Occupational licensing is a phony guardian of public safety that hikes prices, protects existing practitioners from competition, and raises barriers to work and mobility.
As if that wasn't bad enough, licensing is now used as a weapon to enforce conformity, with permission to make a living dependent on adherence to the party line. Developments in California and Canada demonstrate that occupational licensing isn't just an economic mistake, but also a danger to free speech.
"Jordan Peterson is no stranger to controversy," the National Post's Tyler Dawson reported last week. "The Canadian psychologist and cultural commentator has waded into any number of battles since he first rose to fame several years ago. But now, his incendiary remarks about climate change, whether or not overweight people are attractive, and gender dysphoria, have landed him in trouble with the Ontario College of Psychologists—the professional body that regulates the behaviour of clinical psychologists."
Specifically, the high-profile psychologist revealed in a series of tweets and a subsequent column for the National Post that the Ontario College of Psychologists wants him to "submit to mandatory social-media communication retraining." His alleged offenses include retweeting comments by the head of the opposition Conservative Party and criticizing Canada's Prime Minister Justin Trudeau.
For its part, the regulatory body says, "In a decision released on November 22, 2022, the Inquiries, Complaints and Reports Committee decided to require Dr. Jordan Peterson to successfully complete a prescribed Specified Continuing Education or Remedial Program (SCERP). The substance of the SCERP is a Coaching Program to address issues regarding professionalism in public statements."
Peterson seeks judicial review and says he won't comply.
The College of Psychologists' action is creepy in a typically Canadian way, cloaking authoritarianism in the language of concern. But Canada's record on free speech is already spotty; what relevance could this have for the U.S., where upsetting people is protected by the First Amendment?
Funny you should ask.
"A new California law gives the state unprecedented control over what doctors can say to their patients about COVID-19," Reason's Zach Weissmueller noted of the state's A.B. 2098, which went into effect at the start of 2023. Under the law, physicians can be punished for sharing COVID-19 "misinformation" with patients. The law defines "misinformation" as advice "contradicted by contemporary scientific consensus," which is to say, mere disagreement with the powers that be, not explicit fraud.
"Physicians can be, and historically have been, disciplined for committing medical fraud, prescribing medically inappropriate treatment, and failing to provide patients with material information to make informed choices," object the American Civil Liberties Union chapters of Northern California and Southern California in a brief seeking a preliminary injunction against A.B. 2098. "Requiring California to prove such unprofessional conduct before imposing a sanction neither ties officials' hands nor harms patients. Indeed, the State does not explain why existing law has fallen so short as to justify a sweeping censorship law."
Unfortunately, a federal judge refused to block the law on the grounds that the courts generally treat regulation of medicine as applying to conduct rather than speech. It remains in effect while legal challenges proceed.
"It essentially ends your ability to combat bad ideas put out by public health because you have this looming power that over you that essentially can end your career," Stanford University economist and medical school professor Jay Bhattacharya told Weissmueller.
True, treatment of COVID-19 is a specific and peculiarly politicized issue for medicine that will likely fade in importance as we leave the pandemic in the rear-view mirror. But it's unlikely to be the last political hot potato in a profession that's increasingly colored by ideology.
"Doctors say that there is a 'purge' underway in the world of American medicine: question the current orthodoxy and you will be pushed out," Katie Herzog wrote for The Free Press (called Common Sense at the time) in 2021. "They are so worried about the dangers of speaking out about their concerns that they will not let me identify them except by the region of the country where they work."
Medicine isn't the only profession where practitioners face growing ideological pressure.
"The idea that lawyers can't be neutral, that confronting injustice must supersede all else, has eroded the norm that legal representation—like the ability to obtain medical care or buy a train ticket—is something every American deserves," Aaron Silbarium warned in a 2022 companion piece to Herzog's about the politicization of law. "Lawyers at top law firms in New York, Washington, D.C., and Los Angeles said they fret constantly about saying the wrong thing—or taking on the wrong client."
Importantly, both medicine and law are professions in which practitioners require government permission to make a living. If getting that permission involves mouthing official ideas and refraining from offending the powerful, then licensing is a means for enforcing compliance and conformity. Worse, evidence suggests that it's a political gatekeeper that offers little or no real benefits.
"This study finds no evidence that licensing raises quality and some evidence that it can reduce it," Kyle Sweetland and Dick M. Carpenter II wrote in a 2022 Institute for Justice paper on the effects of occupational licensing on the quality of services offered by licensed workers.
"The burden of occupational licensing is stifling entrepreneurship in America," economist Stephen Slivinski found in a 2015 Goldwater Institute study cited by the White House. Across states "the higher the rate of licensure of low-income occupations, the lower the rate of low-income entrepreneurship."
Some argue that Jordan Peterson is a troll who deserves censure, and that quacks who peddle snake oil as the cure for COVID need to be handled. Fair enough; there's always room for disagreement. But politicized licensing would bypass debate and shut down dissent through force of law. Notably, one complaint against Peterson seeks to sanction him for opposing child-abuse investigations of participants in last year's trucker protests. And many of the physicians challenging California's A.B. 2098, like Stanford's Bhattacharya, are prominent dissenters from establishment opinion. Those who don't like what they say are free to debate them but shouldn't be able to punish them for their opinions.
Occupational licensing doesn't offer the benefits its advocates claim, and it raises barriers to those seeking economic opportunity. Unless you're a fan of handing political weapons to regulators who want to muzzle dissent, there's little good to say about making people seek permission to make a living.