Jordan Peterson v. College of Psychologists of Ontario

Why Jordan Peterson's free expression case is not as clear cut as either his critics or defenders think

An Ontario court has upheld the decision of the provincial regulatory body governing registered psychologists that ruled that some of the statements made by Jordan Peterson on social media were “degrading, demeaning and unprofessional,” “may be reasonably regarded by members of the profession as disgraceful, dishonourable and/or unprofessional” and posed “moderate risks of harm to the public.” In the regulator’s view, the harms associated with certain posts/statements by Peterson risk “undermining public trust in the profession of psychology” and “may also raise questions about Dr. Peterson’s ability to appropriately carry out his responsibilities as a registered psychologist.”

Peterson, well-known for his calm and nuanced thinking, accepted the decision with grace and dignity… hahaha, just kidding. He declared free speech in Canada a delusion, complained about his forced “reeducation” (oh, yeah, his penalty? He has to take some social media training) and retweeted support from the usual commentators at Postmedia newspapers and from other more far-right venues, including those lamenting Canada’s “reeducation camps” to which Peterson must now be subjected (pending appeal). Subtle! That Canada allows professional regulators to uphold codes of ethics and standards makes us just like North Korea, don’t you see?

Okay, okay. My dislike for Peterson is showing. And I suspect that is what has motivated much of the mocking or apathy that greeted the news of the court’s decision from people who see Peterson for what he is. But what I actually want to write about is why we actually should have mixed feelings about all of this, why cases like this should cause some alarm, why the court’s decision was ultimately reasonable (regardless if it reached the correct outcome or not), and how the reaction by the commentariat has, once again, largely failed us.

We should be concerned any time the state - or a recognized state entity, including professional regulators - seek to intrude on core rights like freedom of expression. And we should be vigilant about assessing controversial cases when they arise. The power to censor or stifle speech, if accepted blithely, is a power than can be turned against anyone depending on who gets to wield it. You only have to look south of the border and see states banning books, teachers from teaching history, etc. as an example of how this power is all-too-often wielded against disadvantaged and historically oppressed groups. It’s a source of perennial consternation of mine that, in the context of the contemporary ‘culture wars’, progressives have come to trumpet and champion restrictive speech policies without this basic fact dawning on them.

And humans being fallible, it is a power that can quickly fall prey to ideological inclinations and political exercise. That’s worrying.

On top of that, the chilling effect of such policies should not be dismissed lightly either. Indeed, there is growing evidence that people in general, and students at all levels especially, are increasingly reticent to speak their minds for fear of backlash or negative repercussions. While in a healthy society not saying literally everything that pops into your head out loud is a good impulse (my colleague Shannon Dea writes about the different categories of what she calls “refrainment from speech” in my recent edited collection, Dilemmas of Free Expression), the fear students are expressing about not speaking, and the reasons underlying them, are not healthy. The last seven or eight years is a polarized and much more highly politicized discursive environment when it comes to diversity or ‘identity politics’, one that Jordan Peterson himself has contributed to (indeed, in my own classroom experience, the sudden presence of a significant segment of the student population outwardly hostile to discussions of systemic racism, trans rights - or “diversity politics” generally - is marked by what I call the “Jordan Peterson effect” as the delineator).

We also have to remember that, although Peterson isn’t being hauled off to jail, fired, or even booted (yet) from the College of Psychologists of Ontario, the nature of the sanction shouldn’t be minimized. He’s being asked to pay for social media coaching, but overhanging that is the threat of losing his license. I’ll address another aspect of this below, but for now it’s worth pointing out that someone losing their professional license is no small threat. It’s very easy to spout off on Twitter about how “speech has consequences” but maybe think about losing your job or something analogous to that happening to you before acting like it’s no big deal first.

With all this being said, much of the reaction to this case from Peterson’s defenders ranges from precious to histrionic. Nowhere, including down south in the land of the First Amendment, is there such a thing as an absolute right free speech. We routinely restrict expressive rights to mitigate fraud, prevent perjury, deal with defamation, and very few people object to such measures.

In a similar vein, there are numerous professions that carry with them responsibilities and a duty of care over people because of the very nature of their work. Your right to things like free expression can be attenuated in certain careers or as a member of regulated profession in ways that it cannot be for regular members of the general public. There are contexts where this should be blatantly obvious: civil servants, judges, and members of the military are not quite as free to criticize government policy as regular citizens normally can; lawyers and doctors are restricted from speaking freely about their cases and clients, and so on.

The medical profession, certain sectors of the financial industry, etc. have a collective interest in the integrity of their profession. There is a clear rationale for the licensing of people like clinical psychologists precisely because they have a discrete power relationship with clients, clients who may be medically, mentally, or otherwise vulnerable and whose relationship with those professionals is in fact predicated on that vulnerability.

I did not see many of Peterson’s defenders address the complexities of the ethical and other professional standards to which members of this collective ought to adhere, and I doubt there are any valid arguments that no such standards exist or that they ought to go unenforced. A professional who crosses ethical boundaries or evinces views that are contrary to evidence-based/scientifically established norms should be subject to sanction or even removal from the profession. One of the requirements flowing from these standards, according to the College to which Peterson belongs, is to treat people with dignity. The question, as often arises in such ‘free speech cases’, is where the line should be drawn. And few of Peterson’s defenders made much of an effort to address this, if they even acknowledged it.

By contrast, the court did. You can find the statements by Peterson that led to complaints against him in paragraph 9 of the decision here. One thing I found contentious was that the regulator apparently concluded that several of these statements crossed a line even though it is clear they do not intrude on the nexus of professionalism sufficiently related to the practice of psychology to be reasonably seen as threatening the integrity of the profession. Some of the comments at issue were merely crude. For instance, calling Gerry Butts a “prik” - it’s unclear why this warranted a complaint from anyone other than perhaps Mr. Butts. However, and while the regulator appears to have primarily focused on the more pernicious comments I discuss below, it cites this among examples that, in its view, if “looked at cumulatively, these public statements may be reasonably regarded by members of the profession as disgraceful, dishonourable and/or unprofessional” (at para. 23).

The more pernicious comments - ones that can reasonably be seen as failing to meet the basic dignity requirement - were crassly transphobic:

d) A tweet on February 19, 2022, in which Dr. Peterson commented that Catherine McKenney, an Ottawa City Councillor who uses they/them pronouns, was an “appalling self-righteous moralizing thing”.

e) In response to a tweet about actor Elliot Page being “proud” to introduce a trans character on a TV show, Dr. Peterson tweeted on June 22, 2022: “Remember when pride was a sin? And Ellen Page just had her breasts removed by a criminal physician.”

Here, Peterson not only plainly fails to treat people with dignity but his comments obviously threaten the integrity of the profession of psychology. The LGBTQ community, and trans people especially, have a fraught history with the medical and mental health industries. These statements are virulently transphobic, and are NOT, contrary to one scholar’s view, merely “insulting celebrities and politicians”. They are gross attacks on trans people, and referring to a medical practitioner providing gender-affirming surgery as “a criminal” attacks the core of basic ethical standards for any health profession. The College has a vested interest in protecting the integrity of its profession and ensuring the people licensed within it are not actively working to undermine the sense of belonging and care of entire categories of people.

I should note at this point that Peterson is no longer a practicing clinical psychologist, but this does not sever the duty of care he carries. Indeed, the court addressed this point (at paras. 47 to 49), noting that Peterson was not speaking in a personal capacity but explicitly leveraged and introduced himself by his professional title on social media and in other public venues like the Joe Rogan podcast. His comments are thus taken firmly in the context of being promoted by a member of the profession.

As far as chilling effects, none are visible at least with respect to Peterson himself. He certainly feels free to continue to spout all sorts of nonsense, even hateful nonsense. In the few days since the court’s decision, he has tweeted and retweeted on matters entirely divorced from his profession, like anti-climate science garbage, but also continues to engage in transphobic rhetoric that denigrates his profession, like suggesting that gender-affirming recognition is akin to child abuse, and mocking covid vaccines.

If you don’t think anti-trans or anti-vax rhetoric is harmful, you haven’t been paying attention to the hate-motivated shootings and murders of trans people, or the impact that the rise of anti-vax attitudes has had. This may happen at a diffuse level (i.e. very rarely can we trace a specific speech act to a specific hate crime), but such speech contributes to an environment of harm. And even still, few reasonable people are suggesting Peterson be charged as a private citizen for expressing his odious views. Indeed, few of his specific anti-trans comments likely rise to the high level required to meet the constitutionally-mandated threshold for Canada’s hate speech laws (although some of them arguably come pretty close).

In this fundamental sense, the question is not simply one of Jordan Peterson’s Charter right to free expression. The question is whether so long as he enjoys the privilege of membership in the College of Psychologists, should he be required to meet the higher standards that membership entails, and the responsibility to not impair people’s dignity that come with it?

That question is far more complex and nuanced than the pathetic public discourse and commentary this case has received thus far. I don’t know if the court reached the objectively correct outcome in this case, precisely because it is absurd to suggest the line-drawing (or ‘balancing’, the courts’ preferred term) isn’t at least somewhat subjective, but it is surely a reasonable one when framed properly and when his comments, their effects, and the legitimate bases for protecting the profession are recognized for what they are.