Ginger Breitzman (pictured), 44, conviction for disorderly conduct was upheld by the Wisconsin Supreme Court on Saturday
The Wisconsin Supreme Court has upheld a woman’s conviction for swearing at her son.
They failed, however, to address the issue of whether the speech was protected by the First Amendment, according to USA Today.
‘[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.
The decision was delivered after the court heard oral arguments in September, and took 50 pages to render its final verdict.
Ginger Breitzman was convicted of disorderly conduct following a 2012 incident where she screamed at her son while he was talking to a friend on the phone. Her son later called the police.
She was also convicted child abuse that intentionally caused harm and child neglect.
The Wisconsin Supreme Court, however, failed to address her argument that the swearing was protected by the First Amendment
Breitzman, 44, was sentenced to six-months in jail with release privileges.
While serving her sentence, she appealed the disorderly conduct conviction, arguing that her language wasn’t inciting violence or a true threat and therefore is protected speech.
She also claimed her attorney was ineffective for not arguing the charge violated the First Amendment.
The state argued that her lawyer isn’t obligated to put forth such a far-fetched theory.
Breitzman’s 14-year-old son called the police after he was berated by his mother for burning popcorn in the microwave
The Wisconsin Supreme Court in its final decision sided with the state, arguing that freedom of speech is still unsettled law and that her attorney acted rationally in not utilizing it for the defense.
‘Nothing in the majority opinion should be read as commenting on the merits of the underlying First Amendment defense,’ Justice Shirley Abrahamson wrote in an concurring opinion.
Abrahamson continued by stating 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.’
Previous cases have found that private conduct can be disorderly if there’s a spillover effect, said Assistant Attorney General Donald Latorraca.
Breitzman’s 14-year-old son confided in a friend and a school official about his mother’s behavior.