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“This court has all it needs to conclude that defendants have trampled on Senator Kelly’s First Amendment freedoms and threatened the consti

Ryan Knappenberger at Courthouse News Service:

WASHINGTON (CN) — A federal judge on Thursday blocked the Pentagon’s effort to demote and censure Arizona Senator Mark Kelly over a video in which he urged service members to reject illegal orders, finding the military’s First Amendment limitation clearly does not extend to retired members. Senior U.S. District Judge Richard Leon granted the preliminary injunction and rejected Secretary of Defense Pete Hegseth’s defense that Kelly should be forced to exhaust his case before the Board of Correction of Naval Records before he can bring a First Amendment claim.

“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,” the George W. Bush appointee wrote in a 29-page opinion. “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!” Leon blocked the Department of the Navy from beginning a retirement grade proceeding against the former Navy captain and astronaut, which would impact Kelly’s status as a captain and his retirement pension. He also froze Hegseth’s findings, stated in a censure letter, that Kelly’s statements undermined the chain of command and “brought discredit upon the armed forces.”

At a hearing on Feb. 3, the Justice Department argued the court could not “second guess” the military’s judgment and thus Kelly’s censure was not subject to judicial review — an argument the government has made in numerous cases, even those unrelated to military matters — until Kelly had exhausted his claim internally. Leon rejected that argument, noting courts regularly hear constitutional claims arising from military personnel matters and that Kelly’s First Amendment claim was clearly justiciable. “Secretary Hegseth relies on the well-established doctrine that military service members enjoy less vigorous First Amendment protections given the fundamental obligation for obedience and discipline in the armed forces,” Leon wrote. “Unfortunately for Secretary Hegseth, no court has every extended those principles to retired service members, much less a retired service member serving in Congress and exercising oversight responsibility over the military. This court will not be the first to do so!”

He added: “Legislators like Senator Kelly carry ‘an obligation to take positions on controversial political questions’ both so their constituents may be ‘fully informed’ as to the legislator’s views and so constituents ‘may be represented in governmental debates by the person they have elected to represent them. Indeed, if legislators do not feel free to express their views and the views of their constituents without fear of reprisal by the executive, our representative system of government cannot function!” In a footnote, Leon emphasized that the only related case the Justice Department could provide, Closson v. U.S., an 1896 case in which a retired Army captain was arrested and subjected to court-martial after sending a “letter of an offensive character” to a high-ranking general, did not include any First Amendment claims.

Judge Richard Leon puts DUI Hire Pete Hegseth on notice for unlawfully censuring and demoting the rank of Sen. Mark Kelly (D-AZ).

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