William Lane Craig's latest attack on me

William Lane Craig has just devoted an entire 17 minute episode of Reasonable Faith to me, available here. I’m honoured!

The first half of the podcast focuses on my posting a quote from him, a quote that was, at the time, being widely posted and discussed on the internet. Here it is:

The person who follows the pursuit of reason unflinchingly toward its end will be atheistic or, at best, agnostic.

Go check my post here. I provided a direct link to Craig's original full article, and then immediately said: “But does Craig really mean what he appears to mean? You should make your own mind up about that.”

In his latest podcast, Craig says that I should have checked the context of the quote – the original article in which it appeared - and not just repeat it as a soundbite quote out of context.

But of course I did check it. In fact I even provided a direct link to the full article and encouraged readers to go check the original article themselves and make up their own minds.

So Craig is here misleading his listeners – he is missing out key pieces of information about my post, which gives a bad impression of me (P.S. Is Craig deliberately misleading? Well, let me acknowledge the possibility that he might somehow have missed my providing the link to the context - he's just been baffling blind to what's clearly right there in the post.)

Craig later says that I know (and knew) that he doesn't believe what he might appear to be saying in the above quote (about 6 mins - P.S. Yes I know that at about 8 mins he says the he, like me, was suckered by someone into accepting a quote out of context that he should have  checked, but do please pay close attention to 6 mins, where he says: “I think Stephen Law should have checked out the context. And he should have corrected those who sent him this quote to him. He knows that it doesn’t represent my views.”). Craig says I knew the quote doesn't represent his views. So he implies I am deliberately and scurrilously misleading people by posting it. I should have corrected the misinterpretation instead.

But actually, I was, and am, remain deeply (P.S. well, somewhat) baffled by that sentence. Even within the context of the entire article, it is baffling. It's baffling precisely because (i) it doesn't fit well with other things Craig has said, yet, (ii) even when placed in context, does seem pretty unambiguous.

Ironically, at the end of Craig's podcast, while the mood music is playing, he rather condescendingly lectures us - and especially me, of course - on how we should try to read people in the most charitable way, "with sympathy". That is ironic. Shouldn't he have given me that courtesy, rather than (i) asserting that I deliberately posted a quote out of context that I knew misrepresented his view (when I might have been, and indeed was, at that point just baffled), and (ii) telling his listeners I had not bothered to check the context when I very obviously had - I even provided a link.

The other half Craig's podcast looks at my discussion of the view that atheists know God exists "deep down", and my subsequent comment that it would seem to follow that atheists are lying when they say they don't know God exists. Craig explains in the podcast that he does not suppose atheists are lying, and explains why they are not. Now, maybe it doesn't follow from the fact that atheists are asserting what they know not to be true that atheists are liars. That's an interesting issue. But the explanations Craig gives in the podcast for why atheists are not, then, liars both fail. I'll explain why in the next post.

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Postscript. By the way here's the quoted sentence in the context of the full paragraph in which it appears:

A robust natural theology may well be necessary for the gospel to be effectively heard in Western society today. In general, Western culture is deeply post-Christian. It is the product of the Enlightenment, which introduced into European culture the leaven of secularism that has by now permeated Western society. While most of the original Enlightenment thinkers were themselves theists, the majority of Western intellectuals today no longer considers theological knowledge to be possible. The person who follows the pursuit of reason unflinchingly toward its end will be atheistic or, at best, agnostic.

I'm still kind of baffled by this. Here's the interpretation that seemed most obvious to me at the time, and which I am still not entirely sure is wrong. Given a non-theistic culture, the application of reason will not lead to theism. It will lead to atheism or at least agnosticism. However, within a Christian, theological world-view, theism and Christianity can be shown to be rationally, internally consistent/coherent. We have two world views - both of which are internally rational and reasonable, each with their own presuppositions.

Notice this interpretation would be consistent with Craig's claims elsewhere that theism/Christianity are rational, reasonable etc, and the title of his podcast "Reasonable Faith". It's also a mainstream religious view (it's Alister McGrath's, I think). So I saw no very obvious reason to reject it as an interpretation of the above passage. And it does make the final sentence come out as true. Craig is not just asserting that this is the mistaken view of secular "Western intellectuals". From within the current dominant intellectual culture, the person who follows the pursuit of reason unflinchingly toward its end will indeed be atheistic or, at best, agnostic.

On another reading, Craig is indeed just saying in the final sentence what most of today's Western intellectuals wrongly believe. The final sentence states, indeed flags up, a falsehood (which would have been clear had it begun, "The majority of Western Intellectuals now mistakenly believe that..." Though on this reading the paragraph ends very awkwardly (it asserts what's actually being denied). It's not the most natural reading, I think.

It would be good to know, just for clarity's sake, what Craig meant. It's certainly an uncharacteristically opaque passage open to various interpretations.

The key point of relevance, here, though, is that I did not know, and am still not absolutely sure, what the quoted sentence (and indeed paragraph) means exactly, and whether it it is meant to be true. Hopefully Craig himself will clarify.

[n.b. another fact which caused me pause for thought is that there are some religious intellectuals who hold two views - a "simple" version, for the punters, and a more "sophisticated" version for the intellectual insiders which is not usually made public except in coded form].
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Postscript 2. In retrospect, maybe I've overreacted to Craig's podcast on my misunderstandings. Yes he says I didn't check the context when I very obviously did. And yes, Craig does at one point assert that I knew his actual views, and thus that the quote was misleading, when I didn't. These comments do put me in a poor light. But of course, he's hardly spent the 17 mins of the podcast accusing me of murder, here, has he? Perhaps I should have just shrugged and let it go. The more important task is to engage with his actual arguments....

"Consent Decree": Does it make the NCAA a State Actor?

UNC Chapel Hill Professor Dr. Richard Southall, who is also Director of the College Sport Research Institute, wonders why the NCAA and Penn state have referred to the agreement signed by President Rodney Erickson and the NCAA as a "consent decree" (the validity for which I discuss in a previous post).

I also wondered about the phrase "consent decree" and assumed it to mean, at least in this context, something akin to a settlement between two parties who could otherwise have legal claims against one another. For example, Penn State could have sought an injunction to stop the NCAA; instead, by signing the decree, it has consented to the NCAA's punishment. The NCAA has reached settlements with other schools concerning infractions and the agreement with Penn State seemed like another example.

But as Richard notes to me in an e-mail, the phrase "consent decree" is normally used by government actors (e.g., courts, the Department of Justice, the Securities and Exchange Commission etc.) when settling claims with private parties. Neither he nor others I have spoken with can remember the NCAA entering into "consent decrees" with other schools. According to a brief search by me on Lexis/Nexis, I did find that the NCAA previously entered into a consent decree -- but it was with the U.S. Department of Justice.

The website Legal Dictionary on Law.com defines consent decree as

"an order of a judge based upon an agreement, almost always put in writing, between the parties to a lawsuit instead of continuing the case through trial or hearing. It cannot be appealed unless it was based upon fraud by one of the parties (he lied about the situation), mutual mistake (both parties misunderstood the situation) or if the court does not have jurisdiction over the case or the parties. Obviously, such a decree is almost always final and non-appealable since the parties worked it out. A consent decree is a common practice when the government has sued to make a person or corporation comply with the law (improper securities practices, pollution, restraints of trade, conspiracy) or the defendant agrees to the consent decree (often not to repeat the offense) in return for the government not pursuing criminal penalties. In general a consent decree and a consent judgment are the same."

So if a phrase sounds like it would be made the government, does that mean it was made by the government? Well, use of "consent decree" probably doesn't transform the NCAA into a state actor, which the Supreme Court said it wasn't in NCAA v. Tarkanian and as a result the NCAA need not offer its member institutions and student-athletes due process. I can't imagine use of a term in one instance would have that kind of profound effect.

But I wonder why the NCAA would use "consent decree" now but not (apparently) before?

UPDATE:

In addition to the thoughtful comments to this post, consider these comments:

Drexel University Professor Dr. Ellen Staurowsky, an expert on college sports and the NCAA:

"The thought occurs that perhaps the use of the term is a reflection of who the NCAA's legal counsel is. According to Donald Remy's bio, he has previously held positions including deputy assistant attorney general at the U.S. Department of Justice; assistant to the General Counsel of the Army; law clerk to the 6th Circuit United States Court of Appeals; and senior vice president, deputy general counsel and chief compliance officer at Fannie Mae. That might explain it although the language still interests me a great deal."

Dr. Southall:

"As [Dr. Staurowsky] and I discussed earlier isn't a consent decree usually either between a "state actor" (governmental entity – DoJ, SEC, etc.) and an individual or corporation being investigated, or imposed by the court after negotiations between a plaintiff and defendant? It seems that in this case the NCAA is not a state actor nor the Court, but a voluntary organization that has imposed (the NCAA's language) on a member. Does a truly voluntary member waive any right to appeal? Sounds like a tactic similar to imposing upon NCAA athletes a requirement regarding the use of their names and likenesses….Oh never mind:)"

Do Penn State fans have any legal recourse?

I received an email from a Penn State alum named Jordan who asked me if Penn State fans can do anything legally to the NCAA or Penn State. I think there are at least three legal strategies - defamation, consumer fraud and consent decree invalidation - that could be used. None of them, however, would likely work.

Here are some quick thoughts on them:

1) SUING THE NCAA FOR DEFAMATION: I don't think Penn State fans/ticket holders can sue the NCAA for defamation with any hopes of success. They likely do not have standing to bring a claim, since none of them were named or referred to (specifically or generally) by the NCAA or anyone at the NCAA.

Theoretically, Penn State as an institution could bring a defamation claim against the NCAA, but the consent decree (assuming it is valid) would take that claim off the table. Plus, truth is an absolute defense to defamation and the Freeh Report would be used by the NCAA.

2) SUING PENN STATE FOR CONSUMER FRAUD: It's possible that ticket holders could sue Penn State under a consumer fraud claim - the gist of it would be that the on-field product was somehow misleading since a cover up and scandal were occurring. But don't expect that to work. For one, those types of claims always seem to fail. They failed when a Jets fan brought a claim against the New England Patriots for Spygate, arguing the games were rigged. And they would fail if fans brought claims against the Saints for watching a hit man show instead of a football game. The problem is that when fans buy a seat to a game, it's a contractual right to watch a game and nothing more. People who went to Penn State games, be they Penn State fans or fans of other schools, were never denied that right. Even if the contractual right was broader, the scandal still had nothing to do with the players who played the games.

3) INVALIDATING THE CONSENT DECREE: Maybe the best legal strategy for Penn State fans would be to encourage the Board of Trustees to portray the consent decree as invalidly executed, and then for the university to seek an injunction from a court to restrain the NCAA's sanction.

Did President Erickson adequately notify the Board of Trustees about the decree? Did he receive its permission? Did he have the legal authority to bind Penn State to such an agreement without the Board's notice or permission? If he didn't, could the NCAA still rely on his signature? These are important process questions. Relevant Board rules and terms of Erickson's employment contract would prove crucial in answering them.

Practically, though, I don't see this strategy working: it seems like the university's key decision-makers (even if not many alumns, fans and students) are on board with accepting the NCAA's judgment.

My Column for CNN on Penn State and the NCAA

In a column for CNN, I take issue with the NCAA's process that led to its sanctioning of Penn State. Here's an excerpt:

But I'm less comfortable with how fast the ruling was made. The NCAA clearly bypassed its normal procedure for investigating and sanctioning. This procedure often takes more than a year and involves several hearings.

Consider what the NCAA did not give Penn State. Normally the association notifies the school that an official inquiry is going to be held. Notice is followed by an investigation and, if the NCAA finds fault, a written explanation of the allegations is given. The school has 90 days to respond, after which it may request more time to respond or schedule a hearing before the NCAA's Committee on Infractions.

Then comes the hearing, which resembles a trial or arbitration hearing. If the school is found to be at fault, it can appeal to the NCAA's Infractions Appeals Committee. Penn State did not receive 90 days to respond, nor did it get a trial or an opportunity to appeal.

To read the rest, click here.

Just the FACs: Fan Action Committees and Player Support

Dan Markel (Florida State) and I have an op-ed that just posted at The Atlantic, introducing the concept of "Fan Action Committees." The sports counterpart to PACs, these are vehicles for fans to pool money to give to star players (or donate to the player's favored charitable causes) to induce them to join or remain with a favored team. We take a particular focus on last week's Jeremy Lin/New York Knicks saga.

This presents the germ of an idea that we hope (Mike McCann) to expand into a longer essay. Comments welcome and encouraged. Thanks to Mike, Gregg Polsky (UNC), and Brian Galle (BC) for their comments.

"Unprecedented": You keep using that word, I do not think it means what you think it means

Some quick thoughts on the rapid developments at Penn State on Sunday and in anticipation of Monday's announcement of NCAA sanctions. As a starting point, I am generally agnostic both about whether the statue should have been removed and whether and how the NCAA should sanction Penn State; I see the arguments on both sides.

1) The Paterno Family objects to the removal (not surprising). Their starting argument is that the removal "does not serve the victims of Jerry Sandusky's horrible crimes or help heal the Penn State Community." No, it probably doesn't. But it also doesn't matter. There are other things that Penn State may want to achieve besides serving the victims, including making a statement against what Paterno did and disassociating the school from that.

Also ringing hollow is their insistence that we do not know the whole story or all the facts. Amid all the noise, I have never heard the family flat-out deny that JoePa knew about either the 1998 allegations or that he was told of the initial plan in 2001 to report Sandusky to authorities. Their argument, in essence, is that it is wrong to take down the statue because it unfairly singles him out, when he was not the major wrongdoer. But Paterno is being "singled out" only because he is the only one who had a statue on campus.

2) I am dubious about all the talk about the "unprecedented" nature of the expected NCAA sanctions. The program will not be suspended or given the "death penalty," but reportedly will suffer a loss of scholarships and loss of bowl opportunities. But that sounds like the typical punishment for major violations, including what USC received a few years ago. Unless the number of lost scholarships or the length of the postseason ban is so great (say, 10 scholarships a year for more than five years and a bowl ban of 5-10 years), I am not sure what is so unprecedented.

The University reportedly also will be fined between $ 30 million and $ 60 million; that could be the unprecedented part, called by one source "a fine like no fine before." But I am not sure how a big fine that targets the university and not the football program, while perhaps unprecedented, is uniquely damaging to the program, especially as compared with shutting down the program for a year. Finally, the NCAA arguably has departed both from its own procedures (no hearing, no investigation, using special processes with the express permission of the NCAA's board of directors) and its own substantive limitations (sanctioning for actions that have nothing to do with the NCAA's rules and everything to do with the university's connections to the civil and criminal justice systems). That is unprecedented. But that just may be another way of saying the NCAA is treading into dangerous waters and will be forced to present clear and forceful justifications in support of these sanctions.

A source in the stories linked above said Penn State might have preferred a flat one-year ban, suggesting the effects of the scholarship reductions, bowl ban, and fines will be felt longer. One source argued that saying this is not the death penalty is just semantics. I am hard-pressed to imagine a body of sanctions that really will make PSU folks wish the NCAA had just shut them down for a year or two. But forget the noise from pundits and sources about "never see[ing] anything like it." Consider how quickly USC bounded back from its loss-of-scholarship/bowl-ban sanction. Unless the NCAA delivers something an order of magnitude beyond that, I cannot conceive of these sanctions doing to Penn State what the death penalty did to SMU. Obviously, we will see tomorrow.

3) I heard a radio interview tonight with ESPN's Jay Bilas. He questioned whether this case means that the NCAA has to get involved in other cases of student-athlete criminal misconduct that touches back to the team, the athletic department, or the university.  He uses as examples Duke lacrosse (which could be an example of lack of institutional control, although going in the other direction) or the murder of U Va women's lacrosse player Yeardley Love by men's player George Huguely. Is this a new realm for NCAA enforcement? Or is this case simply sui generis?

Sports, politics, and speech, again

Major League Soccer recently announced that it will not renew a partnership (which first was announced in January of this year) with Boy Scouts of America following the end of this season. MLS's decision follows closely on BSA's recent announcement that, after a two-year review, it would not revise its policies against gay members and leaders.

It is heartening to see a sports league and its teams taking the lead in speaking out and promoting LGBT rights. It also is a great example of how sports and politics, and political speech, inevitably mix in all directions.