Court Ruling Hands Down Victory To Retired Military Members Over Military Discipline

A federal court has ruled that the Department of Defense (DOD) cannot limit the First Amendment rights of retired military members. The case, brought by Senator Mark Kelly (D-Ariz.) against Secretary Pete Hegseth, has significant implications for the free speech rights of all retired military personnel.

In November 2025, Kelly and five other congressional Democrats released a video in which they advised military members that they have a duty to disregard unlawful orders. The video was part of an effort to speak out against the Trump administration’s attacks on alleged “narco-terrorists” in the Caribbean Sea and Eastern Pacific Ocean near Venezuela.

Hegseth, who is also a retired Navy captain, criticized Kelly for his comments, calling him “Captain” instead of “Senator,” and criticizing the order of his military medals in an old official photo. Hegseth subsequently censured Kelly, citing Uniform Code of Military Justice (UCMJ) Articles 133 and 134, which pertain to conduct unbecoming of an officer and prejudicing good order and discipline.

However, a federal court judge, Richard J. Leon, has issued an injunction halting Hegseth’s move to reduce Kelly’s rank and retirement pay. The case raises questions about the limits of DOD control over their First Amendment rights.

Judge Leon wrote that Hegseth had “trampled” on Kelly’s First Amendment freedoms and “threatened the constitutional liberties of millions of military retirees.” He also noted that there was no precedent for such disciplinary action against a retired military member, stating that “Unfortunately for Secretary Hegseth, no court has ever extended those principles to retired service members. This Court will not be the first to do so!”

Legal experts interviewed by Air & Space Forces Magazine aligned with Judge Leon’s position, arguing that the case is a rare opportunity for an appellate court to clarify whether the DOD has authority to limit the First Amendment rights of retirees.

Retired Lt. Gen. Christopher Burne, the former Judge Advocate General for the Air Force from 2014-2018, agreed that the case would be novel if it were allowed to proceed. However, he also noted that active-duty members are not allowed to express “contemptuous speech” against the president or other members of their chain of command.

Burne argued that courts have upheld in many instances that this limit on speech is necessary to ensure good order and discipline in the ranks. However, he also suggested that retirees have completed their service and become free citizens, and as such, they frequently comment on military operations, programs, leadership, and other topics without fear of retribution.

“The voice of the retired veteran should not be silenced or curtailed out of fear that they’re going to be held to those same standards they were held to on Active Duty,” Burne said. “We would want their voices to be heard in public discourse and policy debates.”

The case has sparked debate among military leaders, with some arguing that the DOD should have the authority to limit the First Amendment rights of retirees. However, others argue that this would set a chilling precedent for public discourse and policy debates.

Retired Maj. Gen. Charles Dunlap, a former Air Force Deputy TJAG, Duke University law professor, and frequent writer on legal matters, suggested that if Hegseth’s appeal succeeds and the appellate court doesn’t dismiss the case as Leon did, the issue would then come down to what limits to free speech might be imposed on military retirees.

“If an appellate court does reach the substance of this case, it may need to decide to what extent, if any, should this particular group of retirees—those who receive pay and are subject to recall—be exempted from the First Amendment strictures that those on Active Duty are lawfully obliged to observe,” Dunlap wrote in an email response.

Eugene Volokh, a former UCLA law professor and current Hoover Institution fellow, noted that the Kelly case is a rare opportunity for an appellate court to clarify whether the DOD has authority to limit the First Amendment rights of retirees.

“We all want to know what the law is,” Volokh said. “Military retirees would want to know what they are entitled to do.”

The rarity of such a case makes it intriguing, according to Burne. “I never saw it actually pursued to this level,” he said. “I’ve never seen anyone come out and make an official argument that First Amendment rights don’t apply here because they’re violating the UCMJ.”

As the case continues to unfold, the question remains: what limits will be imposed on the free speech rights of military retirees? The federal court’s ruling has sent a clear message that retired veterans have a right to speak out without fear of retribution.

The Kelly case has resonated with many in the veteran community. As Kelly said in his own social media post, “Today a federal court made clear Pete Hegseth violated the Constitution when he tried to punish me for something I said. This is a critical moment to show this administration they can’t keep undermining Americans’ rights.”

The case has sparked debate about the role of military retirees in public discourse and policy debates. As Burne noted, “We would want their voices to be heard” in these discussions.

Ultimately, the outcome of this case will depend on the appellate court’s decision. However, one thing is clear: the free speech rights of retired military members are being tested, and the results will have significant implications for public discourse and policy debates in the years to come.

The Kelly case serves as a reminder that freedom of speech is essential to ensuring that all Americans can speak freely without fear of retribution or reprisal. The retired military community will play an active role in shaping public discourse and policy debates, and their voices will be heard.

In the face of such a critical issue, it’s clear that protecting the free speech rights of all Americans is crucial. As Volokh noted, “We all want to know what the law is.” The Kelly case has provided a rare opportunity for an appellate court to clarify this question, and its outcome will have far-reaching implications for the rights of military retirees.

As the dust settles on this case, one thing is certain: the free speech rights of retired military members are being defended. The federal court’s ruling has sent a clear message that these individuals have a right to speak out without fear of retribution, and it remains to be seen whether the DOD will appeal this decision.

In the meantime, Kelly’s stance on this issue has resonated with many in the veteran community. As he said in his own social media post, “Today a federal court made clear Pete Hegseth violated the Constitution when he tried to punish me for something I said.” This case serves as a reminder that freedom of speech is essential to ensuring that all Americans can participate in public discourse and policy debates without fear of reprisal.

The Air & Space Forces Association notes, “We honor and support our Airmen, Guardians, and their families.” The Kelly case has provided a rare opportunity for an appellate court to clarify the limits of free speech rights for retired military members.