D.C. U.S. District Judge Richard Leon has temporarily blocked Secretary of War Pete Hegseth from reducing Sen. Mark Kelly’s (D-AZ) military rank with a preliminary injunction.
Hegseth has attempted to demote the senator for a video encouraging military personnel to defy President Donald Trump.
Kelly claimed Hegseth and the other defendants violate the First Amendment, the Speech or Debate Clause, the separation of powers, due process, 10 U.S.C. § 1370 [general rule for commissioned officers], and the Administrative Procedure Act.
Leon’s opinion is, well, lit. The man did not hold back. I’m not going to sum up Leon’s opinion because it’s one of the wildest opinions, in terms of language and punctuation use, I’ve ever read.
Let’s just say that Elaine Benes from Seinfeld would love the opinion because Leon used many exclamation points.
“This Court has all it needs to conclude that Defendants have trampled on Senator Kelly’s First Amendment freedoms and threatened the constitutional liberties of millions of military retirees,” wrote Leon. “After all, as Bob Dylan famously said, ‘You don’t need a weatherman to know which way the wind blows.'”
Leon concluded that Kelly will likely succeed on the merits, that irreparable harm is shown, and that the balance of the equities is in his favor.
The judge also described the defendants’ response as “anemic!” (Yes, his use of the exclamation point.)
“To say the least, our retired veterans deserve more respect from their Government, and our Constitution demands they receive it!” bellowed Leon.
Kelly brought seven claims but needed to show only a likelihood of success on one.
Leon chose the First Amendment claim:
Here, Senator Kelly’s First Amendment claim presents a justiciable controversy! While the Senator disagrees with Secretary Hegseth on whether his speech in fact disrupted the chain of command, eroded confidence in leadership, or constituted conduct unbecoming an officer, Senator Kelly’s legal arguments do not, at their core, challenge those underlying discretionary judgments. Rather, Senator Kelly contends that Defendants’ choice to censure him because of his speech violates the First Amendment regardless of Secretary Hegseth’s ultimate judgment as to the effect of that speech. In other words, Senator Kelly’s claims do not require this Court to adjudicate the merits of discretionary military decisions but only to ask whether Defendants’ action “conforms to the law.” Dilley, 603 F.2d at 920. And in our constitutional republic, “it is emphatically the province and duty of the judicial department to say what the law is,” not the military. Marbury v. Madison, 1 Cranch 137, 177 (1803). Accordingly, Senator Kelly’s claims are “amenable to judicial resolution.” Dilley, 603 F.2d at 920.
The judge concentrated on the fact that Kelly is retired from the Navy (more exclamation points) (I omitted the citations since this part is long):
As such, active-duty soldiers urging others to “disregard orders” or “calling into question a commander’s credibility” may directly “undermine the effectiveness of response to command.” The military therefore has a “legitimate interest in prohibiting [such] conduct to promote discipline and uphold order among its members.”The same rationale does not hold true for retired servicemembers-and certainly not those in Senator Kelly’s position. While still members of the military community, retired servicemembers are also part of the “civilian community” and are not fully immersed in the “specialized society” of the active armed forces. Speech from retired servicemembers– even speech opining on the lawfulness of military operations–does not threaten “obedience, unity, commitment, and esprit de corps” in the same way as speech from active-duty soldiers. Nor can speech from retired servicemembers “undermine the effectiveness of response to command” as directly as speech from active-duty soldiers. As such, the military cannot claim the same “legitimate interest in prohibiting” speech by retired veterans.As applied to a sitting Member of Congress, the Parker rule has even less force! Our system of “representative government requires that legislators be given the widest latitude to express their views on issues of policy.” Legislators like Senator Kelly carry “an obligation to take positions on controversial political questions” both so their constituents may be “fully informed” as to the legislator’s views and so constituents “may be represented in governmental debates by the person they have elected to represent them.” Indeed, if legislators do not feel free to express their views and the views of their constituents without fear of reprisal by the Executive, our representative system of Government cannot function! Between the lack of precedent extending Parker outside the context of active-duty military and the heightened free speech protection for legislators, Senator Kelly’s speech must receive full First Amendment protection.
Leon also pointed out that the letter censuring Kelly satisfies the irreparable harm criteria (yes, more exclamation points):
Third, the outcome of the administrative process would, in all likelihood, be a fait accompli! Secretary Hegseth issued the Letter censuring Senator Kelly. The Letter cannot be appealed, and it serves as the sole factual basis for the Retirement Grade Proceeding. If Senator Kelly chooses to petition the Board to “correct” his military record, the ultimate decision would still lie with the Secretary of the Navy and-according to Defendants-with Secretary Hegseth himself, regardless of the Board’s input. See 10 U.S.C. § 1552(a)(l) (providing that “[t]he Secretary … may correct any military record”); Defs.’ Opp’n at 36-37. The record thus suggests that any exhaustion would be “unnecessary.” See Comm. for GI Rts., 518 F.2d at 474 n.20. The same goes for the Retirement Grade Proceeding, where Secretary Hegseth again retains ultimate authority. See 1O U.S.C. § 1370; Defs.’ Opp’n at 33. Therefore, exhaustion of military remedies offers no “real possibility of adequate relief’ and would “in all likelihood be futile.” Bois, 801 F.2d at 468 (internal quotation marks omitted).
Leon lost his mind when he realized Hegseth wanted Kelly to exempt himself from the rules.
“Horsefeathers!” continued Leon. “While Congress has chosen to apply the Uniform Code of Military Justice to military retirees as well as active-duty servicemembers, that choice has little bearing on the scope of First Amendment protections for retirees.”
The judge did not slow down: “The First Amendment ‘is a limitation on the power of Congress,’ not the other way around!”
As if we didn’t know how Leon felt, here’s his conclusion:
Rather than trying to shrink the First Amendment liberties of retired servicemembers, Secretary Hegseth and his fellow Defendants might reflect and be grateful for the wisdom and expertise that retired servicemembers have brought to public discussions and debate on military matters in our Nation over the past 250 years. If so, they will more fully appreciate why the Founding Fathers made free speech the first Amendment in the Bill of Rights! Hopefully this injunction will in some small way help bring about a course correction in the Defense Department’s approach to these issues.
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