An excerpt from Judge Richard Leon's long (and exclamation-point-filled) opinion today in Kelly v. Hegseth (D.D.C.):
United States Senator Mark Kelly, a retired naval officer, has been censured by Secretary of Defense Pete Hegseth for voicing certain opinions on military actions and policy. In addition, he has been subjected to proceedings to possibly reduce his retirement rank and pay and threatened with criminal prosecution if he continues to speak out on these issues. 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. 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! …
Defendants boldly argue that Senator Kelly's speech was unprotected [by the First Amendment], citing to a line of precedent establishing that First Amendment protections are more limited in the military context. See, e.g., Parker v. Levy (1974)…. Defendants rest their entire First Amendment defense on the argument that the more limited First Amendment protection for active-duty members of the military extends to a retired naval captain.
To be sure, while soldiers "are not excluded from" the First Amendment's coverage, "the different character of the military community and of the military mission requires a different application of those protections." From Parker onward, the Supreme Court has recognized that "[t]he fundamental necessity for obedience, and the consequent necessity for imposition of discipline, may render permissible within the military that which would be constitutionally impermissible outside it." Therefore, given the countervailing interests at stake in the line of duty, "speech by a member of the military that undermines the chain of command, and the obedience, order, and discipline it is designed to ensure, does not receive First Amendment protection."
However, the cases in this area uniformly involve active-duty servicemembers or speech on military bases. While retired servicemembers have an "ongoing duty to obey military orders" and may be recalled to active duty, Defendants have not identified a single case extending Parker's reasoning outside the context of active-duty soldiers.
