When Sen. Mark Kelly (D–Ariz.) reminded U.S. military personnel that they "can refuse illegal orders," a federal judge in Washington, D.C., ruled on Thursday, his speech was "unquestionably protected" by the First Amendment. U.S. District Judge Richard J. Leon, a George W. Bush appointee, granted Kelly's request for a preliminary injunction that temporarily bars Defense Secretary Pete Hegseth from pursuing penalties against the senator, a retired Navy captain, based on public comments that Hegseth deemed "prejudicial to good order and discipline in the armed forces."
Leon concluded that Kelly, who in November joined five other Democratic members of Congress in producing a video about the duty to disobey unlawful military orders, was likely to prevail in his claim that Hegseth had retaliated against him for his constitutionally protected speech. The video irked President Donald Trump, who said the six legislators "should be ARRESTED AND PUT ON TRIAL." Although the Justice Department has tried to deliver on that threat, a federal grand jury this week rejected a proposed indictment. Leon's opinion explains why any such prosecution would be blatantly unconstitutional.
