1. A. A person who makes a campaign expenditure, a coordinated expenditure or an independent expenditure for an advertisement in an amount that exceeds one thousand dollars ($1,000), or in an amount that, when added to the aggregate amount of the campaign expenditures, coordinated expenditures and independent expenditures for advertisements made by the same person during the election cycle, exceeds one thousand dollars ($1,000), shall ensure that the advertisement contains the name of the candidate, committee or other person who authorized and paid for the advertisement.

2. B. The requirements of Subsection A of this section do not apply to the following:

   1. (1) bumper stickers, pins, buttons, pens and similar small items upon which the disclaimer cannot be conveniently printed; or
   2. (2) skywriting, water towers, wearing apparel or other means of displaying an advertisement of such a nature that the inclusion of a disclaimer would be impracticable.
3. C. The disclaimer statements required by Subsection A of this section shall be set forth legibly on any advertisement that is disseminated or displayed by visual media. If the advertisement is transmitted by audio media, the statement shall be clearly spoken during the advertisement. If the advertisement is transmitted by audiovisual media, the statement shall be both written legibly and spoken clearly during the advertisement.

4. D. If a person creates, produces or purchases an advertisement that contains materially deceptive media, the advertisement shall include a disclaimer. The disclaimer shall appear in a clear and conspicuous manner in every language used in the advertisement and shall indicate: "This ____ has been manipulated or generated by artificial intelligence". The blank line in the disclaimer shall be filled with each of the following terms that describes the media:

   1. (1) image;
   2. (2) video; or
   3. (3) audio.

5. E. The disclaimer required in Subsection D of this section shall be included as follows:

   1. (1) for visual media that is an image, the text of the disclaimer shall appear in a size that is easily readable;
   2. (2) for visual media that is video, the disclaimer shall appear for the duration of the video in a size that is easily readable;
   3. (3) for media that contains audio only, the disclaimer shall be read in a clearly spoken manner and in a pitch that can be easily heard at the beginning of the audio, at the end of the audio and, if the audio is greater than two minutes in length, interspersed within the audio at intervals of not greater than two minutes each; and
   4. (4) for mixed media, there shall be a disclaimer in the same form as provided in this section for each form of media used.
6. F. Each occurrence of a person creating, producing or purchasing an advertisement subject to the disclaimer requirements as provided in Subsection D of this section that fails to meet the disclaimer requirements constitutes a separate violation. A person found to have violated the requirements provided in Subsection D of this section shall be subject to civil penalties as provided in Section 1-19-34.6 NMSA 1978.

7. G. It is not a violation of this section for:

   1. (1) a radio or television broadcasting station, including a cable television, satellite television or streaming service operator, programmer or producer, that broadcasts an advertisement as part of a bona fide newscast, news interview, news documentary or on-the-spot coverage of a bona fide news event if the broadcast clearly acknowledges through content or a disclaimer, in a manner that can be easily read or heard, that the advertisement was generated in whole or in part by using artificial intelligence and does not accurately represent the speech or conduct of the depicted individual;
   2. (2) a radio or television broadcasting station, including a cable television, satellite television or streaming service operator, programmer or producer, that broadcasts an advertisement when the station or streaming service is paid to broadcast the advertisement if the station or streaming service can show that it has disclaimer requirements that are consistent with the requirements provided in Subsection D of this section and that it provided those disclaimer requirements to each person or entity that purchased the broadcast or streaming of the advertisement;
   3. (3) an advertisement that reasonably constitutes satire or parody if the advertisement includes a disclaimer consistent with the requirements provided in Subsection D of this section; and
   4. (4) a distribution platform that published, posted or distributed an advertisement or a prerecorded phone message if the distribution platform can show that it has disclaimer requirements that are consistent with the requirements provided in Subsection D of this section and that it provided those disclaimer requirements to the person or entity that purchased the distribution of the advertisement or prerecorded phone message by or on the distribution platform.
8. H. Nothing in this section shall be construed to preclude a claim pursuant to any other section of law or any civil action for damages.

History: Laws 2019, ch. 262, § 2; 2024, ch. 57, § 2.

ANNOTATIONS

The 2024 amendment, effective May 15, 2024, added a disclaimer requirement for materially deceptive media, provided that a person found to have violated the disclaimer requirement is subject to civil penalties, and provided certain exceptions; in the section heading, added "artificial intelligence; materially deceptive media; violation; penalty"; and added Subsections D through H.

Campaign Reporting Act's definition of "artificial intelligence" is not unconstitutionally vague. — The definition of "artificial intelligence," as provided in 1-19-26(C) NMSA 1978 as a "machine-based or computer-based system that through hardware or software uses input data to emulate the structure and characteristics of input data in order to generate synthetic content, including images, video or audio" can reasonably be understood on its face by a person of ordinary intelligence as applying to generative AI applications capable of producing realistic deepfakes, and therefore the definition does not appear to be facially overbroad or unconstitutionally vague. 2025 Op. Att'y Gen. No. 25-09.

Statutes that create disclaimer language for political speech are subject to exacting scrutiny. — Statutes that create disclaimer requirements for political speech are subject to a lower standard of exacting scrutiny, rather than strict scrutiny, because such laws impose no ceiling on campaign-related activities and do not prevent anyone from speaking. Exacting scrutiny requires that the disclaimer requirement bear a substantial relationship to a sufficiently important governmental interest, and it requires that the disclaimer requirement be narrowly tailored to the government's asserted interest. 2025 Op. Att'y Gen. No. 25-09.

Constitutionality of disclaimer requirement. — The disclaimer requirement in 1-19-26.4(D) NMSA 1978 prevents viewers or listeners from being misled into believing that an advertisement depicts conduct or speech genuinely engaged in by the depicted individual. The disclaimer serves the sufficiently important governmental interest in protecting the voting public from misinformation or disinformation about an election, does not create an undue burden on an advertiser, and is narrowly tailored to the government interests it serves. The statute is therefore not impermissibly overbroad on its face. 2025 Op. Att'y Gen. No. 25-09.

The legislature's decision to exclude consensual depictions from the reach of the Campaign Reporting Act does not violate the first amendment. — The legislature intended to prevent a person's likeness from being used for a portrayal that the person had not approved; the legislature viewed a lack of consent as an integral component of the deception and falsity of the media. The disclaimer requirement in 1-19-26.4(D) NMSA 1978 merely alerts a viewer or listener that the depiction of the individual is not genuine, a disclaimer that would have less impact for consensual renderings. The disclaimer requirement is therefore substantially related to an important governmental interest and is narrowly tailored to the interest, and therefore the legislature's decision to exclude consensual depictions from the reach of the Campaign Reporting Act does not violate the first amendment. 2025 Op. Att'y Gen. No. 25-09.

Disclaimer requirement for advertisement reasonably constituting satire or parody is likely unconstitutional on its face. — The legislature expressly provided that an advertisement that reasonably constitutes satire or parody does not violate this section "if the advertisement includes a disclaimer consistent with the requirements provided in Subsection D of this section." Section 1-19-26.4 NMSA 1978 is designed to protect against misleading advertisements. By its nature, however, an advertisement that reasonably constitutes satire or parody is not likely to mislead a reasonable viewer or listener. The disclaimer is thus not substantially related to the governmental interests it is designed to protect and is not narrowly tailored for this purpose. 2025 Op. Att'y Gen. No. 25-09.

A political committee may make a coordinated expenditure on an advertisement that advocates both the election of clearly identified candidates and the passage of a clearly identified ballot question. — The Campaign Reporting Act, generally, does not purport to regulate the contents of a political committee's advertisements, and therefore, where a political committee intends to make a coordinated expenditure on an advertisement that advocates both the election of clearly identified candidates and the passage of a clearly identified ballot question, there is no violation of the Campaign Reporting Act. Whether an advertisement refers to a ballot question is immaterial to its classification as a coordinated or independent expenditure. For the coordinated expenditure, however, the political committee would be subject to contribution limits and disclosure requirements. 2022 Op. Ethics Comm'n No. 2022-08.