allies<\/a>, questioned the legality of a series of military strikes targeting suspected drug traffickers in the Caribbean and eastern Pacific. It also came as the Trump administration faced multiple court challenges to the president\u2019s decision last year to send scores of federalized state National Guard members to Democratic-led cities.<\/p>\nFederal prosecutors in Washington, DC, also attempted to indict the lawmakers over the video, but were rebuffed by a grand jury in a remarkable push back that is rarely seen.<\/p>\n
First Amendment protections for veterans<\/p>\n
At issue in Thursday\u2019s case were a series of thorny questions about how much First Amendment protection retired service members have over speech directed at serving members of the military.<\/p>\n
Justice Department lawyer John Bailey contended that, like active-duty members, retirees can have their speech curtailed or be punished for objectionable speech if officials believe it impacts the discipline and good order of the troops.<\/p>\n
\u201cIn the military context, the First Amendment is going to function differently,\u201d he said, arguing Kelly\u2019s comments last year were not an \u201cabstract legal education.\u201d<\/p>\n
\u201cThis is a pattern \u2013 a totality of conduct,\u201d Bailey said, pointing to the fact that Kelly\u2019s comments in the video needed to be understood in the context of other remarks he made last year about how the military was being used to carry out counter-narcotics operations.<\/p>\n
\u201cThis was a wink-wink and a nod,\u201d Bailey said.<\/p>\n
Bailey repeatedly said that Kelly\u2019s case was controlled by a 1970s Supreme Court decision in which the justices said an active-duty officer could be punished for imploring service members not to fight in the Vietnam War. But Pillard and Pan made clear that they didn\u2019t see that case as having any use for the government given the stark factual differences between the two.<\/p>\n
\u201cSen. Kelly never says disobey lawful orders,\u201d Pillard said at one point, describing his comments later as an \u201cabstract statement of a principle.\u201d<\/p>\n
\u201cThere are no cases that we have about the speech rights of retired service members,\u201d she added.<\/p>\n
Both judges seemed to agree with Kelly\u2019s argument that retired service members have neither the full free speech protections enjoyed by civilians nor the limited First Amendment rights active-duty service members have. Instead, the millions of retirees like Kelly who still receive pay from the military are likely in a third category that has never before been sketched out by a court, the judges acknowledged.<\/p>\n
\u201cIt\u2019s not clear what the standard is for a retiree,\u201d Pan said, adding later that the court may not need to define that standard at all. In the end, she said, the panel could reject the government\u2019s position that retirees are on par with active-duty service members without going any further.<\/p>\n
Kelly\u2019s lawyer, Benjamin Mizer, told the court that Hegseth\u2019s plan to reduce the senator\u2019s pay and censure him represented \u201ctextbook retaliation for disfavored speech\u201d and argued that he was being targeted for stating something that has traditionally been viewed as uncontroversial.<\/p>\n
\u201cHe simply recited the bedrock principle of military law,\u201d Mizer said.<\/p>\n
Outside the courthouse after the hearing, Kelly issued a warning about the purpose of the censure effort: \u201cIf you say something that the president and this administration does not like, they\u2019re going to come after you.\u201d<\/p>\n
The administration, he said, argued in court that \u201cany time a retired veteran says something the secretary of defense doesn\u2019t like, they can be punished.\u201d<\/p>\n
\u201cThe people who have given the most in service to this country wouldn\u2019t be free to say what they believe,\u201d Kelly added.<\/p>\n
This story has been updated with additional details.<\/p>\n
For more CNN news and newsletters create an account at CNN.com<\/a><\/p>\n","protected":false},"excerpt":{"rendered":"A federal appeals court appeared ready Thursday to reject Defense Secretary Pete Hegseth\u2019s effort to punish Democratic Sen.…\n","protected":false},"author":2,"featured_media":26125,"comment_status":"","ping_status":"","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[4],"tags":[9268,38,15976,15979,15978,8,1505,3206,9,15977,5919,7],"class_list":{"0":"post-26124","1":"post","2":"type-post","3":"status-publish","4":"format-standard","5":"has-post-thumbnail","7":"category-top-stories","8":"tag-administration","9":"tag-donald-trump","10":"tag-federal-appeals-court","11":"tag-florence-pan","12":"tag-free-speech-protections","13":"tag-headlines","14":"tag-justice-department","15":"tag-mark-kelly","16":"tag-news","17":"tag-nina-pillard","18":"tag-service-members","19":"tag-top-stories"},"share_on_mastodon":{"url":"https:\/\/pubeurope.com\/@news\/116539117237458947","error":""},"_links":{"self":[{"href":"https:\/\/www.europesays.com\/news\/wp-json\/wp\/v2\/posts\/26124","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/www.europesays.com\/news\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/www.europesays.com\/news\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/www.europesays.com\/news\/wp-json\/wp\/v2\/users\/2"}],"replies":[{"embeddable":true,"href":"https:\/\/www.europesays.com\/news\/wp-json\/wp\/v2\/comments?post=26124"}],"version-history":[{"count":0,"href":"https:\/\/www.europesays.com\/news\/wp-json\/wp\/v2\/posts\/26124\/revisions"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/www.europesays.com\/news\/wp-json\/wp\/v2\/media\/26125"}],"wp:attachment":[{"href":"https:\/\/www.europesays.com\/news\/wp-json\/wp\/v2\/media?parent=26124"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/www.europesays.com\/news\/wp-json\/wp\/v2\/categories?post=26124"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/www.europesays.com\/news\/wp-json\/wp\/v2\/tags?post=26124"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}