Open Letter to Gene Smith

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Established October 31, 1996
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Last updated: 07/13/2011 3:07 PM
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An Open Letter to Gene Smith
By John Porentas

Dear Mr. Smith,

I am totally and completely exhausted with all of it.

Since March the Ohio State Department of Athletics has been the object of scorn and derision across the land. It has been derided in ways I never thought imaginable and is now viewed almost universally as a renegade program with no respect for NCAA rules. Right or wrong, that is the perception Mr. Smith, and I believe I speak for many, many people when I say that I cannot bear the thought of even one more piece of incriminating information or bad news.

In spite of that, today I sit numbly at a keyboard typing what I believe to be that one more piece of bad news, one more piece of evidence that your department of athletics is indeed a lawless organization that has utter disdain for what is right and what is wrong. There is a large part of me that hates myself for doing this, but I feel compelled for reasons I will outline below.

The catalyst for this letter Mr. Smith was a piece written for by Brandon Castel and published this morning. I will also freely admit that a recent piece written by Tony Gerdeman inspired the format of this letter to you.

As I read Brandon's article this morning I found myself becoming almost ill. The ease with which you describe your turnaround on Jim Tressel made me queasy. In your mind, it is totally justified but in large part remains unexplained other than your remark that "the situation deteriorated ." The lack of detailed explanation is both sad and alarming. Did it deteriorate because of new facts you learned, or because you simply succumbed to outside pressure? Your failure to explain clearly how it deteriorated is serious, but it was your absolute statement that you "have done nothing wrong" that almost had me running to the toilet to lose my breakfast.

It may be true that you have not broken any of the rules of your beloved NCAA Mr. Smith, but it appears to me and to others that just last Friday your department of athletics knowingly and willingly violated the U.S. constitution, and did so for the sole purpose of advancing your agenda and controlling public perception of the department of athletics. Yes Mr. Smith, breach of the constitution is wrong doing; and to most of us, it is wrong doing of a far more serious nature than any infraction of NCAA regulations.

Last Friday Mr. Smith, you called and participated in a press conference, a press conference at which the participants were carefully selected by either you or a member of your staff.

To be perfectly candid, in the grand scheme of things your press conference was unimportant because what you said was no more than the spin you wished to put on the facts of the situation, so really, your remarks there are ultimately of no real consequence.

What is of consequence is that against the backdrop of national perception of reckless abuse of regulations by the department of athletics you apparently decided to continue that abuse simply to advance your own agenda with media whom you could be sure would be friendly toward you.

Mr. Smith, I know you have competent people on your staff, people who know the law and would certainly advise you to stay within it, but on the off-chance that is not true, I have pasted at the end of this letter the law as we believe it applies to you along with a legal opinion by the attorney who did the research for us.

Regarding that news conference, I can only see two possibilities. The first is that your staff, or whoever advised you to conduct that news conference the way you did, is incompetent and does not know the constitutional requirements. I find that very, very hard to believe, but I suppose it is possible. The second possibility is the more probable of the two, which is that in spite the requirements, you chose to act as you did.

I find that to be intolerable, not for any petty reason such as our own exclusion from that rather meaningless press conference, but for a much, much larger and serious reason. If true it is one more instance of your department of athletics acting with total disdain for lawful regulation and disdain for what is right and what is wrong. This would be a transgression that on its face alone is far, far more serious than any NCAA infraction, and given the current national perception of the department of athletics by the nation is an affront to every person who calls him or herself a fan of OSU athletics.

Mr. Smith, these dark days in OSU history can only end when the people who perpetuate the disregard for proper behavior are no longer employed by the university. To that end, I call upon you to do the following.

If the person or persons who advised you to conduct that press conference the way it was conducted are actually ignorant of the requirements, you must terminate them immediately. That kind of incompetence is not tolerable, particularly in view of your own remark yesterday that “The institution did not do as good of a job – and that includes me – with its public communication. And it starts with that press conference in March." This incident is the capstone in an unbelievable and incredibly damaging sequence of PR blunders. Those who perpetrated those blunders must be gone.

If on the other hand your staff knew the requirement and advised you of it, then you sir must resign. If you knowingly violated the constitutional requirement in order to advance your agenda, you are immediately a person who cannot be believed or trusted and not fit for leadership of the Ohio State Department of Athletics. Further, you have insisted that your "process" is being conducted as openly and transparently as possible, yet on a day when you could have proven those words, you did not, and chose to selectively reveal facts. How can any of us rely on you any further?

To those of you who read this letter and are offended by it, I understand. You have had enough. I don't blame you for that, and it really pains me to be one more negative voice. That is not my usual character, and I understand your grievance, but this is something that had to be said.

John Porentas

[Author's Note: Bolding and italics below have been added by this author, not by the author of the original document.]

Legal Opinion

The Ohio State University is an instrumentality of the State of Ohio (see O.R.C. § 3345.011). As an instrumentality of the State of Ohio, its actions are governed generally by the same constitutional limits as is any governmental agency pursuant to
the Fourteenth Amendment to the United States Constitution.

Where press facilities are made publicly available as a source of information for newsmen, the protection afforded newsgathering under the first amendment guarantee of freedom of the press, the constitution prohibits the arbitrary denial of access for less than compelling reasons. Sherrill v. Knight, 569 F.2d 124 (D.C. Cir., 1977), citing United States Supreme Court opinions in Branzburg v. Hayes, 408 U.S. 685 (1972), Pell v. Procunier, 417 U.S. 817 (1974), Southeastern Promotions v. Conrad, 420 U.S. 546 (1975), and Lovell v. Griffin, 303 U.S. 444 (1938).

In addition, the Sherrell opinion states, “Not only newsmen and the publications for which they write, but also the public at large have an interest protected by the first amendment in assuring that restrictions on newsgathering be no more arduous than necessary, and that individual newsmen not be arbitrarliy excluded from sources of information.”

Sherrell, at 129-130, also citing United States Supreme Court opinions in Cox Broadcasting Corp. v. Cohn, 420 U.S. 469 (1975), and Abrams v. United States, 250 U.S. 616 (1919).

When one media outlet is given access and another denied, it allows the government to influence the kind of media coverage a public event will receive.

In Anderson v. Cryoovac Inc., 805 F.2d 1, 9 (1st Cir., 1988), the court of appeals prohibited the lower court from selectively excluding news media from access to information otherwise made available for public dissemination. It based its decision on American Broadcasting Companies, Inc. v. Cuomo, 570 F.2d 1080 (2d Cir., 1977), McCoy v. Providence Journal Co., 190 F.2d 760 (1st Cir.), cert. denied,342 U.S. 894 (1951). The Anderson court proceeded to observe, “The danger in granting favorable treatment to certain members of the media is obvious: it allows the government to influence the type of substantive media coverage that public events will receive. Such a practice is unquestionably at odds with the first amendment. Neither the courts nor any other branch of the government can be allowed to affect the content or tenor of the news by choreographing which news organizations have access to relevant information. The district court erred in granting access to one media entity and not the other.” Anderson, at 9 (emphasis supplied).

In a particularly applicable opinion, the case of Savage v. Pacific Gas & Electric Co., 21 Cal. App. 4Th 434 (1993), citing the case of Quad-City Community News Service, Inc. v. Jebens, 334 F.Supp. 8 (S.D.Iowa 1971), analyzed discriminatory treatment of the press under both the First Amendment and the equal protection clause. City officials had denied reporters for an underground newspaper access to police files generally available to other reporters. After finding that the action violated the First Amendment, the court addressed the equal protection issue: "No showing merely of a rational relationship to some colorable state interest suffices to justify a classification between media permitted access to the reports and others which are not so permitted. Any classification which serves to penalize or restrain the exercise of a First Amendment right, unless shown to be necessary to promote a compelling governmental interest is unconstitutional." (Id. at p. 15.)

In the time allotted for this project, I was unable to discover any relevant and applicable opinions from the U.S. Sixth Circuit Court of Appeals, which has jurisdiction over cases arising in the U.S. District Courts located in the State of Ohio.


It is my opinion, based upon the foregoing facts and authorities, that the Ohio State University violated the First and Fourteenth Amendments to the United State Constitution.

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