Wisconsin constitutional question: Do you have a right to swear at your child?

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.

  • BJ

    I love these law posts.

  • Barton

    ignoring the child abuse portions (b/c locking your kid out in a northern winter would constitute that in my mind).

    It’s swearing. Are you going to arrest every parent in Walmart who gets frustrated with the 75th request of “can I have some candy?” It just feels like morality judging to me, and that is in the eye of the hypocrite.

    • Kassie

      Also, the kid was 14. I feel like an outburst of “WTF are you doing” is probably warranted at least quarterly at a teenager.

      • Rob

        LOFL!

    • I was in a restaurant take-out the other day when a little kid asked mom for something.

      “I’m going to whoop you” she replied.

      The thought of arrest was appealing to me. The kid doesn’t have a chance in life. Just passing on the concept of violence as a reasonable response.

      What was the question again?

      • Barton

        In your example Bob, that is a threat of violence without any swearing (that you included in the example, it might have been there). I can understand why you’d think about a call to the cops.

        But in Kassie’s example, which is more what I was thinking of, there is no threat, just annoyance with salty language. How is that something to convict someone of?

  • Brian Simon

    Sure, you have the right to swear. But counsel missing that argument shouldn’t be grounds for a new trial.

    • Laurie K.

      Why not?

      • KTN

        Just a cursory search on granting a new trial on the account of bad lawyering will answer that question. Drunk defense lawyers in the court room, nope, no new trial, not asking any questions of witnesses, nope, no new trial – and the list goes on and no.
        Granting a new trial is a very high bar, and one that is rarely reached.

        • Laurie K.

          I don’t believe a cursory google search is a very complete answer – it is a fairly complicated legal issue. I would imagine that the standard for Wisconsin is similar to Minnesota’s. In Minnesota to argue a successful claim of ineffective counsel you must show that the counsel’s representation fell below an objective standard of reasonableness and that there is a reasonable probability that, but for counsel’s professional errors, the result of the proceeding would have been different. I have to agree with RBHolb – not raising the defense of one’s First Amendment rights was equivalent to not making a defense for self defense in a murder case. I would say that falls below the standard of reasonableness.

          • KTN

            Well then go to Oyez.org, or Justia, or Westlaw, or…Here read Strickland, that might help.
            Strickland v. Washington (1984)
            There has been some very egregious conduct by defense attorneys and while there are cases of a retrial being granted, it’s rare.
            This women’s attorney didn’t claim a 14thA argument either, and clearly her due process was violated too (when they forgot to bring up the 1stA).

          • Laurie K.

            Thank you for “man-splaining”, but I work in the legal field so I am pretty well versed in the subject as it pertains to Minnesota cases anyway. I do think you are completely missing the standard – it is not about egregious conduct, it is about conduct below a reasonable standard. You are also citing cases from other jurisdictions which may or may not have the same legal standard as Wisconsin. Based upon the initial comment, I thought maybe that person had some knowledge as to the Wisconsin standard which was why I asked that person “why not”.

          • KTN

            Well Strickland applies to all the states not just Wisconsin. Justice O’Connor pointed out in her opinion, there has to be more than merely conduct that falls below a threshold, the second prong says if counsels conduct allowed for a reasonable probability the outcome would be different had adequate counsel been provided. Seems the lower court in this case did not find either prong to be met.
            What the hell is “man-splaining”

          • Laurie K.

            Strickland is the case I am referring to when I say you are missing the standard. Yes, it is two pronged [as I stated in my earlier comment and which you now re-stated]. Your earlier comment that “[t]here has been some very egregious conduct by defense” is not the legal standard.

    • RBHolb

      If you have the right to do it, but counsel didn’t raise that argument, a crucial defense was not presented to the jury or court. It would be as if counsel didn’t argue self-defense in a murder case, if there were the facts to support it.