In an awesome 29-page opinion (of course included for Notes from the Front members), Judge Richard Leon does the legal equivalent of drawing and quartering Hegseth!
At the very outset Judge Leon says "Secretary Hegseth contends that this Court is not yet competent to decide the issues in this case. He and his fellow Defendants argue that military personnel decisions are exempt from judicial review and, in any event, that Senator Kelly should first be required to go through the military appeals process so the military can have the first crack at adjudicating his First Amendment rights. I disagree. This Court has all it needs to conclude that Defendants have trampled on Senator Kelly's First Amendment freedoms and threatened the constitutional liberties of millions of military retirees. After all, as Bob Dylan famously said, "You don't need a weatherman to know which way the wind blows." "
"EXEMPT FROM JUDICIAL REVIEW"?? WTAF?? I mean, we knew that the administration often *acted* like that, but increasingly they are saying the quiet part out loud (a sign of *false* bravado, as they know they are circling the drain - witness Bondi's histrionics yesterday).
This opinion is also a *fantastic* review of the basics of the 1st Amendment! This is because Hegseth largely predicates his defense on the legal premise that service members have somewhat curtailed 1st Amendment rights. That is true. FOR ACTIVE DUTY MEMBERS (where it arguably makes sense). But NOT for *retired* military personnel!
Here are some more of my favorite quotes from this opinion and order:
"The next factor of the retaliation test is whether Defendants took retaliatory action against Senator Kelly sufficient to deter "a person of ordinary firmness." ... There is no question that such actions would deter "a person of ordinary firmness in plaintiff's position." Indeed, they already have. Per an amicus brief submitted by forty-one retired officers, many veterans are today "declining" to "participate in public debate on important and contested issues" out of fear of "official reprisal." "
And...
"More specifically, it is a particularly valuable asset for our country to have retired veterans contributing to public discussion on military matters and policy. Given their "distinct perspective and specialized expertise," it is essential for retired veterans to contribute to our "public discourse" on issues of military policy. Allowing Defendants' actions against Senator Kelly to stand would further chill the speech of these retired servicemembers and thereby "impoverish public debate on critical issues relating to our military and its role in domestic and foreign affairs." "And…
"Put simply, Defendants' response is anemic!"
And then...
"Rather than trying to shrink the First Amendment liberties of retired servicemembers, Secretary Hegseth and his fellow Defendants might reflect and be grateful for the wisdom and expertise that retired servicemembers have brought to public discussions and debate on military matters in our Nation over the past 250 years. If so, they will more fully appreciate why the Founding Fathers made free speech the first Amendment in the Bill of Rights! Hopefully this injunction will in some small way help bring about a course correction in the Defense Department's approach to these issues.
For the foregoing reasons, Senator Kelly's motion for a preliminary injunction on his First Amendment claim is GRANTED"
