Bad Mom In The First Degree

A parent has a constitutional right to raise her child in the manner she see’s fit, which may well be a disturbing thing to those who are certain they know better, but that’s how the deal generally works. And parents also have the right to free speech. Neither of these did much to help Ginger Breitzman.

The Court of Appeals has upheld a West Allis woman’s disorderly conduct conviction for yelling some really nasty stuff at her 14-year-old after he burned some popcorn.

The District 1 court panel agreed that Ginger Breitzman’s conduct was “profane” and, under the circumstances, could have provoked or caused a disturbance, even in their own home.

After her son had burned some popcorn in 2012, she called her son a “retard,” a “(expletive) face,” and a “piece of (expletive).” She argued that wasn’t enough to provoke a disturbance.

Breitzman definitely has no future teaching good-parenting classes. But this wasn’t a matter of holding her out as an example of “stuff a mom should never say,” or even of questions as to the best interests of the child. This was a conviction for causing a disturbance within her own home.

But the son had his phone on, connected to a friend, who heard the tirade. The son later cried in talking to the same friend, and said he’d reached a breaking point in his relationship with his mother (the son did call police the next day).

“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 satisfying the elements,” of the statute.

Aside from the fact that this happened between mother and son within their home, the criminalization of words that “offends the sense of decency or propriety of the community” should raise some cackles. To call this flagrantly unconstitutional is too obvious to require much discussion. Community standards of decency, whatever that is supposed to mean, is hardly the measure of what someone is constitutionally allowed to say.

That Milwaukee has a low-level offense that’s facially unconstitutional, however, isn’t entirely surprising. Most states have facially unconstitutional low-level laws, which evade review because a violation isn’t sufficiently serious to push defendants to fight. Most people who are charged under such laws lack the ability to mount a constitutional challenge, and the consequences of conviction tend to make the effort of fighting far more of a burden than copping out and walking away.

However, Breitzman’s really bad mothering wasn’t limited to foul language, which may have played a significant part in the decision to prosecute her.

Breitzman, 42, was also convicted of child neglect, for locking her son out of the house on a winter day in 2012. He had come home from school and repeatedly knocked and tried calling his mother to let him in. He was underdressed and wound up taking shelter under a grill cover until his mother finally let him in around 8:30 p.m.

In contrast to her language, this is conduct that endangered her son. That’s a very different matter. While parental discipline was raised in defense, which is generally a matter left to the judgment of a parent, engaging in conduct that gives rise to an objectively unreasonable risk of harm pushes it from discipline to abuse.

Both charges were misdemeanors. Breitzman was also convicted of two counts of child abuse, counts she did not appeal. She was sentenced to three years probation and ordered to get counseling and treatment, and take parenting and anger management classes. She was also ordered not to have contact with her son unless he requested it, and the court approved.

In this case, Breitzman appealed, raising, inter alia, ineffective assistance of counsel for her trial lawyer’s failure to raise a free speech defense. The appellate court rejected the argument.

We agree with the postconviction court that Breitzman did not receive ineffective assistance of counsel. As to counsel’s failure to challenge the disorderly conduct charge on free speech grounds, the postconviction court discussed the basic tenets of free speech law and noted that the disorderly conduct statute “can include both protected and unprotected speech.” The court stated that if trial counsel had moved to dismiss the charge, the trial court would have denied the motion.

There’s some deep and thoughtful analysis for you, although when a statute criminalized “both protected and unprotected speech,” that’s precisely what makes a law unconstitutional for overbreadth. Since the court didn’t bother going any deeper into what the court below held, no less why, it’s impossible to know exactly how monumentally shoddy the ruling was.

It probably wouldn’t be the worst thing for Breitzman to take some parenting, not to mention anger management, courses. She’s got issues, apparently, and like a great many parents, isn’t particularly good at the job. Not everyone ought to be a parent.

The flip side is that all the “good” parents, from the neighbors who call the cops because kids are playing on the front lawn, or walking to school, without a helicopter flying over head to save them from imaginary snatchers, are empowered to scrutinize marginal parents, or just parents who make different choices for their children than they do.

And judges are every bit as empowered to substitute their parenting choices for those of actual parents under the “best interests of the child” mantra. Because being a judge certainly makes one parent of the year.

As crappy a parent as Bietzman may be, that doesn’t mean she forfeits her constitutional rights in a criminal proceeding. Perhaps child neglect was the way to go here, and perhaps she deserved it, at least for leaving her son outside in the cold in winter. But even parents are entitled to avoid prosecution for saying really awful things to their kids. And state court judges, trial and appellate, need to take a basic course in First Amendment law.

26 thoughts on “Bad Mom In The First Degree

  1. B. McLeod

    Not the best reasoning by the court, but the standard for “effective assistance” allows for a whole range of truly crappy representation.

    1. SHG Post author

      If I wasn’t such a pleasant fellow, I might point out that I didn’t include the Strickland point at all, but only the First Amendmend point, and that raising IAC as if that changes the unconstitutionality of the law itself is the sort of thing that usually requires a tin foil hat. But I am a pleasant fellow, so I won’t.

      1. B. McLeod

        I try not to hold forth about my tin foil hat (remarkable as it is). Primarily because I do not wish to incite envy in colleagues who, perhaps, have not been so fortunate as to obtain so fine a hat for their own use and benefit.

        1. Peta Johnson

          Excellent post. In another lifetime – it was long ago – I had the misfortune to practise law in a friendly foreign country in the first world in the divorce, custody and matrimonial property jurisdiction. The judge I appeared before was known as notoriously corrupt. He had reputedly murdered his first wife, who had intended to divorce him. He buried her with the help of second wife in sand dunes near a stretch of beach. He was also reputed to require his wife formally to announce him at dinner. He has sine retired.

          Accordingly, I completely agree that “best interests of the child” is a ridiculously malleable standard.

    2. REvers

      “Counsel was breathing, and appeared, at worst, only minimally hungover on most mornings. What’s more, counsel managed to stammer out a few questions to witnesses.”

      1. SHG Post author

        I’m begging you, Randy. BEGGING YOU. Just because someone writes something off topic but orthogonally related does not require you to dive down the rabbit hole with him. Please don’t. Please?

  2. Wrongway

    And here all this time I thought you were paying attention to whats being spouted on College campuses, in the European & Canadian courts, is that the words are violence in & of themselves because of the “Feelings” of the listener.
    Lord knows that it seems as if this kid has gone ‘thru it’ & I’m really glad he’s gotten away from her, as I’m sure this isn’t the 1st thing like this to happen to him ever. It’s just the 1st time it was made public.
    But these standards of ‘unreasonably offends the sense of decency or propriety of the community,’ & the disorderly conduct statute“can include both protected and unprotected speech.”, at least seem to assume that the “Community” can decide whats ok & not the Constitution.

    I wonder in any of these judges, or their clerks have ever watched midget porn ??
    Enquiring minds & all that shit..

  3. wilbur

    Ooowee. If you Google image Ginger Breitzman, she looks just as mean as she sounds.

    I will give her a point for “Fuck Face”. The alliteration and the visual it produces rates it a cut above the usual epithet.

    1. SHG Post author

      I didn’t go for the image, as I was afraid there would be unseemly pics. Don’t know why I went there, but it seemed prudent to keep my distance.

    2. Chris

      I have now done a Google image search for Ginger Breitzman, and my first response was to be amazed that somebody was able to put a baby in there.

      1. SHG Post author

        What does her looks have to do with her being a bad mother? If she was a beauty queen, she would still be an awful mother.

  4. Jake

    “While parental discipline was raised in defense, which is generally a matter left to the judgment of a parent, engaging in conduct that gives rise to an objectively unreasonable risk of harm pushes it from discipline to abuse.”


    “But even parents are entitled to avoid prosecution for saying really awful things to their kids.”

    Spoken like a man who doesn’t understand the deeply deleterious effects of being called a retard and a fuckface by your mother. Doesn’t the cost of a lifetime of paying women to step on your jewels and call you bad names qualify as damages?!?

    1. wilbur

      If the case was only about the names she called her son, I’d say this is why Juvenile Court exists. Get him out of there and see if she can get act together, if reunification is ultimately in his best interest. Emotional abuse can cut as deeply as a belt buckle. But without more, it doesn’t belong in criminal court.

  5. Manual Paleologos

    I remember, as a kid, listening to my next door neighbor yelling for her son at paradeground volume, “Get over here you little Sheeeit!” She was a really nice woman, though. I guess she’s lucky she wasn’t living in Milwaukee.

    1. SHG Post author

      Or the fact that what happened here has nothing to do with Breitzman yelling so loud that her neighbor heard her, had you bothered to read all the words, might have saved you from writing this comment, even though it was a fascinating story of your childhood.

  6. Pingback: Mom Convicted of Disorderly Conduct For Yelling at Her Kid…In Her Home | PoliticsNote

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