Federal appeals court skeptical of Hegseth push to punish Sen. Kelly

A federal appeals court panel leaned strongly Thursday toward rejecting Defense Secretary Pete Hegseth's effort to punish Sen. Mark Kelly for posting a video urging service members to refuse illegal orders, according to ABC7 Los Angeles.

The case raises novel constitutional questions about the free speech rights of retired military officers — a category courts have never directly addressed — with potential implications for the Trump administration's ability to penalize critics who invoke their military credentials to challenge its policies.

Three judges on the U.S. Circuit Court of Appeals spent more than 90 minutes Thursday pressing the government's legal arguments, with a majority of the panel openly challenging the administration's position, ABC7 Los Angeles reported.

Hegseth announced plans to reduce Kelly's military rank and issue a letter of censure after Kelly — a Democratic senator from Arizona, retired Navy captain and former astronaut — posted a video in November with five other Democratic lawmakers who held military or intelligence backgrounds, urging service members not to follow unlawful orders.

Federal prosecutors sought to indict Kelly and the other lawmakers over the video, but a grand jury rejected the effort. The Defense Department then pursued administrative punishment instead.

Kelly's attorney, Benjamin Mizer, called Hegseth's actions "textbook retaliation for disfavored speech" during oral arguments. Judge Florence Pan, a Biden appointee, pressed the government directly. "These are people who served their country — many put their lives on the line," Pan said, according to ABC7 Los Angeles. "And 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," she added.

Judge Nina Pillard, an Obama appointee, noted that Kelly's core message reflects established military doctrine. "That is something that is taught at Annapolis to every cadet," she said. Pillard also observed that "Sen. Kelly never says disobey lawful orders."

The panel appeared to signal that retired service members may occupy a "third category" of First Amendment protection — between active-duty personnel and civilians — though no prior court rulings govern the question, ABC7 Los Angeles reported. Outside the courthouse after the hearing, Kelly warned of a broader pattern. "If you say something that the president and this administration does not like, they're going to come after you," he said.

No ruling has been issued. A decision from the three-judge panel is expected in the coming weeks.