Dane County District Attorney Ismael Ozanne said Wednesday his office is considering whether to file a felony charge against a political cartoonist who reproduced the letterhead of state Rep. Steve Nass on a phony press release sent to a Madison newspaper.

Ozanne said Capitol Police have asked his office to determine whether Mike Konopacki of Madison should be charged with violating a state law that makes it a felony for someone who is not a public officer or public employee to act in an official capacity or to exercise any function of a public office.

The Class I felony is punishable by up to 3½ years in prison and a $10,000 fine.

Ozanne said his office has the discretion to file a different felony or misdemeanor charge, or to not prosecute.

Konopacki, 60, said Wednesday he believes his parody — which makes fun of Nass, a Republican from Whitewater, for his role in canceling an art exhibit related to last year's protests at the state Capitol — is protected political speech.

He said he sent the fake news release to the editorial page editor at The Capital Times, which posted an erroneous story on the paper's website and on Capital Newspapers' website, madison.com, on Feb. 25. It was removed a short while later after the paper learned the source document was a fabrication.

Konopacki, who specializes in labor issues, has drawn editorial cartoons for The Capital Times for many years on a freelance basis, the paper said in an online statement.

Paul Fanlund, editor of The Capital Times, declined to comment Wednesday other than to say the company was "dealing with the matter appropriately" as a personnel issue.

Konopacki said he received a six-week suspension from the paper.

According to the Capital Times statement, a staff member forwarded the fake news release to Associate Editor John Nichols, who then wrote a story based on the release that was online for about 40 minutes Feb. 25.

The news release and story stated that U.S. Rep. Paul Ryan and U.S. Sen. Ron Johnson were joining Nass in pressuring the Smithsonian's National Museum of American History to purge its archives of posters from last year's state Capitol protests.

Konopacki said he created the news release using Photoshop and intended it as a prank, and apologized for the confusion it created, according to the Capital Times statement.

The fake release was received three days after The Capital Times reported that the UW-Extension's School for Workers called off an "Art in Protest" event related to the Capitol protests and that two sources said Nass' office had threatened the school's funding.

Nass filed a formal complaint with Capitol Police on March 8 asking that Konopacki be charged, said spokesman Mike Mikalsen. He said Nass' office contacted Capitol Police the night of Feb. 25 with concerns over the misuse of the letterhead.

Mikalsen said that if such fabrications became the norm, it would make it difficult for lawmakers to communicate to the public and for media organizations to trust that the news releases they put out are genuine.

Under copyright law, Konopacki said, anything published by government, including Nass' letterhead, is part of the public domain.

Al Tompkins of The Poynter Institute, a journalism teaching center, said phony press releases "happen a lot, but most of the time fairly innocuously."

Such actions, he said, are likely to fall under free speech, fair comment or satire.

"I've never heard of somebody being charged criminally for such a thing," Tompkins said, adding that prosecutors would need to prove that the prank caused actual damage.

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