Sunday, 30 June 2013

Apolitical sports leagues? No

Beginning October 1, people will be able to shop for the expanded insurance coverage made possible by ACA. As part of its publicity effort, the Department of Health and Human Services is seeking to partner with the NFL and other sports leagues in publicity efforts. This does not sit well with GOP Sens. Mitch McConnell and John Cornyn, who sent this letter to Commissioner Roger Goodell.

The letter chastises the league for risking its "inclusive and apolitical" brand, expressing surprise that a pro sports league would take "public sides in such a highly polarized public debate." But I would reject the suggestion that the NFL, or any other sports league, is or ever has been apolitical. Putting aside the way leagues regularly engage in politics for their own direct benefit--antitrust, labor law, stadium funding. Leagues and teams regularly get involved in public issues--gay rights, women's rights, racial equality, war and the military. At least some of these are at least as contentious as ACA. In fact, as the letter acknowledges, the Boston Red Sox in 2007 participated in efforts to encourage enrollment in Massachusetts' program. The reason for this being different, they argue, is that ACA passed on a party-line vote using "legislative gimmicks" and "ridiculed political favors." Stated differently, ACA passed through the ordinary legislative process, but the process worked to our disadvantage. Thus, the law is illegitimate, so you, as an apolitical entity, should stay out of it.

There also is a hint of the paranoid. They express concern for "the Obama Administration's record of using the threat of policy retaliation to solicit support for its policies or to silence its critics" and helpfully tell the NFL to come to them if they are feeling threatened or coerced so the Senate GOP can protect them from the big, bad President. Of course, in emphasizing how unheard-of and wrong-headed the NFL's involvement would be , the letter could be read as its own threat designed to solicit support for the McConnell/Cornyn side in this debate. It actually is the classic bully trick--you better come to me for protection from that other who is threatening you.

A Murder in Massachusetts: Aaron Hernandez

Last week, I spent a couple of days in Bristol, Connecticut to help investigate Aaron Hernandez's background--Bristol is where he grew up--and, along with Pete Thamel and Greg Bedard, interview persons about his past, his upbringing and the terrible situation he is now in. I'm honored to have provided special investigative reporting for the article "A Murder In Massachusetts", which is on pages 40 - 44 of this week's issue of Sports Illustrated (July 1, 2013 issue) and which is brilliantly written by Pete and Greg, both of whom originally broke the story on the Hernandez for SI.

Hope you can pick up a copy of this week's issue and out the article. 

Saturday, 29 June 2013

MMA in Indian Country

An interesting piece on MMA in Indian Country (I had not realized the sport somewhat got its start there) and regulatory conflicts between states and sovereign Indian nations. My colleague Alex Pearl was a source for the story.

The Ends Do Not Justify the Means in MLB's Current PED Investigation

I am excited to have been invited to become a contributor to Sports Law Blog, and this is my first post, where I will look at topics that involve the intersection of legal ethics and professional responsibility with sports law. For this post, what follows are my opinions about and understanding of MLB’s current PED Investigation.

One of the things that trial lawyers think about in regards to investigating facts is whether we can get relevant information, but also whether we can do so ethically and pursuant to applicable law, and if so, whether we can use it, i.e., is it admissible or can we use it to gain admissible evidence? The NCAA forgot this in regards to the University of Miami, and MLB has forgotten this in regards to its current PED investigation.

MLB and MLBPA have a Collective Bargaining Agreement, and they have a Joint Drug Prevention and Treatment Program that in part “provide[s] for, in keeping with the overall purposes of the Program, an orderly, systematic, and cooperative resolution of any disputes that may arise concerning the existence, interpretation, or application of this Program. Except as otherwise provided herein, any dispute arising under the Program shall be subject to resolution through the Grievance Procedure of the Basic Agreement.” The CBA and the Joint Program are neither MLB’s nor MLBPA’s: They are their mutually negotiated and agreed to contracts governed by federal labor law.

Rather than follow the Joint Program, MLB filed a straw-man lawsuit in Florida state court for what appears to be the sole purpose of obtaining discovery that it could not otherwise have obtained, which is per se an improper purpose, I believe. We can surmise that was the purpose, because in exchange for the information it wanted, MLB apparently settled with the primary defendant and indemnified him against claims by the players. Clearly, all MLB wanted was information, and its claim for tortious interference was simply a front. MLB’s billion dollar weight was thrown against defendants without apparent financial means, who would have been expected to cave and did. To date, while apparently leaking information to the media as to whom is going to be suspended or who is under suspicion, MLB has not followed any part of the Joint Program, or at least none that has been reported. Certainly, the Joint Program doesn’t provide for discovery lawsuits against third-parties, and, instead, it specifically requires that the “[Joint] Program shall be subject to resolution through the Grievance Procedure of the Basic Agreement.” If there is reasonable cause to believe that a player has violated the Joint Program, notice to and testing of the player is a required prerequisite, yet that has assumedly not occurred, because MLB has no such “reasonable cause,” which is presumably why it went on its fishing hunt in the first place. If MLB thought it needed additional avenues for discovery, it was free to negotiate that with MLBPA, yet it did not do so.

With this apparently extortionate power that comes with the Goliath versus David lawsuit, and with no one, not even the players or the Union, taking action to stop them, MLB may have interfered with the players’ right to keep confidential their medical information under both federal and state law, and the Florida state court has just ordered that such medical records be returned immediately to one of the deponents in the case. Moreover, according to news reports, MLB’s attorneys may have violated Model Rule 3.4 through their client’s payment for records and testimony, not to mention their client indemnifying the primary defendant, which should subject that ill-gotten information or testimony to evidentiary exclusion, and which may expose MLB’s lawyers to grievances before the attorney regulatory agencies of the applicable states. On the sidelines, MLB, either directly or through the teams, appears to be coercing the minor league players to roll over. They are not even members of the Union, unless they’re on the 40-Man Roster, so imagine how “cooperative” their cooperation really is, when they are being compelled to speak under what one may imagine is at least an implied threat of suspension or termination.

MLB filed its lawsuit for tortious interference with a collective bargaining agreement, when there is no such tort—they just made it up. The players’ contracts are with the teams, and if one wanted to make a tortious interference claim for those contracts, the individual teams would be the appropriate plaintiffs. Labor law is the exclusive province of the federal courts, yet MLB filed in state court, and to make dumb dumber, the Florida state court has noted that it probably lacks subject matter jurisdiction, yet it is waiting for one of the defendants (versus third-party deponents) to make a motion to dismiss on the basis of standing, when no one has standing, if the court lacks subject matter jurisdiction (in which case, the court is supposed to dismiss the case on its own).

What is clear in my opinion is that MLB’s foray into Florida state court is frivolous under Civil Rule 11 and other related sanctions tools. I am published on and edited the leading treatise on this topic. MLB seems to have filed a bogus lawsuit in the wrong jurisdiction against people who have no ability to fight back, it seems to have illegally or unethically obtained confidential information and testimony from them, it seems to have used this material to smear odd-numerous professional baseball players without ever making formal accusations against them, it seems to have leaked to the Press that it has already prejudged these players, whose rights to respond under the Joint Program have been rendered meaningless, and so on. If I was designing a frivolous case example for a law school text book, this would fit the bill, where there seems to be no good-faith basis in law or fact for the lawsuit, and where the lawsuit seems to have been filed for an improper purpose.

If the NCAA was behaving this way, we’d all expect its poor judgment, but MLB? What are they thinking? So if MLB is trying to litigate a bogus dispute in the wrong place, why are they doing that? You may recall that the NCAA wrongfully got information from a civil suit in Florida, too. How about MLB? Is it trying to secure and securing discovery by these wrongful means to use against the players? And where does MLB plan on using this information against players? In the context of its labor agreements before a labor arbitrator!

Sooner or later, either the players or the Union are going to file a federal court action to declare what is obvious, which is that MLB is constrained by the agreements it negotiated, that it cannot violate HIPPA and/or various state laws regarding medical confidentiality and privacy, that it cannot file frivolous lawsuits, and that it cannot taint evidence by unethically paying for it, if not also coercing or extorting it, and then still expect to be able to use it. The same result will happen if any of the defendants remove the current lawsuit to federal court, or if the players or the Union intervene and do the same.

The players who have already been smeared should have already intervened, as they have nothing to lose now, the Union should have intervened by now to protect the integrity of the process it negotiated and agreed to, and both the players and the Union should be seeking an injunction against MLB from using any of its ill-gotten information or any fruits from the same. There is no principled argument that can be made to allow MLB to use unethically or illegally obtained so-called evidence. And the larger public policy issue is that collective bargaining agreements between very sophisticated parties must be followed rather than eluded, especially when they are being eluded for apparently improper purposes. Certainly, the players and the Union should be seeking an injunction to compel compliance with the CBA and the Joint Program.

Wednesday, 26 June 2013

Monday, 24 June 2013

Breaking Down the San Jose vs. MLB Lawsuit

Image from
The on-going dispute surrounding the Oakland Athletics' proposed move to San Jose took a new turn last week when the city of San Jose filed an antitrust lawsuit against Major League Baseball in federal district court (for prior Sports Law Blog coverage of the dispute, see here, here, and here).  The complaint, available here, argues that both MLB's franchise relocation policies in general, and the league's failure to approve the A's relocation to the city in particular, violate state and federal antitrust law, as well as several other California common law torts.  Under MLB rules, any proposed relocation must be approved by at least three-quarters of MLB teams.  Moreover, teams have complete veto power to prevent another franchise from relocating into their home territory.  Although MLB has not formally rejected the Athletics' proposed relocation, it has delayed a decision on the matter for several years.  San Jose's suit asserts that this delay is costing it millions of dollars in potential tax revenue and economic development. 

As others have noted, San Jose faces an uphill battle in the lawsuit as MLB has a number of potential defenses at its disposal.  The most obvious defense for MLB is its historic exemption from antitrust law.  In a series of three decisions (Federal Baseball in 1922, Toolson in 1953, and Flood v. Kuhn in 1972), the U.S. Supreme Court has consistently held that federal antitrust law does not apply to professional baseball, thus apparently undermining the city's Sherman and Clayton Act claims.

In response to the antitrust exemption argument, San Jose's best hope may be to persuade the district court to follow a series of precedents from the early-1990s limiting the scope of baseball's immunity.  Most notably, in the 1993 case of Piazza v. Major League Baseball, the Eastern District of Pennsylvania decided a suit similarly challenging MLB's relocation policies after the league refused to approve the proposed relocation of the San Francisco Giants to Tampa Bay.  The Piazza court allowed the plaintiffs' antitrust claims against MLB to proceed despite the league's exemption by interpreting the Supreme Court's baseball trilogy as only protecting the reserve clause from antitrust scrutiny.  Because major league players successfully defeated the reserve clause via arbitration and collective bargaining in the mid-1970s, the upshot of the Piazza holding was that MLB's antitrust exemption was effectively null and void.

However, as I argued in my 2010 law review article Defining the 'Business of Baseball': A Proposed Framework for Determining the Scope of Professional Baseball's Antitrust Exemption, the Piazza precedent is of dubious validity given that it was premised on several erroneous conclusions.  Indeed, most subsequent courts considering the scope of baseball's antitrust immunity have disregarded Piazza, making it unlikely that the court in San Jose's suit will adopt such a narrow interpretation of the exemption in this case (unless, of course, the court - itself located in San Jose - is particularly motivated to allow the case to proceed to discovery and trial).

Meanwhile, although unlikely, it is also possible that MLB will decide not to assert its antitrust exemption in the case.  The league has been extremely reluctant to rely on its exemption in recent antitrust cases, presumably for fear of triggering an adverse court decision limiting the scope of its immunity.  Most notably, MLB did not assert the exemption as a defense in the Garber v. MLB lawsuit filed last year challenging baseball's television broadcast policies under antitrust law.  Therefore, should baseball believe that it can successfully persuade the court to dismiss San Jose's lawsuit on other grounds (such as those discussed below), then the league may opt to forgo asserting the exemption in this case.  However, given that control over franchise relocation is one of the two most important protections the league derives from the exemption (with the shielding of the minor league system from antitrust scrutiny being the other), San Jose's suit would appear to be a prime case for MLB to rely on its historic antitrust immunity.

In addition to the antitrust exemption, MLB can make at least two other potentially strong arguments in support of its motion to dismiss the lawsuit.  Most significantly, the city of San Jose's standing to sue in the case appears to be tenuous at best.  The city's complaint is based upon an option contract San Jose entered with the team in 2011, under which the Athletics have three years to purchase a parcel of land from the city for just under $7 million.  However, the option contract in question does not obligate the Athletics to purchase the land, nor to relocate the team to the city even if the option were exercised.  While A's owner Lew Wolff has consistently expressed his desire to move the team to San Jose, he has yet to formally commit to such a relocation, and has never suggested that he would be willing to move the team without MLB approval. 

As a result, San Jose's suit poses a similar fact pattern as that litigated back in the late-1970s when the Los Angeles Memorial Coliseum first sought to attract an NFL team (following the Rams' move to Anaheim Stadium, but before the Coliseum reached its eventual agreement with Al Davis to move the Raiders to Los Angeles).  Specifically, the Coliseum sued the NFL alleging that the league's relocation restrictions prevented the stadium from securing a new NFL team, thus violating antitrust law.  The district court dismissed the case, however, concluding that the Coliseum lacked standing to sue.  Los Angeles Memorial Coliseum Commission v. National Football League, 468 F.Supp. 154 (C.D. Cal. 1979) ("Los Angeles Memorial I").   In particular, the court held that because the Coliseum had not yet found an NFL team willing to move to the stadium, and because the league had not yet rejected any proposed relocation, there was not yet an actual case or controversy to resolve.  It wasn't until Davis formally agreed to move the Raiders to Los Angeles, and the NFL officially blocked the relocation, that the Coliseum was able to move forward with its case (resulting in the so-called Los Angeles Memorial II litigation).  Accordingly, given that Wolff hasn't definitively committed to moving the Athletics to San Jose, and because MLB hasn't formally rejected the proposed relocation, the court may very well follow the Los Angeles Memorial I precedent and conclude that San Jose lacks standing to sue.

Meanwhile, MLB can also argue in its motion to dismiss that San Jose's state law claims are preempted by federal law.  In Flood v. Kuhn, the Supreme Court not only dismissed Flood's federal antitrust claims pursuant to baseball's exemption, but also his state antitrust claim as well.  In particular, the Flood Court held that the regulation of professional baseball required national uniformity, thus concluding that Flood's state law claims were precluded by the Commerce Clause.  Consequently, MLB will likely argue that, at a minimum, the Flood precedent requires that San Jose's claim under California antitrust law be dismissed (the league may also assert that some of the city's other state law tort claims -- its unfair competition claim in particular -- are similarly preempted, although that argument will likely be harder to win).

Finally, however, even if San Jose were to survive MLB's motion to dismiss, and the court allows the suit to proceed to trial, the city may still face an uphill battle in winning the suit.  The Ninth Circuit Court of Appeals has held on two separate occasions that professional sports leagues' restrictions on franchise relocation do not automatically violate federal antitrust law.  See Los Angeles Memorial Coliseum Commission v. National Football League, 726 F.2d 1381 (9th Cir. 1984) ("Los Angeles Memorial II"); National Basketball Ass'n v. SDC Basketball Club, 815 F.2d 562 (9th Cir. 1987).  For instance, despite ultimately condemning the NFL's refusal to allow the Raiders to move to Los Angeles, the Los Angeles Memorial II court noted that several factors could potentially justify a league's decision to block a proposed relocation under antitrust law.  These factors included: (i) an interest in protecting the loyalty of fans in the franchise's current home city, (ii) the maintenance of some reasonable territorial restrictions, (iii) the preservation of traditional rivalries, (iv) giving municipalities time to recoup their investments in local stadiums, and (v) maintaining a league presence in major television markets.  While not all of these considerations will apply to the Athletics' proposed move, San Jose will ultimately have to convince the court that MLB's failure to approve the relocation was improper in light of the legitimate factors outlined in Los Angeles Memorial II, should the case proceed to trial. 

Of course, the city probably does not intend to take the case all the way to trial.  Instead, San Jose's litigation strategy likely hinges on surviving MLB's inevitable motion to dismiss and entering the discovery phase, at which point the city will have significantly increased its bargaining leverage over the league.  If San Jose can get to that stage then its litigation strategy may prove fruitful.  Given MLB's potential defenses outlined above, however, I suspect that the city will be unable to defeat a motion to dismiss the suit.

Update (6/27/13): Professor Ed Edmonds wisely notes in the comments that San Jose will also have to overcome the text of the Curt Flood Act of 1998 if it wishes to persuade the court to adopt the Piazza precedent limiting baseball's antitrust exemption to the reserve clause.  As Professor Edmonds notes, the text of the act would appear to support a broad interpretation of the scope of the exemption.

Saturday, 22 June 2013

Help Wanted: Current College Athlete to Join Plaintiffs

As you should know by now, the O'Bannon v NCAA case continues to wind through the court system, and this past Thursday there was a hearing to address class certification before federal judge Claudia Wilken  The resolution of this case will forever change college athletics; whether it ends in a trial on the merits (doubtful) or settlement (far more likely).

Where are we going?  I offer big picture perspective, a solution, and immediate needs below:

Big Picture:

Joe Nocera of The New York Times takes a big picture approach to look at the impact the O'Bannon case will have on college athletics in this article titled "The Lawsuit & The NCAA."  The theme continues to be, change is coming and the only question is how and when.

One Solution:

Advocating for paying college athletes, I wrote the following piece in The Boston Globe recently.  Then, I offered a solution in an op-ed in The Chronicle of Higher Education by proposing the creation of a new NCAA division in this article.

Immediate Concern:

What's become apparent is that the class certification efforts--to include current college athletes as plaintiffs with former college athletes--is that Judge Wilken has indicated a willingness to certify IF a current college athlete is formally willing to participate as a plaintiff.  While the plaintiffs asked if the individual could be anonymous, it appears that the answer is "no."  Thus, the rights of future college athletes and the framework of this industry are seeking a courageous CURRENT student-athlete.

Andy Staples provided a great overview of the situation in Sports Illustrated with this piece titled "Current College Athlete Set to Become Face of Ed O'Bannon v NCAA."  To summarize the requirements, the plaintiffs seek the following:

1.  A current student-athlete in the sport of men's basketball or football;
2.  Who starts at a school in either the ACC, Big 12, Big Ten, Pac-12 or SEC;
3.  That gets significant screen time when his team's games are televised (i.e. a star);
4.  Who has a pristine personal history;
5.  Who is courageous, strong in his convictions, and intelligent.
6.  And finally, someone willing to be the face of change in college athletics.

Up to the task?

Footnoting the New Jersey Sports Wagering Litigation

I recently had the chance to read the latest round of briefs filed in the on-going New Jersey sports wagering lawsuit.  The case is now at the U.S. Court of Appeals for the Third Circuit, with oral arguments scheduled for June 26.  Griffin Finan of Ifrah Law penned a comprehensive post pertaining to the DOJ's brief filed on the side of the plaintiff quintet (NCAA, NFL, NBA, NHL, and MLB).  New Jersey filed a reply brief on June 14 and I was struck by the content of the footnotes contained therein, as lead counsel Ted Olson (a former Solicitor General) made a number of thought-provoking points.  I have long been fascinated with the use of footnotes in Supreme Court opinions and academic writing generally.

After losing at the District Court level, New Jersey's appeal is premised on three arguments: (i) the sports leagues lack standing; (ii) PASPA violates the 10th Amendment; and (iii) PASPA violates the principle of equal sovereignty. In support of the state's standing argument, the brief includes four footnotes.  In sequential order:

Footnote #1 addresses the recurring issue of actual injury (from sports wagering) and injury stemming from the perception of game-fixing.  It posits that "[a]ny perceptions of game-fixing - no less than the instances of game fixing themselves - are caused by the Leagues' own agents."

Footnote #2 flags the issue of the sports league plaintiffs holding events in Las Vegas, but not having pro franchises in the city.

Footnote #3 covers the "Sports Wagering Law's carve-out for New Jersey collegiate teams" and posits that "[t]hat exemption was included at the request of the NCAA." The emphasis in bold/italics is contained in the brief.  It is not my own.  Curiously, this footnote appears to be at odds with a previous report pertaining to the matter.  I am unable to reconcile footnote #3 with the the statement made in the article linked in the previous sentence.  As such, I am curious if the sports league plaintiffs and/or the DOJ raise this issue during oral arguments or a subsequent pleading.

Footnote #4 gets to the issue of whether PASPA confers any intellectual property right and cites the recent SCOTUS decision in Already, LLC v. Nike, 133 S. Ct. 721 (2013).

I look forward to reading the transcript of the upcoming oral argument and seeing how many of these footnoted issues are covered.  My sense is that the over-under is 2.5.

Friday, 21 June 2013

Yesterday's Class Certification Hearing in O'Bannon

Steve Berkowitz of USA Today has an article this morning concerning yesterday's hearing before Judge Claudia Wilken in the O'Bannon lawsuit.  Here is an excerpt:
The [defendants'] lawyers also contended that various state laws and legal precedents say that athletes have no property rights for appearing in live, unscripted events – and thus have nothing that the NCAA or the schools are infringing upon when it comes to game telecasts and re-broadcasts.
That led Curtner to state that when it comes to television agreements, schools and conferences were simply "selling access" to their venues.
Wilken appeared to chuckle at the assertion, and after the hearing, Hausfeld attacked it, calling it a "significant admission or acknowledgement" by the NCAA.
"I don't know about any of the broadcasters, but I'm not sure that anyone in their right licensing mind would pay billions of dollars for an empty stadium or an empty basketball court," Hausfeld said. "You're paying for the players, you're paying for the quality of the teams that perform on those courts and in those stadiums. You want and many of the contracts require the conveyance of the name, image and likeness rights of the athletes. So I think the court understood there was a bit of foolishness in that representation." 
Because college athletes have never legally asserted their right to a portion of the live broadcast licensing revenue, the NCAA, conferences and universities decide on their own that they are entitled to keep 100% of the billions in annual revenues generated by simply selling to the networks access to their stadiums.

There are some who question how it is that college athletes could possibly have a legal claim or right to the broadcast licensing revenue.  Perhaps the better question is, what is it that gives the NCAA, conferences and universities the exclusive right to it?   The network is the "author" (and therefore owner) of the broadcast under copyright law.  The NCAA, conferences and universities receive from the networks billions of dollars and an assignment of the copyright in exchange for stadium access, and in the process they have shut the athletes out by not giving them a seat at the negotiating table with the networks.  This lawsuit can be viewed as requesting or demanding a seat at the table.  So what law or case precedent gives the schools the right to exclude them?  What law or case precedent gives the schools the exclusive right to broadcast licensing revenue?  Hint: it cannot be analogized to the professional sports leagues.     

Wednesday, 19 June 2013

O'Bannon v. NCAA: Class Certification Hearing

I have a new article for on tomorrow's class certification that breaks down what to expect and also features research on Judge Claudia Wilken.  Here is an excerpt:
The 63-year-old Wilken is no stranger to this case, sports law or class certification hearings. She denied the NCAA and EA's attempts to have O'Bannon's case dismissed, though she did reject several of O'Bannon's claims in the process. On balance, her pretrial rulings have favored O'Bannon.

Wilken also presided over a recent settlement in Pecover v. EA. In that class action, consumers sued over EA's exclusive licensing deals with the NFL, NCAA and the Arena Football League. Those deals prevented rival video game publishers from releasing their own football games with real teams and players. The case was recently settled, with EA agreeing to pay $27 million into a fund that can be claimed by consumers of EA football games. The fact that the parties reached a settlement under Wilken's watch bears notice, as O'Bannon and the NCAA could ultimately do the same.

Wilken usually certifies classes. conducted an analysis of her 29 orders on class certification from 1998-2013. It found that she denied certification only six times (21 percent), while she granted certification 18 times (62 percent) and partially granted it five times (17 percent). Keep in mind, these orders concerned facts and claims mostly dissimilar from those raised by O'Bannon. Thus they may not be accurate predictors. Still, Wilken's history is a good sign for O'Bannon.
To read the rest, click here.

Also, as the O'Bannon hearing nears, there are many in-depth stories on Sonny Vaccaro, including this one in the Pittsburgh Post-Gazette by J. Brady McCollough.  Here's an excerpt from One-Man Rebellion:
"Mr. Vaccaro has that Magic Johnson factor, that aura about him," O'Bannon says. "I don't know if you've met Magic Johnson, but when you talk to him and meet him face to face, you feel like you're the one person that he wants to talk to at that moment. Mr. Vaccaro has that same effect. I've always felt like, when I talk to him, I'm the most important person in his life."

* * *

As the decades passed, Vaccaro became obsessed. He couldn't stomach the NCAA's transfer rules, forcing players to sit out for a year after transferring. He railed against the NBA's age limit of 19, which forced players to play one year of college basketball. The NCAA was glad to have the most talented players on campus, even for just a season.

Vaccaro's tipping point came one day when he was watching ESPN Classic and he realized that the NCAA, by licensing the rights of the games to be re-aired on the network, was able to continue making money off the players into eternity. Vaccaro felt that players should be paid residuals anytime their likenesses were used after their careers were over.
To read the rest, click here.

Tuesday, 18 June 2013

Foul up 3?

I long have been a believer in fouling up 3 in the closing seconds. Studies suggest it is advantageous, although not statistically so, at the NBA and college levels, although some studies differ.

But with the Spurs just having blown the NBA title by not fouling in that situation (much as I believe in all things Popovich, no way they bounce back from this on the road), is the consensus on this going to change?

Ignorance of the laws (of baseball) is no excuse

There has been a lot of criticism directed at umpires for not knowing the rules. But, as this ESPN feature shows, the rules can be pretty complicated and obscure. It includes a rules quiz, one of which touches on the Infield Fly Rule (I did get that one right). I got 5 out of 10.

Thursday, 13 June 2013

Comments on the Redskins Nickname

The issue of the Redskins nickname seems to be hitting a boiling point right now. Here are various pieces talking about it in various contexts. I do agree with the conclusion of the last one (written as an open letter to Dan): You are going to lose this.

Moving the Semantic Goalposts - some theological sleight-of-hand with words 
(apologies for mixed metaphors) This is a chapter from my book Believing Bullshit:How Not To get Sucked Into An Intellectual Black Hole. It may be of use to anyone teaching religious language at A Level (RS or Philosophy).

Moving the goalposts

The expression “moving the goalposts” refers to a certain disreputable strategy in an argument. Suppose I claim Fred has never been to Brazil. It’s pointed out to me that Fred went to Brazil on his honeymoon. My claim has been shown to be false, but rather than admit this I just switch claims: “Well, he’s never been to Brazil on business.” I have just moved the goalposts. The analogy is with football. It looks like someone’s going to score a goal, but suddenly, at the last moment, the goalposts are moved and the ball misses the target.

We’re all familiar with this sort of strategy. I focus here on a certain kind of example. It involves shifting ones meaning. I call it Moving The Semantic Goalposts.

Moving The Semantic Goalposts has been developed into something like an art form in certain theological circles, where it is capable of producing a kind of Intellectual Black Hole. In truth, comparatively few religious people engage in this sort of tactic, certainly not in the systematic fashion described here. Many rightly condemn it.

Let’s start with an example, which I call effing the ineffable.

Effing the ineffable

This strategy is sometimes employed to deal with the evidential problem of evil. As we saw in the introduction (2ndappendix), traditional Theism faces an obvious objection: enormous amounts of seemingly pointless suffering looks like very powerful evidence against the existence of a maximally powerful and maximally good deity.

In response, some say, “Ah, yes. You may indeed, have succeeded in showing that there’s no “God”, if that’s how you define him. But that’s not what sophisticated theists such as myself mean by ‘God’.” They then add, “What we’re talking about is, in truth, ineffable and beyond our comprehension. So you have not refuted mysort of theism.”

Here’s an actual example made on a blog by a Christian minister in response to the evidential problem of evil:

Fair enough. If what people mean by “God” is something indefinable, something beyond the grasp of our conceptual and linguistic apparatus, then obviously any criticism of theism based on the assumption that God is, say, maximally powerful, knowledgeable and good must miss its mark. If all that’s being claimed is that there’s a transcendent something-or-other – an indescribable cosmic thingamajig – well, yes, that’s certainly a hard claim to refute. I concede that it isn’t vulnerable to the evidential problem of evil.

However, those who play the ineffability card to deal with the problem of evil typically don’t stop there. Even while insisting on god’s ineffability, they nevertheless continue to eff the ineffable. They almost always go on to say all sorts of positive things about god, such as that he is good, he is something we ought to worship, and so on.

So, for example, our Christian blogger, in response to the suggestion that enormous amounts of pointless suffering are excellent evidence that there’s no good God, adds:

what's at stake is what is meant or understood by 'God' in that sentence. I'm not persuaded that we can put much flesh on the bones of 'good' when that term is ascribed to God; the God I worship is beyond good and evil, he doesn't fit within those categories. Though I'd still want to call him 'good'...

When it’s pointed out that a good God would not, presumably, engage in the indiscriminate torture of children, or unleash hundreds of millions of years of animal pain and suffering for no good reason, God’s goodness turns out to be of an ineffable variety. However, it subsequently turns out we can put some“flesh on the bones of ‘good’” when applied to God, because it’s then supposed that “good” is, say, a rather more appropriate way of describing God than, say, “indifferent”, “callous”, or “evil”. Indeed, our blogger speaks of the “God I worship”. But this raises the question: why is it that our grasp of the meaning of “good” as applied to God won’t allow us to say that the indiscriminate torture of children is evidence there’s no such God, yet is sufficient to allow us to say that God nevertheless merits our boundless adoration, gratitude and praise?

Let me clear about what I am and am not criticising here. Is God ineffable and beyond our comprehension? Let’s acknowledge the possibility that the answer: “In one way yes and in another no” might be correct. I’m neither rejecting that suggestion, nor criticising anyone for making it. What I’m objecting to is the unjustified and partisan use of this suggestion to immunize theism against powerful counter arguments, while at the same time allowing a degree of effability whenever, say, there appears to be something positive to be said in its favour.

Seesaw meanings

Effing the ineffable involves an example of what I call a seesaw meaning. It relies on seesawing between two meanings of an expression. Suppose I ask someone to go to the bank. They say there are no such financial institutions nearby. I say I meant the riverbank. They say there’s no point: you can’t take money out of a river. This irritating individual is seesawing between two meanings of the word “bank”. When it suits them for the word to mean one thing, they tilt the seesaw in one direction. When it suits them for the word to mean the other thing, they tilt it back the other way. Effing the ineffable involves seesawing between effable and ineffable meanings of the word “God”.

Defending the evil God hypothesis

The mischievous character of effing the ineffable is nicely brought out by noting how the exact same seesaw strategy can be used to immunize other sorts of god hypothesis against criticism.

Take the evil god hypothesis outlined in my introduction. Suppose the universe is the creation of a maximally powerful and evil being. As I pointed out, this claim faces an objection mirroring the evidential problem of evil – the evidential problem of good. Surely there’s far too much good stuff – too much love, laughter and ice cream – for the universe to be creation of such an evil being?

But now imagine another Earth-like planet where theists believe in, not a good god, but this evil god. Call this planet Eth. The Ethians are struck by the problem of good, and some of them reject belief in an evil God on that basis. But other Ethians remain committed to their deity. And some of them attempt to deal with the problem of good by means of the same sort of semantic sleight-of-hand outlined above. When critics raise the problem of good, these Ethians say:

Ah, I see you are guilty of a crude misunderstanding. True, evil god creates love, laughter and ice cream, etc. but you must remember that ‘evil’, as applied to god, means something other than it means when applied to us Ethians. Indeed, God's ‘evilness’ is of an ineffable, incomprehensible sort.

If these Ethians nevertheless continue to express horror at the boundless cruelty and malice of their deity, perhaps even using him to explain all the bad stuff that exists (“Look at all this terrible suffering – clearly this is evidence that evil god exists!”) most of us would see through theirlinguistic ruse straight away.

Karen Armstrong’s The Case For God

In The Case for God, Karen Armstrong, former Roman Catholic nun and best-selling author of several books about religion, defends her variety of religious belief against the attacks of the “new Atheists” such as Richard Dawkins and Christopher Hitchens, whom she condemns as theologically illiterate.[ii]

Armstrong also addresses the evidential problem of evil. In response to the question, “How do we account for the great evil we see in a world supposedly created and governed by a benevolent deity?” Armstrong maintains this question betrays a misunderstanding of what “God” means. “God” says Armstrong, “is merely a symbol of indescribable transcendence.” It points “beyond itself to an ineffable reality”[iii]. Armstrong insists that

All faith systems have been at pains to show that the ultimate cannot be adequately expressed in any theoretical system, however august, because it lies beyond the reach of words and concepts.[iv]

Of course, by insisting “God” is nothing more than a symbol of indescribable transcendence, Armstrong begs the question of whether there is any indescribable transcendence for “God” to label. Perhaps there isn’t.

Still, Armstrong does at least succeed in rendering her brand of theism immune to the evidential problem of evil. If God can’t be described, then he can’t be described as, say, all-powerful, all-knowing and all-good. Armstrong seems to concede that the problem of evil would indeed constitute an excellent argument against the existence of a God of that sort. But that’s not the sort of God that, she claims, the vast majority of religious people down through the centuries, have believed in.

So far, so good. Armstrong has dealt with the problem of evil. However, reading through Armstrong’s book, it becomes apparent her God is not quite so mysterious and ineffable after all.

Indeed, Armstrong says that “God” is a symbol of “absolute goodness, beauty, order, peace, truthfulness, justice…”[v]. Not only does Armstrong appear here to be effing the ineffable, it seems she also thinks she knows things about this indescribable transcendence of which “God” is the name. She knows not only that it is the sort of thing to which moral concepts apply, but also that the correct concept to apply is absolute goodness rather than, say, absolute indifference, or absolute evil. How is she able to know this?

Because it turns out that what “God” symbolizes isn’t something entirelyincomprehensible and ineffable. “God” says Armstrong, refers to a “sacred reality” of which she supposes some of us, after lengthy immersion in the right sort of religious practices, can at least catch “momentary glimpses”[vi].

Armstrong’s book is in large measure an exercise in such dodging and weaving. When objections such as the evidential problem of evil are raised, Armstrong pulls the protective cloak of ineffability around her God, rendering him invulnerable. But then, when it suits her, she lets the cloak slip a bit, so that certain dedicated religious folk can take a peek and provide us with at least some hints about the nature of this “sacred reality” that she supposes is out there – a reality which, it turns out, can be described as absolute goodness, beauty, order, peace, truthfulness, justice and so on after all. This is another example of seesawing between effable and ineffable meanings.

Of course, if Armstrong could justify her view that the use of “God” is such as to allow her to say God is absolute goodness, beauty, order, etc. but not such as to allow critics to run the evidential problem of evil, then my suggestion that Armstrong is just seesawing back and forth between meanings to suit herself would be unfair. But I can find no such justification in Armstrong’s book, or even any attempt to provide one.

The apophatic theologian

Some theists hold the “apophatic” view that we cannot say what god is, only what he is not. Apophaticism is associated particularly with the Christian philosopher Aquinas and the Jewish philosopher Maimonides, who said:

"No attributes of God can be inferred - He is Infinite and we can only say what He is not."

The immunizing potential of apophaticism is obvious. If you never say what God is, then you can never be contradicted or proved wrong. Refuse, for example, to say that God is all-powerful, all-knowing and all-good, and the evidential problem of evil is no longer a problem.

Professor Denys Turner of the University of Cambridge is a theologian who embraces a version of apophaticism. According to Turner, “God” stands for something radically other – something beyond our understanding. “God” is not the name of a further “thing” that exists in addition to chairs, tables, planets, and the universe. To describe God, we would need to categorize him, but, argues Turner, he is beyond categorization – he is not an instance of any kind, not even a unique instance, for “there cannot be a kind of thing such that logically there can be only one of them.”[vii]

It might seem, then, that Turner’s version of theism offers the atheist nothing to deny. The atheist says, “There’s no such thing as God”, to which Turner replies: “Yes, I agree, there’s no such thing!

Still, Turner thinks there remains something affirmed by theists that atheists can deny, and this is that “the world is created out of nothing”[viii]. “God”, suggests Turner, is the name of whatever is the answer to the question “Why is there anything at all?”[ix]Turner sums up what he thinks any decent sort of atheist has to do like so:
It is no use supposing that you disagree with me if you say, “There is no such thing as God’. For I got there well before you. What I say is merely: the world is created out of nothing, that’s how to understand God. Deny that, and you are indeed some sort of decent atheist. But note what the issue is between us: it is about the legitimacy of a certain very odd kind of intellectual curiosity, about the right to ask a certain kind of question.[x]
Note Turner’s concluding remark that the issue between the atheist and a theist like himself is whether a deep curiosity about such questions as, “Why is there something rather than nothing?” is even legitimate. In fact, Turner then goes on to characterize the atheist as a person who isn’t engaged by such questions, as a stodgy, unimaginative lump who remains steadfastly unamazed by the fact that there is anything at all. But if that’s what an atheist is, then I’m not an atheist, and neither are most philosophers (which will come as a surprise to very many of them). Personally, I’m fascinated by the question “Why is there anything at all?” and have been for as long as can remember. Does that mean I am a theist?

No. For a start, I acknowledge the possibility that there is no answer to that question, because no answer is required. Perhaps, as is sometimes the case with philosophical questions, there’s something wrong with the question (perhaps asking “Why is there something rather than nothing?” is a bit like asking “What’s north of the north pole?”)

But in any case, even if the question is proper (and I acknowledge it might be), and indeed, even if it does have an answer, does it follow the answer is God? Because Turner simply defines “God” as whatever is the answer to the question, it follows his answer must be “yes”. But notice how very thin a notion of God Turner is working with. To say God might exist is to say no more than that there might be an answer - an answer about which, Turner adds, nothing positive can be said.

The truth, of course, is that most apophaticists aren’t just suggesting we take the question of why there is anything at all seriously. Nor are they just saying there’s an answer to the question. Even while professing ignorance about the transcendent whatsit (I’m trying to avoid the word “thing”) they suppose is the answer, they usually have a great deal lot to say about it, even if it’s all heavily qualified and couched in the language of analogy, metaphor and so on. Indeed, most apophaticists appear to think this transcendent whatsit worthy of our worship and gratitude, which raises the question of how, if “God” is a label for some unknowable, incomprehensible reality, they can be in a position to know that worship and gratitude are appropriate attitudes for us to have towards it. In fact, if Turner is right and the world is created, doesn’t the appalling amount of suffering the world contains give us excellent grounds for adding two more characteristics to the list of those apophaticists say their God is not – their God is not worthy of either our worship or gratitude?

The unexplained analogy

Another example of Moving The Semantic Goalposts is the unexplained analogy.

In my introduction (2ndappendix), I outlined an objection to a certain sort of argument for theism – the argument that the universe appears, for example, to be fine-tuned, and that an intelligent designer god provides the best available explanation for its fine-tuned character. If God is supposed to be a non-temporal agent - a sort a cosmic super-intelligence that creates time and space - then we run up against the objection that talk of such a non-temporal agent appears to make scarcely more sense than, say, talk of a non-spatial mountain.

To recap: for something to be a mountain requires that it have parts spatially arranged in a particular way. It must have a summit and sides, for example, which requires that one part be higher than another. Strip away this spatial framework, and talk of there being a mountain no longer makes sense.

Similarly, to talk of an agent is to talk about a being that has beliefs and desires on the basis of which it more or less rationally acts. However, the concepts of belief and desire are concepts of psychological states having temporal duration. But if desires are states with temporal duration, how could this agent possess the desire to create the universe? And, we might add, how did this agent perform the act of creation if there was not yet any time in which actions might be performed?

In order to deal with this sort of difficulty, we might, as some theists do, insist that theistic talk of an intelligent designer should not be understood literally. We are positing, not literally an intelligent agent, but something merely analogous to such an agent.

But does this shift from literal to analogical talk succeed in salvaging the explanation of fine-tuning? Compare a similar case. Suppose I try to explain some natural phenomenon by appealing to the existence of a non-spatial mountain. Critics point out that talk of non-spatial mountains is nonsensical. I roll my eyes and insist they are guilty of a crude misunderstanding. I am not talking about a literal mountain, oh no, but something merely analogous to a mountain. Does this save my explanation?

Not yet. Suppose my analogy is this: that the guilt of a nation concerning some terrible deed weighs down like a huge mountain on the collective psyche of its citizens. This is an interesting analogy that might be developed in various ways. Notice that it does actually avoid the conceptual problem that plagues the literal version of the claim. Guilt, it would appear, really isn’t the kind of thing that occupies space in the way a literal mountain does. There’s no conceptual problem with talk of a non-spatial mountain of guilt.

But remember – I’m supposed to be explaining some natural phenomenon by means of my analogy. Suppose the phenomenon is a major earthquake. People wonder why the earthquake occurred. I maintain the earthquake is a result of the vast weight of this something-analogous-to-a-mountain pressing down and causing a seismic shift.

Now my analogy is spelt out, it’s clear my explanation is hopeless. Collective guilt can’t cause earthquakes. The weight of a real mountain might perhaps cause an earthquake, but not my something-merely-analogous-to-a-mountain. That which is merely analogous to a mountain doesn’t possess the same set of causal and explanatory powers that a real mountain possesses.

You can now see why those who try to explain features of the universe by appealing to something merely analogous to an intelligent agent have a lot of explaining to do. The onus is on them to explain:

(i)             exactly what the intended analogy is,
(ii)           how the analogy avoids the charge of nonsense levelled at the literally-understood version of the claim, and
(iii)          how this something-merely-analogous-to-an-intelligent-designer is nevertheless supposed to retain the relevant explanatory powers that a real intelligent designer would possess.

At least my explanation of the earthquake by appealing to a non-spatial mountain answered questions (i) and (ii). However, I failed to explain how my something-analogous-to-a-mountain could cause or explain an earthquake.

Often, theists don’t even bother to explain (i) and (ii). When asked how we are supposed to make sense of such a non-temporal agent, they just say, “Oh dear – you’re guilty of a crude misunderstanding. You see, talk of an intelligent designer is not meant to be understood literally. It’s merely an analogy.” As if insisting that it’s an analogy is, by itself, sufficient to deal with the problem raised. It is not.

Unless these theists can provide satisfactory answers to these questions, the problem with their explanation remains. Their introduction of an unexplained analogy brings the debate about intelligent design, not - as its proponents seem to imagine - up to a level of great sophistication and profundity, but down to the level of evasion and obfuscation. In truth, they’re engaging in little more than a bit of sanctimonious hand-waving.

None of this is to say that the use of analogy might not provide us with a useful tool in thinking about God. My objection is not to the use of analogy per se, but to the shift from a literal to an unexplained analogical meaning as an immunizing strategy to deal with objections: “Ah, you’ve misunderstood. You see – it’s merely an analogy. So - problem solved!”

Appeals to use

One of the most intriguing methods of immunizing religious claims against possible refutation is to insist they’re not really claims after all. If no claim is made, well, then, there’s no claim there for the theist to be mistaken about, or indeed for the atheist to refute.

If you choose to immunize your religious beliefs against rational criticism by this strategy, appealing to the philosophy of Ludwig Wittgenstein is useful, as Wittgenstein stressed the variety of ways in which language is used. Yes, language is used to make claims, but it’s used in many other ways too. Wittgenstein warns us against being seduced by superficial similarities between sentences into overlooking these deeper differences in use.

So if, for example, your claim that God exists is met with some devastating-looking objections, you might try this:

“Ah, I see you are guilty of a crude misunderstanding. You have understood me to be making some sort of claim that you might refute. But of course, as Wittgenstein explained, and as sophisticated religious people like myself know, “God exists” is not used to make a claim at all. The sentences “God exists” and “I believe God exists” might look similar to sentences such as “Electrons exist” and “I believe Mount Everest exists”, but pay close attention and you will see that their use is very different.”

But if religious language is used, not to make claims, but in some other way, howis it used? And, crucially, how does this difference in use mean that what is said is then immune to refutation?

Let’s look briefly at three suggestions: that “I believe in God” is used (i) to express an attitude, (ii) to make a promise, (iii) to express our trust.

(i) Expressing an attitude

Expressivist theories crop up in several areas of philosophy. Take moral discourse, for example. We say that things are morally good or bad, right or wrong, and so on. Of course

            Killing is wrong

looks very much like it is used to make a claim, a claim which, we suppose, is true (of innocent humans, at least). However, if those words are used to make a claim, and if claims are made true by facts – e.g. if my claim that “The pen is on the table” is made true by the fact that the pen is lying there on that table - then we face the philosophical puzzle of finding the peculiar fact that makes “Killing is wrong” true. Where is it? And how do we find out about it? Readers who have some knowledge of moral philosophy will know these are not easy questions to answer.

The philosopher A. J. Ayer developed an ingenious solution to this puzzle.[xi]He maintained that although “Killing is wrong” might look like it’s used to make a claim, it is actually used very differently – to express an attitude. Consider:

            Hoorah for the Red Socks!
            Boo to killing!

Neither of these sentences is used to make any sort of claim. They are used, rather to express how we feel about something.

On Ayer’s view, moral talk is also expressive. “Killing is wrong” is used, in effect, to say, “Boo to killing!”. We use the sentence to express an attitude of disapproval towards killing. But if “Killing is wrong” is used expressively, then what is said is also neither true nor false. But then no mysterious moral fact is required to make it true. Puzzle solved!

Ayer’s theory of how moral language is used is called emotivism or, for obvious reasons, the boo-hoorah theory.

You have probably already guessed how an expressivist account of how “God exists” is used might be used to immunize what is said against any sort of refutation. True, the sentence “God exists” looks superficially similar to, say, “electrons exist”, which is used to make a scientific claim. And when it comes to such scientific claims, it makes sense to ask what the evidence is for supposing it is true. The claim that electrons exist could also turn out to be false. But what if, despite the superficial similarity between the two sentences, “God exists” is used differently? What if it is used, not to make a claim, but to express an attitude?

What sort of attitude? Perhaps an attitude of awe and reverence towards the universe. Perhaps to say “God exists” is, in effect, to go, “Oh Wow!” in amazement that the universe exists at all. If that’s how “God exists” is used, then, because no claim is made, the theist cannot be making any kind of error, and the atheist is left with nothing to refute.

So, if, having said “God exists”, the theist is faced with an objection, they might try to sidestep that criticism by saying, “Oh dear, you appear to have misunderstood. You have supposed I was making some sort of claimthat you might refute. No no, no, I was… expressing an attitude of awe and wonder.”

Again, notice how very thin a variety of theism this is. Actually, given that atheists are also awed by the mystery of why there is anything at all, it seems it would also be appropriate for them to say, “God exists!” While this sort of theism might succeed in immunizing itself against any sort of rational refutation, it does so at the price of making itself indistinguishable from the attitude of a great many atheists.

(ii) Making a promise

Sometimes language is used, not to make a claim about the world, but to perform an action. Such “performatives” include, for example,

            I name this ship Titanic
            I promise to clean the car
            I bet you ten pounds
            I apologize
Let’s focus on promises. When I say, “I promise to tell the truth, the whole truth, and nothing but the truth”, in a court of law, I don’t make a claim about the world, a claim that might turn out to be true or false. Rather, I make it true that I have promised by saying those words.
Now suppose we ask a theist:
            Do you believe in God?

They reply,

            I do.
This might look, superficially, much this exchange:

            Do you believe in electrons?
            I do.
But what if “I do” in the former case is understood, not as expressing agreement with a certain theory or opinion, as in the electrons example, but rather as making a promise. Compare:

            Do you take this woman to be your lawfully wedded wife?
            I do.

Here, “I do” is used to make a not claim, but a promise. But if that’s also how “I do” is meant in response to “Do you believe in God?”, then, similarly, no claim is made. Rather, a promise is given.
According to theologian Nicholas Lash, this is how theists such as himself respond to the question, “Do you believe in God?”

If someone is asked: “Do you believe in God?” and replies “I do”, they may be saying one of two quite different things, because the English expression “I believe in God” is systematically ambiguous. On the one hand, it may be the expression of an opinion; the opinion that God exists. On the other hand, as used in the Creed, in a public act of worship, it promises that life, and love, and all one’s actions are henceforth set steadfastly on the mystery of God, and hence that we are thereby pledged to work towards that comprehensive healing of the world by which all things are brought into their peace and harmony in God. “Nicholas Lash, do you take Janet Chalmers to be your lawful wedded wife?” “I do.” “Janet Chalmers, do you believe in God, the Father almighty, Creator of heaven and earth?” “I do” The grammar of these two declarations is the same.[xii]
So there are, Lash says, two kinds of theists. Those whom, in response to the question “Do you believe in God?”, use “I do” to express agreement with an opinion, and those who use “I do” to expresses such a promise. There are, correspondingly, two kinds of atheism: the atheism that rejects the opinion that God exists, and the atheism that involves a refusal to enter into any such promise.[xiii]

According to Lash, atheists like Richard Dawkins are attacking a crude, unsophisticated form of theism on which belief in God amounts to belief in the truth of a certain opinion. Lash says,
the atheism which is the contradictory of the opinion that God exists is both widespread and intellectually uninteresting.[xiv]

But then Lash actually agreeswith Dawkins that the opinion that God exists should be rejected. Lash’s kind of “belief in God”, by contrast - which he maintains is the kind of belief shared by the Jewish, Christian and Muslim traditions, properly understood - offers no opinion for the atheist to contradict. If these theists make no claim, then their variety of “belief in God” can neither be contradicted nor shown to be false. In which case, the arguments of critics like Dawkins must entirely miss their mark.
Is Lash’s brand of theism immune to the arguments of critics like Dawkins? It’s not clear to me that it is.

Let’s suppose, for the sake of argument, that Lash is correct and “I believe in God” is used not reveal ones opinion but to issue a promise. Does it follow that Lash holds no theistic opinion into which Dawkins might sink his teeth?

While it may be that no claim is made in the issuing of a promise, such a claim may nevertheless be presupposed. Notice that when we issue a promise, we issue it to someone – to something like a person. You can’t make a promise to a brick or a daffodil. If you tried, you would be guilty of anthropomorphizing – of mistakenly supposing that the brick or daffodil is something like a person. So if “I believe in God” really is used to make a promise, that raises the question: to whom is this promise made?
Presumably, Lash is not merely making a promise either to himself or to, say, other Christians (if he were, then they, or he, could choose cancel it whenever they liked). If Lash is making a promise, it seems he is making promise to God. But then, on Lash’s view, even if “I believe in God” is not used to assert that one believes there is a God who is something like a person, it does seem that Lash nevertheless presupposes there’s some such person-like being to whom such a promise might be made. In which case, Lash is committed to an opinion that might, be refuted. In fact, it’s precisely the opinion that there exists such a transcendent person to whom such a promise might be made that Dawkins is attacking.

(iii) an expression of trust

Some theists maintain that “I believe in God” is used, not to agree that a certain claim – God exists – is true, but rather as an expression of trust. I believe in God in the same way as I believe in my wife, or my bank manager. I believe they can be trusted. I believe they are dependable. When I say, “I believe in my wife”, I don’t mean that I suppose she exists, but that I have faith in her.
According to these theists, atheists who think that they can show that religious belief is irrational by showing that the claim “God exists “ is false are missing their target. Again, “God exists” is not used to make a claim.

Does this move succeed in immunizing theism against rational criticism? Again, I don’t see how. Often, when we place our trust in someone, it’s a reasonable thing to do. It’s reasonable if we have good reason to suppose the person in whom we are placing our trust exists, and is likely to be reliable. It’s not so reasonable if we have good grounds for supposing the person in whom we are placing our trust is, say, a convicted fraudster, or entirely mythical.

Suppose I say, “I believe in fairies”, meaning by this, not that I believe in the truth of the opinion that fairies exists, but that I place my faith, my trust, in fairies to keep the bottom of the garden tidy, say. If it’s pointed out to me that there’s excellent evidence that there are no fairies at the bottom of the garden, it won’t do for me to say, “Ah, but I never claimed there was, did I?” Even if I made no such claim, the fact is that my placing my trust in fairies is highly unreasonable given the overwhelming evidence there’s no such thing.

Similarly, even if someone who says “I believe in God” is not agreeing to the truth of a claim – the claim that God exists – but rather communicating their trust or faith in God, we might still have excellent grounds for supposing that this trust or faith is misplaced. If, for example, we have excellent evidence that there’s no such transcendent, compassionate being that will ultimately right all wrongs, etc. Which, arguably, we do (that, at least, is what the evidential problem of evil suggests).
So, it’s not clear that the suggestion that “I believe in God” is used to express faith or trust even works as an immunizing tactic.

Now you see it, now you don’t

We have just looked at three strategies promising to immunize religious beliefs against refutation – strategies that turn on the suggestion that religious language is not used to make claims, but in some other way. We have seen that it’s by no means obvious that the last two suggestions even work as immunizing strategies. However, let’s suppose for the sake of argument that they do work. There remains a further problem with these strategies – the main problem with which I’m concerned here. The problem is that those employing these strategies often appear to apply them in an inconsistent and partisan way.

Take for example Nicholas Lash’s suggestion that “I believe in God” is used to make a promise rather than offer an opinion. Even if this is true, Lash does also nevertheless seem to offer various opinions on the subject of God. Books full. For example, in the same article, Lash says God is both “the mystery we confess to be Creator of the world”[xv]and that upon which we are absolutely dependent. So it seems that Lash is of the opinion that there’s a creator upon which we depend. God, Lash says,  “freely, and forgivingly, communicates Himself.”[xvi]Our creator, Lash adds, also issues invitations to us[xvii]and is that upon which we should have our hearts set. In short, Lash regularly uses language that looks remarkably like literal talk about the sort of cosmic super-person that Dawkins denies exists.

Now an atheist will no doubt say, at this point, “But I disagree with these claims made by Lash. I disagree that the world has a creator that is something like a person – a person on whom we should have our hearts set.” To this, Lash says, in effect, “You’re guilty of a crude misunderstanding. You take me to be offering opinions with which you might disagree”.

So is Lash offering us opinions, or isn’t he? He seems to say plenty about God, but then, when it looks like what he said might be subjected to damaging critical scrutiny, it turns out he never said anything after all. Lash is undoubtedly a sincere and intelligent man who is genuinely aiming for rigor and, as far as it is achievable, clarity. But if Lash is doing something else with language other than giving opinions, why, then, doesn’t he just clearly and unambigously do that other thing? Why choose to express yourself in such a quintessentially opinion-stating, and thus highly misleading, manner? It looks suspiciously as if Lash is just seesawing back and forth between opinion-stating and non-opinion-stating use of language to suit himself: opinions are given, but then whipped away whenever anyone takes aim. If Lash is not doing that – if he really isn’t saying anything at all – well then let’s just take him at his word. Let’s accept Lash really means what he says when he says he has nothing to say to us, and move on.

The Meta Goalpost-Shifting -Strategy

I have presented several examples goalpost-shifting strategies. To finish let’s look at one more example – perhaps the most effective of all. As a theist presented with objections to your belief, you may employ not only the various strategies outlined above, you can also shift the goalposts concerning which goalpost shifting strategy you’re using. Say things suggestive of one strategy, but then say things suggestive of others too. Then, if you find yourself running into difficulty with one strategy, just switch to another, and, if necessary, another. Later, when everyone’s lost track of where the conversation started, you can switch back to first one again. Mix in some references to clever and difficult thinkers (Wittgenstein is particularly useful here), pursue The Meta-Goalpost-Shifting Strategy with an air of calm intellectual and spiritual superiority, and many will be duped into thinking that, rather than a master of the dark arts of semantic sleight-of-hand, you are a deep and profound thinker. Indeed, you may succeed in fooling not only others, but yourself too.

As I mentioned at the start of this chapter, Moving The Semantic Goalpoststends to be employed by small minorities within the academic wings of some mainstream religious traditions: intelligensias who fancy they have a more sophisticated grasp of what religion is all about than rather more naive believers (whom they consider as confused as atheists). When combined, in particular, with Playing The Mystery Card, Pseudo-Profundity and “I Just Know!”, Moving The Semantic Goalposts is capable of producing an impressive Intellectual Black Hole.

[ii]  Karen Armstrong, The Case For God (London: The Bodley Head, 2009), 293.
[iii]Karen Armstrong, The Case For God(London: The Bodley Head, 2009), 307
[iv]Karen Armstrong, The Case For God(London: The Bodley Head, 2009), 307
[v]Karen Armstrong, The Case For God(London: The Bodley Head, 2009), 246
[vi]Karen Armstrong, The Case For God(London: The Bodley Head, 2009), 34 – also see 314.
[vii]Denys Turner, “How To Be An Atheist” in his Faith Seeking (Cambridge: Cambridge University Press, 2002), 10.
[viii]Denys Turner, “How To Be An Atheist” in his Faith Seeking (Cambridge: Cambridge University Press, 2002), 13.
[ix]Denys Turner, “How To Be An Atheist” in his Faith Seeking (Cambridge: Cambridge University Press, 2002), 13.
[x]Denys Turner, “How To Be An Atheist” in his Faith Seeking (Cambridge: Cambridge University Press, 2002), 19.
[xi]See A.J. Ayer, Language, Truth and Logic(Harmondsworth: Penguin, 1971).
[xii]Nicholas Lash, “The Impossibility of Atheism” in his Theology for Pilgrims (London: Darton, Longman and Todd, 2008), 34.
[xiii]Lash, incidentally, then goes on to argue that the latter sort of atheism is impossible, as “effective refusal to have anything to do with God can only mean self-destruction, annihilation, return to the nihil from which all things came” (p 35) Lash’s argument for the impossibility of this kind of atheism contains two obvious flaws, (i) Lash here just assumes that there is a God from which all things came, and (ii) in case Lash muddles up two senses of ”refusal to have anything to do with”. I can refuse to have anything to with my mother in the sense that I can ignore her, etc. but of course I still have something to do with her, and indeed do so necessarily: it remains true that if she had not existed, then neither would I. Atheists might similarly refuse to have anything to do with God even if there is, as Lash here just assumes, a God on which their existence depends.
[xiv]Nicholas Lash, “The Impossibility of Atheism” in his Theology for Pilgrims (London: Darton, Longman and Todd, 2008), 34.
[xv]Nicholas Lash, “The Impossibility of Atheism” in his Theology for Pilgrims (London: Darton, Longman and Todd, 2008), 35.
[xvi]Nicholas Lash, “The Impossibility of Atheism” in his Theology for Pilgrims (London: Darton, Longman and Todd, 2008), 26.
[xvii]Nicholas Lash, “The Impossibility of Atheism” in his Theology for Pilgrims (London: Darton, Longman and Todd, 2008), 15.