Jordan Peterson losing free expression case puts us all at risk

Jordan Peterson losing free expression case puts us all at risk

The result is in for Dr. Jordan Peterson in his legal battle against the Ontario College of Psychologists, and the result is a disappointing one for freedom of expression that should ​concern ​all members of regulated professions. The Ontario Divisional ​C​​ourt dismissed Dr​.​ Peterson’s judicial review and upheld the College of Psychologists order that Dr. Peterson take training in professionalism in communication in public statements.

A brief recap of this sad legal saga: The College of Psychologists of Ontario ordered Dr. Peterson to take mandatory training in professionalism in public statements. The training is for an indeterminate amount of time and is at Dr​.​ Peterson’s own expense. This order came following controversial public statements Dr​.​ Peterson had made on social media​ that​​ ​did not relate to the practice of psychology. The complaints were made by members of the public, not by any individuals who Dr​.​ Peterson had ever treated as a patient and not by people who Dr​.​ Peterson was making comments about.

The Divisional Court described this case as a “clash” between a regulated clinical psychologists’ right to speak in a certain manner and the regulator’s power to require the member to moderate that speech​ in the name of professionalism and preventing “harm to the people they are directed at, and to the impacted and other communities more broadly.”​​ ​

But the decision gets the balance wrong on freedom of expression. In particular, it connects Dr. Peterson’s off-duty speech that is unrelated to the practice of psychology with hypothetical and unproven harm​​. It also grants too much deference to the College of Psychologists​’s​ decision to police the tone of speech, if not the content. The court also held that the mandated re-training for Peterson is not disciplinary, ​does not prevent Dr​.​ Peterson from expressing himself on controversial topics, and is minimally impairing on his rights​ — ​​e​ven though the training is for an indeterminate amount of time and at his own expense.

Despite the fact that the college order for retraining merely had one throw away line affirming the right to freedom of expression, the Court found that this ​didn’t​​ ​mean the right wasn’t appropriately considered by the college. Further, the court held that the college should not be required to provide a detailed discussion of the right. The court held that it was not necessary to engage in whether Dr. Peterson’s comments were supported by facts or were his honest opinion, because they said the concern arises from the nature of the language used, not the validity of his opinions. ​They claim it’s not what​​ ​Dr. Peterson said, it’s how he said it.​ ​

The court found that the college focused on the harm from the language used, noting that the college’s concern that potential harms included “undermining public trust in the profession of psychology, and trust in the college’s ability to regulate the profession in the public interest.” It expressed concern that “public statements of this nature may also raise questions about Dr. Peterson’s ability to appropriately carry out his responsibilities as a registered psychologist” and that “public statements that are demeaning, degrading, and unprofessional may cause harm, both to the people they are directed at, and to the impacted and other communities more broadly.” But this is merely an assertion of hypothetical harm. No one Dr​.​ Peterson made comments about made a complaint and there is no evidence of any actual harm. It’s just that Dr. Peterson uses mean words.

The court found that Dr. Peterson’s statements were not personal comments made in conversation with friends or colleagues, but public statements to broad audiences. The court held that the argument that Dr. Peterson is speaking in a personal capacity and not as a clinical psychologist is undermined by his own conduct and statements. Dr. Peterson describes himself on his Twitter account as a clinical psychologist, and he identified himself that way on the Joe Rogan podcast.

The court wrote that Dr. Peterson sees himself functioning as a clinical psychologist “in the broad public space” where he claims to be helping “millions of people” and as he put it, he is “still practising in that more diffuse and broader manner.” The court wrote that Dr. Peterson cannot have it both ways: he cannot speak as a member of a regulated profession without taking responsibility for the risk of harm that flows from him speaking in that trusted capacity.

However, the practical reality is that individuals have private lives and work lives. Merely saying in the introduction to a podcast that one has a certain profession cannot be enough of a nexus to pull an entire four-hour conversation into the purview of a regulator. Merely having a job title listed in a twitter bio cannot be enough to trigger a watchdog to have authority over every repost on a social media feed.

Dr​.​ Peterson has already announced that he will be appealing the decision. Professionals everywhere should be watching this case. Unless the decision is overturned, this case could have a chilling effect on people in other regulated professions, like doctors, lawyers, teachers and accountants. Professionals should not have to soft pedal their speech for fear that activists will weaponize regulatory bodies so that unpopular speech or an unpleasant tone is penalized, even when there is no connection between that speech and the profession.

This article was originally published in the National Post.

Image by Gage Skidmore and used under CC 2.0.