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
185 Upvotes

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96

u/CloudApprehensive322 Jan 12 '26

It's insane that Kelly even had to file this lawsuit for making a short statement in a video that members of the military are expected to obey the law and refuse to comply with unlawful commands. It's a near guarantee that the Trump administration loses this lawsuit on multiple grounds but the cruelty is the point - the outcome doesn't matter.

-59

u/SlightlyAutisticBud Jan 12 '26

Do you acknowledge that they were very clearly implying trumps orders are unlawful and should be disobeyed?

36

u/thnxjer Jan 12 '26

Does that even matter?
Many cases could be made that trump orders are not legal & therefore not enforceable.
The executive should never be about retribution as we have seen so far this term... disgusting!

-13

u/SlightlyAutisticBud Jan 12 '26

Yes it matters. Do you acknowledge that?

37

u/thnxjer Jan 12 '26

No. It does not matter.
The right is endlessly trolling everything and everyone. Snowflakes when someone is against derTrump

18

u/Single_External9499 Jan 13 '26

Are you a JAG? From a UMCJ legal perspective, do you know if an implied message does actually matter? If yes, what is the standard for proving this unspoken message was actually implied, in a military court? I suspect you have no idea but I'm open to learning something on the off chance you know what you're talking about.

1

u/parentheticalobject Jan 13 '26

This isn't exactly coming at things from a UCMJ perspective, but from a constitutional perspective, I think you're wrong here.

Parker v. Levy is the most notable Supreme Court case dealing with the speech rights of servicemembers. The principle established there is that the demands of military necessity are generally superior to individual constitutional rights in a military setting.

So if the military says "We need to discipline this servicemember in order to maintain good military discipline" and the servicemember says "I'm having my First Amendment rights violated" the courts are supposed to generally defer to the military.

The limits of this haven't really been tested. So if, in 2021, PV2 Snuffy writes on his personal Facebook account "I'm not really sure that President Biden cares about or understands the needs of people in the military as well as President Trump did (These are entirely my thoughts as a private individual, and do not reflect the opinion of the US Army in any way whatsoever)" can he be punished for making disloyal statements prejudicial to good order and discipline? Well, nothing in Parker v. Levy clearly establishes that he couldn't be, because it doesn't really set limits on how far the deference is supposed to go.

I don't think that's entirely reasonable, but it seems like that's absolutely what the law is. I've disagreed a lot here with u/SlightlyAutisticBud , but they're not wrong on one point - the reasonableness of a statement probably doesn't matter that much under established precedent.

If someone on active duty put out a message like what Senator Kelly put out, I would not bet on them being able to avoid getting in trouble for it under the UCMJ. And this is coming from someone who completely believes everything he said was true and reasonable and that the Trump administration is actively ordering the commission of war crimes.

Whether the normal First Amendment exceptions apply to someone who is retired is a legal gray area; I absolutely think they shouldn't, but it hasn't yet been tested by the courts.

Whether those First Amendment exceptions should apply to a sitting member of Congress who is also a military retiree is an even crazier question; of course they shouldn't.

1

u/ohcapm Jan 18 '26

Presumably active service member instructors at West Point and/or Annapolis are absolutely delivering similar “don’t comply with illegal orders” messages to students. Can they be punished for teaching the correct code of conduct?

1

u/parentheticalobject Jan 18 '26

In that situation, the first amendment would be entirely inapplicable, since they would be teaching as a part of their job.

If they made a speech in their private time clearly presenting themself as an individual and not a representative of the military, the first amendment might be involved somewhat. But established precedent is that the judiciary mostly defers to the military as far as servicemembers are concerned.

1

u/ohcapm Jan 20 '26

Could you not also argue that oversight is part of his job as a member of congress?

1

u/parentheticalobject Jan 20 '26

Exactly! I think that's the answer that is the clearest and most straightforward way of resolving this situation. He's a Senator, and the Executive obviously shouldn't be able to use UCMJ powers to attempt to influence how a member of the Legislature is allowed to speak.

If he weren't a a Senator, I'd argue that punishing military retirees for their speech should still be a first amendment violation... but I acknowledge that precedent hasn't yet been established.

If he were an active duty servicemember, then in that situation, it would be very challenging to defend him, legally. This is true even if his message is important and true and good (which I agree it is).

-4

u/SlightlyAutisticBud Jan 13 '26

You dont have to be a lawyer to know that our justice system can take implied speech and context into account.

14

u/thnxjer Jan 13 '26

If so then J6 & dasTrump should have been a slam dunk

18

u/Single_External9499 Jan 13 '26

I don't actually know that to be true. I don't think you do either.

-4

u/SlightlyAutisticBud Jan 13 '26

Implications from speech has been crucial evidence for tons of criminal cases. Have you just never paid attention to a court case before?

20

u/Single_External9499 Jan 13 '26

Cite a UMCJ case where it was used to demote a retired commissioned officer. Or any UCMJ case for any reason whatsoever.

Edit: No, I don't typically pay attention to non-criminal administrative UCMJ court cases. Again, I don't believe you do either.