Defense Secretary Pete Hegseth maintains that he has the authority to punish Sen. Mark Kelly (D–Ariz.), a retired U.S. Navy captain, for speech he unilaterally deems "prejudicial to good order and discipline" in the military. That claim, which is at the center of Kelly's First Amendment lawsuit against Hegseth, ran into stiff resistance at the U.S. Court of Appeals for the D.C. Circuit during oral arguments on Thursday.
Hegseth is asking the appeals court to overturn a preliminary injunction that U.S. District Judge Richard Leon issued on February 12. Leon's order bars Hegseth from proceeding with disciplinary action against Kelly, including a possible reduction in his retirement rank and pay, based primarily on a November 18 video in which the senator and five other Democratic legislators reminded military personnel of their well-established duty to resist unlawful orders. Leon, a George W. Bush appointee, concluded that Kelly was likely to prevail in his claim that such retaliation would violate the First Amendment.
