Does law trump ethics in Konopacki’s cartoon?

Award-winning Political cartoonist Mike Konopacki has worked freelance at several newspapers across the Midwest. However, his job and his reputation are now in question.  Konopacki was suspended from the Capital Times for six weeks and could potentially face a felony jail sentence after reproducing the letterhead of State Rep. Steve Nass and sending a phony press release to a Madison newspaper.

Konopacki created an exact replica of Rep. Nass’ letterhead and sent an extremely convincing press release to the Wisconsin Capitol Times.  The phony press release requested that the Smithsonian Institute remove posters drawn from the protests at the Capitol in Madison.

Obviously a skilled cartoonist, Konopacki’s fake release fooled Wisconsin Capitol Times editors for nearly an hour, until a member of Nass’ staff informed the Capitol Times they had put a fabrication on their website.

Rep. Nass was angered so badly by Konopacki’s doings, he called in Dane County District Attorney Ismael Ozanne.  Nass felt it necessary to attempt to bring a felony charge on Konopacki for “falsely assuming to be a public officer.”

However, there is a problem with Nass’ maximum-punishment theory: parody is protected by the First Amendment.

In 1988, Hustler Magazine ran a “Personal Parody” section, as advertised in its table of contents.  One of those parodies included mocking well-known Protestant minister Jerry Falwell.  Hustler displayed an image of Falwell, a fake interview, and a large image of a bottle of hard alcohol.  Between the fake interview and the bottle of hard alcohol, Hustler delivered the point to readers that his first sexual act was drunk, incestuous, and happened in an outhouse.  Falwell eventually sued Hustler for libel, and intentional infliction of emotional distress.  The jury favored Hustler Magazine and owner Larry Flynt on the libel charge. However, the jury ruled in favor of Falwell on the emotional distress charge and awarded him $150,000.

Flynt appealed the case and was granted a hearing by the United States Supreme Court.  The Supreme Court ruled that any reasonable person could understand parodies of public figures that could not reasonably be taken as true are protected against civil liability by the First Amendment.  The Supreme Court reversed the ruling by the Fourth Circuit court.

As it relates to Konopacki, he is fortunate that parody is protected by the First Amendment, but will have a severely damaged reputation.  He can celebrate not going to prison, but will likely find himself in the unemployment line.  After this “joke among close friends,” newspapers might be reluctant to hire an artist who was nearly charged with a felony.