Sunday, 24 October 2021

Discipline and Dissent

    A common argument made by various movements, particularly those of a conspiratorial bent, is to complain that certified experts in the relevant field aren't allowed to speak the truth for fear of losing their professional credentials or privileges. Ultimately this boils down to a freedom of speech argument, which when you dissect it, is pretty weak. Freedom of speech means you should be free to express any opinion, so the argument that your opinion should be respected because freedom of speech really offers absolutely no support whatsoever for the substance of the opinion itself. You're free to say you think 2+2=37.998 if you want. And the fact that other people call you an idiot for saying so doesn't in any way add weight to your claim. 
    But let's run with that freedom of speech argument, shall we? Because it does sound just vaguely plausible that if a biology professor is denied tenure for teaching creationism or a nurse is fired for refusing to be vaccinated, you could say they're being punished for their beliefs. After all, losing a job or benefit for what may well be a deeply held belief can certainly be framed as a violation of their right to free speech or conscience. Freedom of speech is in fact quite relevant here. It's just that it's not the speech of the biology professor or nurse.

    It's the speech of the certifying body. See, when you're licensed to practice medicine (or law or any other regulated profession), the regulating body that grants you that license or certification is, in effect, vouching for you. They are saying, "This person knows what they're talking about in the subject area, and we stand by their professional judgment." They are endorsing you.
    Now, you don't actually have any right to that endorsement. You have to qualify. You have to earn their confidence and maintain it, and if they ever lose confidence in your competence, they are absolutely entitled to withdraw their endorsement. Indeed, I'd say they're obligated to do so.

    So if a doctor starts spouting conspiracy theories about vaccines, and has their license revoked as a result, they might well feel like they're being punished for their beliefs and their freedom of speech is being violated. But it isn't. They're still completely free to express those opinions. They just don't get to claim the authority of the certifying board is behind them if they do so. 


  1. I don't know the situation in Canada, but here in America, taking the example of lawyers, regulating bodies like the state bar association control the license to practice. Whatever your qualifications, you cannot practice law without meeting their standards.

    If I understand you correctly, you're saying that these monopolies have a positive obligation to bar trained professionals from practicing in their own field on the basis of free speech, a 'standard' which, by its nature, as you acknowledge above, is capricious and arbitrary. Is this really what you believe?

    1. No, I'm saying that the principle role of a professional association is a kind of speech act in itself. When they grant someone status as a member in good standing, what they're really doing is saying, "We stand behind this guy's professional advice. He knows what he's talking about." Now, there may also be laws that say you can only practice law or medicine or whatever IF the appropriate professional association endorses you this way, but that's actually a power of the legislature, not exactly that of the professional association. The only actual LEGAL power the professional association holds is essentially a trademark: they can put any conditions they want on who may be licensed to use the trademark.

      So if I hold myself out to be a lawyer, and I haven't met the requirements, I'm basically violating the Law Society's trademark. Only people who meet their requirements are allowed to use the title "lawyer". If I call myself a lawyer, I'm asserting that the Law Society stands behind me and my professional judgment.

      If the Law Society cannot disbar me for violating their standards, then THEIR freedom of speech is being violated, because they are being forced to continue saying, "We stand behind this guy's professional advice."

    2. It's difficult for me to express how completely I reject this argument. You are, again, stating that this is a matter of free speech. Free speech is an extremely broad right. I have the right to say that I detest evangelicals or Muslims. I have the right to say that society should abolish the death penalty or restore it in every state. I have the right to say that substantive due process is a fiction not found anywhere in the American Constitution. There are lots of things I have the right to say.

      I see no reason why, in your telling, the bar association could not say that evangelicals or Muslims cannot be trusted to practice law, that by virtue of their strange beliefs they have lost the associaton's confidence. Or that lawyers are required to agree that the death penalty ought to be abolished, or that substantive due process is a legal fiction. Why shouldn't they be able to disbar any lawyer who doesn't meet essentially arbitrary standards, even on questions pertaining to their own expertise?

      Naturally, this would be massively distorting and damaging. It's a really good thing lawyers hold a diversity of legal views, because nowhere is there written in stone the correct views to hold, least of all on tablets owned by the bar association. Here in America over the course of the last 30 years there has been a change of opinion on the constitutional question of the unitary executive. The arguments that prompted that change could not have taken place if state bar associations had simply thrown out of the profession any lawyer who expressed skepticism of the then consensus.

      Lest you think this discussion of lawyers is merely academic, the same applies at least as much to doctors, including about covid. Perhaps you haven't noticed, but the medical profession has not exactly covered itself in glory during the last two years. Initial reports were that covid wasn't especially infectious; later, institutions like the CDC told Americans not to wear masks; the lab leak hypothesis, which has, frankly, always been decently plausible, was derided as a racist conspiracy theory, in favor of the comparatively tolerant view that Chinese wet markets were responsible! The establishment has reversed course on all of these things, but it could not have done so if skeptics could be shut down, literally un-doctored, the expertise that they earned like everybody else dismissed or denied. And I hate that I even have to include this, but I say this as someone who thinks HCQ and ivermectin are very poor treatments for covid, that vaccines are awesome, and that lockdowns were a terrible but necessary curtailment of rights in order to save lives. I don't often like our skeptics, but we damn well need them.

      There is, by the way, nothing wrong with the alternative. Here in America lawyers already attend law school and pass bar exams. In other words, their expertise is earned and certified. They can also be disbarred for such things as ethical violations. Notice that neither of these things is essentially arbitrary the way the free speech endorsement you advocate is. But what is actually wrong with that? Is it not obvious that a guy who goes to law school and passes the exam and doesn't go around blabbing about his client's darkest secrets is obvious a lawyer?? The same can naturally be said for doctors. Of course they go to medical school. Of course they go through residency. Are they not doctors, whether you agree with their professional conclusions or not? What is the value of a bar or medical association saying, on top of this, "By the way, this guy who obviously already knows what he's talking about gets our double-extra approval!"

      I've gone on for far too long. Suffice it to say that I think the idea you're expressing would be incredibly damaging to society and to the very professions whose reputations you're trying to protect. Please reconsider.

    3. I get that. The thing is, though, law societies and medical associations have non-arbitrary procedures for determining what counts as competence, and they do in fact accommodate quite a wide range of good faith professional disagreement. Moreover, the statutory licensing authority isn't granted with no strings attached; if the Law Society or a Medical Association is perceived to be arbitrary or political in the standards they impose, the legislature can cease recognizing them.

      I think part of where we differ is that you regard the license to practice a profession as some kind of right that is EARNED, and that taking it away is inherently a form of punishment. Whereas I understand the licensing regime as analogous to ongoing safety inspection for an aircraft. It may be perfectly airworthy when it comes out of the factory, but it needs to be regularly inspected and maintained, and the instant it no longer appears airworthy to the inspector, it gets grounded for repairs or retirement. That's not punishment. That's just making sure the equipment is and remains safe to use. And yeah, it totally sucks to find one is no longer able to competently practice one's profession, but things happen.

      Now, I agree that we need skeptics and diversity of opinion, and indeed I can tell you we get plenty of arguments about all sorts of things in law school and in practice. But we shouldn't characterize incompetence as a mere difference in approach, as if all approaches are equally valid. If people can memorize what they think the testing agency wants to hear, pass the exam, and then immediately start doing the very opposite of what they just wrote on the exam, then the exam becomes just some kind of hazing ritual.

      I want to know that my doctor knows what he's talking about, not that he was able to pretend to agree with other experts long enough to get an irrevocable license to do whatever the hell he wants.

  2. Freedom of speech ONLY applies to government, which is not allowed to punish you for your views. It has nothing to do with how anyone else reacts to your views. You have the right to hold any view you wish but I have the right to fire you for it, UNLESS there is a law against me doing so.

    1. That's true, but I don't think that quite captures the essence of Nick's objection above, because there IS a sense in which the government is "punishing" someone for speech. Namely, people could have their professional qualifications revoked, and it IS the government which enforces the monopoly requiring you to have those qualifications in order to practice the profession. So it kind of LOOKS, at least, like the gubmint is taking away someone's livelihood for speech.

      My argument, though, is that the state has chosen to make a law saying, "If and only if those guys over there in that professional association say you're an expert, we'll let you practice as one." That creates no duty on the part of the professional association to say you're an expert, or to keep saying you're an expert after your words convince them otherwise. The endorsement of the professional association can be withdrawn, and it's a violation of THEIR free speech to require them to keep on endorsing your expertise after you've lost their confidence.

  3. Excellent way to describe what is happening in certain Fields. Not only is the Endorsement critical in instilling confidence in potential Clients or Patients, but as a Client or Patient I need to know whose posing risks to me personally, I have a Right to that information in fact when it could mean Life or Death to me and mine. An Unvaxxed Healthcare Professional I don't want anywhere near me or mine while we're probably already compromised by Sickness. I don't want Unvaxxed Teachers around my precious Children either, if they Care Not about the safety of a Child and that Child's Family, perhaps they're in the Wrong profession anyway. Certain Behaviors have consequences, plain and simple, if you choose the Behavior I say you've also chosen the consequences of that Behavior that might not be pleasant. If you're going to have extremist Ideology and run with low information then what consequence that has is on that person and not on anyone else really. Even some people I used to like a lot have morphed into Cult Zombies it seems and I find it difficult to want to engage with them at all now. They seem to be clueless why so many now are shunning them due to their extremist Beliefs they've now adopted or perhaps always had, but hidden before. A Co-Worker Lady who I used to like said during our Shift that the almost 800,000 Americans that have succumbed to the Virus isn't 'that many' compared to the overall population of the Country, so she doesn't see why Vaccines are necessary at all! I almost had no Words, but managed to say, how many Dead do you consider 'that many' then, since 800,000 Souls is more than we've lost in all our Wars combined and to me, that's a great Loss of Humanity any way you cut it. She shut up and I walked away and ignored her the rest of the Evening, I just can't Deal with that level of Lunacy and Intentional Ignorance, sorry, not sorry.