What is the scope of conduct governed by professional regulatory bodies?
Jordan Peterson’s legal battle raises the question of where the line is between acting in a professional and personal capacity.
Today, we are going to talk about the recent Ontario Superior Court decision upon judicial review to uphold the decision of the Inquiries, Complaints, and Reports Committee (“ICRC”) of the College of Psychologists of Ontario, reprimanding Dr. Jordan Peterson for statements he made online and on Joe Rogan’s podcast, and requiring him to attend coaching on public statements. I have sat down to write about this decision numerous times over the past week, and each time I have walked away, leaving a blank page, because I have been concerned about how reflecting on this decision will reflect upon me. Dr. Peterson is a highly controversial figure, and I worry that critique or questioning of the Ontario Superior Court decision could be construed as a defence of his behaviour. I’m not going to talk about what the impugned statements were. They are not relevant to what I want to discuss here; those who are familiar with Dr. Peterson can probably figure out what they were anyways and there has been more than sufficient new coverage of this decision (I have also linked it above).
So before I start, I want to make myself very clear: I do not adhere to or support the beliefs of Dr. Jordan Peterson. It is because I so consistently disagree with that I feel this is a prime opportunity to make the reflection to follow, because I have been required to ask myself repeatedly, how I would feel about this decision if it impacted someone I do agree with or myself, because one day the precedent set here could do just that.
On November 22, 2022, author, commentator, professor, and clinical psychologist, Dr. Jordan Peterson received an order from the ICRC of the College of Psychologists requiring him to complete a specific continuing education or remedial program regarding professionalism in public statements. This decision was upheld on a standard of reasonableness by the Ontario Superior Court at a judicial review heard on June 21, 2023.
Psychologists, like most licensed professions, including my own, have a code that members must adhere to. Included in the code is a requirement that members of the College “not engage publicly (e.g., in public statements, presentations, research reports, with primary clients or other contacts) in degrading comments about others, including demeaning jokes based on such characteristics as culture, nationality, ethnicity, colour, race, religion, sex, gender, or sexual orientation” as doing these things runs the risk of posing harm to others and lowering trust in the profession. A similar statement to this appears in the rules of professionalism for my own professional governance body, as well as those of teachers, doctors, and many more.
Much of the contention in this case is centred on whether Dr. Peterson’s statements were made in his “off-duty” time or in his capacity as a psychologist. This is the aspect of the decision that I want to focus on because of its implications not only for Dr. Peterson, but for people like myself.
I’m a lawyer. But am I always a lawyer? Does the mere fact of belonging to the Law Society of Ontario mean that every word I say is governed by the rules and restrictions that come with being a member of my profession? Or is this only the case when I choose to identify myself as a lawyer or in some way make it known that I am speaking in my capacity as a lawyer? Did I unwittingly give up the freedom of expression I once had when I was called to the bar? And is there a point at which it is justified for my professional regulatory body to respond to statements made by me personally and not in my capacity as a lawyer?
Dr. Peterson, since 2022, has identified himself publicly on Twitter and when speaking on podcasts and other places as a clinical psychologist, which is important to note. He had, however, received a letter cautioning him for his Twitter conduct in 2020, when he did not included his professional affiliation in his social media bio. Does putting your job title in your bio mean that your social media activity is in your professional capacity? It could be inferred from this decision that the answer is yes. While there is a reducto ad absurdum of this conclusion that your Hinge profile is also taking place in your professional capacity, since you have to put your occupation in that as well, finding the line between generic information about oneself and implying that you are to be trusted in what you say on a given topic because of your profession is genuinely challenging sometimes.
This is not the first time that the Court has recognized that members of regulated professions can harm public trust and confidence in their profession by their so-called “off duty” behaviour. In British Columbia, the Court of Appeal held that teachers making discriminatory public statements harmed the integrity of the school system. In Ontario, the Court made the same finding regarding nurses who spoke out online and at a protests against masks and vaccines during the Pandemic. Similar findings have been against doctors, teachers, and lawyers in Alberta who in their off-duty time have made statements that pose a risk of harm to public confidence in the profession.
The Court also raises the issues of the size of Dr. Peterson’s audience. They refute the assertion that his statements are personal based on the size of the online following that is accessing them. This again poses a challenging question. Is Dr. Peterson being penalized for having a large following? And if so, is it justified because in a world where social media has so much power, we need to recognize that the personal nature of statements is altered by level of online notoriety the maker carries online. The Court noted that Dr. Peterson did not make the impugned statements in private to a friend or colleague, but to his substantial following online and to listeners of the Joe Rogan Experience.
This is tough. On the one hand, I don’t know if it’s fair to apply different rules to someone because they have a large online following. What I say on Twitter to 100 followers is just as “public” in terms of availability as what someone says to 10,000 followers. Except that doesn’t fully consider the world we live in. Social media and individuals with large followings carry a tremendous amount of influence in our society today, rightfully and wrongfully so. This can be further bolstered by the authority that comes with job titles and other social status markers. For as much as we want to say that someone’s social media is purely their own space to be themself, we have to recognize that there is a point where that stops being true, even if that is not the desire of the individual with the large following.
The line demarcating where our professional responsibility ends and our personal freedom to express views begins is not always clear. It is one that many of us who belong to licensed professions jump back and forth across regularly, and not always consciously. While most of the time this is relatively harmless, it can also be easily weaponized. It is difficult to say if the Ontario Superior Court overstepped in what activity they considered to be reasonably included in conduct governed by the College of Psychologists. This is likely also, not the last time we will witness this debate, and with greater opportunities to consider this issue, we are likely to see greater clarity and refinement on the extent to which our daily lives are governed by the rules of our professions.