Amicus Briefs Published January 20, 2026 Updated April 17, 2026

Kelly v. Hegseth — First Amendment Rights (DC)

U.S. District Court for the District of Columbia, U.S. Court of Appeals for the District of Columbia

Issue Areas
  • Rule of Law

In This Resource
Background

On Jan. 12, 2026, U.S. Sen. Mark Kelly sued Secretary of Defense Pete Hegseth and others, alleging that disciplinary measures taken against him amounted to “punishing disfavored expression” and “retaliating against protected speech,” in violation of his First Amendment and due process rights.

The punitive measures stem from a video that Kelly, a retired U.S. Navy captain, and other veterans and former national security personnel serving in Congress published on social media, in which they reminded members of the military and intelligence community that they have a legal obligation to refuse illegal orders.

“Americans trust their military. But that trust is at risk,” the congressmembers said in the video. “This administration is pitting our uniformed military and intelligence community professionals against American citizens.”

In response, Hegseth formally censured Kelly and initiated proceedings within the Department of Defense to determine if his military rank and pay should be demoted in retirement.

Kelly’s lawsuit sought to declare Hegseth’s actions unlawful and to block the censure and any other further measures from taking effect.

On Feb. 12, 2026, the judge overseeing the case granted Kelly’s request for a preliminary injunction and blocked Hegseth’s punitive actions from taking effect. Hegseth is appealing the decision.

Amicus briefs

States United and Protect Democracy Project represented former service secretaries, military leaders, and Vet Voice Foundation (VVF) in filing amicus briefs in the original case and in the appeal.

On Jan. 20, 2026, 41 former military leaders and VVF filed an amicus brief in district court in the case supporting Kelly’s motion to temporarily block Hegseth’s disciplinary measures.

The group—including former secretaries of the U.S. Army and Navy, retired senior officers, and Vet Voice Foundation—argued that the defendants’ actions, if allowed to stand, “would chill public participation by veterans around the country.” It also argues that Kelly’s remarks that the military is obligated to not follow unlawful orders are a “restatement of a settled principle of military law” and do not warrant discipline by the Defense Department.

In his Feb. 12 opinion ruling in Kelly’s favor, the judge cited and quoted from the arguments made in the brief.

“Per an amicus brief submitted by forty-one retired officers, many veterans are today ‘declining’ to ‘participate in public debate on important and contested issues’ out of fear of ‘official reprisal,’” he wrote. “That is a troubling development in a free country!”

The judge said retired veterans should be able to add their “distinct perspective and specialized expertise” to the public discourse on military policy issues.

Quoting once more from the military leaders’ brief, the judge wrote that allowing Hegseth’s disciplinary actions against Kelly to stand “would further chill the speech of these retired servicemembers and thereby ‘impoverish public debate on critical issues relating to our military and its role in domestic and foreign affairs.’”

After Hegseth appealed the district judge’s decision, many of the same amici and some additional former military leaders filed a similar brief on April 17. The 73 amici were once again represented by States United and Protect Democracy Project.

Latest update

Oral arguments are scheduled for May 7, 2026.

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