On April 17, Protect Democracy and its partners represented 73 retired generals, admirals, and service secretaries in an amicus brief in the U.S. District Court for the District of Columbia to oppose the administration’s attempt to punish the speech of Arizona Sen. Mark Kelly and intimidate other veterans speaking up. Senator Kelly’s recitation of a fundamental and well-known principle of military law — that service members need not obey orders that they know are unlawful — is protected speech. 

The Constitution protects the right to speak on issues of public concern, and this “is no less true when the speaker is a retired member of the military,” the retired national security leaders noted in their brief. “In fact, quite the opposite. By virtue of their service, retired members of our armed forces have a distinct perspective and specialized expertise that contributes uniquely to the public discourse. They also populate all walks of public life, including holding elected public office — like Senator Kelly — and other prominent civic roles. To chill the speech of retired military service members would not only infringe on their individual First Amendment rights, but also impoverish public debate on critical issues relating to our military and its role in domestic and foreign affairs.”

These retired leaders recognized the dangerous chilling effects already created by the Secretary’s retaliatory approach in this case — and the courage required to speak up nonetheless. “[T]he mere fact of the submission of this brief, may be viewed with disfavor by the Secretary,” they wrote. “This decision is not made lightly: the attempt to punish Senator Kelly suggests that public expressions of disagreement with the Secretary — even if made in good faith and supported factually — invite possible retaliation. Indeed, [brief signatories] are aware of many fellow veterans who would eagerly participate in public debate on important and contested issues, but are declining to do so today, fearing official reprisal. This chilling effect risks silencing public dissent from those who served in uniform — a critical ingredient in American self-governance dating back to those who fought for and won our independence.”

Protect Democracy worked with States United Democracy Center and the Vet Voice Foundation to file the brief on behalf of the retired national security leaders.