Peterson, Laurier, and the Chilling Effect of Litigation

I’m hoping that the combination of lawsuits will be enough to convince careless university professors and administrators blinded by their own ideology to be much more circumspect in their actions and their words. (YouTube/Jordan B. Peterson via https://globalnews.ca/video/rd/1260509251890/)

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The news broke yesterday that University of Toronto Psychology Professor Jordan B. Peterson is suing Wilfrid Laurier University (WLU), two WLU faculty members, and a former WLU manager for defamation following a now-famous November 2017 meeting in which three WLU employees took a teaching assistant to task for showing an excerpt from one of Professor Peterson’s television appearances in a tutorial. As is well known, the teaching assistant secretly recorded the meeting and disseminated the recording via the national news media.

I will not here discuss my opinion of the appropriateness of the meeting – that it happened or how it was conducted. And, I will not wade into legal questions associated with the case because I am not a legal scholar.

Indeed, I would rather not discuss this case at all. It is a highly polarizing case involving highly polarizing figures with very large, loyal social media followings – and some of these followers are themselves highly polarizing figures with very large followings. The last time I publicly discussed the underlying case, I was as a result subject to harassment for some weeks afterwards. (It is worth noting that in that discussion, I confined myself to matters of pedagogy and academic freedom, and did not communicate any opinions about either Professor Peterson or the teaching assistant. Nonetheless, my remarks provoked many responses beyond the pale of intellectual disagreement.)

Nonetheless, I have since January been committed to documenting the state of academic freedom in Canada. The announcement of the lawsuit risks creating a serious chilling effect on the academic freedom of Canadian researchers. I therefore feel obliged to say a few words about that.

In order to bracket the conduct of the meeting (which is, in part, the subject of a separate lawsuit) so that we can focus on the alleged defamation and injurious falsehoods, let me propose a thought experiment. Imagine that the teaching assistant in question requested a meeting before the tutorial in question in order to seek her professors’ advice on whether or not to show the video clip.

Imagine that in that meeting one of the professors said that it would be inappropriate to show the video clip neutrally without providing contextual information because Professor Peterson was a highly polarizing figure, especially with respect to trans issues. Imagine if he said:

So this is basically like playing – Not to kind of do the thing where everything is compared to Hitler – But this is like neutrally playing a speech by Hitler or Milo Yiannopolous from Gamergate. This is the kind of thing that departmentally, in terms of critical communication studies, and in terms of the course and what we’re trying to do, is diametrically opposed to everything that we’ve been talking about in the lectures. (Pastebin, 105)

Imagine that in the same conversation the other professor explained the importance of the peer review process to ensure scholarly quality control and noted that Professor Peterson’s work on the topic being discussed in the video was not peer reviewed:

What struck me was that none of what he proclaimed, and sometimes how he proclaims it, I think he tries to act like he doesn’t yet know – is done in ways that are academically suspect, to say the least. From what I’ve read in research, which is again, I’m not as extensive on researching him. He does not have the substantial academic evidence to be a credible person. […] I as a scholar, as someone with tutorial leaders, I would find it problematic if my tutorial leaders were representing positions that didn’t have any substantial academic credibility to that evidence. (Pastebin, 149)

I haven’t read the statement of claim; so I don’t know which precise passages from the meeting transcript are invoked there. That said, the two passages I have just cited are the two that have repeatedly been discussed in media accounts of the lawsuit.

Again, setting aside the pseudo-disciplinary character of the meeting itself, remarks such as these are the kind that often occur among scholars deciding on teaching material, possible project collaborators, and so forth. One would not typically speak quite so frankly in a public venue, of course. But in smaller meetings of scholars and students, tough assessments of other scholars’ reputations, credentials, and methodologies occur. They are an important part of the quality control that goes along with academic freedom. As I discuss here, here. here, here, and here, the trade-off for the extraordinary protections scholars have under the rubric of academic freedom is the requirement to submit our scholarship to the scholarly community for adjudication.

The spectre of expensive lawsuits and of intense accompanying media scrutiny risks creating a chilling effect on this aspect of academic freedom. In March of last year, my colleague, Professor Emmett Macfarlane, cogently described the chilling effect on academic freedom that McGill risked when it publicly disassociated itself from Andrew Potter after he published a controversial column:

Here’s the real problem: the statement creates a potential chilling effect for scholars at McGill, particularly pre-tenure, contract, or “sessional” researchers and instructors who do not enjoy the protections of tenure. They may now rightly fear that offending the wrong people via the pursuit of certain types of research or the dissemination of unpopular ideas will lead to a public slap on the wrist, or worse, negative consequences for tenure or promotion.

I have already intimated that I have experienced a chilling effect from the harassment I received the last time I publicly discussed elements of the original case. (And I discuss here the threat to academic freedom posed by such harassment.) I admit it: despite the protection of tenure, I am very reluctant to discuss this case. That said, and without wishing to minimize the deleterious effects of such harassment on scholars who experience it – especially racialized, Indigenous, LGBTQ+, and women scholars – much online harassment is of the “sticks and stones” variety. It’s scary, stressful, and exhausting, but there is some sense in which you can often (if not always) just ignore it.

On the other hand, there is no way to ignore being named in a large lawsuit by a well-funded public personality (which Professor Peterson certainly is). Consider the expense of undertaking legal representation, the time spent preparing for court and in court, the risk of having to pay a settlement or an award, the worry that your employer will terminate you to avoid being dragged down by you and that no employer afterwards will want to take a chance on you. Fear of such effects might very well chill scholars’ exercise of academic freedom. There might also be an indirect chilling effect if universities facing cases like this let risk management trump the protection of academic freedom.

If Professor Peterson believes that he was defamed and the subject of injurious falsehoods, then he has every right to pursue legal recourse. However, in a YouTube video discussing the lawsuit, he says that he launched the suit in order “to convince careless university professors and administrators blinded by their own ideology to be much more circumspect in their actions and their words.” That looks to me like an admission that his aim was in fact to create a chilling effect. I do hope that is not Professor Peterson’s intended meaning.

WLU says that it will vigourously defend itself. If it values academic freedom, then it must also provide the necessary legal support for its co-respondents. As I argue here, it is the measure of a university’s commitment to academic freedom whether it has its scholars’ backs when the rubber hits the road.