Federal Court Battle Over Military Retiree Speech Rights Continues
Sen. Mark Kelly’s lawyers argue Pentagon violated his First Amendment rights by punishing him for appearing in Democratic video urging military personnel to refuse illegal orders.
WASHINGTON, D.C. — Arizona Democratic Sen. Mark Kelly’s legal team is urging a federal appeals court to uphold a ruling that safeguards the former Navy captain’s retirement benefits while his First Amendment lawsuit against the Pentagon continues.
Benjamin C. Mizer, partner at Arnold & Porter, filed a brief on April 15 arguing that the Defense Department violated Kelly’s constitutional rights when it tried to penalize him for participating in a Democratic video titled “Don’t Give Up The Ship.”
The Trump administration’s appeal of the district court’s ruling fails to cite “a single case” that has extended the limited speech rights of active-duty military members to “retirees like Senator Kelly,” according to Mizer’s brief.
Constitutional Precedent at Center of Dispute
The legal precedent referenced by the Trump administration involved Parker v. Levy, which “involved an active-duty officer directly urging soldiers at his wartime military post to refuse specific orders to deploy and fight,” Mizer wrote.
“Senator Kelly, by contrast, is a retired officer and legislator who publicly called, alongside other Members of Congress, for adherence to settled law, not defiance of it,” Mizer argued in the filing.
The case centers on Kelly’s participation in a November 18 video posted by Democratic lawmakers with military or national security backgrounds.
Video Message Sparked Pentagon Response
Kelly joined Michigan Sen. Elissa Slotkin, Colorado Rep. Jason Crow, New Hampshire Rep. Maggie Goodlander, and Pennsylvania Reps. Chris Deluzio and Chrissy Houlahan in the video message that triggered the Pentagon’s action.
The lawmakers stated that Americans in government institutions “can” and “must refuse illegal orders.”
“No one has to carry out orders that violate the law or our Constitution. We know this is hard and that it’s a difficult time to be a public servant,” they said in the video. “But whether you’re serving in the CIA, in the Army, or Navy, or the Air Force, your vigilance is critical.”
The Defense Department subsequently moved to strip Kelly of his retirement rank and benefits, prompting the legal challenge that has reached the federal appeals court level.
Kelly’s legal team argues the Pentagon’s action represents an unconstitutional restriction on the speech rights of military retirees who enter civilian political roles. The case could establish precedent for how far the military can extend its authority over former service members who become elected officials.
The federal appeals court has not yet scheduled oral arguments or indicated when it will rule on the Trump administration’s appeal of the lower court’s decision protecting Kelly’s benefits during the ongoing litigation.
