2026年5月7日 美国东部时间下午12:04 / CNN
作者：德文·科尔
更新于1小时31分钟前
更新于2026年5月7日，美国东部时间下午1:51
发布于2026年5月7日，美国东部时间下午12:04
美国参议员马克·凯利（民主党-亚利桑那州）在2026年4月30日的参议院军事委员会听证会上发言。肯·塞德诺/路透社
美国联邦上诉法院周四似乎准备驳回国防部长皮特·赫格斯特为惩罚民主党参议员马克·凯利而提起的诉讼，此前凯利呼吁美国军人拒绝执行非法命令。
哥伦比亚特区美国巡回上诉法院由三名法官组成的合议庭中，多数法官花了一个半小时驳斥了司法部为恢复赫格斯特的计划所提出的论点。今年早些时候，一名联邦法官已裁定该计划具有违宪的报复性质，并予以驳回。
“这是安纳波利斯海军学院对每一位学员都教授过的内容，”前总统巴拉克·奥巴马任命的法官尼娜·皮拉德在谈到凯利去年的言论时说道。
“这些人曾为国效力——许多人曾将生命置于险境，”前总统乔·拜登任命的法官弗洛伦斯·潘说道。“而你们却说，他们必须放弃退伍军人身份，才能说出西点军校和海军学院教科书式教授的内容——你可以不服从非法命令。”
合议庭第三名成员、前总统乔治·H·W·布什任命的法官卡伦·亨德森至少在一定程度上对政府的论点表示同情。她曾表示，既然凯利随时可能被召回并接受军事法庭审判，那么军方肯定也有其他手段可以追究他的行为责任。
这起受到密切关注的案件是对美国前军人言论自由保护范围的关键考验，也是唐纳德·特朗普总统动用政府权力惩罚知名批评者的最新导火索。
凯利是退役海军上校、前宇航员，今年1月起诉了赫格斯特。此前，国防部长宣布五角大楼将对这位亚利桑那州参议员采取行政措施，包括降低他的最终军衔——这将减少他作为退役海军上校应得的薪酬——并发布谴责信。
赫格斯特和特朗普都曾就去年11月凯利与其他五名有军事或情报服务背景的民主党议员发布的一段视频攻击凯利。在这段视频中，他们敦促军人不要服从特朗普政府可能发布的非法命令。
议员们并未具体说明军人已经收到或可能收到的哪些命令属于非法，但这段视频发布之际，包括美国盟友在内的各方正对加勒比海和东太平洋一系列针对疑似毒贩的军事打击的合法性提出质疑。当时，特朗普政府也正因去年派遣大量联邦化州国民警卫队前往民主党执政城市的决定面临多起法庭诉讼。
华盛顿特区的联邦检察官也曾试图就这段视频起诉这些议员，但遭到大陪审团的驳回，这一罕见的否决之举实属少见。
退伍军人的第一修正案保护
周四案件的核心争议围绕一系列棘手问题展开：退役军人针对现役军人的言论能获得多大程度的第一修正案保护。
司法部律师约翰·贝利辩称，与现役军人一样，如果官员认为退休人员的言论影响了军队的纪律和良好秩序，那么可以限制或惩罚他们的不当言论。
“在军事语境下，第一修正案的运作方式会有所不同，”他说道，并辩称凯利去年的言论并非“抽象的法律说教”。
“这是一种模式——综合行为，”贝利说道，他指出必须结合凯利去年其他有关军方被用于执行缉毒行动的言论来理解他在视频中的表态。
“这是一种心照不宣的暗示，”贝利说道。
贝利多次表示，凯利的案件应遵循上世纪70年代最高法院的一项裁决，当时大法官们裁定，现役军官因呼吁军人不要参加越南战争而受到惩罚是合法的。但皮拉德和潘明确表示，由于两者的事实情况存在显著差异，他们不认为该案件对政府有任何参考价值。
“凯利参议员从未说过要违抗合法命令，”皮拉德曾说道，随后将他的言论描述为“一项原则的抽象陈述”。
“目前没有任何涉及退休军人言论权利的判例，”她补充道。
两位法官似乎都认同凯利的论点：退役军人既不享有平民享有的完整言论自由保护，也不享有现役军人受限的第一修正案权利。法官们承认，像凯利这样仍在领取军方薪酬的数百万退伍军人，可能处于法院从未界定过的第三类群体中。
“目前尚不清楚适用于退休人员的标准是什么，”潘说道，并补充说法院可能根本不需要界定这一标准。她最后表示，合议庭可以在不进一步深入探讨的情况下，驳回政府关于退休人员与现役军人地位平等的主张。
凯利的律师本杰明·米泽告诉法庭，赫格斯特降低参议员薪酬并对其进行谴责的计划是“典型的针对不受欢迎言论的报复行为”，并辩称凯利因陈述一项历来被视为无可争议的内容而成为目标。
“他只是重申了军事法的基本原则，”米泽说道。
听证会结束后在法庭外，凯利对这项谴责行动的目的发出警告：“如果你说了总统和本届政府不喜欢的话，他们就会找你的麻烦。”
他表示，政府在法庭上辩称，“任何时候一名退伍老兵说了国防部长不喜欢的话，他们就可以受到惩罚。”
“为这个国家付出最多的人们，将无法自由表达他们的信仰，”凯利补充道。
本文已更新补充更多细节。
Appeals court appears poised to reject Hegseth’s bid to punish Mark Kelly over ‘illegal orders’ video
2026-05-07 12:04 PM ET / CNN
By Devan Cole
Updated 1 hr 31 min ago
Updated May 7, 2026, 1:51 PM ET
PUBLISHED May 7, 2026, 12:04 PM ET
U.S. Senator Mark Kelly (D-AZ) speaks during a Senate Armed Services Committee hearing on April 30, 2026.
Ken Cedeno/Reuters
A federal appeals court appeared ready Thursday to reject Defense Secretary Pete Hegseth’s effort to punish Democratic Sen. Mark Kelly over his call to US service members to refuse illegal orders.
A majority of judges on a three-member panel at the DC US Circuit Court of Appeals spent more than an hour and a half throwing cold water on arguments pushed by the Justice Department to revive Hegseth’s plans, which were shut down earlier this year by a federal judge who said they were unconstitutionally retaliatory.
“That is something that is taught at Annapolis to every cadet,” Judge Nina Pillard, an appointee of former President Barack Obama, said of Kelly’s comments last year.
“These are people who served their country – many put their lives on the line,” said Judge Florence Pan, an appointee of former President Joe Biden. “And you’re saying that they have to give up their retired status in order to say something that is a textbook example taught at West Point and the Naval Academy – that you can disobey illegal orders.”
The third member of the panel – Judge Karen Henderson, an appointee of former President George H. W. Bush – seemed at least somewhat sympathetic to the administration’s arguments. She said at one point that since Kelly could be recalled at any time and court-martialed, it must be the case that other tools are also available for the military to use to go after him over his conduct.
The closely watched case is a key test of the reach of free speech protections for former US military members and the latest flashpoint in President Donald Trump’s campaign to use the levers of government to punish high-profile critics.
Kelly, a retired Navy captain and former astronaut, sued Hegseth in January after the defense secretary announced the Pentagon would pursue administrative action against the Arizona senator, including reducing his last military rank –which would lower the pay he receives as a retired Navy captain – and issuing a letter of censure.
Both Hegseth and Trump have attacked Kelly over a video posted in November by the lawmaker and five other Democrats with a history of military or intelligence service. In the video, they urged service members not to obey unlawful orders that could be issued by the Trump administration.
The lawmakers didn’t specify which orders service members have received, or might receive, that could be illegal but the video was released as some, including US allies, questioned the legality of a series of military strikes targeting suspected drug traffickers in the Caribbean and eastern Pacific. It also came as the Trump administration faced multiple court challenges to the president’s decision last year to send scores of federalized state National Guard members to Democratic-led cities.
Federal prosecutors in Washington, DC, also attempted to indict the lawmakers over the video, but were rebuffed by a grand jury in a remarkable push back that is rarely seen.
First Amendment protections for veterans
At issue in Thursday’s case were a series of thorny questions about how much First Amendment protection retired service members have over speech directed at serving members of the military.
Justice Department lawyer John Bailey contended that, like active-duty members, retirees can have their speech curtailed or be punished for objectionable speech if officials believe it impacts the discipline and good order of the troops.
“In the military context, the First Amendment is going to function differently,” he said, arguing Kelly’s comments last year were not an “abstract legal education.”
“This is a pattern – a totality of conduct,” Bailey said, pointing to the fact that Kelly’s comments in the video needed to be understood in the context of other remarks he made last year about how the military was being used to carry out counter-narcotics operations.
“This was a wink-wink and a nod,” Bailey said.
Bailey repeatedly said that Kelly’s case was controlled by a 1970s Supreme Court decision in which the justices said an active-duty officer could be punished for imploring service members not to fight in the Vietnam War. But Pillard and Pan made clear that they didn’t see that case as having any use for the government given the stark factual differences between the two.
“Sen. Kelly never says disobey lawful orders,” Pillard said at one point, describing his comments later as an “abstract statement of a principle.”
“There are no cases that we have about the speech rights of retired service members,” she added.
Both judges seemed to agree with Kelly’s argument that retired service members have neither the full free speech protections enjoyed by civilians nor the limited First Amendment rights active-duty service members have. Instead, the millions of retirees like Kelly who still receive pay from the military are likely in a third category that has never before been sketched out by a court, the judges acknowledged.
“It’s not clear what the standard is for a retiree,” Pan said, adding later that the court may not need to define that standard at all. In the end, she said, the panel could reject the government’s position that retirees are on par with active-duty service members without going any further.
Kelly’s lawyer, Benjamin Mizer, told the court that Hegseth’s plan to reduce the senator’s pay and censure him represented “textbook retaliation for disfavored speech” and argued that he was being targeted for stating something that has traditionally been viewed as uncontroversial.
“He simply recited the bedrock principle of military law,” Mizer said.
Outside the courthouse after the hearing, Kelly issued a warning about the purpose of the censure effort: “If you say something that the president and this administration does not like, they’re going to come after you.”
The administration, he said, argued in court that “any time a retired veteran says something the secretary of defense doesn’t like, they can be punished.”
“The people who have given the most in service to this country wouldn’t be free to say what they believe,” Kelly added.
This story has been updated with additional details.
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