Can DOD Limit Retirees’ Speech? Hegseth-Kelly Case Could Yield Answer

Defense Secretary Pete Hegseth’s attempt to punish Sen. Mark Kelly (D-Ariz.) over a video in which the Senator and retired Navy captain advised military members they have a duty to disregard unlawful orders ran into a federal court injunction earlier this month.

The case, which could still be appealed, has broad implications for the free speech rights of all retired military members.

U.S. District Judge Richard J. Leon issued an injunction Feb. 12 in response to Kelly’s request that the court halt Hegseth’s move to reduce his rank and retirement pay. Kelly and five other congressional Democrats released the 90-second video in November at a time when tensions between Congress and the Trump administration were intensifying over the administration’s attacks on alleged “narco-terrorists” in the Caribbean Sea and Eastern Pacific Ocean near Venezuela.

Those other lawmakers are Sen. Elissa Slotkin (D-Mich.); Rep. Jason Crow (D-Colo.); Rep. Maggie Goodlander (D-N.H.); Rep. Chris Deluzio (D-Penn.); and Rep. Chrissy Houlahan, (D-Penn.).

“Our laws are clear,” Kelly said. “You can refuse illegal orders.”

The lawmakers appearing in the video include five military veterans and one former CIA officer—Houlahan is the lone Air Force vet. But Kelly was unique among them because, as a military retiree, he is subject to potential recall to Active Duty and potential discipline under the Uniform Code of Military Justice.

Hegseth criticized Kelly in the immediate aftermath of the video’s release, calling him “Captain,” rather than “Senator,” and criticizing the order of his military medals in an old official photo of Kelly in uniform. In January, he censured Kelly, citing UCMJ Articles 133, conduct unbecoming of an officer, and 134, which pertains to prejudicing good order and discipline.

Following the February ruling, Hegseth vowed in a social media post that “This will be immediately appealed. Sedition is Sedition, “Captain.”

Kelly, in his own social media post, said the case wasn’t just about him. “This administration was sending a message to retired veterans that they would be censured or demoted if they spoke out,” he wrote.

Rare Case

Leon, a 24-year veteran of the court who was appointed in 2002 by then-President George W. Bush, sided with Kelly’s view that the case has wider implications. In his opinion, he wrote that Hegseth had “trampled” on Kelly’s First Amendment freedoms and “threatened the constitutional liberties of millions of military retirees.”

The judge said there was no precedent for such disciplinary action. “Unfortunately for Secretary Hegseth, no court has ever extended those principles to retired service members,” Leon wrote. “This Court will not be the first to do so!”

Legal experts interviewed by Air & Space Forces Magazine aligned with the judge’s position.

Retired Lt. Gen. Christopher Burne, the former Judge Advocate General for the Air Force from 2014-2018, agreed that the case would be novel if it were allowed to proceed.

Active-Duty members are not allowed to express “contemptuous speech” against the president or other members of their chain of command, Burne said. Courts have upheld in many instances that this limit on speech is necessary to ensure good order and discipline in the ranks.

But retirees have completed their service and become free citizens, he said. In their subsequent private capacity, they frequently comment on military operations, programs, leadership and myriad other topics. Pursuing the case against Kelly, Burne said, could have a “chilling effect” on retirees, which he suggested could be damaging to public discourse and policy debates.

“We would not want their voices to be silenced or curtailed out of fear that they’re going to be held to those same standards they were held to on Active Duty,” Burne said.

Retired military leaders do speak out from time to time on both sides of the political aisle and some make a living as advocates and commentators. Hegseth did so when he was a fixture on the FOX News TV network, but he was a former military officer and did not serve long enough to retire from service. A legal system that would allow some former officers to speak out publicly, while others were barred simply because they served longer would require clear definitions of where the lines limiting speech must be drawn.

For example, in July 2025, a group of 16 retired four-star generals, including six former Chiefs of Staff, sent a letter to Congress urging lawmakers to rescind the cancellation of the E-7 Wedgetail aircraft and to increase the purchase of F-35 fighters. Should Hegseth’s appeal succeed and the courts impose limits on retiree speech, such policy criticism or advocacy could be threatened.

Retired Maj. Gen. Charles Dunlap, a former Air Force Deputy TJAG, Duke University law professor, and frequent writer on legal matters, said if Hegseth does file an appeal and the appellate court doesn’t dismiss the case as Leon did, the issue would then come down to what limits to free speech might be imposed on military retirees.

“If an appellate court does reach the substance of this case, it may need to decide to what extent, if any, should this particular group of retirees—those who receive pay and are subject to recall—be exempted from the First Amendment strictures that those on Active Duty are lawfully obliged to observe,” Dunlap wrote in an email response.

Eugene Volokh, who taught First Amendment law at the University of California-Los Angeles School of Law for three decades and is now with the Hoover Institution at Stanford University, said the Kelly case is a rare opportunity for an appellate court to clarify whether the Department of Defense does have authority to limit the First Amendment rights of retirees.

“We all want to know what the law is,” Volokh said. “Military retirees would want to know what the law is to know what they are entitled to do.”

Leon’s opinion may be persuasive, Volokh said, but it is not binding law. If Hegseth appeals and an appellate court rules, the decision could clarify the limits of the Defense Department’s control over the rights of its retired members.

Burne agreed that the rarity of such a case makes it intriguing. “I never saw it actually pursued to this level,” Burne said. “I’ve never seen anyone come out and make an official argument that First Amendment rights don’t apply here because they’re violating the UCMJ.”

Two weeks after Leon’s injunction, Hegseth and the Pentagon have yet to file an appeal.