Sen. Mark Kelly vows to fight for First Amendment amid Pentagon threats

Arizona Democratic Sen. Mark Kelly says he has the U.S. Constitution on his side in his battle against the Trump administration.

“The American people know you can't be stifling people’s freedom of speech,” Kelly told "The Daily Show" host Jon Stewart in a Jan. 5 appearance. “We have a right in our country to speak about the government, to say things about the president – they can’t take that away from us.”

Kelly, a retired NASA astronaut and U.S. Navy captain, was one of six Democratic lawmakers who drew the Trump administration’s ire by recording a video in November in which Kelly said service members “can refuse illegal orders.” Some interpreted the video as implying the Trump administration's orders were unlawful, though that was never stated directly.

Trump responded to the video on Truth Social, calling the lawmakers “traitors” and describing their conduct as "SEDITIOUS BEHAVIOR, punishable by DEATH!"

The comments prompted the FBI to request interviews with the lawmakers, and the Pentagon announced an investigation into Kelly on Nov. 24, citing military codes and a federal law that bans interfering with the "loyalty, morale, or good order and discipline of the armed forces."

On Jan. 5, Pentagon chief Pete Hegseth announced on social media that he had issued a formal censure to Kelly and taken steps to demote him in retirement. Kelly quickly responded: “Over twenty-five years in the U.S. Navy, thirty-nine combat missions, and four missions to space, I risked my life for this country and to defend our Constitution – including the First Amendment rights of every American to speak out,” Kelly posted on X. "I never expected that the President of the United States and the Secretary of Defense would attack me for doing exactly that.”

Military rules can restrict speech of service members

Though he's retired, Kelly remains subject to military rules known as the Uniform Code of Military Justice. Those codes include bans on speech that would be constitutionally protected if made by everyday people. That includes prohibiting "contemptuous" speech against the president, “unbecoming” conduct or other actions that disrupt the "good order and discipline" of the armed forces.

"These regulations have been used to restrict political expression as well as other activities," University of California Santa Cruz professor Elizabeth Beaumont wrote in a column for Middle Tennessee State University's Free Speech Center.

When military members have challenged military rules based on the First Amendment, which protects the public's free speech from government retaliation, the U.S. Supreme Court "consistently treats the military as a special and separate context or environment in which standard First Amendment protections do not apply, or do not apply to the same extent," Beaumont wrote.

That's because justices presume the military needs to govern itself in a unique way, outweighing the importance of speech rights, she wrote.

Experts say Kelly's comments are protected speech

The nature of Kelly's comments and his status as a retiree could make a difference in future prosecution, experts told the Arizona Republic, part of the USA TODAY Network.

Eugene R. Fidell, military justice professor at Yale Law School, said none of Kelly's comments came "anywhere near any prohibition. Not even close."

Fidell and Gregg Leslie, executive director of the First Amendment Clinic at Arizona State University, emphasized that Kelly's comment about refusing illegal orders, and not legal ones, is already the law and therefore a true statement.

Beyond accuracy, the comments are neither disrespectful nor do they intend to "overthrow lawful, civil authority," which is sedition, Fidell said.

Fidell and James Weinstein, constitutional law professor at Arizona State University, added that Kelly's status as a retiree and sitting U.S. senator also changes the dynamic in favor of Kelly's speech rights.

Even if Kelly's comments did violate military rules against contemptuous speech, "there's very strong First Amendment protections that are supercharged by his role as a senator, in a branch that has oversight over the military," Weinstein said.

Lawmakers, Fidell said, are "expected to be able to speak freely about matters of public moment. … They're not there to be ornamental, and having a chilling effect on a United States senator is really shocking."

Greg Lukianoff, president and CEO of the Foundation for Individual Rights and Expression, also called the Pentagon's investigation "clear retaliation for something Sen. Kelly is entirely within his rights to say."

"America’s servicemembers already take an oath to uphold the Constitution, which includes not following illegal orders. The argument that the video’s message is sedition, or otherwise unprotected by the First Amendment, is flatly wrong," Lukianoff said.

'I will fight this with everything I've got'

Despite his misgivings about the investigation, Kelly said in an interview with NPR Jan. 6, he is “going to take it seriously."

He went on to call Hegseth’s actions “the height of hypocrisy,” given similar comments the secretary made in 2016.

Kelly, both in interviews and online statements, has vowed to fight for his and others' First Amendment rights to speak about the government and said he won’t be intimidated by the Trump administration.

“I will fight this with everything I’ve got ‒ not for myself, but to send a message back that Pete Hegseth and Donald Trump don’t get to decide what Americans in this country get to say about their government,” Kelly wrote on X.

BrieAnna Frank is a First Amendment reporter at USA TODAY. Reach her at [email protected].

USA TODAY's coverage of First Amendment issues is funded through a collaboration between the Freedom Forum and Journalism Funding Partners. Funders do not provide editorial input.