A 44-year-old mother has just lost her appeal on child neglect and disorderly conduct convictions, which stemmed from a profanity-laced exchange with her son in the privacy of their own home.
According to The Washington Post, in 2016, Ginger Breitzman reportedly called her teenage son a “retard,” a “f**k face,” and a “piece of s**t.”
The 14-year-old son had been talking on the phone with a friend while making popcorn. He mistakenly burnt it in the process.
The blunder set Breitzman off, and she began screaming the profanities at her son. The friend on the phone heard the entire exchange.Milwaukee County Sheriff’s Office
The state of Wisconsin filed charges against Breitzman for child abuse by intentionally causing harm, child neglect, and disorderly conduct — the disorderly conduct charge stemming from her outburst.
A jury convicted Breitzman of all counts and she was sentenced to six months in jail with release privileges.
Breitzman appealed the child neglect and disorderly conduct convictions.
According to Wisconsin law, to be found guilty of disorderly conduct the defendant must have engaged in profane conduct that caused or provoked a disturbance. In her appeal, Breitzman argued that the evidence presented at trial was “insufficient to support a conviction of disorderly conduct.” While she did not deny the profane conduct, she contended that it was not enough to result in a “disturbance.”
In addition, according to the Post:
She argued her lawyer was ineffective for not challenging the charge as a violation of her free speech rights. The state argued her lawyer was not obligated to raise such a far-fetched theory.
But, as the Milwaukee Journal Sentinel reports, on Friday, December 1, the Wisconsin Supreme Court upheld the lower court’s ruling.
It agreed with the lower court’s finding that the jury could reasonably conclude that:
Breitzman’s language and tone towards J.K. “unreasonably offends the sense of decency or propriety of the community,” [thus causing a disturbance.]
In regards to the free speech claim, Justice Annette Ziegler explained that disorderly conduct “can include both protected and unprotected speech.” However, she said:
[W]hile this case touches on an interesting issue of free speech law, we reserve full analysis of what constitutes profane speech and whether profane speech is otherwise protected as free speech for another day.
In her concurrence, Justice Shirley Abrahamson agreed with Ziegler’s decision to not touch on the free speech issue, writing, in part: “Nothing in the majority opinion should be read as commenting on the merits of the underlying First Amendment defense.”