[00:00:02] Speaker 02:
Case number 265070, Mark Kelly, United States Senator representing the state of Arizona versus Pete Hegseth in his official capacity as Secretary of Defense at all appellants, Mr. Bailey for the appellants and Mr. Miser for the appellee.

[00:00:19] Speaker 05:
I'm just trying to get my hearing aids adjusted. All right, Mr. Bailey, good morning.

[00:00:31] Speaker 01:
My honors, may it please the court, John Bailey on behalf of the United States, I've asked to reserve a few minutes for rebuttal.

[00:00:38] Speaker 01:
Over 50 years ago, the Supreme Court in Parker v. Levy held that speech by a commissioned officer publicly urging enlisted personnel to refuse to obey orders which might send them into combat is unprotected under the most expansive notions of the First Amendment. The military's unique and fundamental need for obedience and discipline means that it may, consistent with the First Amendment, discipline its members for speech that undermines the effectiveness of response to command. Within the military community, that category of speech is unprotected.

[00:01:09] Speaker 01:
In 2022, this court in Larrabee v. Del Toro held that military retirees are properly regarded as members of the armed forces, not civilians.

[00:01:18] Speaker 01:
the court upheld Congress's extension of court martial jurisdiction over military retirees.

[00:01:24] Speaker 01:
As the court explained there, quote, military retirees unquestionably remain in the service and are subject to restrictions and recall.

[00:01:32] Speaker 01:
Despite those settled principles, the district court resolved Captain Kelly's First Amendment claim by adopting a sweeping categorical rule that for First Amendment purposes, retired officers are indistinguishable from civilians. such that the Constitution prohibits the military from imposing even administrative discipline for speech falling within Parker's court.

[00:01:52] Speaker 05:
Mr. Bailey, let me ask you, does the plaintiff have a, as a retired Naval officer, does he have a commanding officer?

[00:02:01] Speaker 01:
Does he have a current command as a retired?

[00:02:03] Speaker 05:
No, does he have a commanding officer as a retired Navy officer?

[00:02:09] Speaker 04:
He's a retired officer who- Have a commanding officer over him.

[00:02:14] Speaker 01:
I think not in active duty.

[00:02:17] Speaker 05:
I don't know if he has a- Well, isn't the president his commanding officer?

[00:02:22] Speaker 01:
Certainly, if he was to be recalled to active duty, he would have a superior officers and a commanding officer. Absolutely. Thank you.

[00:02:28] Speaker 05:
Go ahead.

[00:02:32] Speaker 01:
And as I said, the district court's analysis was based on a categorical rule that retirees- So, counsel, I don't really see that on this record.

[00:02:40] Speaker 03:
It seemed to me it's a little bit more simple than the way you are positing.

[00:02:46] Speaker 03:
Basically, as I read the papers that the government filed before Judge Leon, the government argued that the speech at issue here was unprotected under the first amendment under Parker versus Levy. That was the argument that was made. And it seems to me that judge Leon simply said that you're we're on a preliminary injunction standard. And he said, you're not likely to succeed on the merits that Parker versus Levy applies to this situation.

[00:03:19] Speaker 03:
And that's true because Parker versus Levy involved a active duty officer.

[00:03:27] Speaker 03:
Senator Kelly is a retired officer. And also the facts of Parker versus Levy are so different, where in that case, Levy actually, as a commissioned officer who was active duty, was saying that people should refuse orders to fight in Vietnam. And all Senator Kelly said was a truism, which is that you should decline to follow illegal orders and nobody disputes that that's an accurate statement.

[00:03:59] Speaker 03:
So doesn't this just boil down to whether Parker versus Levy governs the situation? And if it does not, that's it. Like the district court did not affirmatively adopt some standard that equates retired service members with civilians. All it did was reject the only argument the government made, which was under Parker versus Levy, this is unprotected conduct. That's all that we have before us.

[00:04:28] Speaker 01:
Sure, Your Honor. So a few points in response. So we would disagree with that characterization of the district court's analysis. The district court, by holding at several places that Captain Kelly's speech was fully protected under the First Amendment. The implication of that is that no military interest can justify even modest regulations of its member's speech simply because they're a retiree.

[00:04:49] Speaker 01:
As for Parker, we don't read anything in Parker to be limited to active duty service members. Sure, that was the particular factual context.

[00:04:55] Speaker 03:
I understand that that's your position. But what the district court did was just reject your argument that Parker versus Levy governs. And it did not explicate some new theory about military retirees equal civilians. It never said that. And there is a third possibility, which is that there's a different standard for military retirees, that it's a third category. There are active duty, there are retirees, and there are civilians.

[00:05:26] Speaker 03:
But that was never sort of fleshed out because the government never made that argument. So all he had to do was reject the argument that you did make, which was that military retirees are equal to active duty ones. And the facts also are similar.

[00:05:43] Speaker 01:
Respectfully, Your Honor, I do not believe the position below. I do not believe the argument was made that retirees are equivalent to active duty service members.

[00:05:51] Speaker 03:
The argument was simply that the implication that you said Parker versus Levy, which is about active duty service members, that that applies here. So that... implicitly equates active duty and retired service members.

[00:06:04] Speaker 01:
Your Honor, we don't understand Parker v. Levy to be about active duty service members. We understand Parker v. Levy to recognize that the military may constitutionally regulate speech by its members that undermines the effectiveness of responsive command.

[00:06:15] Speaker 03:
And you lump in retirees under whatever Parker v. Levy held, thereby equating active duty and retired service members, right?

[00:06:26] Speaker 01:
Your Honor, the We're simply saying that when we're in the military context, there are special principles that apply.

[00:06:32] Speaker 03:
Correct. And they're the same if you're active or if you're retired.

[00:06:37] Speaker 01:
That is not our position, Your Honor.

[00:06:38] Speaker 03:
That's not your position.

[00:06:39] Speaker 01:
Our position, at least for purposes of the core of Parker, speech counseling disobedience to orders, we agree that that balance is always going to cash out in favor of the military, and that is unprotected. But Parker, and then this court said in Priest, the broader standard is that speech that undermines effectiveness of response to command or endangers loyalty, discipline, and morale in the military context, that's going to be unprotected. Parker's a specific application of that broader rule to the core of speech that undermines military discipline and order.

[00:07:10] Speaker 03:
But isn't the whole point here about what does Parker apply to? Does it apply to only active duty? Does it apply to active and retired? Because you don't think that it applies to civilians, do you?

[00:07:21] Speaker 01:
No, Your Honor. Our point is that Parker was recognizing a rule that the First Amendment applies differently in the military context. And that's what we have here. But the district court's analysis, it eschewed the military context by repeatedly stating that Captain Kelly's speech is entitled to the full protection of the First Amendment.

[00:07:40] Speaker 03:
So your position basically does not recognize that there could be a difference if it's a military retiree versus an active duty member.

[00:07:50] Speaker 01:
I want to be very clear about this genre. We do recognize that there could absolutely be, let's say, under Article 88, a contemptuous words prosecution. We absolutely think that the First Amendment analysis would be different there for a retired officer versus an active duty service member. But when it comes to the specific kind of speech that was at issue at Parker, speech that is counseling disobedience to orders that goes to the very heart of the military's interest in maintaining order and discipline over its members, we're saying that they're that balance is always going to cash out in favor of the military, whether you're active or retired.

[00:08:21] Speaker 03:
So in other words, then, whether you're active or retired, the standard is the same under Parker versus Levy.

[00:08:28] Speaker 01:
At least for that core category of speech, counseling disobedience to orders, which is a type of unprotected speech because it undermines good order and discipline. If this was an action taken based off of Article 88, the contemptuous words, as I said, We would be fully willing to agree that the First Amendment analysis there would look different for a retiree. It is context dependent. His court has said that in Priest, and I think that was implicit in Levy. The context is very important.

[00:08:53] Speaker 03:
I just take that everything you said to support what I previously started my line of questioning with, which is that you think that under Parker versus Levy, a military retiree is covered just like an active duty service member. And you relied only on Parker versus Levy to assert that what Senator Kelly did in this case is not protected under the First Amendment. And all Judge Leon did was reject your argument because we're on a preliminary injunction standard, and it was not a likelihood of success in the merits for you to offer this defense because, number one, he's retired, so it's not clear what the standard should be for a retiree.

[00:09:41] Speaker 03:
And number two, the facts are so different that were before Judge Leon versus what was in Parker versus Levy. And that's all that we have to decide on appeal to uphold this injunction.

[00:09:53] Speaker 01:
No, Your Honor, respectfully, I think we have to ask, was the district court's legal rule that it adopted to resolve this question, can that rule, can the preliminary injunction be affirmed based off that rule? And the rule that he adopted, that retirees are, as a matter of law, categorically indistinguishable from civilians, that is incompatible.

[00:10:10] Speaker 03:
Where is that in the record, that he held that retirees are categorically indistinguishable from civilians?

[00:10:16] Speaker 01:
He said repeatedly that Kelly's speech must be given the full protection of the First Amendment right.

[00:10:23] Speaker 01:
the full protection of the First Amendment. And what that means is that the military has no interest in regulating his speech any more than it has an interest in regulating the speech of a civilian.

[00:10:32] Speaker 01:
It would completely nullify large parts of this court's decision in Larrabee. It would essentially mean that any UCMJ article that touches on speech as applied to retirees, it is automatically unconstitutional. And that can't be.

[00:10:47] Speaker 03:
So I don't think that that necessarily equates Your whole argument is premised on the fact that he's equating military retirees with civilians. He never says that anywhere. And him rejecting your argument based on Parker versus Levy does not mean that he's equating military retirees with civilians. Your Honor, our Parker argument. There could be a third category, which nobody addressed, that there's a different standard for military retirees and a whole different legal analysis that nobody undertook.

[00:11:19] Speaker 01:
And at the least, that counsel's in favor of remand.

[00:11:26] Speaker 01:
Our Parker argument was very clear that in the military context, there are special First Amendment rules that apply, and that was the argument that the district court rejected. And that can't possibly be right.

[00:11:35] Speaker 04:
I take it, Mr. Bailey, that your core argument is that counseling disobedience to lawful orders is a category of unprotected speech. when uttered by anyone in the military, including someone who is retired.

[00:11:55] Speaker 01:
Yes, exactly.

[00:11:58] Speaker 04:
So just backing up, what are the lawful orders that Captain Kelly, that support the reprimand that Captain Kelly counseled service members to disobey?

[00:12:12] Speaker 01:
So I think the censure letter speaks for itself here. This is a JA 63 through 100. And it makes clear that this is not any one statement or any one utterance. This was a pattern of conduct and a series of public statements.

[00:12:26] Speaker 04:
But just help me be concrete. So what was the category of lawful order or the type of lawful order or any lawful order?

[00:12:38] Speaker 04:
that you take all the circumstances that are mentioned in the censure letter to counsel service members to disobey.

[00:12:47] Speaker 01:
As I said, this was a pattern of statements, and it was the lawful orders at issue or orders made in the context of the National Guard deployments and also with respect to the counter-narcotics operations, vote strikes.

[00:13:00] Speaker 04:
Orders to do what?

[00:13:03] Speaker 01:
I mean, it would be a series of orders related to those missions in order to deploy, in order to deploy to your home base and then to deploy to a state, perhaps in the context of the National Guard.

[00:13:10] Speaker 04:
Wait, slow down. Orders to deploy. So Captain Kelly ordered active duty service members not to deploy.

[00:13:20] Speaker 01:
No, Your Honor, I'm saying as that could be an example of the type of order that would be.

[00:13:26] Speaker 04:
I'm just trying to understand what are the orders?

[00:13:29] Speaker 04:
that Captain Kelly is censured for having counseled service members to disobey.

[00:13:35] Speaker 05:
I think it's his own characterization in his press conference that he intended to cut him off at the pass. That has no meaning other than stop the deployment, stop the National Guard from going into cities.

[00:13:53] Speaker 05:
It has no other meaning.

[00:13:55] Speaker 01:
Exactly, your honor. And at the least, we think that the secretary could reasonably determine that these statements in context based upon his military experience and judgment.

[00:14:03] Speaker 03:
I'm sorry, I don't follow where that where is that in the record? I don't know what what we're talking about here. What statement is that? It's in his press conference in the record.

[00:14:13] Speaker 01:
I'm not sure if you're referring to what's quoted in the in the censure letter, but where is that in the record?

[00:14:20] Speaker 03:
I'd like to see because I don't know what we're talking about right now.

[00:14:23] Speaker 01:
Yes, Your Honor. I'm referring to J.A.

[00:14:25] UNKNOWN:
63.

[00:14:25] Speaker 01:
It's also at J.A.

[00:14:26] UNKNOWN:
99.

[00:14:26] Speaker 01:
It's the central letter.

[00:14:29] Speaker 03:
But where is this press conference in the record, if you could point it out? Because I just don't know what we're talking about. I'd like to see it.

[00:14:35] Speaker 01:
Your Honor, the reference to the press conference, I believe the reference that Judge Anderson was making was to paragraph five, at least as the central letter I have in front of me.

[00:14:45] Speaker 03:
I think throughout December 2025, you continue to accuse me and senior military officers of war crimes and to frame resistance to lawful orders as protecting against overreach.

[00:14:57] Speaker 03:
I think that's paragraph five.

[00:15:00] Speaker 01:
Your Honor, I think it may have been the paragraph before that Judge Henderson was referring to.

[00:15:04] Speaker 03:
My point is- Okay, so if we can, I'm just trying to understand what we're talking about. On November 20th, 2025, you issued a joint statement defending the video, that's the don't give up the ship video, and reinforcing your call for refusal of what you characterized as unlawful orders. On November 21st and 23rd, 2025, you criticized military leadership for, quote, firing admirals and generals and surrounding themselves with yes-men, asserting you would always defend the Constitution. And on November 25th, you stated that intimidation would not work and called your advice to refuse orders non-controversial.

[00:15:40] Speaker 03:
I don't see a reference to a press conference here. Did I miss something?

[00:15:45] Speaker 05:
Well, I'm looking at the CNN, Senator Kelly, U.S. military may have committed war crime.

[00:15:52] Speaker 03:
I'm sorry, where in the record are we?

[00:15:54] Speaker 05:
It is JA 116, I think. This is a quote. The gist of the video was to urge service members, quote, not to answer the call if they were ordered to carry out such strikes.

[00:16:12] Speaker 05:
And the outrageous statement about using the cities as training grounds, when if anything, the National Guard, two of them were shot, one of them killed by a citizen.

[00:16:33] Speaker 03:
I'm so sorry. I just don't see this on page 116.

[00:16:38] Speaker 04:
So the orders, I take your answer to be that the lawful orders that Captain Kelly counsel as to which Captain Kelly counseled disobedience would be orders for National Guard members to deploy to American cities?

[00:16:58] Speaker 01:
Your Honor, I will say it broadly, there are orders relating to the specific ongoing operations related to National Guard deployments, as well as the counter narcotics operations, the boat strikes. I'm not saying they were.

[00:17:10] Speaker 04:
He's counseling National Guard members not to deploy to American cities and counseling members of, is it the Navy that's involved or in the counter drug trafficking?

[00:17:25] Speaker 01:
I think generally counseling disobedience. Yes, that was the secretary's determination, which the district court didn't question. The district court accepted the secretary's characterizations of these statements. It did not engage in a line by line.

[00:17:36] Speaker 04:
No, I'm looking at the censure letter. I'm accepting the secretary's characterizations as the basis of the censure. The difficulty is in identifying, because this letter doesn't identify specific orders or types of orders, categories of orders, or statements that counsel disobedience to them. In fact, the text of the video that I take to be really the fulcrum of this entire case advises that service members have no obligation to obey unlawful orders.

[00:18:13] Speaker 04:
Is that correct?

[00:18:15] Speaker 01:
That was one of the references in the video.

[00:18:18] Speaker 04:
Nobody in the video says service members have a duty to disobey lawful orders, right?

[00:18:28] Speaker 01:
Our contention is not that any one statement in isolation.

[00:18:31] Speaker 04:
I mean, this is really basic.

[00:18:34] Speaker 04:
You are not disagreeing.

[00:18:36] Speaker 04:
that the video at issue, that is the fulcrum of this case, Senator Kelly never says the words disobey lawful orders, right? I mean, that's uncontroversial. I understand you have a whole theory, but he doesn't say that, right?

[00:18:56] Speaker 01:
Not in isolation expressly.

[00:18:57] Speaker 04:
He doesn't say that those words.

[00:19:01] Speaker 01:
Correct.

[00:19:02] Speaker 04:
Okay. He says you have a duty to disobey orders, Unlawful orders, right? Or you don't need to disobey. Unlawful orders.

[00:19:11] Speaker 01:
You can refuse illegal orders, is what he said.

[00:19:13] Speaker 04:
You can refuse illegal orders. That is something that's taught at Annapolis to every cadet, right?

[00:19:21] Speaker 01:
Absolutely, Your Honor. That's why the context is important. And because it's taught at Annapolis to every cadet, there is only one reason why you would say that, and that is if it was with the specific intent to influence active duty service members.

[00:19:32] Speaker 04:
Wait, wait. The only reason he would say that is with a specific intent to influence active duty service members to do what?

[00:19:41] Speaker 01:
Counsel disobedience to orders that he has characterized as unlawful.

[00:19:44] Speaker 04:
So if there's a class at Annapolis during the period in question where professors are telling cadets, you need not obey unlawful orders, you have a duty to disobey unlawful orders, That means they're telling them not to obey deployments to US cities or not to obey targeting of suspected Drug runners?

[00:20:12] Speaker 01:
Not at all. Our point is that this was not abstract legal education. Captain Kelly was not purporting to give a speech in Annapolis on military law.

[00:20:22] Speaker 04:
How do we know that?

[00:20:23] Speaker 01:
This was the secretary's determination based off a review of a pattern of conduct in a series of public statements. He determined that was his inference, his characterization, that the statements were made with the intent to counsel disobedience. And those findings went unchallenged by the district court. The district court accepted those and moved on to its categorical rule.

[00:20:41] Speaker 04:
So we have an obligation to defer to the military on matters of military discipline, on chain of command, on what's disruptive.

[00:20:52] Speaker 04:
But we also have an obligation in a First Amendment case to determine what the statements are, what the speech at issue is.

[00:21:02] Speaker 04:
Are you arguing that we do not have that obligation in the context of the military?

[00:21:09] Speaker 01:
Our argument is somewhat different. Our argument is that that would have to be done in the first instance by the district court on remand. But because the district court's analysis did not probe the universe of statements, the universe of statements was not important to the district court. The district court says we accept the secretary's, essentially said we accepted the secretary's characterization as to the effects of the speech. And it said even so, there is just no way under the First Amendment for the military to take even modest administrative actions in response to it.

[00:21:35] Speaker 04:
But under Bose Corporation, for many generations, it has been the rule that on a court of appeals, looking in a speech case, what is the speech? That we look at that independently. And everything that is at issue, all the speech that is at issue, is recorded.

[00:21:55] Speaker 04:
There's no dispute about what was said. So then the question is, what does it mean? Right. And you don't have any case that says that when we're dealing with retired service members who have an ongoing connection to the military and maybe ordered to deploy, that the court of appeals no longer has to identify the meaning of the words, do you? You don't have any authority on that, do you?

[00:22:21] Speaker 01:
Well, Your Honor, we do think that the Shirley rule does not overcome whatever principle of Boese might apply here, which we don't think does. The Shirley rule is not about speech at all.

[00:22:30] Speaker 01:
It is about whether a preliminary injunction can be affirmed on a legal theory that wasn't embraced by the district court.

[00:22:36] Speaker 04:
No, but the legal theory of the district court is that this speech was protected.

[00:22:41] Speaker 04:
And we could affirm if we agree the speech is protected. And the district court talked about the circumstances. We can look at those circumstances. The question, the only fact that I'm asking you about now is what was said about And it's not actually disputed what was said, is it?

[00:23:03] Speaker 01:
I think my friend on the other side has raised that dispute in his briefing to this court and has complained.

[00:23:09] Speaker 04:
Well, because you've argued that Captain Kelly counsels service members to disobey lawful orders. And he never did say those words, right? So you're saying there's an inference, right? that when you look at Captain Kelly's speech in context, it amounts to counseling service members to disobey lawful orders. Am I right?

[00:23:34] Speaker 01:
We're saying that the secretary- Am I right?

[00:23:35] Speaker 04:
That is your theory, right? I mean, I'm sympathetically describing your theory.

[00:23:41] Speaker 01:
Yes, that is the secretary's inference. That is what we were arguing. The secretary has made that inference and it's one that the district court didn't engage with. It didn't felt it need the whole universe of statements. It didn't apply any special first amendment principles. All it needed to know was that Kelly was retired.

[00:23:58] Speaker 01:
And to the extent this court thinks that the universe of statements at issue is a relevant matter or what level of deference might be required.

[00:24:05] Speaker 03:
Although the district court did not specifically parse the secretary's rulings and inferences, et cetera. He said, without the benefit of Levy, defendants have no other arguments for how Senator Kelly's speech is unprotected under the first amendment. So basically it's kind of back to you're relying only on Levy.

[00:24:26] Speaker 03:
He's saying, Levy doesn't do the job for you. And Levy doesn't do the job for you because it applies to active duty service members, but also because factually it is so different I mean, here we have Senator Kelly saying, don't obey illegal orders.

[00:24:46] Speaker 03:
And that's completely different what happened in Levy. And we also have the secretary saying that he meant to say the complete opposite of what he did say.

[00:24:56] Speaker 03:
Secretary says, you are telling people to disobey lawful orders when Senator Kelly explicitly said, you don't have to obey illegal orders. I mean, I don't think that we have to accept that as correct or true. The district court never did either. He just didn't address it one way or the other. It would be, I think, astounding for us to just credit that unconditionally and not even address it when you relied on Parker versus Levy and Parker versus Levy is factually so different.

[00:25:30] Speaker 01:
Your Honor, we've already discussed the factual differences with Parker, but we think Parker recognizes a very longstanding and basic rule that in the military context, the First Amendment is going to operate differently. That was, we relied on the specific application.

[00:25:43] Speaker 03:
That's fine, but you keep eluding or overlooking the fact that there are could and likely is a difference between military retirees and active service members.

[00:25:52] Speaker 01:
As a general matter, yes, but the district court didn't engage in that at all. The district court just said, no, they're civilians.

[00:25:58] Speaker 03:
It didn't have to because all you said was, this is covered by Parker versus Levy. And he said, don't think so. And not likely to succeed on the merits of that claim because he's retired. And also the facts are so different.

[00:26:13] Speaker 03:
He didn't have to.

[00:26:16] Speaker 01:
Your Honor, to the extent you think that a different analysis, a different First Amendment analysis should be done, one that takes into account the First Amendment interests of the military.

[00:26:24] Speaker 03:
Not before us, because that wasn't litigated. You didn't say that. You didn't make that argument. You just only relied on Parker v. Levy, equating retirees with active service duty members. He rejected it. That's all that we need to address.

[00:26:39] Speaker 01:
And for that reason, the injunction should be vacated and it should be remanded for him to consider under the proper legal standard.

[00:26:44] Speaker 03:
How do you get to that? From what I just said.

[00:26:47] Speaker 01:
Because the district court's legal rule is error. The rule that a retiree simply by virtue of being a retiree has the same First Amendment rights as a civilian.

[00:26:56] Speaker 03:
We already discussed that. He never held that. It's nowhere in his ruling. He just rejected your argument.

[00:27:03] Speaker 03:
If we find that he correctly rejected your argument, then it's an affirmance.

[00:27:09] Speaker 01:
Your Honor, we disagree with that characterization of the district court's analysis, but we're simply asking for an opinion that recognizes that the military has some interest in regulating its members' speech, at least where that speech goes to the core concern that Parker recognized, counseling disobedience.

[00:27:23] Speaker 03:
If we could go back to Judge Pillard's line of reasoning, I just want to understand where in the record there is support for this inference that Senator Kelly made.

[00:27:34] Speaker 03:
was actually counseling disobedience of lawful orders. Can you just walk me through the record evidence that supports that inference?

[00:27:42] Speaker 05:
On JA 115, the plaintiff cites September 1st press conference in his complaint and provides the link to the press conference. That press conference, we can take judicial notice of. And as I've already said at the press conference, is crazy ology of we meant to cut them off at the past cannot mean anything other than with respect to this National Guard deployment counseling individual military members not to deploy.

[00:28:29] Speaker 05:
Now let me ask you we're not looking at this on a blank slate.

[00:28:36] Speaker 05:
And for some reason, neither both parties cite Clawson versus the US ex rel arms from 1896.

[00:28:47] Speaker 05:
But nobody discusses it. And if you'll bear with me, this was a arms was a an officer of the army on the retired list. He wrote a letter to his commanding general who himself was getting ready to retire using intemperate language.

[00:29:14] Speaker 05:
Well, what it charged him with the manufacturer of false testimony and so forth directed at arms. All right. The general ordered him arrested. The case itself has to do with habeas. In other words, Should he be released? Our very court, our predecessor court, the Court of Appeals of the District of Columbia, ordered him released. And the reason is they talked about a retired officer. And let me just read.

[00:29:49] Speaker 05:
It's 19th century language. But anyway, Arms is an officer of the Army of the United States entitled to wear his uniform and his law-paying cycle. and by express division of the statute law of the United States for the government of the army made subject to the rules and articles of war and to trial by court martial, so on and so forth. Then he says, it cannot reasonably be doubted that the charges against arms are of offenses against the military law of which retired officers as well as officers in active duty may be equally guilty.

[00:30:24] Speaker 05:
Conduct to the present, prejudice of good order and military discipline. The statement was exceedingly intemperate and written to the general commanding the army. Now, that was under Articles of War 62, which is now Article 134 of the UCMJ, which is what the Department of Defense Secretary cited.

[00:30:54] Speaker 05:
Lara B., from our court, Cites Clawson.

[00:31:01] Speaker 05:
And there is a line, I see a line, at least beginning with Clawson, who was retired and court-martialed. Ben Parker was active and court-martialed from the Supreme Court. Ben Priest was active and court-martialed. And then you get to Larrabee, who was retired and court-martialed. And I read these cases.

[00:31:26] Speaker 05:
as a line saying that the plaintiff is certainly subject to court-martial that is as a retire tired officer and therefore these lesser included censure reopening of the of the grade rank authority are necessarily included.

[00:31:46] Speaker 05:
That's how I see this case.

[00:31:48] Speaker 01:
We think that's exactly right. The court below thought that Claussen was irrelevant because it didn't deal with the First Amendment. It thought that Larrabee was irrelevant because it understood that as just being a matter of Congress's power.

[00:32:00] Speaker 05:
I'll grant you, Claussen doesn't mention the First Amendment. It doesn't talk about speech that is detrimental to good conduct and discipline.

[00:32:16] Speaker 01:
We agree with that as well, Your Honor. I think cases like Clawson and Larrabee recognize the broader point that retirees are part of the armed services as a formal matter. They have ongoing obligations as well as privileges and benefits. They can be recalled to active duty and through their words and actions, they can undermine good order and discipline. So for that reason, they can be constitutionally subject to the UCMJ and to court martial jurisdiction.

[00:32:37] Speaker 03:
So even if that's true, that doesn't really grapple with the fact that this is sort of a new category. This is a retiree making statements. Parker versus Levy talks about active service members making statements. And the fact that the UCMJ applies to retirees doesn't really answer the question because the way these cases come up is somebody will be accused of conduct on becoming an officer or undermining the discipline in a court martial under the UCMJ.

[00:33:09] Speaker 03:
And then the defense is I had a first amendment right to say that. And so that's kind of what we need to home in on What are the contours of that First Amendment right? And for active duty service members, the court has said, the Supreme Court has said, certainly an active duty service member can't tell people in his chain of command, don't go fight in the Korean War. I mean, the Vietnam War, if you're ordered to do so, like if I were told to do that, I wouldn't do that. That for an active duty service member would not be protected by the First Amendment.

[00:33:40] Speaker 03:
It undermines and therefore he can be held accountable for undermining the discipline and the morale, et cetera. But there's no answer in any of these cases to what First Amendment standard applies to a retired service member. So the fact that the UCMJ applies to retirees, the fact that there's a provision in the UCMJ for office, conduct unbecoming an officer and a gentleman or undermining the morale. That's all fine and good. But none of these cases address what are the contours of First Amendment protection for a retiree.

[00:34:13] Speaker 03:
And that's the issue. And the government's position before Judge Leon was that Parker versus Levy applies. That's all you relied on. And all Judge Leon did was say, not likely to succeed on that because he's a retiree. You haven't addressed that. And the facts are so different. He said, don't disobey, I mean, don't obey illegal orders. So that's so different from what happened in the Navy. It's actually quite simple if you look at it that way.

[00:34:42] Speaker 01:
We disagree with that.

[00:34:45] Speaker 05:
If he hasn't had his press conference, I might agree.

[00:34:48] Speaker 01:
You know, at least as to the point about the, whether the accuracy of those inferences, that was not part of the district court. With respect to the accuracy of the secretary's inferences as to what the effect and what the intent of the speech at issue was, the district court did not rely on that, did not engage with that. The district court accepted the secretary's inference that this was- He didn't accept it.

[00:35:15] Speaker 03:
He didn't address it one way or the other, but you relied on Parker versus Levy. And so we have to look at whether Parker versus Levy governs this. And there are reasons why it does not. And I apologize. I'm at a loss about this press conference because I don't know where in the record we get that Secretary Hegseth was relying on any particular press conference. And I don't understand what happened in that press conference based on this record. I mean, there's nothing that I can read in this record that talks about cutting them off at the pass. So I don't understand the context for that.

[00:35:47] Speaker 03:
I just don't understand how we can infer that Secretary Hegseth relied on any particular press conference.

[00:35:54] Speaker 01:
I think all this court needs to understand is, as I started with, I think the central letter speaks for itself. It was looking at a pattern of statements and conduct, and from that pattern of statements and conduct, the secretary made a determination and inference as to the nature and effect of that speech.

[00:36:07] Speaker 03:
Just from your perspective, what were the comments? I just want to understand what the government's position is on what were the comments. This would just assist me. It's a gap in the record, as far as I can tell.

[00:36:18] Speaker 01:
Your Honor, and I do think that the central letter at J63 through 66 is the best, is the most complete.

[00:36:24] Speaker 03:
But it doesn't say anything specific. It just says, I infer this, but it doesn't say anything specific. I'm just wondering, what is the government's position on what that was relying on?

[00:36:37] Speaker 04:
Is it, I mean, I don't need to cut you off. Go ahead and answer.

[00:36:40] Speaker 01:
I think the most relevant specific examples are what are laid out in the central letter that we've been going through.

[00:36:45] Speaker 04:
So if you look at, I'm looking at the version that, I know it's twice at least in the record, but I'm looking at the version at JA 100. So it's a numbered paragraph. And the second numbered paragraph refers to National Guard deployments and counter-narcotics operations. So those are the categories of orders that you're referring to.

[00:37:08] Speaker 01:
Yes.

[00:37:11] Speaker 04:
And that in your view, and then we have in the complaint, oops, I didn't keep the page, where you were citing, or maybe Judge Henderson was citing, maybe it's JA 115, you have this quotation in the excuse me, I think this is the complaint, saying, yeah, saying in paragraph 49 on JA 115, this is the CNN interview saying, if there were a second strike to eliminate any survivors, that constitutes a war crime?

[00:37:48] Speaker 04:
Asked the interviewer. Senator Kelly responded, it seems to. He was then asked, if you received that order, would you have carried it out? Senator Kelly replied, no.

[00:37:59] Speaker 04:
So am I right that you are taking together the video in November in which Senator Kelly counsels service members to remember their duty or remember that they are not obligated to obey unlawful orders and putting that together with Senator Kelly's view here that the drug, the second strike to eliminate survivors in the Caribbean was an unlawful order.

[00:38:39] Speaker 01:
I'm not up here to say that this particular reference in the complaint is what the secretary relied on.

[00:38:46] Speaker 04:
And how I should read the censure letter and in particular that paragraph. I'm just, I'm also trying to understand what the statement, what the counseling disobedience to unlawful orders even is. Because I do think we, as a court of appeals, have an obligation to identify the speech at issue.

[00:39:09] Speaker 04:
And I take it, so let's say, maybe I'm going to approach it in a different way.

[00:39:14] Speaker 04:
If you just had the video in which the various members spoke about the the duty of a service member to not to obey unlawful orders, if that were in isolation without the press conference or other commentary, that would not be subject to discipline, would it?

[00:39:43] Speaker 01:
Your Honor, I can't say what inference the Secretary would draw from just the don't give up the ship video standing alone, if that was the only thing that was at issue. Really?

[00:39:53] Speaker 01:
I think that was a core part of the pattern of conduct.

[00:39:58] Speaker 04:
I understand your theory to be that it's that in context.

[00:40:04] Speaker 04:
But if I'm saying take away the context, I mean, that is something that's taught at Annapolis year in, year out. And I'm just saying if a retired service member at the historical moment that we're in says, gosh, you know, I don't know what's coming tomorrow or next month.

[00:40:23] Speaker 04:
But it occurs to me because we have a president whose MO is in part making people worry a little bit that he might do anything. I mean, he himself, the president himself says that, right? So he said, so if he tells you to do something that you know is unlawful, I'm just reminding you not to do it. Like if that's what this is, it's not protected by the First Amendment.

[00:40:52] Speaker 04:
It's an abstract statement of a principle.

[00:40:56] Speaker 01:
The abstract statement of the principle is that patently unlawful orders should not be followed to start with. But as for this, whether the don't give up the ship video standing alone is going to be enough, I think there's other context there.

[00:41:12] Speaker 01:
If you look beyond just the you can't refuse illegal orders, when that video is talking about the government pitting American soldiers against American citizens, I think it would be unsurprising if the Secretary drew the inference that that was within respect to the National Guard deployments. And with a wink-wink and a nudge, the clear implication here was that you don't need to listen to an order related to the National Guard deployments.

[00:41:33] Speaker 04:
Why is that the clear implication? I mean, when I first saw this video, I thought the clear implication was troubled times, very difficult duties on the soldiers of service members, and...

[00:41:47] Speaker 04:
Gosh, it's hard to envy them their duty to make these distinctions. But service members do and always have had an obligation. Well, not always have since Nuremberg have had duties to disobey unlawful orders, period. If that's what I understand the statement to mean, is it unprotected?

[00:42:13] Speaker 04:
And if so, why?

[00:42:16] Speaker 01:
Respectfully, it's not the province of the court to de novo attempt to determine what the fair inference of this statement is. This court was very clear and priest that the way that the First Amendment balance cashes out is that the fact finder, the military fact finder, the one with the professional military judgment and experience, they are the ones that are to weigh First Amendment interests against the tendency of speech to undermine response to command. And it is only individuals in the military that can understand how that kind of speech can undermine command and how it's been explained to me.

[00:42:43] Speaker 03:
What you said can't be correct because we, the Supreme court addressed the first amendment rights of a, of a commissioned officer in Parker versus Levy. So we don't just let whoever the military adjudicator is just decide these issues of first amendment concern. That's, that's something that federal courts are, are well able and are duty bound to address. But I, I actually, I'm interested in this line of discussion you've just had with Judge Pillard in terms of what inferences can be drawn and also your line of discussion with Judge Henderson, because at bottom, this finding by the secretary relates to whether the statements would be prejudicial to good order and discipline.

[00:43:34] Speaker 03:
And so in order for Senator Kelly's statement, you should not obey illegal orders to have the inference that the secretary draws, it means the hearer, that means the soldiers would have to understand him to be telling them to disobey lawful orders, even though he said the opposite. And that means based on this whole discussion that you've been having with Judge Henderson and Judge Pillard, that the hearer, the average soldier who watched the Don't Give Up the Ship video would have to be thinking, I'm putting this in context with his press conference where he said something about cutting people off at the pass.

[00:44:17] Speaker 03:
And I'm putting this in context with his statement when he was interviewed and asked about this boat strike on the two people clinging to wreckage, would you have obeyed that order? He said, no. So it assumes that the average soldier would know this whole context in order to draw that inference and then have it affect prejudice, have it be prejudicial to good order and discipline. And that just seems implausible to me.

[00:44:46] Speaker 01:
Again, Your Honor, respectfully, we just don't think the plausibility or the accuracy of the Secretary's determinations here are properly on appeal because the district court did not engage with that. He did not analyze that.

[00:44:56] Speaker 03:
The reason, again, we had this discussion, it's properly before us, is because you relied on Parker v. Levy. And you said this case is governed by Parker v. Levy. And so we have to examine how this is similar or different from Parker v. Levy. It is different because he's a retiree and not an active service person. member as in Parker versus Levy and the facts are so different because what Levy did is so different from what Senator Kelly did. So it's before us because you relied on Parker versus Levy.

[00:45:27] Speaker 05:
You cannot read Parker versus Levy in isolation.

[00:45:32] Speaker 05:
The fact, the Chief Justice wasn't talking about retired military. He didn't have anyone retired in front of him. He didn't say, oh, and by the way, this applies to the retired officers as well. That's what Larrabee did. But I would like to read what he said about Article 134.

[00:45:55] Speaker 05:
Again, limited to active because that's what was before him. While there may lurk at the fringes of the articles, even in the light of their narrowing construction by the U.S. Court of Military Appeals, some possibility that conduct which would ultimately be held to be protected by the First Amendment could be included within their prohibition. And we deem this insufficient to invalidate either of them, Article 133 or 134.

[00:46:27] Speaker 05:
His conduct, that of a commissioned officer publicly urging enlisted personnel to refuse to obey in that case, orders that might send them into combat was unprotected under the most expansive notions of the First Amendment. And then you read Larrabee and I don't know how you can reach any conclusion other than this is a smooth line

[00:46:55] Speaker 01:
We fully agree, Your Honor. We think that that line started in the mid-1800s when retirees were included on the retired list and subject to court martial jurisdiction and then the UCMJ since its enactment. And for that reason, we think that the district court's rule, it can't stand and the court should be vacated for that reason.

[00:47:11] Speaker 04:
So without the don't give up the ship video, if Senator Kelly had given the interview answering the interviewer's questions about whether he thought it was lawful to target and kill the remaining survivors clinging to the wreckage of the ship. And he said, if I had been ordered to do that, I wouldn't.

[00:47:39] Speaker 04:
Would that subject, on your theory, would that subject Senator Kelly to discipline or censure?

[00:47:48] Speaker 01:
Your Honor, I think that standing alone, it's safe to assume, would not be enough. I can't, I'm not going to stand here today and make representations about what inferences the military professionals might draw, but that would be a very different case. And as I started, do you think the central letter not only speaks for itself, but is very clear that this is about a pattern and totality of conduct, not any one line or any one statement taken in isolation?

[00:48:13] Speaker 04:
So it's, but it really, I mean, I, It's safe to say that the don't give up the ship video is essential to your theory because the pattern of a Senator who's a former member of the military commenting in, you know, he has, committee assignments that put this within his purview, commenting on what he thinks about what the executive branch, what the military is doing. That is protected in your view. It's the addressing of service members in the video that is essential to your case.

[00:48:49] Speaker 01:
I don't know if I want to use the word essential, but I think, yes, a very important feature of the video is that he invoked his former rank and spoke directly to service members. That is...

[00:49:01] Speaker 01:
quite close to Parker, where you are speaking directly to service members. And it was the secretary's inference. And again, we've gone line by line through this to the letter, but it was the secretary's inference that this was a wink, wink and a nod. And like when I say you can't refuse illegal orders, that I understand the secretary to his inference generally to be that that was with respect to specific ongoing operations. And it is an encouragement to disobedience. And so yes, the video is a core is a core part of the letter as it makes clear.

[00:49:26] Speaker 04:
Is it important in your view to the Secretary's letter, and I'm looking at JA100, where the Secretary concludes, when viewed in totality, your, he's speaking to Senator Haley, your pattern of conduct demonstrates specific intent to counsel service members to refuse lawful orders. Is the specific intent finding, in your view, playing any role?

[00:49:58] Speaker 01:
Your Honor, I think the legal standard is really whether that speech has a tendency to undermine good order or discipline. And so I think finding a specific intent to undermine or counter disobedience is essentially the same thing.

[00:50:11] Speaker 04:
So you're saying it's not necessary. It's overkill, but it's not necessary.

[00:50:16] Speaker 01:
Yes.

[00:50:16] Speaker 04:
So it's a tendency. It's an objective test, not a mens rea test, a tendency to undermine good order.

[00:50:23] Speaker 01:
I think that was how this court put it in Priest, that it's not an effects test. It's whether the military fact finder determines that the speech has a tendency to undermine effectiveness of response to command or endanger or undermine military loyalty, discipline, or morale.

[00:50:40] Speaker 04:
That's from Priest.

[00:50:41] Speaker 01:
That's from Priest, repeating the Parker standard in part.

[00:50:46] Speaker 04:
But I thought you said it's not an objective test, but that is an objective test, a tendency to undermine.

[00:50:52] Speaker 04:
It's more like a, I mean, you look at the speech and the military, it's not objective, maybe in the sense that in your view, you defer to the military fact finder's assessment, but it's not looking to the state of mind of the speaker.

[00:51:07] Speaker 01:
I certainly don't think the state of mind of the speaker is necessary. No, I think, again, the military has an interest in maintaining discipline and order among active duty service members, as well as retirees who may be recall and may themselves be in a situation where they are once again in active command. And so it points both ways, the interest in maintaining order and discipline, but I think it's primarily focused on that tendency to affect active duty service members.

[00:51:30] Speaker 04:
I think it's a challenging question how to assimilate Larrabee to this because Larrabee is about whether retired service members who are retired, but still, you know, they're not discharged. They still have a link, ongoing link to the military, which is why we're here, that they can be court-martialed. They have a duty to obey in order to be recalled, and historically they have remained subject to court-martial, and so that is why Secretary Kelly is subject to court-martial.

[00:52:05] Speaker 04:
I take you to be saying, and therefore they have equal effect, that retirees are in the same position as active duty service members with respect to other constitutional rights, other than whether they have the trial rights of a civilian or the trial rights of a service member.

[00:52:27] Speaker 04:
What gets you there? Because there are no cases that we have about speech rights of retired service members? How do you, and the entire reasoning in Larrabee is about the history of court martial jurisdiction. It's not about speech.

[00:52:45] Speaker 01:
Correct, Your Honor. And Larrabee was a constitutional holding. It held that Congress could constitutionally, under the Make Rules Clause, subject retirees to court martial jurisdiction. And court martial jurisdiction, it does affect how other constitutional rights would apply. In Larrabee, the court was focused on the jury trial, right? And noted how if you're in court martial jurisdiction, that's not what we have going on.

[00:53:08] Speaker 03:
So one thing that's interesting to me about Larrabee, and I think you're right, it was based on the Make Rules Clause and That's a constitutional holding. But the focus of that was who is part of the land and naval forces for purposes of the Make Rules Clause. And one thing that's really interesting to me in Larrabee is that that opinion says that people who receive a draft notice are part of the land and naval forces. Because if you refuse to comply with your draft notice, you can be court-martialed, right?

[00:53:40] Speaker 03:
Larrabee says that. And so to me, that's a very telling statement in Larrabee that kind of proves that this does not address First Amendment concerns. Because if you received a draft notice, as soon as you received it, you'd be subject to court martial under the UCMJ if you refuse that notice. But it doesn't suddenly change your First Amendment rights so that you can't criticize the military.

[00:54:06] Speaker 01:
And our position has never been that Captain Kelly does not enjoy a broad right to criticize military policy. No, correct.

[00:54:12] Speaker 03:
But with respect to Larrabee, it does say that retirees are subject to the UCMJ. And it does talk about these constitutional rights. It does not address the First Amendment rights of retirees. And it is very telling to me that it talks about this example of people who just receive a draft notice. You're a civilian sitting at home. You received a draft notice. You decide not to comply. You can be court-martialed. You have become a member of the land and naval forces for purposes of the UCMJ, even though you are a civilian.

[00:54:48] Speaker 03:
And to me, that's very telling because it cannot possibly be that you sitting at your home and receiving a draft notice has now altered your First Amendment rights so that you cannot criticize that you couldn't say exactly what Levy said as a civilian or exactly what Priest said as an officer. Like as a civilian, you can say those things, right? And so therefore Larrabee cannot possibly address the First Amendment rights of retirees because of that example that's in Larrabee itself.

[00:55:20] Speaker 01:
I'm not sure that I agree with the relevance of the hypothetical, but I would say if- It's not a hypothetical, it's in Larrabee. If one was drafted and became a member of the armed forces, I would think that their speed rates are significantly limited as they are then part of the military.

[00:55:34] Speaker 03:
Thank you. So you're sitting at your home, you receive a draft notice. You immediately have lost your first amendment right to criticize the military?

[00:55:42] Speaker 01:
I think I would be subject to the UCMJ and the standards of conduct that govern members of the military.

[00:55:47] Speaker 03:
Absolutely, that's true. Larrabee says that. And do you agree that you also, as soon as you receive that draft notice, you open the letter, at that moment, your First Amendment rights have changed?

[00:55:56] Speaker 01:
Your Honor, I think yes, the moment that you become part of the land and armed services.

[00:56:00] Speaker 03:
So yes, when you open that letter, you no longer can criticize the military. You're not allowed to say, if I were going to go to Vietnam, I wouldn't obey an order. you're not allowed to say that as soon as you open your draft notice?

[00:56:12] Speaker 01:
I think once you drafted, you would be subject to the rules of conduct.

[00:56:17] Speaker 01:
Your answer is yes.

[00:56:18] Speaker 03:
As soon as you open your draft notice, you cannot say if I went to Vietnam, I wouldn't, I wouldn't obey the orders to go.

[00:56:26] Speaker 01:
You certainly could not counsel disobedience to other service members once you become a part of the armed forces.

[00:56:31] Speaker 03:
I'm just using the facts of Levy, which were not protected under the First Amendment for him. If you open your draft notice in your home, you suddenly can't say that to, let's say, to an enlisted person.

[00:56:46] Speaker 01:
Your Honor, what someone does in the comfort of their own home is far afield from the facts in Levy.

[00:56:49] Speaker 03:
You're just fighting the hypothetical.

[00:56:53] Speaker 03:
I think the question is, as soon as you receive your draft notice, you become subject to the UCMJ to the extent that if you don't show up, you can be court-martialed.

[00:57:05] Speaker 03:
And you're saying that being subject to the UCMJ is coextensive with the First Amendment protections of an active duty soldier. So I'm asking you, If you receive your draft notice and you're now subject to the UCMJ, as soon as you receive it, have your First Amendment rights changed so that you're not allowed to say exactly what Levy said as an active duty soldier? If I went to Vietnam, I wouldn't obey those orders.

[00:57:34] Speaker 03:
Could you do that? Can you say that as a civilian who just received a draft notice? Yes or no?

[00:57:38] Speaker 01:
I think we're conflating a lot of things here.

[00:57:41] Speaker 03:
No, I'm not. I'm being very specific. And I see that you're not wanting to answer my question.

[00:57:46] Speaker 01:
If at the moment of receiving a draft notice, if I become part of the land and naval forces, if I am part of the armed forces, if I am under Larrabee constitutionally subject to court martial jurisdiction in UCMJ, then I am governed by those standards of conduct.

[00:57:59] Speaker 03:
And so you can't say that.

[00:58:00] Speaker 01:
You can't say what Levy said.

[00:58:02] Speaker 01:
You cannot counsel disobedience to other soldiers. Absolutely.

[00:58:05] Speaker 03:
Okay. Thank you. I think that kind of proves the point that that can't possibly be the correct interpretation.

[00:58:10] Speaker 05:
All right. We'll give you a couple of minutes of your time. Mr. Meiser.

[00:58:22] Speaker 00:
Good morning, Your Honor, and may it please the Court, Ben Miser for Senator Kelly.

[00:58:27] Speaker 00:
The punishments imposed on Senator Kelly are textbook retaliation against disfavored speech, The censure letter says on its face that it's targeting the senator for his public statements, including, among other things, his criticism of the military leaders for firing admirals and generals, his criticism of them for surrounding themselves with yes-men, and it even attacks him for saying that he will always defend the Constitution. The Senator made all of those statements, including the don't give up the ship video, as a member of the Senate Armed Services Committee and the Senate Intel Committee, which gives him a constitutional duty to oversee the military.

[00:59:06] Speaker 00:
The fact that he is also a highly decorated war veteran who receives a military pension does not give defendants license to retaliate against his protected political expression. And this court should affirm the district court's preliminary injunction. I want to jump right in, Judge Henderson, to a couple of your questions that go to the heart of the case. First, about Larrabee. We don't contest that under this court's binding decision in Larrabee, the senator is a member of the land and naval forces and has military status.

[00:59:39] Speaker 00:
But as some of the other questions illustrate, The fact that he is in the land and naval forces says nothing about the First Amendment protections to which he is entitled. The court in Parker said that even active duty service members have First Amendment speech rights. So we know from Parker that even active duty have speech rights.

[01:00:02] Speaker 00:
And we know nothing from any case because no court has ever grappled with the question of what First Amendment rights retirees have. What we do know when it comes- Well, we do in Claussen.

[01:00:12] Speaker 05:
Pardon me? We do in Claussen. Now, I grant you that the First Amendment was not raised as far as we know in that. But I find it hard to imagine that the language that I quoted from that- in a letter sent to his commanding officer, not in a press conference, not in a TV video, not in a interview, that if that were revisited, a court would say, oh gosh, we forgot about the First Amendment.

[01:00:46] Speaker 00:
Well, I think Clawson, having been decided, I think, in 1895 or sometime in the 19th century, did not grapple, did not raise the First Amendment and does not grapple with what is now modern First Amendment doctrine. And modern First Amendment doctrine says, and the Supreme Court reiterated this just a few weeks ago in the Childs case, that there are few and narrow categories of unprotected speech. And the categories of unprotected speech, like defamation and fraud and incitement, are narrowly drawn. And courts shouldn't

[01:01:15] Speaker 05:
What do you do with the language of the Chief Justice? I can't recite it again, but you know the language I'm talking about.

[01:01:32] Speaker 05:
Well, go ahead. I don't want to take up your time.

[01:01:34] Speaker 00:
I think that every justice of the Supreme Court agrees that the categories of unprotected speech are few and narrow.

[01:01:42] Speaker 05:
I will ask you this. His conduct, that of a commissioned officer, you have to add in retired, publicly urging enlisted personnel to refuse to obey orders which might send them into combat, you can read that, which might send them in conflict with American citizens, two of whom killed two of the National Guard members, was unprotected under the most expansive notions of the First Amendment.

[01:02:11] Speaker 00:
So I have two responses to that, Your Honor, one on the facts and one on the law. To start with the law, as the questions from Judge Pan pointed out, Parker relies entirely in its reasoning on the fact that the defendant in that case was active duty.

[01:02:28] Speaker 05:
And active duty officers- But it would be dicta if he said, and by the way, this applies to retired. Do you agree with that?

[01:02:36] Speaker 00:
I certainly agree with that. But the thrust of the reasoning was also very much about the fact that Mr. Levy was, in fact, a commanding officer who was supervising officers on base. He was speaking on base to active duty service members, a very different situation. And neither Parker nor any other case in the history of all the courts of the United States has ever said that retired military service members are subject to the same First Amendment standards as active duty. Second, on the facts, of course, as other questions this morning have illustrated, the senator did not counsel disobedience of lawful orders.

[01:03:14] Speaker 00:
He simply recited the bedrock proposition of military law that every service member learns when they enter the military, which is that service members can refuse illegal orders. The transcript of the video is at pages 116 to 117 of the joint appendix. And this court will not find in that transcript, any reference to any particular orders. And instead what every member of the video, including the Senator says, repeatedly in the video is that you do not have to follow unlawful orders.

[01:03:45] Speaker 00:
And that is a hornbook proposition of military law.

[01:03:49] Speaker 05:
Okay, what about the press conference? He wasn't happy with just producing this video. The press conference that you're reciting is either way, I have doubted he did he call this press conference.

[01:04:03] Speaker 00:
The defendants have never raised this press conference. And so it has not to this point been part of the record. But the press conference was conducted after the president had had the president.

[01:04:15] Speaker 05:
And did he call? I'm just asking.

[01:04:17] Speaker 00:
I don't know the answer to your question, but there was a press conference by Senator Kelly as a senator of the United States elected by the voters of Arizona after the president of the United States and the secretary of defense had attacked him accused him of sedition and retweeted tweets calling for his hanging.

[01:04:35] Speaker 05:
Do you agree with the answer that your colleague gave that as a retired commissioned officer, his commanding officer is the president?

[01:04:44] Speaker 00:
No. Retired commissioned officers do not have a commanding officer unless they are recalled. And then once they are recalled, they have a commanding officer. But Senator Kelly does not have a commanding officer. And I think it's important to underscore that he is Senator Kelly. And it would be quite a separation of powers problem to treat a senator of the United States as under the command of the president of the United States. We have, of course, other constitutional claims in this case that the district court didn't reach. I also think, Judge Henderson, that it would be quite extraordinary under the First Amendment and other constitutional doctrines to allow the executive to punish a senator for holding a press conference.

[01:05:23] Speaker 00:
His job as a member of the Senate Armed Services Committee is to oversee the military. And Bond versus Floyd says that- I don't think anybody's arguing that.

[01:05:33] Speaker 05:
It's what he said in the press conference.

[01:05:37] Speaker 00:
And Bond versus Floyd, which was the Supreme Court decision regarding Julian Bond, says that legislators have to be given the widest latitude to speak freely on matters of public policy. And when the president of the United States is retweeting tweets calling for the hanging of a sitting senator, it is natural that the senator is going to have a press conference to defend himself.

[01:05:57] Speaker 05:
Is your argument that his role as a senator is paramount to his...

[01:06:04] Speaker 05:
being a commissioned officer.

[01:06:05] Speaker 00:
No, and in fact, I think it's an important point that this, that the rule that the defendants are proffering in this case would reach all 2 million of the retired veterans, retired service members in this country. And this court has before it seven amicus briefs, several by veterans groups that not only underscore the importance of veterans being able to contribute to public debate, but in particular- They don't have the bully pulpit that a US Senator has.

[01:06:34] Speaker 05:
I mean, they could go to their American Legion meetings and criticize the president, the secretary, anyone they want, but nobody's gonna even know about it.

[01:06:46] Speaker 00:
I would call the court's attention to the amicus brief from National Security Leaders for America, which includes quite an extraordinary declaration. And that declaration recites retired service members, some by name and some anonymously, who attest that their speech is now being chilled because of the actions of defendants in this case. They are afraid to speak freely on matters of public policy. They are afraid to post on social media their views about the Secretary of Defense because they are afraid for their pension. And that is an extraordinary chilling effect.

[01:07:19] Speaker 00:
And in fact, what defendants have said in their brief quite starkly is if retired service members, including Senator Kelly, but others as well, don't want to have to be obedient to the Secretary of Defense, then they can just give up their pension. And that position is as much an insult to the service that veterans have given this country as it is to the First Amendment.

[01:07:41] Speaker 05:
Who said that?

[01:07:43] Speaker 00:
That is the position of the defendants in their brief. They offer an unconstitutional conditions argument that if Senator Kelly does not want to be obedient, then he should give up his pension and resign his commission and give up his pension. But that is a distortion of the unconstitutional conditions doctrine, and it is also inconsistent with the First Amendment. There's also been considerable discussion this morning, and this gets back as well to your question, Your Honor, about whether or not Judge Leon, the scope of the district court's ruling.

[01:08:15] Speaker 00:
And the defendants have distorted that ruling in two ways. First, they say that Judge Leon adopted a categorical rule that treats retirees as the same as civilians in all circumstances. And that is certainly not what the district court held. And in fact, at JA 37, which is Judge Leon's ruling, he said that the government simply doesn't have the same interest as to retirees as it has to active duty service members.

[01:08:47] Speaker 00:
So his ruling was not a categorical rule that the government, that the defendants can never reach the speech of retirees. He simply rejected the argument that the defendants were making below. And that argument, as the questions from Judge Pan have already laid bare, was a categorical rule that when the secretary of defense determines that a veteran, a retired service member has said something that is contrary to discipline and good order, then they can be punished and the court has no room to second guess the secretary's judgment.

[01:09:22] Speaker 00:
Judge Leon rejected that categorical rule because there was no case support for it. And that is all Judge Leon held. The defendants have also repeatedly said that Judge Leon didn't dispute the secretary's inferences as to the import of Senator Kelly's speech. But again, as Judge Pan's questions illustrate, Judge Leon had no occasion to second guess that. For one thing, the passage that defendants have quoted is in the context of their extensive exhaustion and reviewability arguments, all of which they have abandoned in this court.

[01:09:57] Speaker 00:
It did not relate to the conclusions themselves that Secretary Hegseth has drawn, moreover, what the position that defendants were proffering was about the effects of the speech. And Judge Leon said, I don't need to question your inferences as to the effects of the speech because your arguments on the merits as to the ability to reach retirees lack case support.

[01:10:28] Speaker 00:
And that is all he concluded. It was not a conclusion that retirees are the same for First Amendment purposes as active duty service members, nor is Senator Kelly asking for a ruling in this case that treats retirees the same as civilians in all circumstances. It of course is the case that once the military has determined to restrict the speech of a retiree, then the question becomes whether or not there's a compelling state interest and whether or not it's narrowly tailored to advance that compelling interest.

[01:11:00] Speaker 00:
So the means and fit test that applies to viewpoint discrimination may leave room in future cases for the military's interest to be taken into account. But the defendants have never tried to meet that standard here. And so there's no occasion for this court to reach it.

[01:11:16] Speaker 04:
So you would apply, am I right to... to understand you to say that you would apply ordinary First Amendment analysis and also acknowledge that the military may have prerogatives, interests regarding the speech of retired service members and its potential disruptiveness that are greater than the government's interest in the speech of any civilian?

[01:11:44] Speaker 00:
That's precisely correct, yeah.

[01:11:47] Speaker 04:
And do you read...

[01:11:49] Speaker 04:
Parker versus Levy to announce a different test or that same test?

[01:11:56] Speaker 04:
I don't read Parker versus Levy as addressing this circumstance other than... But for service members, is it similarly saying ordinary First Amendment analysis, but major deference because of active service members? I'm just trying to understand when...

[01:12:15] Speaker 04:
the military deference is baked into the test and when it's just a factor that's balanced within the test?

[01:12:22] Speaker 00:
I think it is just a different First Amendment analysis as to active duty service members. And I think that that is illustrated not only by Parker, but in the Court of Appeals for the Armed Forces case law that follows from Parker, where a different standard is applied to active duty speech. But none of those cases treat speech as, we treat active duty service members as altogether lacking First Amendment rights.

[01:12:53] Speaker 00:
Of course, as Parker said, active duty service members have First Amendment rights. And then cases like the Wilcox case that is cited in the brief, illustrate that the CAF then applies a balancing test that considers the First Amendment rights against the rights of against the military interests.

[01:13:14] Speaker 03:
Importantly, though, I guess your answer was you would apply ordinary First Amendment principles. But we we in deciding this case do not have to announce what the test is. It hasn't been litigated or briefed. So I would be uncomfortable with that. I see this as the only thing before us is the claim that Parker versus Levy controls this case. And if we agree with Judge Leon that it does not, that's an affirmance without us having to articulate what is this standard for military retirees? Is it the same as for civilians? Is it the same?

[01:13:45] Speaker 03:
Well, we don't think it's the same as active service under Parker versus Levy because the reasoning, as you said, is so different and clearly excludes retirees. It might, it might not, but Parker versus Levy does not address it. But I think that we would not want to articulate what this new standard would be. Maybe it's not new under the military court rules, but it would be new law that we'd be making in a posture we have no briefing on that.

[01:14:14] Speaker 00:
That's precisely correct, Your Honor. This court's task is made easy by the way the defendants have litigated this case. not only in the court below, but also in this court, pressing only a categorical rule that entirely lacks any case support whatsoever.

[01:14:33] Speaker 00:
This case will be back before Judge Leon for summary judgment proceedings, and defendants may make additional arguments then. But this court's task at this point is quite easy, and I just think it's important to underscore that when defendants argue that either Judge Leon or Senator Kelly is asking for a rule that ties the military's hand and makes the military unable to reach the speech of retirees, that's simply not the case.

[01:15:01] Speaker 05:
I want to ask you just To put it on the record, what do you think our standard of review is?

[01:15:07] Speaker 00:
On the legal question, it's de novo. Thank you.

[01:15:11] Speaker 04:
What is our standard of view on what Senator Kelly said? Excuse me. The question of what Senator Kelly said.

[01:15:21] Speaker 00:
I think that you are precisely correct, Judge Pillard, in your questions regarding .

[01:15:27] Speaker 00:
I think that this is a tailor-made situation for the doctrine of constitutional facts. It's bizarre that we have to reach that doctrine here when defendants are asserting that Senator Kelly said something that he very plainly didn't say. And so that is what Bose is built for. And it's not just Bose. It goes all the way back to Kroll versus Benson. The Supreme Court has always said that you don't allow an agency fact finder to make facts that then are adjudicative facts that are then determinate of a legal question.

[01:16:01] Speaker 00:
And if this court were to just entirely defer to the contrivance, that Senator Kelly counseled disobedience of lawful orders, then that would answer the constitutional question, but the record is very clear that he didn't say that. It's entirely within this court's discretion under the doctrine of constitutional facts to say he didn't say that.

[01:16:22] Speaker 04:
If there are two reasonable ways to read the record, one is that Senator Kelly said, service members, you have You don't have to obey unlawful orders. And then weeks or months later, he says, in my own view, the orders to shoot the people clinging to the wreckage in the Caribbean were unlawful. And I don't think we've been pointed to anything in the record, but something about the deployment of National Guard members to American cities is unlawful.

[01:16:59] Speaker 04:
One way to read that is that he was saying those orders are unlawful, you service members shouldn't comply with them. So if that's one way we could read the record, and if there's another way we could read the record, which is Senator Kelly saying, everyone knows you have a duty that you need not obey unlawful orders.

[01:17:25] Speaker 04:
That's a really important thing to keep in mind. And it's a tough duty to bear at this moment.

[01:17:31] Speaker 04:
when a lot of unprecedented things are going on with big stakes.

[01:17:35] Speaker 04:
And then in his role later, months later, he gives his own view of how he would discharge that duty if he were a service member. And he says, if I were still active duty, I would not obey the order to kill the two survivors clinging to the wreckage. And again, I don't know where it is in the record, but I also would not send National Guardsmen to American cities. And there's no connection between those.

[01:18:07] Speaker 04:
So if those two are available ways to read the record, why should we not defer to Secretary Hegseth's reading, which is apparently the first reading that I gave?

[01:18:28] Speaker 00:
You should not for two reasons, Your Honor.

[01:18:30] Speaker 00:
the Supreme Court has made clear in cases like Snyder versus Phelps, that inferences should be drawn in favor of protecting speech, not restricting it. Second, if your question is about whether or not there's a particular category of military deference that ought to kick in? The answer is no. And I think this court's decision in the Emery case makes clear that when this court is deferring and the Supreme Court is deferring to the military, it defers in particular on questions of allocating resources, who serves in what role and where.

[01:19:02] Speaker 00:
But on constitutional questions, Emery says, we don't defer. We interpret the Constitution. And Secretary Hegseth doesn't get to decide the scope of First Amendment rights. I also think that as you were sort of laying out the factual circumstances of the available inferences, it underscores the importance of protecting the speech of veterans because retired service members and veterans who have served in combat have a special role to play in public debate on issues of national security and military policy.

[01:19:35] Speaker 00:
And I, as a citizen, value the speech that you just described of a decorated war hero testifying to the public about how he interpreted his duties as a service members and what sort of orders he would follow and not follow. And that speech is valued by the First Amendment, not silenced by civilian appointees who are offended by it.

[01:20:01] Speaker 05:
All right, thank you.

[01:20:02] Speaker 00:
Thank you, Your Honor.

[01:20:04] Speaker 05:
Mr. Bailey, why don't you take two minutes?

[01:20:08] Speaker 01:
Thank you, Your Honor. I'll be brief. So I'd like to make three quick points. The first one is that I just heard a reference from my friend on the other side to all veterans. We are not talking about all veterans writ large. We are talking about retired officers that maintain an ongoing and formal relationship with the military and benefits, privileges, and obligations that come to it.

[01:20:29] Speaker 03:
But that could include veterans.

[01:20:32] Speaker 01:
We're talking about retirees. We're not talking about the much broader population of veterans that separate and discharge.

[01:20:38] Speaker 01:
Correct. And some veterans choose to separate.

[01:20:40] Speaker 03:
It's not incorrect to say that this affects veterans.

[01:20:42] Speaker 01:
It does not affect all veterans. That is incorrect. That was my only point. The second point I'd like to make is.

[01:20:47] Speaker 03:
I'm sorry. It does not affect all veterans because all veterans are either active service or retirees.

[01:20:54] Speaker 01:
No, there's the third option. You can separate from the military or discharge. That was the option that Senator Kelly did not take. And that is why he has obligations to the military and privileges and benefits.

[01:21:04] Speaker 01:
The second point is there's been a lot of talk.

[01:21:06] Speaker 04:
I'm sorry. I know this is a little beside the point. But if you're not an officer, your options on retirement are you just get discharged.

[01:21:16] Speaker 04:
Whereas if you're an officer, you can have this special retired status.

[01:21:19] Speaker 01:
I actually believe it's tied the number of years. I don't know if you need to be an officer to retire.

[01:21:23] Speaker 04:
But so many veterans may have, like, if you're not active, you're discharged. honorably or otherwise?

[01:21:30] Speaker 01:
To put it a little more concretely, I believe there to be around 2 million retired officers and around 17 million veterans. That would include individuals that are separated, discharged. So the much broader category, individuals who separate from military, we're not talking about them because we're not claiming that they have continuing and ongoing relationship to the military.

[01:21:47] Speaker 04:
So 2 million retired officers? Yes, I believe that's- And then there may be retired veterans who also continue to receive benefits.

[01:21:54] Speaker 01:
I'm saying the broader group, I think, is around 17 million veterans, which would include individuals who were separated or discharged.

[01:22:02] Speaker 04:
But some of those veterans, if they've served long enough, might also receive benefits. They might also have that continuing link.

[01:22:09] Speaker 01:
Yes, some might be retired. I don't know the exact numbers, but my point is that we are not, maybe I'll put it differently. We are not talking about individuals that have separated or discharged from the military. We're not claiming that they have an ongoing relationship or continuing restrictions on their speech.

[01:22:21] Speaker 04:
And we don't, the two in 17 doesn't actually necessarily track that. We don't really know that number. Okay, go ahead. Sorry.

[01:22:27] Speaker 01:
My second point is there's been a lot of talk about the full universe of the statements that issue here. And I was not trying to be difficult when I was up here earlier, when I was struggling with the censure letter, because the district court did not have the full universe of statements before it. The district court was looking at the censure letter. There is no record below in the district court that shows the full context. So to the extent the court thinks there needs to be some sort of line by line parsing or analysis of the full context, that is just an impossibility on this record. And that's why we think the much more sensible course is that to the extent the court thinks that the district court needed to look at more context, more statements, needed to engage in a deference analysis, that's the province of the district court to do in the first instance, and it requires remand.

[01:23:10] Speaker 04:
this is sort of a nod nod wink wink and I can imagine if somebody had said you know and was really famous on tv for having said you know these are unlawful orders these are unlawful orders referring to specific orders these are unlawful and then the next day puts out a video saying you know you have no obligation to obey unlawful orders that you might kind of put that together and say that's really what he's saying but here the details about what Senator Kelly thinks are unlawful orders come months later.

[01:23:46] Speaker 04:
Somebody who's a service member who's listening to that video, is there any basis to think that they would infer when he says unlawful orders, that he's characterizing some category of what the secretary thinks are lawful orders? to be unlawful? Is there any reason to think that, just given the chronology?

[01:24:14] Speaker 01:
That was the Secretary's judgment.

[01:24:16] Speaker 05:
I thought all this happened in November and December. He started with something that we don't know about in July, because they say from July to December. But the video, the interview, the press conference, aren't they all in November and the 1st of December?

[01:24:36] Speaker 01:
I believe that's right, Your Honor. The central letter refers to a wider period of conduct. I think the three instances that you're referring to, November, December, I think the point is that he looked at the totality and drew an inference that it was counts of disobedience.

[01:24:49] Speaker 04:
But isn't it important to know whether anybody listening to the video at the time it was made would actually draw that same inference?

[01:25:01] Speaker 01:
I assume that's one of the questions the secretary considered when he was making this determination. And I'm not I don't have the military expertise. And frankly, this court doesn't either determine how this statement could, in fact, undermine discipline and order.

[01:25:13] Speaker 04:
We have an obligation to figure out what was said.

[01:25:15] Speaker 01:
And where I started this point was simply that we just don't have a complete record. And to the extent you think there needs to be more analysis, it requires remander surely. That's our position.

[01:25:23] Speaker 04:
And you had a third point. And I know I've used up a lot of your time by asking additional questions. You should make your full point.

[01:25:30] Speaker 01:
I appreciate the time and I'll keep this quick. My third point is simply at Larrabee, I think it's most helpful if we take a step back, it would be highly anomalous for this court to hold that military retirees can be stripped of their jury trial right and put in court martial jurisdiction. And yet they somehow, in the words of the district court, must receive full first amendment protection. That would be highly anomalous. We think that rule is clearly wrong. And the firm is based on a rule that is instead looking to needs and balancing, or is instead looking to the appropriate level of deference, or is instead doing a review of the full universal statements.

[01:26:03] Speaker 01:
That's a review that has to happen in the first instance in the district court, and this requires reversal. That's it for today, Kate. Thank you.

[01:26:10] Speaker 05:
I do have one question. Is it in your brief that you .

[01:26:15] Speaker 05:
alternative that they can just not get the retirement pay?

[01:26:21] Speaker 01:
Your Honor, I want to make sure I understand the question, but we do assert in our brief that he is free to separate and discharge from the service if he no longer wants to have the obligations associated with being a member of the Armed Services.

[01:26:35] Speaker 05:
Did you say what your colleague said?

[01:26:38] Speaker 05:
I don't remember it, but did you say what your colleague said in your brief that the option retirees have is to give up their pay and their rank.

[01:26:49] Speaker 01:
No, Your Honor. We said that he was free to resign his commission if he did not want to remain part of the service.

[01:26:54] Speaker 03:
Isn't that the same thing? Resigning your commission and your rank is giving up your retirement pay.

[01:27:00] Speaker 01:
No, Your Honor. There's a difference between retirement pay and the honors of your rank, grade, privilege, support of the uniform, the benefits that come with it. We're not simply, we're not, it would not be.

[01:27:09] Speaker 03:
That would be part of it. You're saying that if he wants to speak freely, he should discharge himself, which means giving up his retirement pay, giving up his rank, giving up all of those things, that that is the price that our military retirees and veterans should pay if they want to speak freely.

[01:27:26] Speaker 01:
If a retired officer wants none of the obligations associated with service, he must give up the benefits.

[01:27:30] Speaker 03:
Including speaking freely, because that's your view, that they can't say. If a retired military officer wants to say, you have no obligation to obey illegal orders, In your view, he should leave the military, give up his retirement pay, give up his rank, give it all up.

[01:27:51] Speaker 01:
No, but if he wants to violate UCMJ and counsel disobedience.

[01:27:55] Speaker 03:
So in other words, he can say that.

[01:27:58] Speaker 03:
You say a retiree can say that.

[01:28:00] Speaker 01:
Your Honor, I've said several times that context matters. If he wants to go teach a course at Annapolis and deliver abstract legal education, we encourage that.

[01:28:05] Speaker 03:
I think you're just evading my question.

[01:28:07] Speaker 01:
Well, Your Honor, context matters. So I can't answer this.

[01:28:09] Speaker 03:
Okay, this very context.

[01:28:12] Speaker 03:
If Senator Kelly wants to tell active duty officers, do not obey illegal orders. You think he has to separate from the military, give up his retirement pay, give up his rank.

[01:28:29] Speaker 01:
The pattern of conduct that we're talking about here, absolutely.

[01:28:32] Speaker 03:
Again, I- So your answer is yes. So your answer to Judge Henderson's question is yes. If a retired military service member wishes to say things in the public sphere about military policy, don't obey illegal orders, they have to give up what they've earned by being military service members serving their country They have to give that up in order to say these things. That's your position.

[01:29:00] Speaker 01:
If a retired officer wants none of the obligations that come with membership in the military, they must give up the benefits.

[01:29:06] Speaker 03:
In other words, yes.

[01:29:07] Speaker 01:
No.

[01:29:08] Speaker 01:
I can't answer the question without- Why can't you answer the question?

[01:29:11] Speaker 03:
I'm asking very specifically.

[01:29:13] Speaker 01:
I've said many times that one statement out of context in the abstract, I can't assess- We're not out of context in the abstract.

[01:29:20] Speaker 03:
We're talking about a very concrete example that I'm giving you.

[01:29:24] Speaker 03:
What Judge Henderson asked you is, is it true that if a military officer wants to make statements in the public sphere about obeying or disobeying illegal orders and things of that nature, you say they have to give that all up. They have to give their rank, their pay, their retired status in order to say those things because they're obligated not to say those things as officers. That's your answer. And I'm pointing out to you that these are people who serve their country.

[01:29:58] Speaker 03:
Many of them put their lives on the line. And you're saying that they have to give up their retired status in order to say something that is a textbook example.

[01:30:08] Speaker 03:
taught at West Point and the Naval Academy that you can disobey illegal orders.

[01:30:13] Speaker 01:
And I told you that said in the context of being taught at West Point, the Naval Academy would be entirely fine. But if the secretary determines that in context, that statement was made to counsel active duty service members with respect to specific ongoing operations in a way that goes to the heart of the military's interest recognized in Parker, then no, they do not get to maintain all of the benefits, rights, and privileges associated with their rank and none of the obligations.

[01:30:35] Speaker 03:
And so your answer is yes. Senator Kelly should give up his rank.

[01:30:39] Speaker 05:
I don't think he's going to answer that. But if you did, you should throw in the fact that he's a senator with a bully pulpit.

[01:30:47] Speaker 06:
I think I've answered the question.