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.