Kelly v. Hegseth

Amid military strikes on boats allegedly smuggling drugs in the Caribbean and as President Trump weighed deploying troops domestically, Senator Mark Kelly and five other members of Congress — all veterans of the military or intelligence community — produced a video called “Don’t Give Up the Ship.” In the video and related public statements, Senator Kelly reiterated the settled principle that servicemembers “can refuse illegal orders,” encouraged them to be “vigilan[t]” and to “stand up for . . . who we are as Americans,” and criticized the Trump administration for “pitting our uniformed military” against the American public. Secretary of Defense Pete Hegseth responded by issuing a letter of censure to Senator Kelly, initiating proceedings in military court to reduce his retirement rank and pay, and threatening “criminal prosecution or further administrative action” if Senator Kelly continued to speak in similar terms. Senator Kelly sued, and the district court granted him a preliminary injunction blocking the censure and retirement-grade proceedings. Secretary Hegseth appealed, asking the D.C. Circuit to extend Parker v. Levy (1974) — which held the operational demands of the chain of command could justify reduced First Amendment rights for active-duty servicemembers — to military retirees like Senator Kelly. 

FIRE’s amicus brief argues the government’s overreach is novel and dangerous. Veterans have long played an important role in public discourse concerning military policy after they leave active service. Sustaining the government’s position would create a new, status-based exception to the First Amendment for anyone with residual ties to the military — however attenuated — even though military retiree speakers are not within the chain of command. What’s more, the lack of a limiting principle would give the government arguments for limiting expressive rights even outside the military context, including for former public employees.

This is a classic case of content- and viewpoint-based retaliation for speech. Government officials may not proscribe speech simply because they find it distasteful or even dangerous. Countless American servicemembers like Senator Kelly have given their lives to protect, among other things, our right to speak and think freely. Those who retire from service should not be denied those same liberties.