A US federal appeals court on Thursday appeared sceptical that the Trump administration could legally punish Senator Mark Kelly over public remarks urging service members to refuse illegal 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 efforts to censure Kelly, a retired navy captain and Arizona Democrat.
Judge Florence Pan questioned 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?' Kelly, a former astronaut, spoke outside the courthouse after the hearing, calling it 'a day in court not just for me, but for the first amendment rights of millions of us.'
Kelly sued the Pentagon in January after Defence Secretary Pete Hegseth moved to sanction him over a November 2025 video in which Kelly said: 'Our laws are clear: you can refuse illegal orders.' The Pentagon sought to demote Kelly and reduce his retirement pay, which Kelly alleged was retaliatory and violated his first amendment right to free speech. A district judge issued a preliminary injunction in February blocking the administration from pursuing the censure, and the Pentagon appealed.
Government lawyer John Bailey argued that the constitution does not protect speech by military officers who urge disobedience to lawful orders, even if retired, because retired officers remain part of the armed forces and can influence service members. Kelly’s lawyer, Benjamin Mizer, countered that the punishments were 'textbook retaliation against disfavoured speech' and that the censure letter explicitly targeted Kelly’s public statements. The Pentagon and White House did not immediately respond to requests for comment.
