After Senator Kelly's comments on military orders

Eugene R. Fidell, Steven J. Lepper and William D. Baumgartner, Military Law on "Contemptuous Words" Should be Reformed. Just Security, 13 March 2026.



From the article.

Last month, in a scathing opinion, federal district court judge Richard J. Leon, an appointee of President George W. Bush, ordered Hegseth to cease efforts to punish Kelly for exercising the freedom of speech. Judge Leon concluded that while the speech of active duty military personnel may be constrained in certain circumstances, no such limitations exist for military retirees. In language certain to reverberate in the White House, Pentagon, and Congress, the judge silenced Hegseth for trying to silence Kelly:


Defendants respond that Senator Kelly is seeking to exempt himself from the rules of military justice that “Congress has expressly made applicable to retired servicemembers” Horsefeathers! 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 First Amendment “is a limitation on the power of Congress,” not the other way around!

Anyone reading this ruling – including us – must now ask whether Article 88 can or should continue to extend to retired military officers.

On the one hand, it could be argued that Article 88 is too narrow because the mischief it seeks to deter can be committed by military personnel who are not commissioned. Thus, if the goal is to set a proper example for subordinates and to respect the dignity of the offices and legislative bodies protected by Article 88, one would think that warrant, noncommissioned (NCO), and petty officers – particularly senior or “staff” NCOs and petty officers (pay grades E-7 through E-10) – also ought to come within its sweep.

On the other hand, it could be argued with at least equal force that no substantial purpose is served by subjecting retired officers to the free-speech-suppressing effects of Article 88. Judge Leon pointed out that retirees “are not fully immersed in the ‘specialized society’ of the active armed forces.” He continued, “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” (emphasis in original).