Admonishing your 14-year-old son using "profane" speech may be a crime

|The Volokh Conspiracy |

Say your 14-year-old son does something bad, and you admonish him using profanity (not that I recommend that), in your own home. That appears to be a crime in Wisconsin, according to State v. Breitzman, decided yesterday by the Wisconsin Court of Appeals.

The case involved some quite minor provocation (the son burned some popcorn), and a response that seems like an overreaction—the defendant called her son a "retard," a "fuck face" and a "piece of shit." But the logic of the case applies more broadly than that, including to situations where the profane speech is less personally insulting and is a response to more serious misbehavior on the teenager's part, so long as a jury concludes that the profanity "unreasonably offends the sense of decency or propriety of the community." Nor does there seem to be a requirement that the speech be likely to cause a physical fight. I do expect that juries will usually take the nature of the child's provocation into account in deciding whether a particular bit of profanity "unreasonably offends the sense of decency or propriety of the community," but of course it's hard to reliably predict how a particular jury will react to a particular statement under such a vague test.

There were other incidents in the case that suggested Ginger Breitzman wouldn't win any Mother of the Year award. The most significant was that Breitzman was convicted of child neglect for having refused to let her son in the house for five hours on a very cold Wisconsin day. She said she had been sleeping and didn't hear her son's attempts to rouse her, but the jury apparently concluded that she was aware that the son was outside and nonetheless refused to let him in. But the disorderly conduct conviction was legally independent of that.

Advertisement