Dec. 7, 2017 – Ginger Breitzman was convicted on various counts of physical child abuse and neglect against her 14-year-old son. But she was also convicted of hurling profanities at him, disorderly conduct, which she considered protected free speech.
Among a list of alleged abusive and neglectful behavior that Breitzman engaged in over the course of months, including locking her son out of the house in winter, hitting him, and failing to aid his illness, she repeatedly called him “a piece of shit” and other names.
Those profanities formed the basis for the disorderly conduct charge. A jury convicted Breitzman on all charges, and she filed a postconviction motion, arguing there was insufficient evidence to support three charges and her trial counsel was ineffective for failing to move for dismissal of the disorderly conduct charge on free speech grounds.
Instead, Breitzman’s counsel asserted a “reasonable parental discipline defense,” which recognizes a parent’s right to inflict pain on their children, such as through spanking, as a matter of discipline. The jury was not persuaded by the parental discipline defense.
Postconviction, the circuit court was not persuaded that Breitzman’s counsel was ineffective for failing to put forward a free speech defense, because the court would have denied the motion as unpersuasive, the profanity having no social value.
An appeals court affirmed. And in State v. Breitzman, 2017 WI 100 (Dec. 1, 2017), the Wisconsin Supreme Court unanimously affirmed the appeals court but noted the limited scope of the decision, which addressed ineffective assistance of counsel, not free speech. But the court’s analysis does provide a peek into this free speech window.
“Breitzman only argues that her trial counsel rendered ineffective assistance,” wrote Justice Annette Ziegler. “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. …”
Unsettled Law
To win an ineffective assistance of counsel claim, the defendant must prove his or her lawyer’s performance was deficient and the deficient performance was prejudicial.
Failing to pursue dismissal of the disorderly conduct charge on the basis of free speech was not a deficiency, the court concluded, “because whether profane conduct that tends to cause or provoke a disturbance is protected as free speech is unsettled law.”
Breitzman argued that she engaged in profanity within her home, and this is protected speech, so her attorney should have moved to dismiss on free speech grounds. But the court noted that Breitzman’s free speech argument is not so cut and dried.
The court noted prior cases that challenged disorderly conduct charges on free speech grounds. “This body of case law does not promulgate a clear standard as to whether a charge under Wis. Stat. § 947.01, based on profane conduct that tends to cause or provoke a disturbance, violates the constitutional right to free speech,” Ziegler wrote.
“And, because Breitzman does not raise a facial or as-applied challenge to the disorderly conduct statute, we are confined to considering the narrower issue of whether the law was so well settled that counsel’s performance was legally deficient.”
The court acknowledged that “profanity alone is not enough to sustain a charge for disorderly conduct.” The profanity must also tend to cause or provoke a disturbance.
“Breitzman was not charged with disorderly conduct solely because she swore at her son in the privacy of her home; rather she was charged and convicted of disorderly conduct because her profane conduct was that which, under the circumstances presented, tended to cause or provoke a disturbance,” Justice Ziegler wrote.
Profanities were accompanied by physical abuse, the court explained. “[W]ere this case about profanity alone, and had Breitzman made a constitutional challenge … we might be confronted with the need to resolve a free speech argument,” Ziegler explained.
“But that is just not this case,” wrote Justice Ziegler, noting that a reasonable person could deem Breitzman’s profanity, under the circumstances, as disorderly conduct.
