Petition for Writ of Certiorari — Bryan Pesta, Petitioner v. Laura Bloomberg, Individually and as President, Cleveland State University, et al.

Supreme Court briefMar 30, 2026

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No. ________

IN THE

Supreme Court of the United States

BRYAN J. PESTA,

Petitioner,

LAURA BLOOMBERG, ET AL.,

Respondents.

On Petition for a Writ of Certiorari to the

United States Court of Appeals for the Sixth Circuit

PETITION FOR A WRIT OF CERTIORARI

Frederick C. Kelly, Esq.

Counsel of Record

Law Office of Frederick C. Kelly

One Harriman Square

Goshen, New York 10924

(845) 294-7945

fckellylaw@protonmail.com

Counsel for Petitioner

LEGAL PRINTERS LLC ! Washington, DC ! 202-747-2400 ! legalprinters.com

QUESTIONS PRESENTED

Whether in government employee speech cases the

State must clear the Sullivan malice hurdle before

proceeding to balancing, as this Court originally held

in Pickering?

Whether the Sullivan malice standard answers the

question left open in Garcetti regarding academic

freedom in a state university?

Whether balancing was properly weighed here under

any conceivable test, where no consideration was

given to the fact that petitioner had produced a

landmark scientific study within his field, but was

stripped of tenure and fired anyway, allegedly for

breaking obscure research rules for which

respondents themselves were equally at fault, and for

which violation no real disruption was demonstrated?

PARTIES TO THE PROCEEDING

Petitioner

is Bryan J. Pesta (“Pesta”).

Respondents are Cleveland State University

President Laura Bloomberg in her individual and

official capacities, Harlan M. Sands, Benjamin Ward,

Christopher Mallett, Conor McLennan, and Wendy

Regoeczi in their individual capacities.

Cleveland State University is not a party to this

proceeding; and in any event, pursuant to Rule 12.6,

does not have any interest in the outcome of the petition

because it has no interest that differs from that of

Laura Bloomberg in her official capacity, which is

already accounted for.

The Cleveland State Board of Trustees in their

official capacities (being the natural persons David M.

Reynolds, Timothy J. Cosgrove, Patricia M. DePompeii,

Paul J. Dolan, Lisa K. Kunkle, Alan G. Sarkoff, Nikki

C. Byrd, P. Kelly Tompkins, and Vanessa L. Whiting)

are not parties to this proceeding; and in any event,

pursuant to Rule 12.6, do not have any interest that

differs from that of Laura Bloomberg in her official

capacity, which is already accounted for.

STATEMENT OF RELATED CASES

The following proceedings are directly related to this

case:

• Bryan J. Pesta v. Laura Bloomberg, et al., No. 23-cv00546-DAP, United States District Court for the

Northern District of Ohio, Eastern Division.

Judgment entered October 7, 2024.

• Bryan Pesta v. Cleveland State University, et al., No.

24-3947, United States Court of Appeals for the

Sixth Circuit. Judgment entered November 4, 2025;

rehearing en banc denied December 29, 2025.

TABLE OF CONTENTS

Questions Presented ..................................................i

Parties to the Proceeding and Statement

of Related Cases ....................................................... ii

Table of Contents .................................................... iii

Table of Authorities ................................................. iv

Petition for a Writ of Certiorari ............................... 1

Opinions Below ......................................................... 1

Jurisdiction ............................................................... 1

Constitutional Provisions Involved .......................... 2

Summary ................................................................... 2

Statement of the Case .............................................. 3

Procedural History.................................................... 8

Reasons for Granting the Writ ................................. 9

I. THIS COURT ADOPTED THE SULLIVAN

MALICE STANDARD IN PICKERING, WHICH HAS

BEEN

MYSTERIOUSLY

DROPPED

SUBSEQUENT CASES WITHOUT EXPLANATION,

LEADING IT TO BE APPLIED INCONSISTENTLY

OVER THE SUBSEQUENT DECADES…………….9

II. THE PROPER APPLICATION OF PICKERING

ANSWERS AND RESOLVES THE QUESTION LEFT

OPEN BY GARCETTI……………………………..…..12

III.

FRCP 56 REVIEW AFFORDS THE

OPPORTUNITY TO CLARIFY THE PICKERINGGARCETTI FRAMEWORK - EVEN IF THE COURT

WOULD AFFIRM THE COA………………………...15

Conclusion ................................................................ 19

iii

TABLE OF AUTHORITIES

Cases

Amalgamated Transit Union Local 85 v.

Port Auth. of Allegheny Cnty.,

39 F.4th 95 (3d Cir. 2022) ................................. 10, 12

Arnett v. Kennedy, 416 U.S. 134 (1974) ..... ……….11

Connick v. Myers, 461 U.S. 138 (1983) .................. 11

Counterman v. Colorado, 600 U.S. 66 (2023) .. 14, 17

Garcetti v. Ceballos, 547 U.S. 410 (2006) ....... 2, 9, 13

Givhan v. Western Line Consol. Sch. Dist.,

439 U.S. 410 (1979)……………. .............................. 11

Healey v. James, 408 U.S. 169 (1972)………………10

Hernandez v. City of Phoenix,

43 F.4th 966 (9th Cir. 2022) ................................... 11

Hussey v. City of Cambridge,

149 F.4th 57 (1st Cir. 2025) .................................. ..11

Hyland v. Wonder, 972 F.2d 1129 (9th Cir. 1992)..17

In re Fosamax Products Liab. Litig.,

707 F.3d 193 (2d Cir. 2013)…………………………..17

Johnson v. Multnomah Cnty., Or.,

48 F.3d 420 (9th Cir. 1995) ..................................... 12

Jorjani v. New Jersey Inst. of Tech.,

151 F.4th 135 (3d Cir. 2025) ................................... 11

Keyishian v. Bd. of Regents,

385 U.S. 589 (1967)…………………….…….13, 15, 18

Kubala v. Smith, 984 F.3d 1132 (6th Cir. 2021).... 16

Levin v. Harleston, 966 F.2d 85 (2d Cir. 1992) ...... 11

Lyons v. Sullivan, 602 F.2d 7 (1st Cir. 1979) ........ 11

MacRae v. Matthews, 606 U.S. ___ (2025) ............. 16

Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle,

429 U.S. 274 (1977) ................................................. 11

Murthy v. Missouri, 603 U.S. 43 (2024) ................. 17

New York Times Co. v. Sullivan,

376 U.S. 254 (1964) ................................................. 10

Perry v. Sindermann, 408 U.S. 593 (1972) ............ 11

Pickering v. Bd. of Ed., 391 U.S. 563 (1968) ...2, 9-11

Rankin v. McPherson, 483 U.S. 378 (1987) ..... 11, 15

Snyder v. Phelps, 562 U.S. 443 (2011) ................... 14

Speiser v. Randall, 357 U.S. 513 (1958) ................ 16

Springer v. Henry, 435 F.3d 268 (3d Cir. 2006) ..... 11

St. Amant v. Thompson, 390 U.S. 727 (1968) ........ 10

Townsend v. Sain, 372 U.S. 293 (1963) ................. 16

United States v. Alvarez, 567 U.S. 709 (2012) ....... 17

Whitney v. California, 274 U.S. 357 (1927) ........... 18

Constitutional and Statutory Provisions

U.S. Const. Amend. I……………………………………2

28 USC §2201…………………………………………....1

28 USC §2202 ………………….………………………..1

28 U.S.C. § 1254(1)………………………………………1

28 U.S.C. § 1291………………………………………....1

28 U.S.C. § 1331………………………………………1, 8

42 U.S.C. § 198………………………………………..1, 8

Other Authorities

David A. Anderson, “Wechlser’s Triumph,”

66 ALA. L. REV. 229 (2014) ……………………..10 n.2

Elena Kagan, “A Libel Story: Sullivan Then and Now,”

18 L. & Soc. Inquiry 197 (1993)…………..………….. 13

PETITION FOR A WRIT OF CERTIORARI

Pesta respectfully petitions for a writ of certiorari

to review the judgment of the United States Court of

Appeals for the Sixth Circuit ("COA").

OPINIONS BELOW

The opinion of the COA (“COA Opinion”) is

published at 2025 WL 3094128 (6th Cir. Nov. 4, 2025).

The opinion of the United States District Court for

the Northern District of Ohio ("District Court") is

published at 2024 WL 4434788 (N.D. Ohio Oct. 7,

2024).

JURISDICTION

The district court had original jurisdiction under

28 U.S.C. §1331 because petitioner’s claim involves

constitutional rights and is brought pursuant to 42

U.S.C. §1983, as well as 28 USC §§2201-2202. Appx.

42a-43a.

The court of appeals had jurisdiction over the

appeal under 28 U.S.C. § 1291 because the appeal was

from a final judgment entered on October 7, 2024. A

timely notice of appeal was filed on October 29, 2024,

in compliance with Rule 4(a) of the Federal Rules of

Appellate Procedure. The judgment of the COA was

entered on November 4, 2025. Appx. 39a.

Appellant timely moved for en banc review on

November 17, 2025, which was denied with an order

entered on December 29, 2025. Appx. 59a. Ninety days

from December 29, 2025 will expire on Sunday, March

29, 2026 and the time to petition for certiorari will

expire on Monday, March 30, 2026.

This Court has jurisdiction under 28 U.S.C.

§1254(1).

CONSTITUTIONAL PROVISIONS INVOLVED

The First Amendment to the United States

Constitution provides in relevant part: "Congress

shall make no law . . . abridging the freedom of speech

. . .".

SUMMARY

Professors at a public university are the only state

employees who should clearly carry the shield of the

Sullivan malice standard with them into work bent on

a kind of “disruption” of the status quo.

But they do not have it. That shield has not been

furnished to them by this Court, although it should

have been placed firmly within their grasp by the

original holding in Pickering v. Bd. of Ed., 391 U.S.

563 (1968). Professor Bryan J. Pesta’s case offers the

opportunity to clarify the law and secure that crucial

protection for professors at state sponsored

universities. In the process the Court will answer the

question on academic freedom left open in Garcetti v.

Ceballos, 547 U.S. 410 (2006), and perhaps offer more

robust protection to all government employees when

they speak as citizens on matters of public concern.

Moreover, review is fruitful whether the Court

affirms or reverses the COA. The Court can review

and hold that Pickering balancing was properly

applied, with or without the Sullivan malice standard,

because Professor Pesta’s alleged “research

misconduct” was too egregious to outweigh his

interest in speaking. Or it can hold that any alleged

missteps were simply too insignificant in comparison

with the weight accorded core speech in the PickeringGarcetti framework. Either way, the Court will have

done yeoman’s work in clarifying the application of

Pickering in the realm of academic freedom.

STATEMENT OF THE CASE

This is a First Amendment retaliation case where

a tenured professor employed by a public university

produced what has been conceded to be a landmark

scientific study. But that very research quickly

rendered him a target of politically motivated attacks.

The landmark study is known as “Global Ancestry

and Cognitive Ability" and was published by Professor

Bryan J. Pesta, a formerly tenured research

psychologist at Cleveland State University (“CSU”)

with an academic interest in human intelligence. Far

from offering a redoubt against attacks, CSU

welcomed the incursions against free speech as

political activists outside the university (who turned

out to be rival scientists advocating opposing

viewpoints) made common cause with like-minded

academics within to discourage and discredit

legitimate, albeit controversial, scientific inquiry.

Professor Pesta’s landmark study required him to

access a database maintained by the National

Institutes of Health (NIH). Consistent with the

applicable regulations, Professor Pesta submitted

three relevant applications for restricted access to the

NIH. In each application he had proposed to study

different aspects of racial, ethnic, or sexual differences

in genetics and psychology. Appx. 4a-6a.

Both CSU and the NIH itself approved Professor

Pesta’s applications — at least until detractors of his

study, particularly Mr. Kevin Bird (“Bird”) and his

colleagues, began to complain after its publication. All

three requests were separated by mere months, such

that they overlapped in time and were thus approved

during the same periods, viz. Professor Pesta was at

various times approved to study all three subject

matters simultaneously.

Under the somewhat obscure regulations by which

the NIH grants access, a three-way contract was

created between the NIH, CSU, and Professor Pesta

that allowed Pesta to conduct his research. Notably,

that contract placed ultimate responsibility with CSU

and its Office of Research Integrity, not Professor

Pesta, to maintain the integrity of the restricted

access data. But when what were at worst

questionable mistakes were discovered — really a

single minor regulatory mistake involving the use of a

Dutch server 1 that other researchers had been

permitted to use — no one else who bore responsibility

at CSU’s Office of Research Integrity appears to have

even been questioned, let alone disciplined, let alone

terminated.

That is the true state of affairs, although it has

been obscured by the relentless misstatement of the

record in the decisions below.

Almost immediately after publication of “Global

Ancestry and Cognitive Ability” on August 31, 2019,

Pesta was met with controversy. Thus, at some point

in September of 2019, both CSU and the NIH were

beset by a group of academic activists and rival

scientists led by Bird who were angered by Pesta’s

conclusions in “Global Ancestry.” These individuals

sent an undated letter (the “September 2019 letter”)

to both CSU and the NIH alleging that Professor

Pesta had violated numerous regulations associated

with the data access requests for “Global Ancestry.”

A full factual recitation of the abusive proceedings

by both the NIH and CSU is beyond the scope of this

petition, but the following is representative.

1 This was the “HIrisPlex-S” server mentioned among other

places at Appx. 6a.

After receipt of the September 2019 letter, the NIH

sent Professor Pesta an inquiry asking how his

“Global Ancestry” paper was consistent with his Third

Request for data. This occurred on September 19,

2019. The very next day, Professor Pesta answered

the NIH, copying CSU on the correspondence.

After receiving the September 2019 letter and the

resulting NIH inquiry, both CSU and the NIH

continued to renew Professor Pesta’s applications for

the restricted data. In doing so, CSU was explicitly

attesting to the fact that all “relevant institutional

policies and applicable federal, state, or local laws and

regulations (if any) have been followed” by Professor

Pesta. CSU made these representations numerous

times for well over a year, which the NIH, likewise,

continued to accept, thus allowing renewed access to

the data.

However, almost two full years later, on May 27,

2021, the NIH finally reacted to the explanation that

Professor Pesta had supplied back on September 20,

2019. Appx. 9a. The NIH reasoned that although

Pesta’s Third Request had cleared him to study racial

differences in intelligence, that kind of research was

not cleared by his Second Request and thus he was in

violation of their regulations.

In effect, the NIH found Pesta guilty of violating

the research purposes of the Second Request by

conducting research it had cleared him to do under the

Third Request. And when Pesta appealed and

reminded the NIH that the Third Request had

permitted him to do research on racial differences in

intelligence, the NIH simply doubled down, hence its

curious fixation on the Second Request and the odd

phrasing that read, “regardless of what was proposed

in other research projects.” Appx. 11a.

Although its findings were cloaked in dense

bureaucratic jargon, everyone understood that the

NIH was punishing Professor Pesta for performing

research he had been cleared to undertake in his

Third Request, hence Respondent Ward’s reluctant

admission at deposition, “under the new DAR [viz. the

data access request for the Third Request], he could

conduct that research then.” Respondent McLennan

was even blunter in his testimony:

Q. Dr. McLennan, do you still stand by the

notion that Dr. Pesta violated the DUC for the

second request by doing research under the

third request?

A. Yes.

So much for the NIH investigation. Meanwhile,

CSU had swung into action. Based solely on the NIH’s

findings against Professor Pesta, CSU issued

sanctions of its own, including a formal letter of

reprimand, the need to undergo additional training on

data access requests, and a three year denial of faculty

merit raises in salary. But CSU was not done with

Professor Pesta yet, not by a long shot.

CSU began a research misconduct inquiry that

would ultimately result in stripping Professor Pesta of

tenure and firing him.

The research misconduct committee was

unquestionably and hopelessly biased against

Professor Pesta. For example, discovery revealed the

Investigative Committee were writing amongst

themselves of the purported need “to more directly

address the point about the harm done by his research

(without stating it as our opinion)” and to “bolster the

point that the subject matter of his research is

unethical.” To that end, they added language to their

report on research misconduct that would serve as a

dog whistle signaling their condemnation of Professor

Pesta’s research. (The COA reviewed this language

and solved the problem by directly misstating the

evidence and denying that such language had been

added to the report on research misconduct, which is

simply incorrect. Cf. Appx. 23a and 62a-64a.)

Behind the scenes, Respondents McLennan and

Regoeczi even expressed frustration that their

punitive investigation had not led Professor Pesta to

condemn his own research as unethical, writing, for

example, “all Committee members condemn Dr.

Pesta's harmful research and regret that such

research is connected to CSU — an institution with

which all Committee members are otherwise proud to

be affiliated” and “Furthermore, throughout the

entire investigation, Dr. Pesta has failed to

acknowledge that his research agenda is harmful.”

Additionally, Respondents McLennan and Regoeczi

stated that “[t]he findings of [Pesta’s] studies have

negative impacts on the community in general as well

as CSU specifically.” Appx. 67a. The COA solved this

problem of bias and retaliatory motive against

Professor Pesta by passing over such evidence

entirely. See Appx. 2a-38a.

Yet the evidence of malice was so overwhelming

that Respondent Mallett, who sat on the Investigative

Committee, simply admitted under oath that the

committee did not proceed against Professor Pesta

fairly and impartially, even as he admitted later in

deposition that Professor Pesta had answered

honestly and forthrightly in defending himself against

the charges of research misconduct.

One last point bears stressing. Very early on in

CSU’s misconduct investigation, a crucial question

arose: had Professor Pesta deliberately or recklessly

falsified his research conclusions? But that question

was quickly abandoned without adequate explanation

in the administrative proceeding within CSU. Thus,

no one even tried to demonstrate that Professor Pesta

intentionally or recklessly falsified his research

conclusions.

It is undisputed that the questions Professor Pesta

investigated as part of his landmark study have long

bedeviled scientists within his discipline for purely

scientific and statistical reasons. Furthermore, the

record here showed that science in this field has long

been susceptible to all sorts of political pressures that

discourage scientists from exploring all points of view.

Noted author and researcher Charles Murray, for

example, gave testimony concerning his travails

within academia ever since he co-published The Bell

Curve several decades ago, which included being the

victim of an outright riot on March 2, 2017, while

attempting to speak at his daughter’s alma mater,

Middlebury College. In another example, a brilliant

scientist, Dr. Stephen Hsu, testified that he was

driven from the administration of Michigan State

University for merely discussing other scientist’s

research on racial differences in intelligence. Notably,

one of the censors at work against Dr. Hsu was Bird,

the same who spurred both the NIH and CSU to act

against Professor Pesta.

PROCEDURAL HISTORY

The district court had jurisdiction under 28 U.S.C.

§ 1331 because the claims arise under the First and

Fourteenth Amendments of the United States

Constitution and 42 U.S.C. § 1983. Appx. 42a-43a. At

the close of discovery, both parties moved for

summary judgment. The district court denied Pesta’s

motion, but granted Respondent’s motion, reasoning

that Pesta was terminated for research misconduct,

not for the content of his speech in his paper. Appx.

55a. But in the alternative, the district court held that

even if Pesta had been terminated for the content of

his paper, Respondents would have been within their

rights to do so under Garcetti v. Ceballos, 547 U.S. 410

(2006). Appx.55a.

The court of appeals had jurisdiction over the

appeal under 28 U.S.C. § 1291 because the appeal was

from a final judgment entered on October 7, 2024. A

timely notice of appeal was filed on October 29, 2024,

in compliance with Rule 4(a) of the Federal Rules of

Appellate Procedure. The COA affirmed the district

court, holding that Pesta had failed to show causation

because he had been terminated for research

misconduct, not the content or viewpoint of his paper.

The COA did not explicitly address the district court’s

alternative holding under Garcetti v. Ceballos, supra.

Appx.2a-38a.

REASONS FOR GRANTING THE WRIT

I. THIS COURT ADOPTED THE SULLIVAN

MALICE STANDARD IN PICKERING, WHICH

HAS BEEN MYSTERIOUSLY DROPPED IN

SUBSEQUENT CASES WITHOUT

EXPLANATION, LEADING IT TO BE APPLIED

INCONSISTENTLY OVER THE SUBSEQUENT

DECADES.

Pickering v. Bd. of Ed. incorporated the Sullivan

malice standard into its very holding:

In sum, we hold that, in a case such as this,

absent proof of false statements knowingly or

recklessly made by him, a teacher's exercise of

his right to speak on issues of public importance

may not furnish the basis for his dismissal from

public employment.”

Pickering v. Bd. of Ed., 391 U.S. 563, 574 (1968)

(emphasis supplied); see also, Id. at 573–74(citing

New York Times Co. v. Sullivan, 376 U.S. 254

(1964); St. Amant v. Thompson, 390 U.S.727

(1968)).

This fact is underappreciated. Yet the advantages

of adopting the Sullivan malice standard, particularly

in this context, are clear. Pickering itself was

fashioned to furnish a wide berth for speech. See

Amalgamated Transit Union Local 85 v. Port Auth. of

Allegheny Cnty., 39 F.4th 95, 110 (3d Cir. 2022)

(Porter, J., concurring) (citing Connick v. Myers, 461

U.S. 138, 144 (1983)) (“Pickering itself is 'rooted' in

cases rejecting the rule that the First Amendment did

not protect government-employee speech."). It

therefore made sense to incorporate the Sullivan

malice

standard,

designed,

Justice

Brennan/Stephen Barnett’s phrase , to encourage

“uninhibited, robust, and wide-open debate.” New

York Times Co. v. Sullivan, 376 U.S. 254, 270 (1964).

And the First Amendment’s protection of open debate

is perhaps nowhere more important than within

public universities. See Healy v. James, 408 U.S. 169,

180–81 (1972) (citing Keyishian v. Bd. of Regents, 385

U.S. 589, 603 (1967)) (“The college classroom with its

surrounding environs is peculiarly the ‘marketplace of

ideas,’ and we break no new constitutional ground in

reaffirming this Nation's dedication to safeguarding

academic freedom.”).

But, although central to Pickering’s holding, from

the very beginning application of the Sullivan malice

standard has been applied unevenly, a point noted by

Justice White in his concurrence and dissent to

The talismanic phrase is properly credited to Justice

Brennan’s law clerk, Mr. Barnett. See David A. Anderson,

Wechlser’s Triumph, 66 ALA. L. REV. 229, 252 (2014).

Pickering itself. See Pickering v. Bd. of Ed., 391 U.S.

at 582–84 (White, J., concurring and dissenting). In

the next sequence of government employee speech

cases that came before this Court application of the

Sullivan malice rule was mysteriously dropped

without explanation. See Perry v. Sindermann, 408

U.S. 593 (1972); Arnett v. Kennedy, 416 U.S. 134

(1974); Mt. Healthy City School Dist. Bd. of Educ. v.

Doyle, 429 U.S. 274 (1977); Givhan v. Western Line

Consol. School Dist., 439 U.S. 410 (1979), Connick v.

Myers, 461 U.S. 138 (1983); Rankin v. McPherson, 483

U.S. 378 (1987).

This inconsistency has left lower courts in a state

of confusion. Sometimes they apply the Sullivan

malice standard in a Pickering balancing case. See,

e.g., Levin v. Harleston, 770 F.Supp. 895, 898, 921

(S.D.N.Y. 1991); Lyons v. Sullivan, 602 F.2d 7, 10 (1st

Cir. 1979) (noting that Pickering “may not furnish the

basis for dismissal from public employment absent

proof the statements were false and knowingly or

recklessly made”); see also Springer v. Henry, 435 F.3d

268, 278–79 (3d Cir. 2006) (“The issue is not falsity vel

non but whether such statements, even if untrue,

were knowingly or recklessly made.”).

And sometime they refuse to apply it entirely, even

on dubious grounds See, e.g., Jorjani v. New Jersey

Inst. of Tech., 151 F.4th 135, 141 (3d Cir. 2025) (flatly

rejecting application of the Sullivan malice rule for a

professor’s retaliation case, although ultimately

balancing against the state university, under the

reasoning that Pickering was a case involving

defamation). 3 Most often, courts confronting the

Pickering balance fail to mention it at all. See, e.g.,

3 Which is not quite true. To be sure, Pickering involved a

letter to the editor, but there was no cause of action for

defamation.

Hussey v. City of Cambridge, 149 F.4th 57 (1st Cir.

2025); Hernandez v. City of Phoenix, 43 F.4th 966 (9th

Cir. 2022) (no application of Sullivan malice in either

case).

But in Johnson v. Multnomah Cnty., Or., 48 F.3d

420, 423 (9th Cir. 1995) the Ninth Circuit noted a split

in the circuits as to how to address the Sullivan malice

issue in applying Pickering.

And even there, the split in question is not quite

posed as it is here. Pesta maintains that before

balancing can even begin, the state must clear the

Sullivan malice hurdle. That is to say, the state must

demonstrate at the outset that the speech in question

exhibits intentional falsity or reckless disregard of the

truth.

If that hurdle is not cleared, the case is over

because, as Judge Porter noted in his concurrence to

Amalgamated Transit Union, the government

employer’s defense “fails before balancing even

begins.” 39 F.4th at 110.

If the state does clear that hurdle, the Court can

decide which circuits are appropriately following the

Pickering rule: those, like the First, Fifth, and Ninth

Circuits which hold that the extent of intentional

falsity or recklessness are factors to be weighed in the

Pickering balance, or those like the Seventh and

Tenth Circuits which hold that once Sullivan malice

has been demonstrated the state simply prevails on

the balance. See Johnson v. Multnomah Cnty., Or., 48

F.3d at 423-24.

II. THE PROPER APPLICATION OF

PICKERING ANSWERS AND RESOLVES THE

QUESTION LEFT OPEN BY GARCETTI.

The confusion is so great that it has ensnared even

justices of this Court. Thus, in the seminal case

Garcetti v. Ceballos, 547 U.S. 410 (2006), Justice

Kennedy and Justice Souter held a notable debate

over whether “expression related to academic

scholarship or classroom instruction implicates

additional constitutional interests that are not fully

accounted for by this Court’s customary employeespeech jurisprudence.” Compare 547 U.S. at 425, with

id. at 438-39 (Souter, J., dissenting). No one, however,

thought of reaching for the Sullivan malice rule

(which lay close at hand) to shed light on this

important issue.

This is not surprising. After decades of neglect,

neither side in Garcetti had briefed the Sullivan

malice rule for the benefit of the Court. See Garcetti

Pet’r’s Br. on the Merits (dated May 27, 2005); Resp’t’s

Br. on the Merits (filed July 23, 2005); Pet’r’s Reply

Br. (dated August 25, 2005). Neither did any amici.

We respectfully submit that the answer to Justice

Kennedy’s debate with Justice Souter is that

academic freedom is adequately accounted for if

professors are afforded the protections of the Sullivan

malice rule, but inadequately protected without it.

While the Sullivan malice rule has come in for a

good deal of criticism when deployed in its original

context, the “very facts that make Sullivan an oddity

in libel law place it in the mainstream of First

Amendment law generally.” Elena Kagan, “A Libel

Story: Sullivan Then and Now,” 18 L. & Soc. Inquiry

197, 215 (1993). One cannot be any more within the

mainstream of First Amendment law than when

exercising one’s academic freedom. See, e.g. Keyishian

v. Bd. of Regents, 385 U.S. at 603.

It is said that “Sullivan has served an utterly

reliable source not of libel doctrine but of broad First

Amendment principle.” Kagan, supra, at 215. But as

things stand now, the Ray Countermans of the world

- strange men who are cyber stalking women with odd

posts on the internet, or worse - are cloaked with the

mantle of Sullivan malice (Counterman v. Colorado,

600 U.S. 66, 75–76 (2023), while university professors,

even university professors producing landmark

scientific research, go naked. It does no good to make

a show of protecting marginal speech (e.g.

Counterman v. Colorado, supra; Snyder v. Phelps, 562

U.S. 443 (2011)) while the courts sit back and

countenance censorship in the hard sciences.

Whether we turn toward the research conclusions

or the alleged research missteps, the Sullivan malice

standard should have put a firm stop to the abuse in

this case. It would forbid a more open and honest

frontal assault on Professor Pesta’s research because

no one could show that he had intentionally or

recklessly falsified his research conclusions. Thus, if

the CSU respondents had frankly taken issue with the

content and conclusions of Professor Pesta’s research

(as they were clearly doing behind the scenes, e.g.,

Appx. 62a-67a, a crucial fact the COA misstated), the

issue would have been laid to rest.

But Sullivan malice would also stand athwart the

perverse attempt to hide behind obscure rules to effect

censorship. Under the regulations at issue CSU’s

Office of Research Integrity bore primary

responsibility for the manner in which Professor Pesta

accessed the data sets in question and conducted his

research.

Thus, when Respondents balked at clearly

asserting they were concerned with Pesta’s

conclusions, and instead claimed they objected to his

data access requests and methods of research, the

response should have been: what of it? No one could

demonstrate intentional or reckless statements there

either. CSU’s own Office of Research Integrity had

passed on the data requests and other practices 4 for

months and even years after being alerted to the

potential problems raised by Pesta’s detractors and

rivals in September of 2019. What was, at worst,

negligence on the part of CSU could not be

transformed into a hanging offense for Professor Pesta

and his tenured career at CSU.

Holding universities to the standard of Sullivan

malice would therefore augment the protections

afforded academic freedom by this Court in Keyishian,

and elsewhere, which deplored the abuse of “a

profusion of statutes, regulations, and administrative

machinery, and . . . manifold cross-references to

interrelated enactments and rules” to stifle free

inquiry. Keyishian v. Bd. Of Regents, 385 U.S. at 603.

(citations omitted).

As this Court observed in Rankin v. McPherson:

“Vigilance is necessary to ensure that public

employers do not use authority over employees to

silence discourse, not because it hampers public

functions but simply because superiors disagree with

the content of employees' speech.” Rankin v.

McPherson, 483 U.S. at 384. Sullivan malice keeps

watch in the night when university officials insist they

must sleep.

III. FRCP 56 REVIEW AFFORDS THE

OPPORTUNITY TO CLARIFY THE

PICKERING-GARCETTI FRAMEWORK - EVEN

IF THE COURT WOULD AFFIRM THE COA.

Finally, even if the Court prefers to avoid wrestling

with the strange disappearance of the Sullivan malice

4 Those other practices included Professor Pesta’s use of the

Dutch Server, which was called to the NIH and CSU’s attention

in the September 2019 Letter. Both CSU and the NIH continued

to see no problems for almost two years.

standard from its government employee speech

jurisprudence, a writ of certiorari permits the Court to

squarely review the application of the existing

Pickering-Garcetti framework. MacRae v. Matthews,

606 U.S. ___ (2025) (Thomas, J., respecting the denial

of certiorari). Although that inquiry is necessarily fact

driven, “[i]t is the typical, not the rare, case in which

constitutional claims turn upon the resolution of

contested factual issues.” Townsend v. Sain, 372 U.S.

293, 312 (1963).

Moreover, the COA has buried its abuse of the

Pickering-Garcetti framework under a faulty factual

analysis. The results underscore a crucial observation

made in Speiser: “...it is commonplace that [the

vindication of legal rights]... depends more often on

how the factfinder appraises the facts than on a

disputed construction of a statute or interpretation of

a line of precedents.” Speiser v. Randall, 357 U.S. 513,

520 (1958).

The Court will need to address the facts to reach

the weighty constitutional issues above because the

COA has in effect balanced against Professor Pesta -a

question of law which is supposed to be raised under

the first prong of retaliation analysis used by the

COA’s existing precedent (see Kubala v. Smith, 984

F.3d 1132, 1139 (6th Cir. 2021)), while purporting to

address the causation issue under the third prong of

the retaliation analysis.

This is legal legerdemain. The facts showing

alleged disruption - Pesta’s supposed research

misconduct - are the very same facts the COA stood on

to show that Pesta could not show causation.

Of course, like a Potemkin village, the litany of

outrages recited by both lower courts relies on false

fronts. These include the erroneous consideration of

an expert opinion that directly conflicts with party

admissions on the import of the Third Request. In re

Fosamax Products Liab. Litig., 707 F.3d 193, 193–94

(2nd Cir. 2013); Cf. Appx. 33a. But that a scientific

agency within the federal government would resort to

the Soviet-style logic of “you violated the Second

Request by conducting research we had cleared you

for under the Third Request,” betrays totalitarian

thinking. That a state university endorsed such a

rationale to deprive a tenured professor of his position

should send chills down the spine of anyone concerned

with free speech.

But a certiorari petition is no place to wrestle with

that overwrought record. In any event, let us say that

the Court ultimately disagrees and decides the COA

correctly assessed the record.

Review is still warranted.

It was undisputed that Professor Pesta had

produced a landmark scientific study within his field,

one that apparently answers long disputed questions

within his discipline. This is speech at the very

highest rung of the First Amendment. Murthy v

Missouri, 603 U. S. 43, 77 (2024) (Alito, J., dissenting)

(citing, inter alia, Snyder v. Phelps, 562 U. S. 443, 45152 (2011)). Only an exceptionally strong showing of

disruption could counter speech which is so clearly a

matter of public concern. Connick, 461 U.S. at 152; see

also Hyland v. Wonder, 972 F.2d 1129, 1139 (9th Cir.

1992) ("The more tightly the First Amendment

embraces the speech the more vigorous a showing of

disruption must be made.").

Therefore, had Professor Pesta in fact engaged in

research misconduct, such evidence would weigh in

the Pickering balance against his and the public’s

extremely compelling interest in his speech. If some

false statements are inevitable in free speech (United

States v. Alvarez, 567 U.S. 709, 718 (2012)), this is

especially so where the professor himself must

negotiate an inconsistently applied “profusion of

statutes, regulations, and administrative machinery”

in the course of conducting his research. Keyishian,

385 U.S. at 603.

But when and how is a tenured professor’s interest

in producing landmark scientific research outweighed

by assertions of research missteps? It is a question the

COA refused to candidly answer, but it is surely a

question worthy of this Court’s resolution.

CONCLUSION

To many, the results of Professor Pesta’s research

are about as welcome as the devil at prayers. But the

sky will not fall if such research turns out to be true.

In any event, “It is the function of speech to free men

from the bondage of irrational fears.” Whitney v.

People of State of California, 274 U.S. 357, 376 (1927)

(Brandeis, J., concurring).

There are simply too many important issues here the role of Sullivan malice and the original holding of

Pickering v. Board of Education, the proper

application of the Pickering-Garcetti framework to

professors in a state sponsored university, the

protection of landmark scientific research, and the

abuse of regulations in a state school to effect

viewpoint discrimination - to permit the case to be

confined to oblivion in a series of unpublished opinions

rife with glaring misstatements of the record. For

those reasons, we respectfully request the Court to

grant certiorari.

Respectfully submitted,

/s/ Frederick C. Kelly, Esq.