A federal judge on Wednesday blocked the Defense Department from censuring Sen. Mark Kelly (D-Ariz.) and pursuing a reduction in his retirement rank over his public criticism of military policy, ruling that the actions likely violated the First Amendment.
In a 29-page opinion issued Feb. 11, U.S. District Senior Judge Richard J. Leon, a George W. Bush appointee, granted Kelly’s request for a preliminary injunction, halting enforcement of a formal letter of censure and a related retirement-grade review while the case proceeds.
Leon concluded that Kelly, a retired Navy captain who now serves on the Senate Armed Services Committee, is likely to succeed on his claim that Defense Secretary Pete Hegseth retaliated against him for protected political speech.
“The First Amendment prohibits government officials from retaliating against individuals for engaging in protected speech,” Leon wrote.
The dispute arose after Kelly publicly criticized the Trump administration’s deployment of National Guard troops to U.S. cities and a campaign of lethal strikes against suspected drug-smuggling boats. In a November video, Kelly said service members “can refuse illegal orders,” a comment the Pentagon said undermined the chain of command.
On Jan. 5, Hegseth issued a letter of censure accusing Kelly of engaging in “a sustained pattern of public statements” that characterized lawful military operations as illegal and counseled disobedience. The letter also directed a review that could reduce Kelly’s retirement rank and pay and warned of possible criminal prosecution if he continued similar remarks.
Leon rejected the government’s argument that courts must defer to military discipline or require Kelly to exhaust internal remedies first. “It is emphatically the province and duty of the judicial department to say what the law is,” he wrote, quoting Marbury v. Madison.
Central to the ruling was the distinction between active-duty service members and retirees. Supreme Court precedent allows broader restrictions on active-duty troops because of the military’s need for obedience and discipline, Leon wrote, but no court has extended that reasoning to retirees — “much less a retired servicemember serving in Congress.”
“Under any reading of the law, Senator Kelly’s statements constitute ‘speech on matters of public concern’ and are therefore entitled to special protection,” Leon wrote.
Applying a retaliation framework, Leon found that Kelly engaged in protected speech, that the censure and retirement review were adverse actions and that the link between the two was explicit. The letter of censure cited Kelly’s public comments as the basis for discipline.
Leon also found irreparable harm, writing that “the loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury.” The threatened reduction in rank and pay, along with warnings of possible prosecution, would deter “a person of ordinary firmness” from speaking, he wrote.
In unusually pointed language, Leon dismissed one of the government’s arguments with a single word: “Horsefeathers!”
Protecting First Amendment freedoms is “always” in the public interest, he wrote, adding that retaliation against Kelly “threatens retaliation against all.”
The injunction blocks the Defense Department from enforcing the censure or advancing the retirement-grade proceedings while the case continues in federal court.
