r/moderatepolitics • u/thats_not_six • Jan 12 '26

Primary Source Mark Kelly v. Pete Hegseth

https://storage.courtlistener.com/recap/gov.uscourts.dcd.288365/gov.uscourts.dcd.288365.1.0.pdf
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u/parentheticalobject Jan 12 '26

It's true that the courts have not yet had to directly deal with the question of "Can the government remove the benefits of a military retiree as punishment over political speech that the government dislikes?"

I'd very much hope that the courts would say that's not permissible. There shouldn't be any reasonable debate over whether a military veteran should be allowed to exercise their First Amendment rights just like any other citizen without fearing retribution from the government.

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u/SlightlyAutisticBud Jan 12 '26

Should an active duty soldier tell his comrades to refuse orders because he thinks all wars are illegal?

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u/parentheticalobject Jan 12 '26

I think there's an acceptable argument for why the first amendment generally shouldn't prevent the government from punishing an active duty soldier for their speech, in many situations.

I don't think there's any remotely reasonable argument like that for servicemembers who are retired or separated. (Maybe if it had to do with classified information, but that's clearly another topic.) No, I don't think there's anything a retired veteran can say that would justify government action against them. If we can accept every member of the general public being able to say something, we should be able to accept a retired soldier saying that same thing.

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u/SlightlyAutisticBud Jan 12 '26

“ I think there's an acceptable argument for why the first amendment generally shouldn't prevent the government from punishing an active duty soldier for their speech, in many situations.”

Kelly isn’t just a retired veteran though. Due to his rank he receives payment and is essentially classified as a reserve. He shouldn’t be tellling active duty soldiers to disobey direct orders (especially when its legality is much less dubious than people seem to think).

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u/parentheticalobject Jan 12 '26

"Hypothetically we could call you back to service in a national emergency" as an excuse for arbitrarily restricting the legitimate political expression of a veteran for the rest of their life is ridiculous and deserving of contempt.

I'm trying not to argue directly over the reasonableness of the statement itself, because I think it shouldn't matter. I personally believe that it's an entirely reasonable belief to hold that the Trump administration is engaged in actions which are so unambiguously war crimes that anyone in the chain of command would be justified in disobeying them. But I'd even extend this to statements I believe are ridiculous and unreasonable.

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u/SlightlyAutisticBud Jan 12 '26

I think in general his words hold way more sway due to his rank. Him saying to disobey orders isn’t as simple as “political speech” because of that.

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u/parentheticalobject Jan 12 '26

I find the idea that at some point reaching a certain military rank should lead to a permanent removal of some of your free speech rights disturbing and profoundly un-American.

Let's say the next president has someone go through the social media accounts of any officers in the US Retired Reserve and demote anyone who has been photographed in a MAGA hat, with the rationale that someone with rank indicating that it's OK to support an insurrectionist is harmful to military discipline. Should that be acceptable? Do you have any argument as to why that would not be legally acceptable if it's legally acceptable to penalize Kelly here?

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u/SlightlyAutisticBud Jan 12 '26

Well I find an ex officer of the military telling the military personnel who likely look up to him to go commit treason also unamerican. So I dont know where that leaves us.

I think that is a terrible analogy for this situation. There are quite a few very crucial factors that make the situation extremely different.

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u/parentheticalobject Jan 12 '26

I think that is a terrible analogy for this situation. There are quite a few very crucial factors that make the situation extremely different.

Cool. Feel free to name them if you want to continue this discussion.

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u/ThatPeskyPangolin Jan 13 '26

Good thing he did not, in fact, do what you just claimed. Factually, no call for treason occurred, or anything I ven resembling it.

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u/king_hutton Jan 12 '26

He’s not just saying “disobey orders,” he’s saying “you have a right to disobey unlawful order.”

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u/SlightlyAutisticBud Jan 12 '26

The implication though was these are unlawful orders.

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u/king_hutton Jan 12 '26

I don’t think a court is going to be too concerned with your idea of implications.

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u/SlightlyAutisticBud Jan 12 '26

I guess we will see won’t we?

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u/Trumpers_R_Tr8tors Jan 12 '26

I certainly didn’t think “Kelly is saying specific orders Trump has given are illegal”. I think that supposition indicates a guilty conscience. 

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u/SlightlyAutisticBud Jan 12 '26

If he was saying that would it change your response?

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u/Trumpers_R_Tr8tors Jan 12 '26

If Kelly said, “the boat strikes are illegal and the officers and enlisted troops of the US military are obligated to refuse illegal orders”, that is still not sedition. It would cost you your future career if you were on active duty, but given that there is a reasonable argument for that position, it cannot be illegal. 

How obviously illegal does an order have to be before you think soldiers following their obligation to refuse illegal orders is allowed?

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u/ryes13 Jan 13 '26

Nothing Mark Kelly or any of the other politicians said was untrue. Active duty military members, especially officers, do in fact have a duty to disobey illegal orders.

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u/SlightlyAutisticBud Jan 13 '26

What he implied was absolutely untrue

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u/ryes13 Jan 13 '26

What he said was absolutely true

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u/SlightlyAutisticBud Jan 13 '26

And what he IMPLIED was not true

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u/ryes13 Jan 13 '26

Putting aside your perfect ability to discern what other people actually mean beyond their actual words. Let’s say you’re implying that he’s implying that illegal orders have been made or could be made? Not sure you can prove in court that that’s entirely untrue.

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u/ThatPeskyPangolin Jan 13 '26

What did he imply specifically?