Sen. Kelly First Amendment Case: Government Cannot Be Arbiter of Its Own Speech Restrictions
After U.S. Senator Mark Kelly reassured his fellow service members that “Our laws are clear. You can refuse illegal orders,” the Department of Defense stated that Kelly was potentially subject to reduction of retirement pay, reduction in rank, recall into active-duty service, and even criminal prosecution. In January, Senator Kelly filed suit alleging a violation of his First Amendment rights. Ahead of yesterday’s oral arguments, scholars at the Cato Institute filed an amicus brief in support of Senator Kelly to the D.C. Circuit Court.
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In the brief, Thomas Berry, the director of the Cato Institute’s Robert A. Levy Center for Constitutional Studies, and Dan Greenberg, a senior legal fellow in the Robert A. Levy Center for Constitutional Studies at the Cato Institute, argue that the executive branch does not get to decide what speech is protected, writing in part:
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The government argues that it alone should be allowed to determine which speech by military retirees receives protection and which is out of bounds. In the government’s view, Senator Kelly implicitly urged disobedience of lawful orders, and the government asks the courts to defer to that view. But courts are not meant to yield to the executive branch on such constitutional questions. Rather, courts must enforce workable, replicable standards based on their own independent judgment of the facts. This ensures that, wherever the line between protected and unprotected speech lies, the government cannot cross it by mischaracterizing the nature of the speech at issue. Deferring to the executive mangles and diminishes the role of the judiciary in our constitutional system of checks and balances.
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To speak with Berry or Greenberg about Senator Kelly’s lawsuit or yesterday’s oral arguments, contact Cato PR at pr@cato.org.
Source: https://www.cato.org/commentary/sen-kelly-first-amendment-case-government-cannot-be-arbiter-its-own-speech-restrictions
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