Ginger Breitzman, 44, a Wisconsin mother, yelled at her son in May 2013 after he burned some popcorn. Her tirade included a generous helping of obscenities.
Is she protected by the First Amendment?
It’s a case that went before the Wisconsin Supreme Court this week, the Milwaukee Journal Sentinel says.
Breitzman was charged with disorderly conduct, child abuse, and child neglect and she was convicted after a district court trial. The child abuse and neglect charges were based on a series of events that including locking her son out of the house in the winter.
The disorderly conduct conviction was based on the popcorn tirade.
She’s claiming she received ineffective counsel because her free speech rights weren’t raised as part of her defense.
[Justice Michael] Gableman asked if the larger question wasn’t whether the state should be arbitrating disputes in private homes when family members are not at their best.
[Assistant Attorney General Donald] Latorraca cited case law that even private conduct can be disorderly if there’s a spillover effect. Here, he said, that was the son telling his friend and a school official about his mother’s behavior. Just because the son didn’t react and cause a physical clash doesn’t mean his mother’s words couldn’t be disorderly conduct, Latorraca said.
“Does the state want us to say that if a parent disciplines their child with abusive, profane language, that’s disorderly conduct?” asked Justice Shirley Abrahamson.
Latorraca again said the state only wants the court to rule that Breitzman’s lawyer was not ineffective for failing to make a free speech objection at trial.
Justice Ann Bradley said she had concerns the case could set the law back a generation if the court suggests you can do whatever you want in your own home, that it could have ramifications for more typical domestic violence prosecutions.
Justice Annette Ziegler asked Scheiber Jurss if the First Amendment protects someone’s “right to be profane.”
The Wisconsin Court of Appeals earlier ruled that the woman didn’t receive ineffective counsel because even if the free speech claim had been raised, it would have been dismissed.