High court affirms mom's conviction for swearing at son, without deciding First Amendment issue

The Wisconsin Supreme Court on Friday upheld a mother's conviction for swearing at her son, but without reaching the issue of whether her speech was protected by the First Amendment.

The court seemed to take keen interest in the case during oral arguments in September and took 50 pages to render its decision.

A Milwaukee County jury convicted Ginger Breitzman, 44, of child abuse-intentionally causing harm, child neglect and disorderly conduct. The last count was for profanely berating and insulting her 14-year-old son after he burned some popcorn.

The boy had been talking to a friend at the time, who heard the tirade over the phone.

Breitzman, who was sentenced to six months in jail with release privileges, appealed the disorderly conduct conviction. 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.

In the end, the Supreme Court agreed with the state and decided Breitzman's attorney was not ineffective.

"Thus, while 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," Justice Annette Ziegler wrote for the majority.

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Breitzman challenged three acts or omissions of her trial attorney. The majority found the first — failing to raise a First Amendment-based challenge — was not ineffective because the issue is unsettled law.

Presenting Breitzman's conduct as reasonable parental discipline during opening statements was part of a rational trial strategy, as was the attorney's decision not to object to testimony about non-charged conduct by Breitzman, the majority found.

Justice Shirley Abrahamson wrote a short concurring opinion to make two points.

"Nothing in the majority opinion should be read as commenting on the merits of the underlying First Amendment defense," was the first.

The second was Abrahamson's belief that "the 'unsettled law' doctrine guiding the determination of ineffective assistance of counsel is not sufficiently protective of a defendant's constitutional and statutory rights to effective counsel."

She urged that courts and lawyers should develop a better standard for measuring adequate representation.