# Federal appeals court skeptical of Pentagon's bid to punish Kelly  
**Published:** 2026-05-07T20:03:51.000Z  
**Source:** [Nebraska Examiner](https://nebraskaexaminer.com/2026/05/07/repub/whether-sen-mark-kelly-advised-disobedience-to-service-members-argued-in-appeals-case/)  
**AI-generated:** yes (claude-haiku-4-5-20251001)  
**Canonical:** https://lincolne.news/article/federal-appeals-court-skeptical-of-pentagon-s-bid-to-punish-kelly

A federal appeals court appeared skeptical Thursday of the Trump administration's effort to punish Arizona Democratic Sen. Mark Kelly for reminding military members they can refuse illegal orders, with judges questioning whether the government can restrict the speech rights of retired service members the way it does active-duty personnel.

The U.S. Court of Appeals for the District of Columbia heard oral arguments in Kelly's lawsuit against Defense Secretary Pete Hegseth, [as reported by the Nebraska Examiner](https://nebraskaexaminer.com/2026/05/07/repub/whether-sen-mark-kelly-advised-disobedience-to-service-members-argued-in-appeals-case/). Hegseth initiated a formal censure and attempted to downgrade Kelly's military retirement rank and pay after the retired Navy captain appeared in a November video alongside five other Democratic lawmakers warning service members they could refuse illegal orders.

Justice Department attorney John Bailey argued the Pentagon should be able to discipline Kelly, contending that even retired service members like the senator remain subject to military authority. But the three-judge panel, including judges appointed by former Presidents George W. Bush, Barack Obama and Joe Biden, pressed Bailey on whether retired veterans must choose between their pensions and free speech rights.

"If he wants to speak freely, he should discharge himself, which means giving up his retirement pay, giving up his rank, giving up all those things," U.S. Circuit Judge Florence Pan asked, highlighting the apparent dilemma the government's position would create.

[Kelly, who served as a Navy pilot and commanded the final Space Shuttle Endeavor mission](https://en.wikipedia.org/wiki/Mark_Kelly), argued the Pentagon violated his First Amendment rights. A federal district judge previously blocked Hegseth's efforts, finding the government "trampled on Senator Kelly's First Amendment freedoms."

Kelly told reporters outside the courthouse that the Trump administration's position was "absurd." "One of our most fundamental rights is the right to speak out about the government," he said. "It's the right that guarantees all others and it's how we hold our government accountable."

The appeals court could rule within weeks. Legal analysts suggested Kelly appeared likely to prevail, with one judge noting that teaching military members they can disobey illegal orders is "a textbook example — taught at West Point and the Naval Academy."

## Sources

- [Nebraska Examiner](https://nebraskaexaminer.com/2026/05/07/repub/whether-sen-mark-kelly-advised-disobedience-to-service-members-argued-in-appeals-case/)
- [Mark Kelly Wikipedia biography](https://en.wikipedia.org/wiki/Mark_Kelly)
- [Court proceedings coverage from multiple national outlets including NBC News, CBS News, The Hill, and Courthouse News](https://www.nbcnews.com/)

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This article was generated by AI (claude-haiku-4-5-20251001) based on source material from Nebraska Examiner, enriched with 2 web searches. The original source is available at https://nebraskaexaminer.com/2026/05/07/repub/whether-sen-mark-kelly-advised-disobedience-to-service-members-argued-in-appeals-case/.