President Donald Trump salutes as he attends a military parade commemorating the Army”s 250th anniversary, coinciding with his 79th birthday, Saturday, June 14, 2025, in Washington, as Secretary of the Army Daniel Driscoll, Defense Secretary Pete Hegseth, and first lady Melania Trump, watch. (AP Photo/Julia Demaree Nikhinson).
A federal judge has issued a decisive ruling against Secretary of Defense Pete Hegseth’s attempt to sanction Sen. Mark Kelly, D-Ariz., for advising service members that they “can refuse illegal orders.” The judge criticized the Trump administration’s actions, labeling them as a potential threat to the free speech rights of countless military retirees.
The ruling was handed down by Senior U.S. District Judge Richard Leon, appointed by George W. Bush, who delivered his decision on Thursday. This came shortly after reports revealed that U.S. Attorney Jeanine Pirro was unable to secure indictments against Kelly and five other Democrats. These individuals had appeared in a video last November, criticizing President Donald Trump’s deadly maritime strikes on suspected drug traffickers in international waters.
In the controversial video, Kelly addressed members of both the Military and the Intelligence Community, reaffirming that “our laws are clear. You can refuse illegal orders.”
President Trump had accused the Democrats of “SEDITIOUS BEHAVIOR, punishable by DEATH!” and suggested they should be “ARRESTED AND PUT ON TRIAL.” In response, the Defense Department, led by Hegseth, charged Kelly with “undermin[ing] the chain of command,” “counsel[ing] disobedience,” and other misconduct, threatening to demote him in retirement rank and pay grade, despite his history as a Navy captain.
Judge Leon found that Kelly had demonstrated a strong case, asserting that he “easily has the balance of the equities and the public interest on his side.” Leon concluded that Kelly is “likely to succeed on the merits” in proving that the Trump administration’s actions constituted unlawful retaliation against his “unquestionably protected speech,” thus breaching the First Amendment.
In his lawsuit, Kelly contended that his statements were merely affirmations of “plain statement of blackletter law” as per the Uniform Code of Military Justice, emphasizing that service members indeed have the right to refuse illegal orders.
— Sen. Elissa Slotkin (@SenatorSlotkin) November 18, 2025
After Trump claimed the Democrats engaged in “SEDITIOUS BEHAVIOR, punishable by DEATH!” and said “each one of these traitors to our Country should be ARRESTED AND PUT ON TRIAL,” the Defense Department, headed by Hegseth, accused Kelly of “undermin[ing] the chain of command,” “counsel[ing] disobedience,” and engaging in “conduct unbecoming an officer,” threatening a reduction in retirement rank and pay grade for the former Navy captain.
For Leon, Kelly showed that he “easily has the balance of the equities and the public interest on his side,” and is “likely to succeed on the merits” that the Trump administration unlawfully retaliated against Kelly for “unquestionably protected speech,” in violation of the First Amendment.
Kelly’s suit argued that the senator was merely articulating a “plain statement of blackletter law” under the Uniform Code of Military Justice when he said “you can refuse illegal orders.”
Leon agreed.
“Secretary Hegseth relies on the well-established doctrine that military servicemembers enjoy less vigorous First Amendment protections given the fundamental obligation for obedience and discipline in the armed forces,” the judge summarized. “Unfortunately for Secretary Hegseth, no court has ever extended those principles to retired servicemembers, much less a retired servicemember serving in Congress and exercising oversight responsibility over the military. This Court will not be the first to do so!”
The judge then quoted Bob Dylan while bashing Hegseth’s “trampl[ing]” of Kelly’s rights and, by extension, the threat levied against “millions” of other retired military members.
Sen. Mark Kelly, D-Ariz., refutes efforts by President Donald Trump and Defense Secretary Pete Hegseth to intimidate him and other lawmakers after expressing concerns over U.S. military strikes against vessels suspected of smuggling drugs in the Caribbean, during a news conference at the Capitol, in Washington, Monday, Dec. 1, 2025 (AP Photo/J. Scott Applewhite).
“This Court has all it needs to conclude that Defendants have trampled on Senator Kelly’s First Amendment freedoms and threatened the constitutional liberties of millions of military retirees,” Leon added. “After all, as Bob Dylan famously said, ‘You don’t need a weatherman to know which way the wind blows.’ To say the least, our retired veterans deserve more respect from their Government, and our Constitution demands they receive it!”
Describing one DOJ argument as “anemic” and reacting “Please! That is not the law” to another, the judge granted Kelly a preliminary injunction — in no small part because “our representative system of Government cannot function!” if lawmakers can’t speak “without fear of reprisal by the Executive[.]”
The judge issued a parting plea to Hegseth to make a “course correction” away from “trying to shrink” the First Amendment.
“Rather than trying to shrink the First Amendment liberties of retired servicemembers, Secretary Hegseth and his fellow Defendants might reflect and be grateful for the wisdom and expertise that retired servicemembers have brought to public discussions and debate on military matters in our Nation over the past 250 years,” Leon said. “If so, they will more fully appreciate why the Founding Fathers made free speech the first Amendment in the Bill of Rights! Hopefully this injunction will in some small way help bring about a course correction in the Defense Department’s approach to these issues.”
