What are the outer limits to free speech? Oft cited is the example of yelling “fire” in a crowded theatre. University of Toronto psychology professor Jordan Peterson invoked just this image in a contribution to the Washington, D.C.-based paper, The Hill. Peterson has attracted a lot of media attention by refusing to accommodate requests that he refer to transgendered students in his classes by pronouns other than ‘him’ or ‘her.’ He complains that he will be the victim of hate speech prosecution, like holocaust deniers, if he does not respect these requests. For this reason, he claims, freedom of expression principles are engaged. Free speech “is so fundamentally important that restricting it in any manner carries serious risk”. “Nonetheless,” he writes, “we shouldn’t be allowed to yell ‘fire’ in a crowded theatre.”
There is a lot of confusion here. Surely we should want to encourage folks to shout “fire” if there were flames licking at their feet. This cannot be a limiting principle to freedom of expression. Peterson appears to want to paraphrase U.S. Supreme Court Justice Oliver Wendell Holmes’ famous opinion in Schenck v. United States. In refusing to convict the General Secretary of the Socialist Party of espionage, for having arranged the distribution of anti-draft leaflets during WWI, Holmes declared that the “most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic.” Falsely causing a panic would give rise to a “clear and present danger,” justifying limits on constitutional rights.
Confusion is not confined to misquoting Justice Holmes. Peterson objects to accommodating requests by transgender students at the University of Toronto that they be referred to by pronouns like ‘they.’ His refusal, he alleges, will amount to a hate crime by reason of amendments proposed by Bill C-16, which has passed second reading in the Parliament of Canada.
Bill C-16 proposes that the words ‘gender identity or expression’ be added to the prohibited grounds of discrimination under the federal human rights code. The Bill also provides that these grounds be added to the ‘identifiable groups’ listed in the Criminal Code prohibition on the advocacy or promotion of genocide. Finally, the Bill proposes that the Criminal Code be amended so that a court may consider the grounds of ‘gender identity and expression,’ when imposing sentences for crimes motivated by bias, prejudice, or hatred against identifiable groups (distinguished by race, nationality, ethnic origin, etc.).
Professor Peterson claims that Bill C-16 poses an inestimable threat to freedom of expression. As my colleague Brenda Cossman observes, Bill C-16 does not criminalize a failure to use an individual’s preferred pronouns. For one thing, she writes, ‘refusing to use a person’s self identified pronoun is not going to be considered advocating genocide – unless the refusal to use the pronouns was accompanied by actually advocating genocide against trans and gender non-binary folks.’ Nor do the amendments have the effect of rendering his refusal an act of hate speech, as Peterson claims. Sure, Canada’s prohibition on hate speech is troubling from a free speech perspective, but it is flat-out false to claim that Bill C-16 gives rise to the threat of a hate speech prosecution when a professor refuses to use his student’s preferred pronouns.
Perhaps there is ground to be worried about changes to the Canadian Human Rights Code? Because of divided jurisdiction under the Canadian constitution, the federal code applies only to institutions falling within federal jurisdiction – entities like airports and banks. Professor Peterson would not be caught by the federal code when teaching classes at the University of Toronto. As regards Bill C-16, he seems to be falsely shouting fire.
What about the Ontario Human Rights Code? As Professor Cossman notes, the Ontario Human Rights Commission Policy on Preventing Discrimination Because of Gender Identity and Gender Expression indicates that ‘refusing to refer to a person by their self-identified name and proper personal pronoun’ could give rise to a complaint. The Commission, when acting upon a human rights complaint, seeks conciliation between the parties. Peterson, however, declares that he is not interested in compromise. If a complainant were successful, a civil penalty would be imposed after a hearing, and he would be expected to comply. If he did not like this outcome, he could advocate change of the law. He would not be convicted, however, of a hate crime.
What about academic freedom? Might there be a clear and present danger to the scholarly profession if there were a human rights inquiry? We should, without question, be vigilant about such things. Academic freedom, however, does not appear to be at stake. Peterson opposes the use of gender-neutral pronouns in the classroom because he does not believe in non-binary gender identities. This is not about Peterson’s research and teaching, but political opposition to waves of “political correctness” washing over campuses. He might choose to make this a scholarly endeavor – self-posting YouTube videos might be his chosen manner of publication – and, if relevant to curricular objectives, choose to lecture about the subject in his courses. But his personal treatment of students seems some distance removed from a threat to his academic freedom. The controversy, after all, concerns a preference over how to address students enrolled in his courses.
The ‘character of every act depends upon the circumstances in which it is done,’ Holmes declared in Schenck. Context, even for fervent free speech advocates, turns out to be important. Consider the context in which Professor Peterson is operating. He is giving license, from his position of authority, to those who would dismiss, even ridicule, transgender folks. He is fanning the flames of vitriol and intolerance at the University of Toronto. Transgendered students already face challenging educational, work and home environments.
This is one of the reasons why providing a safe and welcoming learning environment, whatever one’s politics around pronouns, is a necessary part of a university’s mission. An inclusive learning environment does not mean that students will not be challenged, even made to feel discomfort, in the course of their higher education. As Finkin and Post pointedly declare, faculty ‘must respect students as persons, but they needn’t respect ideas, even ideas held by students.’ Should Professor Peterson choose to be a member of the university community, he is expected to sign on to this mission. On these grounds, the University of Toronto can insist, in accordance with its educational mandate, that its instructors treat all of its students with respect. We have now reached the outer limits to freedom of expression.