Page 1

■ Volume 27

Number 3

January 21, 2013 ■ $8.50

Expertly focused. Widely acclaimed. Celebrating 25 years of legal journalism

Fiscal cliff deal alters legal landscape

Hazelwood reverberates 25 years later, school journalism decision still making waves By Melissa Meinzer

Permanent exemption

$5 million

(adjusted annually for inflation)

Raise top tax rate


up from 35%

Spousal portability


After busiest December ever, estate planning attorneys expect permanent drop in business By Sylvia Hsieh

Dolan Media Newswires

and Melissa Meinzer

he new law that averted the “fiscal cliff” contains major changes for estate and gift tax rules that are expected to alter permanently the landscape of the estate planning practice area. St. Louis estate planning attorneys say the newly permanent exemption is high enough to remove the estate tax from most of their clients’ long-term planning altogether. The deal made permanent the lifetime tax-free exemption of $5 million (adjusted yearly for inflation) — which began in 2011 — and the portability of the spousal exemption. Many estate planning attorneys expected the amount to be reduced to as little as $1 million and not

Other practice areas affected, too Health care: The government gave itself a longer arm to reach back and recoup incorrect Medicare claims. See page 12 Real estate: Financial incentives are offered to lenders that comply with the federal short-sale guidelines. See page 12 made permanent. In the short term, the rules provide a welcome certainty for attorneys who, for the past several years, have faced a moving target in the estate tax realm. “It’s the first time since 2001 that we have a law without a sunset provision on it, that’s on its face permanent,” said Jason P. Thein, a partner at Thompson Coburn

with a focus on estate planning. “From a client’s perspective, not knowing is worse than even a bad result because you can’t plan for what you don’t know.” But in the long term, some see the newly permanent rules as a major shift in estate planning law. “For the vast majority of people, the high number takes them out of the estate tax,” Thein said. “When you add to that the portability of the exemption, that really rightly or wrongly relieves people of the obligation to do any planning.”

Decades after a high school principal yanked two pages of a St. Louis County student paper because of content he found inappropriate, the U.S. Supreme Court’s January 1988 ruling on the incident remains the definitive precedent on student press rights. The decision supporting the principal’s right to censor the paper, Hazelwood v. Kuhlmeier, remains a rallying cry for a present-day national student press organization. It has been cited in recent headline-grabbing cases from a rape-alleging cheerleader in Texas to a student suing a school for infringing on his right to hold up a banner about marijuana and Jesus. The Student Press Law Center has a pretty clear viewpoint on the legal precedent, selling awareness bracelets reading “Cure Hazelwood” on its website. “Ever since Hazelwood, we have reliably had in the neighborhood of 800 calls a year from around the country reporting censorship,” said attorney Frank LoMonte, executive director of the center, a legal referral nonprofit for student journalists, based in Arlington, Va. “More troubling than any specific incident of censorship is the overall mindset that students’ opinions are worthless, and if you speak out of turn you’re at risk of being punished.”

The Spectrum

After a year-end push to advise clients about uncertain estate and gift tax rules before they were set to expire, estate planning lawyers breathed a collective sigh of relief that the new law sets the amount of the combined estate and gift exemption at $5 million and does not contain a sunset provision.

In the early 1980s at Hazelwood East High School, it was common for the journalism adviser for the student newspaper, The Spectrum, to submit pages for prepublication review to the principal. But in 1983, the principal nixed two articles in one issue — one about the effects of divorce on students and one about teen pregnancy. The principal said later that he was concerned about the pregnant students’ privacy, although they were quoted anonymously, and that a student’s divorced parents were not given an opportunity to respond in that article. After the censorship, the editor and two reporters filed suit.

[ SE E C LI F F O N PAG E 12]

[ SE E HAZ E L W O O D O N PAG E 13]

New certainty

inside this week’s edition To subscribe call 800-451-9998 or e-mail

Dean drama The race for SLU law dean is down to A.J. Chivetta and Michael A. Wolff. n Page 3

Higher prices, fewer hours Husch Blackwell bills less with partner as trustee of Brooke Corp. n Page 5

Leaving the bench Judge Smart is retiring next month from Western District, three years shy of mandatory retirement. n Page 11

January 21, 2013


M i s s o u r i L aw y e r s We e k ly


Seven other states have anti-Hazelwood statutes [HAZELWOOD FROM PAGE 1]

Their suit, saying their First and Fourteenth Amendment rights had been trampled, was first introduced to U.S. District Court for the Eastern District of Missouri, which found that schools could censor students. The student journalists appealed, and the U.S. Court of Appeals for the 8th Circuit reversed that decision in 1986, finding the paper to be a public forum. Then the U.S. Supreme Court took up the case. It decided 5-3 that the principal was entitled to censor student speech. “A school need not tolerate student speech that is inconsistent with its basic educational mission, even though the government could not censor similar speech outside the school,” Justice Byron White wrote in the majority opinion. The decision overturned a 24-year-old precedent, and Justice William J. Brennan Jr. was unsparing in his dissent: “The young men and women of Hazelwood East expected a civics lesson, but not the one the Court teaches them today. … [S]uch unthinking contempt for individual rights is intolerable from any state official.”

‘Deference gone wild’

Hazelwood was cited in 2011 in the U.S. Court of Appeals for the Fifth Circuit’s opinion in Doe v. Silsbee Independent School District. In that case, a cheerleader refused to cheer for a basketball player who she accused of raping her — and who ultimately pleaded guilty to the charge. The school tossed her off the squad, and the court found that as a cheerleader she was a “mouthpiece” for the school and as such the school could control her speech. Citing Hazelwood, the court said it was “well settled that students’ First Amendment rights are curtailed while in school.” In the U.S. Supreme Court’s 2007 decision in Morse v. Frederick, which cites Hazelwood, a school principal suspended a student for holding up a banner that read “BONG HiTS 4 JESUS.” The student sued on First Amendment grounds, and the court found in the school’s favor. Chief Justice John Roberts, writing for the majority, said that though the facts of the two cases were different, Hazelwood was “instructive.” Sandra Davidson, a communications law instructor at the University of Missouri School of Journalism and an adjunct professor at the School of Law, said Hazelwood

Douglas Mertz, an attorney for former Juneau-Douglas High School student Joe Frederick, stands next to his client “Bong Hits 4 Jesus” banner in June 2007 in Juneau, Alaska. The banner got slapped down by the Supreme Court in a decision that used the Hazelwood student press case as part of its reasoning. AP file photo

was written with “a very broad brush.” The case comes up again and again in caselaw, and Davidson said she would like to see its

role clarified. She said it would certainly have protected school officials had anyone sued in

an incident in 2006 at Fulton High School, where the drama teacher found the play “Grease” too risqué for student consumption and edited it into a much gentler version of itself. (Local residents still complained it was too racy.) “The Supreme Court has given the school boards and principals power to avoid potentially sensitive issues,” Davidson said. She points out that in the language of the decision, the issue of the existence of Santa Claus is held up as a potentially sensitive issue. “It’s not just for newspapers and yearbooks, but any school-sponsored activity.” Davidson said the court’s decision explicitly avoids spelling out issues of censorship for colleges and universities, and that consistency would be most useful to her and her students. LoMonte said he sees “a definite sense of empathy for put-upon principals, that people want to give them the benefit of the doubt and want to defer to their authority.” But, he said, Hazelwood went too far and maintains a culture of fear among students and teachers. The Silsbee case, he said, relies completely on Hazelwood. “That case exemplifies the deference gone wild since Hazelwood,” he said. “To tell a 16-year-old rape victim that you’re a mouthpiece and that your case is frivolous — it’s bloodcurdling.” He said it’s crucial for students to be allowed to speak their minds, especially in the current economy and social climate, where many news outlets don’t have a full-time education reporter and reporters “can’t get past the front door [of a school] without a public relations person following you around and making sure you get no unfettered access.” Seven states, not including Missouri, have anti-Hazelwood statutes on the books. Those statutes, he said, take censorship back to the level established in 1969 in Tinker v. Des Moines Independent Community School District, which gave students a right to free speech up to the point where education was being disrupted. The seven states are: Arkansas, California, Colorado, Iowa, Kansas, Massachusetts and Oregon. In the states with laws that pre-empt Hazelwood, LoMonte said, the Student Press Law Center’s research has not found any case of a school losing a lawsuit because of anything published by students. “What those statutes do is not a wild, wild West situation. It’s a middle ground,” he said. “Students can handle legalized press freedom.” MO




Best Story About History: Hazelwood v. Kuhl  

Missouri Lawyers Weekly's Best Story About History submission.

Best Story About History: Hazelwood v. Kuhl  

Missouri Lawyers Weekly's Best Story About History submission.