates the First Amendment's free speech protections.
Government lawyer John Bailey argued that the constitution does not protect speech by military officers who urge disobedience to lawful orders, even if retired. He said the action was based on 'a pattern and totality of conduct, not any one line or statement taken in isolation.' Kelly's lawyers countered that the Pentagon was retaliating against protected political speech on matters of public concern. 'The punishments imposed on Senator Kelly are textbook retaliation against disfavored speech,' argued attorney Benjamin Mizer.
Speaking outside the courthouse, Kelly said: 'This was a day in court not just for me, but for the First Amendment rights of millions of us.' A lower court had previously issued a preliminary injunction blocking the Pentagon's censure campaign. The government's appeal is now pending before the circuit court.
