Caffeinated Politics

My husband and I read court rulings in cases that land at the center of our national strife. Today, we remarked on not being able to recall when an exclamation point was used to make a federal judge’s words more impactful. What you will read below was a brilliant ruling for its legal reasoning and perfectly rests at the feet of those conservatives who never served in the military (Donald Trump) and want the electorate to think they are always servants of the armed forces. We are asked to forget the disdain shown to the military, as in the case of the disparaging remarks about members who were captured or killed, including American casualties at the Aisne-Marne American Cemetery in France, when Trump in 2018 referred to them as “losers” and “suckers.”

Today, a federal judge did what the Trump Administration would not do. In a powerful ruling Judge Richard Leon, a George W. Bush appointee on the U.S. District Court for the District of Columbia, wrote, “To say the least, our retired veterans deserve more respect from their Government, and our Constitution demands they receive it!”

Judge Leon granted Arizona Democratic Senator Mark Kelly’s request for a preliminary injunction against Defense Secretary Pete Hegseth, in a lawsuit accusing the secretary of trying to punish him for his political speech.

Kelly, a former Navy Captain, correctly sued the alcohol-prone Hegseth in January, one week after the defense secretary moved to formally censure him for participating in a video where he and several Democratic lawmakers told U.S. servicemembers they can refuse illegal orders.

“Our rules are clear. You can refuse illegal orders,” Kelly says in the video.

Judge Richard Leon’s ruling today landed with the kind of clarity and constitutional rigor that has become increasingly necessary during the fascist and authoritarian moves by Donald Trump and his reckless administration. What set his opinion apart was not simply the outcome, but the intellectual discipline behind it.

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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. After all, as Bob Dylan famously said, “You don’t need a weatherman to know which way the wind blows. To say the least, our retired veterans deserve more respect from their Government, and our Constitution demands they receive it! Senator Kelly’s First Amendment claim is not only justiciable; he is likely to succeed on the merits.

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Although Senator Kelly brings seven claims, he “need only show a likelihood of success on one to obtain preliminary relief….

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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. 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. Accordingly, Senator Kelly’s claims are “amenable to judicial resolution.”

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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.

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Here, Senator Kelly is alleging unconstitutional action by Defendants that directly threatens his First Amendment liberties. Accordingly, he is justified in seeking federal court review before exhausting his administrative remedies within the military. The irreparable harm done is reason enough to allow immediate judicial review.

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Still, Defendants argue that the case would benefit from a more developed factual record. How so? They do not say. For instance, Defendants do not point to any additional factual context needed to decide whether Senator Kelly’s public statements are protected by the First Amendment. Instead, at the hearing, counsel for Defendants suggested that Senator Kelly may be permitted to submit his own evidence and argument to the Board. But it remains a mystery how that would assist the Court in its consideration of the First Amendment issues at play here. Those issues have already “crystallized into a concrete legal dispute,” and no further factual development is needed.

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The “First Amendment prohibits government officials from retaliating against individuals for engaging in protected speech. To demonstrate First Amendment retaliation, Senator Kelly must show (1) he “engaged in conduct protected under the First Amendment”; (2) Defendants “took some retaliatory action sufficient to deter a person of ordinary firmness in [his] position from speaking again”; and (3) there is “a causal link between the exercise of a constitutional right and the adverse action taken against him.”

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Well, let’s start with the basics. Under ordinary First Amendment principles, the speech at issue here is unquestionably protected speech. Speech “on matters of public concern” lies at the core of First Amendment protection. This broad category includes speech on “any matter of political, social, or other concern to the community” or any “subject of general interest and of value and concern to the public.” It includes
“opposition to national foreign policy,” and even “vehement, caustic, and … unpleasantly sharp attacks on government and public officials,”. Here, the Letter of Censure identifies a “sustained pattern of public statements” including, primarily, the November 18 video in which Senator Kelly stated that members of the armed forces “can refuse illegal orders.” Letter at 1. It also identifies the Senator’s statements characterizing certain military orders as “unlawful” and criticizing military leadership. Id. Under any reading of the law, Senator Kelly’s statements constitute “speech on matters of public concern” and are therefore “entitled to special protection.”

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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.

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Having demonstrated a strong likelihood of First Amendment retaliation, Senator Kelly has both the equities and the public interest on his side. Protecting the exercise of First Amendment freedoms is “always” in the public interest. Pursuing Am. s Greatness Indeed, “[t]he Constitution is the ultimate expression of the public interest,” and therefore, “government actions in contravention of the Constitution are ‘always contrary to the public interest.”‘ This is especially so where government actions threaten to chill core political speech, which is entitled to the highest First Amendment protection.

Now, I wish to give a bit of my assessment of this ruling.

From the outset, Leon signaled that this case would not be decided on emotion or political urgency. He grasps, as all judges must, that constitutional protections are not situational, and that courts must resist the temptation to bend them in moments of public pressure. His insistence on this principle gave the ruling a backbone that transcended the immediate dispute. I truly am thrilled with this type of legal framework in a judge’s rulings. In an age when legal arguments presented to the public on news shows for partisan consideration turn into policy debates, Leon’s textual discipline was a welcome corrective.

The federal judge positioned himself as a guardian of constitutional boundaries. By doing so, he strengthened the document he swore to uphold. Conservative critics will undoubtedly debate it and appeal the result. What do they care about spitting into the wind of reason and law when having an open purse from the taxpayers to fund their partisan legal expeditions? They care no more for fiscal constraints than they do for the veterans they undermined by attacking Kelly.

Finally, I truly enjoy a ruling that turns into a civic lesson. Leon reminded the country that the rule of law must not fall victim to the shallow partisan end of our nation. In a moment when public trust in institutions is fragile, that reminder was absolutely necessary.