A federal appeals panel hearing on Thursday signaled considerable doubt about the federal government's authority to sanction Democratic Senator Mark Kelly for public remarks encouraging military personnel to refuse unlawful orders. Over the course of more than an hour of questioning, members of the three-judge panel scrutinized the Justice Department's justification for the proposed disciplinary move.
Circuit Judge Florence Pan pressed the government on the implications of stripping retired officers of their status if they speak about refusing illegal orders. Judge Pan noted the service and sacrifices of military personnel and questioned the government lawyer on whether those who had served would have to forfeit retired status to make statements that, she observed, are taught at institutions such as West Point and the Naval Academy.
"These are people who serve their country. Many of them put their lives on the line," Judge Pan told a Justice Department lawyer. "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 addressed reporters outside the courthouse after the hearing, framing the case as broader than a personal dispute and invoking constitutional protections. He said the day’s proceedings touched on First Amendment rights he believes millions of Americans hold.
"This was a day in court not just for me, but for the First Amendment rights of millions of us," Kelly said.
The dispute began when Senator Kelly sued the Pentagon in January, alleging that the administration’s effort to demote him and reduce his retirement pay was retaliatory and violated the First Amendment. A U.S. district judge, Richard Leon, issued a preliminary injunction in February that temporarily blocked the administration from carrying out its campaign to censure Kelly. The Pentagon appealed that injunction to the appeals court.
The administrative action in question followed Kelly’s appearance in a November 2025 video produced amid mounting criticism of the Trump administration’s handling of National Guard deployments in U.S. cities and its authorization of lethal strikes on suspected Latin American drug-smuggling boats. In that clip, Kelly stated plainly: "Our laws are clear: you can refuse illegal orders."
On Thursday, the Justice Department argued that the Constitution does not shield speech by military officers that urges disobedience to lawful orders, and that retired officers remain part of the armed forces for purposes of discipline because they are subject to recall and can exert influence on active service members. Justice Department lawyer John Bailey told the appeals court the government’s case should be viewed in light of the "pattern and totality of conduct," rather than any isolated line or remark.
"It’s very clear that this is about a pattern and totality of conduct, not any one line or any one statement taken in isolation," John Bailey told the court.
Counsel for Kelly mounted a direct counterargument, asserting that the Pentagon’s response amounted to retaliation against constitutionally protected political speech on matters of public concern. Benjamin Mizer, representing Kelly, told the appeals court that the sanctions were explicitly targeted at the senator’s public statements and fit the legal definition of retaliatory punishment for disfavored speech.
"The punishments imposed on Senator Kelly are textbook retaliation against disfavored speech," Benjamin Mizer said. "The censure letter says on its face that it’s targeting the Senator for his public statements."
The Pentagon and White House did not immediately provide comments about Thursday’s hearing. The appeals court’s response during the session suggested significant judicial scrutiny ahead as the parties await a formal ruling on whether the administration may proceed with the proposed demotion and reductions to retiree benefits.